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May Page III

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


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Aggravated Harassment Statute Unconstitutionally  Vague and Overbroad/Criminal Impersonation Statute Encompasses Injury to Reputation


In a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, the Court of Appeals found the aggravated harassment statute unconstitutionally vague and overbroad, and determined the "injury" contemplated by the criminal impersonation (second degree) statute encompassed injury to reputation.  The defendant's father is a "Dead Sea Scrolls" scholar.  The defendant engaged in an email campaign in which he created emails which purported to be from other "Dead Sea Scrolls" scholars and which had the effect of promoting his father's positions.  The defendant was convicted of criminal impersonation, aggravated harassment, identity theft, forgery and unauthorized use of a computer.  Ultimately the Court of Appeals affirmed convictions for nine counts of criminal impersonation and the forgery counts.  With respect to harassment and criminal impersonation, the court wrote:


A person is guilty [of criminal impersonation in the second degree] when he or she "impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another" (Penal Law § 190.25).  * * *


...[W]e conclude that injury to reputation is within the "injury" contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property,[FN2] and we believe the Legislature intended that the scope of the statute be broad enough [*7]to capture acts intended to cause injury to reputation.


Accordingly, a person may be found guilty of criminal impersonation in the second degree if he or she impersonates another with the intent to cause a tangible, pecuniary injury to another, or the intent to interfere with governmental operations ... . In addition, a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime. 


Penal Law § 240.30(1)(a) provides that "[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm." We agree with defendant that this statute is unconstitutionally vague and overbroad ... .


In People v Dietze (75 NY2d 47 [1989]), this Court struck down a similar harassment statute, former Penal Law § 240.25, which prohibited the use of abusive or obscene language with the intent to harass, annoy or alarm another person. We determined that the statute [*8]was unconstitutional under both the State and Federal Constitutions, noting that "any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence" (id. at 52).


The reasoning applied in Dietze applies equally to our analysis of Penal Law § 240.30(1)(a). The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, "no fair reading" of this statute's "unqualified terms supports or even suggests the constitutionally necessary limitations on its scope" ... . People v Golb, 2014 NY Slip Op 03426, Ct App 5-13-14





Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground


The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the "legal sufficiency" issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):


As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected ... . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.


It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, Ct App 5-13-14





Courts Charged with Supervising Defendants Found Not Responsible by Reason of Mental Disease or Defect Have the Power To Impose a Condition Allowing the Office of Mental Health to Seek Judicial Approval for a Mandatory Psychiatric Evaluation When the Defendant Does Not Comply with Release Conditions and Refuses to Be Examined Voluntarily


The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a court charged with supervising a defendant who has been found not responsible by reason of mental disease or defect can include in "an order of conditions a provision allowing the [NYS] Office of Mental Health (OMH) to seek judicial approval of a mandatory psychiatric evaluation in a secure facility when a defendant found not responsible by reason of mental disease or defect fails to comply with the conditions of his release and refuses to undergo voluntary examination."  The appellate division had held that Criminal Procedure Law section 330.20 prohibited the inclusion of such a requirement in an order of conditions:


Section 330.20 mandates an order of conditions whenever a track-one defendant moves from secure to nonsecure confinement, or is no longer institutionalized (Criminal Procedure Law § 330.20 [11], [12]), and allows the court to fashion these orders in whatever way, in its judgment, most effectively protects the public while serving the defendant's interest in remaining in the least restrictive environment possible. "[T]he order of conditions is the vehicle by which the . . . court effectuates its continuing supervisory authority over" a defendant found not responsible for a crime by reason of mental disease or defect ... . And while the Commissioner and the district attorney may appeal from an order of conditions, the defendant may not (see Criminal Procedure Law § 330.20 [21]). This insulates the supervising court from a defendant's attempt to argue that a condition, thought by the judge to be a necessary prophylactic measure, excessively restricts his freedom.


Accordingly, section 330.20 authorizes orders that, along with a prescribed treatment plan, include "any other condition which the court determines to be reasonably necessary or appropriate" (Criminal Procedure Law § 330.20 [1] [o] [emphases added]). * * *


The effective-evaluation provision enables OMH to evaluate a track-one defendant who does not comply with court-ordered conditions and refuses to be examined voluntarily. Track-one defendants are released into the community with the express understanding that they may endanger the public and themselves if their mental health declines. Indeed, reported cases illustrate the perils posed when such defendants do not follow the regime designed by mental-health professionals and imposed by courts to safeguard their stability and functioning in the community ... . The dangers of noncompliance are exacerbated when a track-one defendant also refuses to submit to a psychiatric evaluation thereby denying vital information to the Commissioner, whom section 330.20 (12) makes responsible for ensuring compliance with orders of conditions issued with release orders. Matter of Allen B v Sprout, 2014 NY Slip Op 03427, Ct App 5-13-14





Complaint Pursuant to the "Whistleblower" Statute Need Not Identify the Particular Statute or Regulation Alleged to Have Been Violated by the Employer


The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a complaint brought under the "whistleblower"  provision of the Labor Law (section 740) need not identify the particular statute or regulation alleged to have been violated by the employer:


Labor Law § 740 (2), commonly referred to as the "whistleblower statute," provides, in relevant part, that "[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation" that either "creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud" (Labor Law § 740 [2] [a]). The narrow issue on this appeal is whether a complaint asserting a claim under that provision must identify the specific "law, rule or regulation" allegedly violated by the employer. We conclude that there is no such requirement. * * *


To be sure, in order to recover under a Labor Law § 740 theory, the plaintiff has the burden of proving that an actual violation occurred, as opposed to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred ... . And, the violation must be of the kind that "creates a substantial and specific danger to the public health or safety" ... . However, for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct. Webb-Weber v Community Action for Human Servs Inc, 2014 NY Slip Op 03428, Ct App 5-13-14





School District Owed No Duty of Care to Student Struck by Car Before School Bus Stopped to Pick Her Up/Bus Driver Had Missed Student's Stop, Had Turned Around, and Was Driving Back Toward the Student When She Was Struck


The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a school district did not owe any duty to a student who was struck by a car before the bus stopped to pick her up.  The bus driver mistakenly drove past the stop where the student was waiting.  The driver turned the bus around.  As the driver was heading back toward the student's stop, the student was struck by a car. The Court of Appeals essentially agreed with the dissenting appellate division justices, whose position was described as follows:


The dissenting Justices would have reversed Supreme Court's order and granted the District's motion in its entirety. ...[T]hey observed the "well settled" rule that the District's duty flowed from physical custody and control; that at the time of the accident the District did not have physical custody of the child, who thus remained outside its orbit of authority; and that the District therefore "owed no duty to the child in this situation, and, absent duty, there can be no liability" ... . 


The dissenting Justices rejected plaintiff's contention, endorsed by the majority, that the District "assumed a duty to the child as a consequence of the potentially hazardous situation allegedly created by the school bus driver in turning the bus around after missing the bus stop" ... . Williams v Weatherstone, 2014 NY Slip Op 03425, Ct App 5-13-14








Civil Contempt Finding Appropriate---Defendant Failed to Comply With Order to Pay Attorney's Fees


The Second Department explained the criteria for civil contempt.  The order which was not complied with here required defendant to pay attorney's fees in a divorce proceeding:


To prevail on a motion to punish for civil contempt, the movant must establish (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct" ... . The movant has the burden of proving contempt by clear and convincing evidence ... . Here, where it is undisputed that the defendant did not comply with the clear mandate of the court's order ..., the plaintiff met his burden on the motion ... . Moreover, under the circumstances of this case, less drastic enforcement measures than seeking to hold the defendant in contempt would have been ineffectual ... . Hayes v Barroga-Hayes, 2014 NY Slip Op 03488, 2nd Dept 5-14-14




Plaintiffs' Failure to Attend Depositions Warranted Dismissal of Complaint


The Second Department determined the motion to dismiss plaintiffs' complaint because of plaintiffs failure to attend depositions should have been granted:


A court may, inter alia, issue an order "prohibiting the disobedient party . . . from producing in evidence . . . items of testimony" or "striking out pleadings" as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126[2], [3]). Before a court invokes the drastic remedy of striking a pleading or the alternative remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious ... . While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court ... , the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse ... .


Here, in opposition to the appellants' motion to dismiss the complaint, the plaintiffs' counsel asserted that the infant plaintiff resides in Georgia and was unable to travel to New York on his own. The plaintiffs' counsel did not proffer any excuse as to why the remaining plaintiffs could not appear for court-ordered depositions. The willful and contumacious character of the plaintiffs' conduct can be inferred from their failures to comply with several court orders over a period of one year and five months directing them to appear for depositions, and the lack of a reasonable excuse for those failures ... . That the infant plaintiff and his parents had made themselves unavailable does not preclude the dismissal of the complaint ... . Harris v City of New York, 2014 NY Slip Op 03486, 2nd Dept 5-14-14




Proper Procedure Where Ostensibly Relevant Documents Are Not Provided in Discovery Explained


The Second Department explained the proper procedure when ostensibly relevant documents requested in discovery are withheld. The remedy for failure to follow the correct procedure here was the creation of a privilege log and in camera review of the log:


Pursuant to CPLR 3122(b), "[w]henever a person is required . . . to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required . . . to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document" (CPLR 3122).


Here, the defendant did not comply with the requirements of CPLR 3122(b), as it failed to identify the type of document being withheld, the general subject matter of each document, and the date of the document ... . Under the circumstances of this case, the appropriate remedy for the defendant's failure to produce an adequate privilege log is to allow the defendant to produce an adequate privilege log and, thereafter, for the Court of Claims to review in camera the allegedly privileged documents, along with the privilege log ... . Stephen v State of New York, 2014 NY Slip Op 03505, 2nd Dept 5-14-14




Forum Selection Clause in Nursing Home Admission Agreement Should Have Been Enforced


The Second Department determined Supreme Court should not have granted plaintiff's request for a change of forum, the forum selection clause in the agreement between plaintiff's decedent and defendant nursing home (Concourse) controlled:


The plaintiff's claim that the forum selection clause should not be upheld because this is a tort action and not a breach of contract action is without merit. The applicability of a forum selection clause does not depend on the nature of the underlying action. This Court has upheld nonnegotiated forum selection clauses contained in various contracts even where the underlying action was a personal injury action or medical malpractice action ... . Rather, it is the language of the forum selection clause itself that determines which claims fall within its scope ... . Here, the contract provision reciting that "[a]ny and all actions arising out of or related to th[e] Agreement" includes the causes of action in this action ..., which are predicated on the care rendered by Concourse to the decedent pursuant to the terms of the Admission Agreement.


Furthermore, the plaintiff failed to show that the forum selection clause was unreasonable or unjust, or that a trial in Westchester County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court. Also, the plaintiff did not allege, or demonstrate, that the forum selection clause was the result of fraud or overreaching. Under these circumstances, the plaintiff failed to make any showing that the forum selection clause should be set aside ... . Couvertier v Concourse Rehabilitation & Nursing Inc, 2014 NY Slip Op 03473, 2nd Dept 5-14-14




Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous


The Second Department determined the trial testimony rendered some of the rape and incest counts duplicitous.  The defendant's daughter testified she was raped once a week for three weeks every month.  The court determined that where the jury found the defendant guilty of all three crimes charged within a particular month, the counts were not duplicitous because the jury would have had to vote unanimously on all three crimes.  However, where the defendant was convicted of only one or two of the crimes charged for a particular month, it was impossible to know whether the jury voted unanimously on the same alleged crimes.  In addition the court noted that some of the counts charging rape and incest were based on the same conduct, rendering the indictment multiplicitous as well:


"Each count of an indictment may charge one offense only" (CPL 200.30[1]). A count that, in violation of the statute, charges more than one offense, "is void for duplicity" ... . "The proscription against duplicitous counts . . . seeks [inter alia] to prevent the possibility that individual jurors might vote to convict a defendant of that count on the basis of different offenses,' in effect, permitting a conviction even though a unanimous verdict was not reached"... . "Where a crime is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous" ... . "Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict" ... .


The younger daughter testified that the defendant had sexual intercourse with her once, on Tuesday or Wednesday, every week for the first three weeks of each month during the period at issue, while skipping the fourth week, because she was menstruating. The verdict sheet presented to the jury contained three counts for each month at issue. The first count for each month described the alleged crime as occurring on or about the first of the subject month to on or about the last day of the month. The second count for each month provided the same description as the first count for each month, but also stated that the alleged crime was "separate and distinct from the act mentioned and described" in the first count for that month. The third count provided the same description as the first count for each month, but also stated that the alleged crime was "separate and distinct from the acts mentioned and described" in the first and second counts for that month.


Contrary to the defendant's contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter's testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging rape or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked "the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment"... . People v Jean, 2014 NY Slip Op 03534, 2nd Dept 5-14-14




People Did Not Meet Their Burden of Demonstrating the Legality of the Police Action---Seized Handgun, Identification and Statement Properly Suppressed


The Second Department determined the People did not meet their burden of demonstrating the legality of the police action at the suppression hearing.  The handgun recovered from the defendant's backpack was properly suppressed:


Where a defendant moves to suppress evidence, the People bear the initial burden of establishing the legality of the police conduct in the first instance, while the defendant bears the ultimate burden of proving, by a preponderance of the evidence, that the challenged evidence should not be used against him or her ... . Based on the record before it, the Supreme Court properly suppressed the handgun seized from the backpack in the defendant's possession, since the People failed to meet their burden of demonstrating the legality of the police conduct. Although the police officers properly initiated a common-law inquiry to obtain explanatory information from a group of six men, which included the defendant, based upon information from an anonymous informant ..., reasonable suspicion justifying an intrusive search of the backpack in the defendant's possession never arose ... . Accordingly, the police search of the backpack was improper, requiring suppression of the handgun recovered from the backpack. Additionally, suppression of identification evidence and a statement made by the defendant to law enforcement officials was also required, as such evidence was fruit of the poisonous tree ... . People v Nichols, 2014 NY Slip Op 03541, 2nd Dept 5-14-14




Judge Properly Refused to Accept Defendant's Plea to a Lesser Offense Because the Prosecutor Objected to the Plea Allocution as Insufficient


The Second Department determined the judge properly refused to accept defendant's plea to a lesser offense when the prosecutor objected to the plea colloquy as insufficient:


"Since, in effect, permission to enter a lesser plea is a matter of grace, reasonable conditions may be attached thereto. What is reasonable is generally a question of fact attendant upon the circumstances" ... . "A District Attorney may dictate the terms under which he [or she] will agree to consent to accept a guilty plea and where his terms are not met, he [or she] may withhold such consent; the withholding of such consent by statutory mandate renders the court without authority to accept a plea to anything less than the entire indictment" ... . Here, in view of the prosecutor's objections to the plea allocution, the court did not err in refusing to accept the plea ... . People v Swails, 2014 NY Slip Op 03545, 2nd Dept 5-14-14



Codefendant's Statement Was Admissible---the Fact that the Statement Implicated the Defendant in the Light of Other Trial Evidence Did Not Violate Defendant's Right of Confrontation


The Third Department determined a co-defendant's statement, which had been redacted to exclude references to the defendant, was admissible.  The defendant's argument that the statement implicated him in the light of the trial evidence was rejected:


A defendant's right to confront witnesses is violated by the admission of "the facially incriminating confession of a nontestifying codefendant" ...; however, no such violation occurs where, as here, the codefendant's statement incriminates the defendant only in light of other evidence produced at trial ... . Nor did the use of plural pronouns such as "we" and "they" in the statement necessarily indicate any involvement by defendant ... . Accordingly, the statement was admissible, and defendant's rights under the Confrontation Clause were not violated by the People's arguments that drew inferences about his participation by linking the statement with other trial evidence ... . People v Maschio, 2014 NY Slip Op 03551, 3rd Dept 5-15-14




Violation of Right to Counsel Deemed Harmless Error


The Second Department noted that a violation of a defendant's right to counsel is subject to a harmless error analysis.  Here the police were contacted by an attorney who told the police he was representing the defendant and not to question him if and when he is apprehended.  The court determined defendant's right to counsel was violated when the police questioned him, but found the error harmless:


The right to counsel attaches, inter alia, when an attorney who is retained to represent a suspect enters the matter under investigation ... . When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody ... . "An attorney enters' a case by actually appearing or directly communicating with the police by telephone" ... . The issue of whether an [*2]attorney has entered a case is not dependent upon whether that attorney has been personally retained by the defendant, or has instead been retained by a member of the defendant's family ... . * * *


A violation of the indelible right to counsel does not automatically constitute reversible error. Instead it is reviewed under the harmless error doctrine for constitutional violations ... . Constitutional errors are "considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury's verdict" ... . If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt ... . People v Ellis, 2014 NY Slip Op 03530, 2nd Dept 5-14-14




Defendant Was Convicted of Bribing Three Witnesses to Recant their Statements Identifying Defendant's Brother as  the Shooter in a Killing;


Evidence of the Murder of Another Witness Who Identified Defendant's Brother as the Shooter, Evidence which Was Not Linked by Trial Evidence to the Defendant But which Was Likely to Raise Suspicion About the Defendant's Involvement, Was Allowed in Defendant's Bribery Trial to Explain the Subsequent Actions of the Three Witnesses Defendant Was Accused of Bribing


The Second Department, over a substantial dissent, determined defendant was not deprived of a fair trial by the introduction of evidence of a murder which was not tied to the defendant, but which may have raised serious questions about the defendant's involvement in the minds of the jurors.  The defendant was accused of bribing three witnesses who had identified defendant's brother as the shooter in a killing which  took place in a park. That shooting was witnessed by three teen-aged girls and a man named Gibson. The defendant met with all three girls and paid them money.  They all recanted their statements about defendant's brother's involvement in the park shooting. On the day before defendant's brother's trial, Gibson was shot and killed.  A man confessed to that shooting and the defendant was never linked to the Gibson killing. Evidence of the Gibson killing was allowed in evidence to demonstrate the state of mind of the three teen-aged girls who, after learning of Gibson's killing, recanted their recantations and stood by their original statements identifying the defendant's brother as the park shooter.  The court determined the evidence of the Gibson killing was not Molineux evidence because the jury was never told of any link between the Gibson killing and the defendant.  Therefore, the court reasoned, the Gibson killing was not a prior uncharged crime or bad act done by the defendant.  The court, however, seemed to use the analysis required under Molineux and found that the evidence of the Gibson killing was admissible to explain the girls' actions and to explain why they and their families were relocated after the Gibson killing:


Evidence of uncharged crimes is generally excluded under the Molineux rule (People v Molineux, 168 NY 264) for policy reasons, because such evidence may induce the jury to base a finding of guilt on collateral matters, or to convict a defendant because of his or her past criminal history ... . Nevertheless, evidence of prior uncharged crimes may be received if it is relevant to some issue other than the defendant's criminal disposition ... . The purposes for which uncharged crime evidence may properly be admitted include completing the narrative of the events charged in the indictment and providing necessary background information ... . "Where there is a proper nonpropensity purpose, the decision whether to admit evidence of the defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice" ... .


However, "[t]he Molineux rule was created to address a particular prejudice inherent to a particular type of proof: evidence of a defendant's prior crimes and bad acts" ... . That type of prejudice is not present in this case, because evidence that Gibson was murdered two days before he was scheduled to testify against Sykes did not constitute proof that the defendant committed an uncharged crime or bad act. * * *


Even if the evidence of Gibson's death could arguably be viewed as suggesting that the defendant committed an uncharged crime, it was properly admitted to explain why the girls, having recanted their original statements identifying [defendant's brother] as [the park] killer, admitted to the police that they had made false recantations, and adhered to their original statements. Indeed, two of the girls testified that Gibson's murder, two days before the presentation of evidence in the [defendant's brother's] trial was to begin, frightened them. The impact of Gibson's murder on the state of mind of these witnesses was interwoven with the narrative of the charged crimes, and necessary to help the jury understand the case in context, because it explained the girls' conduct in coming forward to disavow the recorded statements ... .   People v Harris, 2014 NY Slip Op 03532, 2nd Dept 5-14-14




Release Time Certificates, Allowing Full Pay for Police Officers Doing Union Work, Properly Rescinded Based Upon the Indictment of the Officers


The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissent, determined that police officers who were indicted in connection with a ticket-fixing scheme were properly denied Release Time certificates based upon the indictments.  Release Time certificates are issued by the Office of Labor Relations (OLR) pursuant to the Mayor's Executive Order 75 (EO 75) and allow full-time leave with pay and benefits for union work:


The right of union-designated employees to be released from their job duties to perform union or joint labor-management activities is established in EO 75, which generally vests the City with broad oversight of employee representatives. Section 4(4) of EO 75 provides:


"Organizing, planning, directing, or participating in any way in strikes, work stoppages, or job actions of any kind, are excluded from the protection or coverage of this Order. Any employees assigned on a full or part-time basis or granted leave of absence without pay pursuant to this Order who participate in such excluded activity may have such status suspended or terminated by the City Director of Labor Relations."


Section 4(10) provides: "Employees assigned on a full-time or part-time basis or granted leave without pay pursuant to this Order shall at all times conduct themselves in a responsible manner." Section 5 provides that "[n]othing contained in this Order shall be deemed to have the effect of changing the character of any subject matter hereof which is a managerial prerogative and as a non-mandatory subject of collective bargaining." 


Enforcement of EO 75 is committed to the OLR Commissioner, who may issue implementing rules and regulations. The indictments of the individual petitioners on charges related to a ticket-fixing scheme that include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation constitute a sufficient basis for the City to determine that the individual petitioners did not "at all times conduct themselves in a responsible manner" ... . Accordingly, OLR was entitled to unilaterally rescind the Release Time certificates. Matter of Patrolmen's Benevolent Assn of the City of New York Inc v City of New York, 2014 NY Slip Op 03464, 1st Dept 5-13-14




Church's Decision to Terminate Minister Constitutionally Protected Under "Ministerial Exception"


The First Department determined a minister who brought a wrongful termination action was, according to the terms of the personnel manual, an at will employee.  In addition the claim was barred by the ministerial exception under which a church's decisions concerning the employment of a minister are constitutionally protected:


...[T]he ministerial exception also bars plaintiff's claim, which primarily involves intra-church matters. "Under the ministerial exception' ..., a church's decision to hire, to fire, and to prescribe the duties of its minister are commonly held to be constitutionally protected" ... . Mills v Standing Gen Commn on Christian Unity & Interreligious Concerns, 2014 NY Slip Op 03437, 1st Dept 5-13-14




Purchaser of a Hazardous Waste Treatment, Storage or Disposal Facility Was Not Required to Provide Financial Assurance for the Ongoing Performance of Corrective Action Imposed Upon the Prior Owner


The Third Department, reversing the Department of Environmental Conservation Commissioners ruling below on an issue of first impression, determined the subsequent owner of property formerly used as a permitted hazardous waste treatment, storage or disposal (TSD) facility was not required to provide financial assurance for the ongoing performance of corrective action imposed upon the prior owner.  The decision includes an exhaustive analysis of all the relevant statutes and regulations:


In essence, respondents seek to impose strict liability to provide financial assurance, in perpetuity, on all subsequent owners of property on which a former TSD facility was operated. Had this been the Legislature's intent, rather than relegate us to a strained analysis of multiple regulations in order to reach that conclusion, it would have done so expressly. Indeed, the Legislature did exactly that in the context of New York's "Superfund Law," which requires the owner of an inactive hazardous waste disposal site, and/or any person responsible for the disposal of hazardous wastes at such site, to take remedial action ... . Other examples of New York statutes imposing "strict liability" on property owners are the Oil Spill Act (see Navigation Law § 181 [1]) and the Scaffold Law (see Labor Law § 240 [1]). Thus, there can be no doubt that, if the Legislature had intended to impose liability on landowners for providing financial assurance under New York's version of RCRA —[Resource Conservation and Recovery Act] without regard to whether they had ever operated a TSD facility on the property in question — clear language to that effect could easily have found its place in the statute and regulations. While such a result would not be inconsistent with the laudatory environmental purposes of this regulatory scheme, absent such language, we discern no legal basis for the Commissioner to create such a requirement. To the extent that the Commissioner interpreted the regulations otherwise, such interpretation was arbitrary and capricious and affected by an error of law and we, therefore, annul his determination, as well as the penalties imposed on petitioners.  Matter of Thompson Corners LLC v New York State Dept of Envtl Conservation, 2014 NY Slip Op 03556, 3rd Dept 5-15-14



Court Should Have Granted an Adjournment in Contemplation of Dismissal In a Juvenile Delinquency Proceeding


The First Department, over a dissent, determined that an adjournment in contemplation of dismissal (ACD) was the least restrictive dispositional alternative in a juvenile delinquency proceeding:


An adjournment in contemplation of dismissal would have been the least restrictive dispositional alternative consistent with appellant's needs and the community's need for protection ... . This was appellant's first offense. She admitted the allegations of the petition but asserted, as did her mother, that the incident resulted from her having been bullied by the complainant with no corrective action taken by appellant's school. While appellant had truancy issues at school, at the time of the disposition she was employed, was being treated for depression, and was generally making progress. Based on all these factors, there is no reason to believe that appellant needed any supervision beyond that which could have been provided under an ACD. It should also be noted that under the terms of an ACD, the court could have required the Probation Department to monitor appellant, and her observance of a curfew and other requirements. Matter of Clarissa V, 2014 NY Slip Op 03431, 5-13-14




Facts Did Not Support Family Court's Dismissal of a Petition to Terminate Parental Rights of Both Parents---Permanent Neglect Finding Was Warranted by the Facts


The First Department reversed Family Court, based on the appellate division's own findings of fact, and found that neither parent had made realistic plans for the child's future, constituting clear and convincing evidence of permanent neglect:


There is no dispute that the agency has met the threshold requirement in a permanent neglect proceeding of showing it discharged its statutory obligation to exert diligent efforts to encourage and strengthen the parental relationships (see Social Services Law § 384-b[7][a]...). However, contrary to the findings by Family Court, there is clear and convincing evidence, the standard of proof required ..., that despite the agency's diligence, neither parent has, "for a period of either at least one year or fifteen out of the most recent twenty-two months following the date [the] child came into the care of an authorized agency," shown sufficient planning for the child's future, as described in the Social Services Law, to warrant continuing parental rights (see Social Services Law § 384-b[7][a]...).


Planning for the future of the child under the Social Services Law requires that the parent take "necessary [steps] to provide an adequate, stable home and parental care for the child within a period of time which is reasonable"; at the very least, the parent must take steps to "correct the conditions" that resulted in the initial removal of the child from the home ... . Matter of Selvin Adoph F v Thelma Lynn F, 2014 NY Slip Op 03432, 1st Dept 5-13-14




Juvenile Delinquency Adjudication Appropriate to Ensure Residential Supervision


The First Department determined Family Court had properly adjudicated the appellant a juvenile delinquent, despite the relatively minor offense, because the appellant was in need of residential supervision:


The court properly exercised its discretion in adjudicating appellant a juvenile delinquent. Although the underlying offense was not serious, appellant was in need of a residential, nonsecure placement under the Close to Home Initiative program. The court properly declined to adjudicate appellant a person in need of supervision ... , particularly since appellant had already demonstrated, following a prior proceeding brought by her mother, that such a disposition would not control appellant's behavior. Accordingly, a juvenile delinquency adjudication was necessary to ensure appellant's compliance with residential treatment. "[T]he irony is presented that while the court may direct the PINS youth not to abscond, the statutory authority constraining the court essentially precludes an effective remedy should the youth abscond" ... . Matter of Amari D, 2014 NY Slip Op 03452, 1st Dept 5-13-14



Family Court Should Not Have Denied Father's Request for Son's Mental Health Records Without an In Camera Review


The First Department determined Family Court should not have denied father's request for his son's mental health records without first conducting and in camera review of the records and applying a balancing test required by Family Court Act section 1038 (d). There was no evidence of the alleged abuse except the child's testimony, so the child's credibility was the central issue:


Respondent father moved to subpoena the eldest child's (the child) mental health treatment records. The Family Court, without conducting an in camera review of the requested records, denied the motion. Pursuant to Family Court Act (FCA) § 1038(d), the court must conduct a balancing test ... . The statute requires that the court weigh "the need of the [moving] party for the discovery to assist in the preparation of the case" against "any potential harm to the child [arising] from the discovery." Here, the Family Court should have reviewed the child's mental health records in camera to determine if the records are relevant to the central issue of the child's credibility before making its disclosure ruling.


The record contains no physical evidence of the alleged abuse and the case against respondent relies almost entirely on the credibility of the child, placing a great amount of weight on the child's testimony... . Matter of Dean T Jr (Dean T Sr), 2014 NY Slip Op 03430, 1st Dept 5-13-14



Derivative Neglect Finding Reversed---Operative Principles Explained


The Third Department reversed Family Court, finding the evidence insufficient to support an allegation of derivative neglect. The theory below was that the alleged abuse of one child, Dominick, was serious enough to warrant a finding of derivative neglect with respect to a child (Brad) who had not been born at the time of the alleged neglect of Dominick.  In the course of the decision, the court explained the operative principles:


Pursuant to Family Ct Act § 1046 (a) (i), "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent." However, "[e]vidence of neglect of one child typically may not serve as the sole basis for a finding of neglect [of another child, unless] the nature of the direct [neglect], notably its duration [and] the circumstances surrounding its commission[,] . . . evidence[s] fundamental flaws in the respondent's understanding of the duties of parenthood" ... . — flaws that are "so profound as to place any child in his or her care at substantial risk of harm" ... . Contrary to the father's assertion, petitioner's failure to commence a direct neglect proceeding against him with respect to Dominick does not bar petitioner from maintaining this derivative neglect proceeding against him with respect to Brad. Similarly, the fact that Brad had yet to even be conceived — much less born — at the time of the home invasion or the search of the father's residence is not dispositive, as the relevant inquiry is whether the evidence of the direct neglect of one child, i.e., Dominick, "is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists" ... . Matter of Brad I (Tiana K), 2014 NY Slip Op 03555, 3rd Dept 5-15-14





Ambiguous Terms Interpreted to Give Meaning to All Terms---Here Water Damage Caused By Plumbing Backup Originating in Building Was Covered---Water Damage Caused By Plumbing Backup Originating Outside the Building Was Not Covered


The Third Department determined ambiguous terms in an insurance policy concerning whether water backing up through plumbing to cause damage was excluded were properly interpreted by Supreme Court. The ambiguous terms were interpreted to mean that damage from water backing up caused by a problem within the buildings own plumbing is covered, but similar damage caused by a backup originating outside the building (a municipal sewer system, for example) was not covered:


Where an insurer relies on an exclusion to avoid coverage, it has the burden of demonstrating "that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case" ... . Moreover, we are "obligat[ed] to interpret the exclusion in a manner that gives full force and effect to the policy language and does not render a portion of the provision meaningless" ... . "While [u]nambiguous provisions of a policy are given their plain and ordinary meaning, where policy language is unclear or subject to multiple reasonable interpretations, such ambiguities are resolved against the insurer" ... .


In our view, when the exclusion and coverage provisions at issue here are read together, an ambiguity exists in the insurance policy as to losses resulting from a backup and/or overflow from sewers, drains and/or plumbing systems. Although the resolution of this ambiguity appears to be an issue of first impression in this state, Supreme Court's analysis — that a plumbing system, as referenced in the coverage provision, includes drains that are on the insured's property — is consistent with decisions in other jurisdictions that have interpreted the interplay of competing provisions similar to those in question here ... . Pichel v Dryden Mut Ins Co 2014 NY Slip Op 03575, 3rd Dept 5-15-14




Damage to Building Caused by Faulty Workmanship Not Caused by an "Occurrence" Within the Meaning of a Commercial General Liability Policy


The First Department, in a full-fledged opinion by Justice Saxe, determined that the term "occurrence" in a policy covering building construction work did not encompass damage to the building caused by faulty workmanship.  Here, a portion of an exterior wall fell to the street.  It was determined that the cause was flaws in the way the wall was constructed:


There is no "occurrence" under a commercial general liability policy where faulty construction only damages the insured's own work ..., and faulty workmanship by subcontractors hired by the insured does not constitute covered property damage caused by an "occurrence" for purposes of coverage under commercial liability insurance policies issued to the general contractor, since the entire project is the general contractor's work ... . In Baker Residential v Travelers Ins. Co. (10 AD3d 586, 587 [1st Dept 2004]), where a developer delivered and installed defective structural beams that deteriorated from water penetration due to improper installation, flashing and waterproofing, this Court held that the damages sought by the developer did not arise from an "occurrence" resulting in damage to third-party property distinct from the developers' own "work product." And in Direct Travel v Aetna Cas. & Sur. Co., 214 AD2d 484, 485 [1st Dept 1995]), this Court explained that "[s]ince the claims asserted in the underlying action were for economic loss resulting from the plaintiff's purported breach of contract, coverage was also properly disclaimed under the umbrella policy which covered only damages because of bodily injury' [or] property damage' . . . [c]aused by an occurrence'" ... . * * *


"[T]he requirement of a fortuitous loss is a necessary element of insurance policies based on either an accident' or occurrence'" ... . As the motion court recognized, the addition of "event" or "happening" to the definition of "occurrence" did not alter the legal requirement that the "occurrence" triggering the coverage must be fortuitous. "[T]he requirement of a fortuitous loss is a necessary element of insurance policies based on either an accident' or occurrence'" ... . "[A] claim for faulty workmanship, in and of itself, is not an occurrence under a commercial general liability policy because a failure of workmanship does not involve the fortuity required to constitute an accident" ... . National Union Fire Ins Co of Pittsburgh PA v Turner Constr Co, 2014 NY Slip Op 03671, 1st Dept 5-15-14





Tenants Not Compelled to Bring a Plenary Action to Enforce a Fair Market Rent Appeal Award Because They Withheld Rent Until the Principal Balance of the Award Was Fully Credited to Them---Therefore Tenants Were Not Entitled to Prejudgment Interest Pursuant to CPLR 5001 (a)


The Second Department determined tenants who had been awarded a rent refund in a fair market rent appeal (FMRA) were not entitled to pre-judgment interest on the award.  The tenants had exercised their right under the Rent Stabilization Code to withhold rent until the principal balance of the FMRA award was fully credited.  Therefore, the tenants did not need to start a plenary action for prejudgment interest pursuant to CPLR 5001 (a) because there was no principal balance owing them:


"A tenant compelled to bring a plenary action to enforce a fair market rent appeal order is entitled to . . . prejudgment interest under CPLR 5001(a) computed from the date of the Rent Administrator's order ... " ... . However, where a tenant is not otherwise compelled to commence an action to enforce a fair market rent appeal award, the tenant is not entitled to recover interest on the award ... . Prior to the commencement of this action, the plaintiffs exercised their right under the relevant provision of the Rent Stabilization Code (see 9 NYCRR 2522.3[d][1]) to withhold payment of rent until the principal balance of the FMRA award was fully credited to their account. The FMRA award was fully credited to the plaintiffs' account by June 2007, after which the plaintiffs resumed paying rent. Thus, contrary to the plaintiffs' allegations, there was no principal balance of the FMRA award due and owing to them. Under these circumstances, the plaintiffs were not compelled to commence this action to enforce their FMRA award. Thus, the plaintiffs are not entitled to the relief they sought in the complaint, including the alleged principal balance, prejudgment interest, or an award of an attorney's fee. Eisner v M & E Rubin LLC, 2014 NY Slip Op 03477, 2nd Dept 5-14-1





Equitable Subrogation in the Context of  Funds from One Mortgage Loan Used to Pay Off Another Explained


The Second Department explained the doctrine of equitable subrogation. Plaintiff had given two valid mortgages to one bank, and another bank subsequently used a portion of the proceeds of its loan to satisfy those mortgages:


Under the doctrine of equitable subrogation, where the "property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder" ... . Harris v Thompson, 2014 NY Slip Op 03487, 2nd Dept 114




Question of Fact Whether Elevator Company Had Constructive Notice of "Misleveling Condition"/Question of Fact About Applicability of Res Ipsa Loquitur Doctrine


The First Department determined questions of fact had been raised about whether an elevator company, which exclusively maintained and repaired the elevator, had constructive notice of the "misleveling condition."  In addition there was a question of fact about the applicability of the res ipsa loquitur doctrine:


An elevator company that agrees to maintain an elevator may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found ... .


Plaintiffs raised a triable issue of fact as to whether defendants had constructive notice of the misleveling condition or with reasonable care could have discovered and corrected the condition, by submitting the affidavit of their expert, who reviewed defendants' repair tickets and concluded that they revealed conditions related to the elevator's leveling function. * * *


Issues of fact exist as to whether the doctrine of res ipsa loquitur applies here. The expert testimony conflicts as to whether the misleveling of the elevator would not ordinarily occur in the absence of negligence. It is, however, undisputed that defendants were exclusively responsible for maintenance and repair of the elevator, and the record is devoid of any evidence that plaintiff contributed to its misleveling... . McLaughlin v Thyssen Dover El Co, 2014 NY Slip Op 03440, 1st Dept 5-13-14




City Administrative Code Provision Requiring a Building Owner to Maintain and Be Responsible for the Safe Condition of a Building Is Not Specific Enough to Form the Basis of  Negligence Cause of Action


The Second Department determined plaintiffs did not raise a question of fact on a premises liability cause of action based upon alleged city administrative code violations, but did raise a question of fact concerning the building owner's common law negligence.  Infant plaintiff fell over a railing on a landing to a set of stairs outside of the apartment building:


Administrative Code §§ 27-375 and 27-376 do not apply to the subject exterior stairs because the stairs were not [*2]"used as exits in lieu of interior stairs" (Administrative Code § 27-376...). "Exit" is defined by the Administrative Code as a "means of egress from the interior of a building to an open exterior space" (Administrative Code of City of NY § 27-232). The stairway was outside the parameters of the building and did not provide a means of egress from the interior of the building to an open exterior space ... . Moreover, the plaintiffs' contention that the stairs violated Administrative Code §§ 27-127 and 27-128 is without merit. Those sections "merely require that the owner of a building maintain and be responsible for its safe condition," and do not constitute a sufficiently specific statutory predicate for liability ... . In addition, Administrative Code § 17-123, which concerns window guards, is inapplicable to the facts of this case. Friedman v 1953 Realty Co, 2014 NY Slip Op 03480, 2nd Dept 5-14-14




Question of Fact Whether Snow Removal Efforts Created or Exacerbated Icy Condition


The Second Department determined summary judgment should not have been granted in favor of the property owner in a slip and fall case.  The plaintiff slipped on ice on metal vault doors in the sidewalk in front of defendants' restaurant.  The defendants failed to demonstrate that their snow removal efforts did not create or exacerbate the condition:


A property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm ... . Contrary to the defendants' contention, they failed to demonstrate their prima facie entitlement to judgment as a matter of law, as they failed to establish that the snow removal efforts that were undertaken prior to the accident neither created nor exacerbated the allegedly hazardous icy condition which caused the plaintiff to fall.. . Gwinn v Christina's Polish Rest Inc, 2014 NY Slip Op 03485, 2nd Dept 5-14-14




Defendants Who Struck Plaintiff's Vehicle When Plaintiff Pulled Out of a Parking Lot Entitled to Summary Judgment


The Second Department determined summary judgment had been properly granted to the defendants ("Dunn defendants").  The defendant driver had the right of way and struck plaintiff's vehicle when plaintiff pulled out of a parking lot.  The court explained the operative principles:


There can be more than one proximate cause of an accident and, thus, on their motion for summary judgment, the Dunn defendants had the burden of establishing freedom from comparative negligence ... . While a driver is required to "see that which through proper use of [his or her] senses [he or she] should have seen" ..., a driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way... .. In addition, "a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ... .


Here, the Dunn defendants established their prima facie entitlement to judgment as a matter of law by establishing that the injured plaintiff failed to yield the right-of-way to the Dunn vehicle, which was legally proceeding westbound on Montauk Highway with the right-of-way, and that Danielle Costella Dunn was free from comparative negligence since she had only had seconds to react ... . Kenda v Dunn 2014 NY Slip Op 03494, 2nd Dept 5-14-14




Plaintiff Bicyclist Entitled to Summary Judgment---Defendant Driver Made a Left Turn into a Parking Lot When Plaintiff Was Riding in Oncoming Lane


The Second Department determined summary judgment was properly granted to plaintiff bicyclist who was struck by defendants' vehicle.  Defendant driver (Robert) made a left turn into a parking lot when plaintiff was riding in the oncoming lane:


"There can be more than one proximate cause [of an accident] and thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law" ... . Consequently, "[t]o prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault" ... .


Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that Robert, who testified at his deposition that he did not see the plaintiff until seconds before the impact, was negligent in violating Vehicle and Traffic Law §§ 1141 and 1163(a) by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety ... . The plaintiff also demonstrated that Robert's negligence was the sole proximate cause of the accident and that he was not comparatively at fault in the happening of the accident through his deposition testimony that he saw Robert's vehicle stopped and waiting to make the turn, slowed down in response, stood up on his pedals to make eye contact with Robert to ensure that Robert was aware of his presence, and continued riding when he believed that Robert had made eye contact with him. Further, the plaintiff testified that, upon seeing Robert commence making the left turn in front of him, he immediately attempted to apply his brakes and maneuver around Robert's vehicle, but there was an insufficient amount of time to successfully do so ... . Sirlin v Schreib, 2014 NY Slip Op 03504, 2nd Dept 5-14-14



Out-of-Possession Landlord Not Liable for Injury Caused by Trash Compactor on Property


The First Department determined an out-of-possession landlord had no liability for an injury caused by a trash compactor located on the property:


[Defendant] demonstrated that as an out-of-possession owner it had no responsibility for the complained-of defect, because the defect was not a significant structural or design defect that was contrary to a specific statutory safety provision ... . In support of his position that the trash compactor is a structural component of the building, plaintiff cited Administrative Code of City of NY § 27-232 (defining "Service Equipment" to include "refuse disposal"). However, that provision is not a safety provision. Plaintiff's argument that as an out-of-possession owner [defendant] remained liable for any dangerous condition that existed at the time it net leased the building---four years before the accident---is unavailing, since the net lessee "had reasonable time to discover and remedy the defect" after the conveyance of the property interests ... . Humareda v 550A E 87th St LLC, 2014 NY Slip Op 03584, 1st Dept 5-15-14





Plaintiff Did Not Raise an Issue of Fact Re: Vicious Propensities of Defendants' Dog


The Second Department determined plaintiff failed to raise a question of fact about the vicious propensities of a dog which was alleged to have bitten plaintiff:


"To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities" ... . "Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, [the fact that the dog was kept as a guard dog,] and a proclivity to act in a way that puts others at risk of harm" ... .


The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff's, that they "were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior" ... . Indeed, the defendants testified that they had no knowledge that the dog involved in this alleged attack on the plaintiff had ever growled at, chased, bitten, or attacked anyone prior to the subject incident ... .


The plaintiff failed to raise a triable issue of fact in opposition. Henry v Higgins, 2014 NY Slip Op 03489, 2nd Dept 5-14-14





Waiver and Release Signed by Plaintiff When She Rented a Segway Vehicle Precluded Her Personal Injury Action Even Though the Accident Occurred During a Tour Conducted by Defendant's Employees


The Second Department determined the waiver and release signed by plaintiff when she rented a Segway vehicle precluded  her personal injury action.  Plaintiff was taking a tour in the vehicle which was conducted by defendant's employees.  The vehicle became stuck in mud causing plaintiff to fall:


"Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced" ... . Here, the defendant established its prima facie entitlement to judgment as a matter of law by producing the waiver and release signed by the plaintiff ... . Further, contrary to the plaintiff's contention, General Obligations Law § 5-326 does not invalidate the release because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission fee for the use of the public trail over which the tour was conducted ... .  Deutsch v Woodridge Segway LLC, 2014 NY Slip Op 03475, 2nd Dept 5-14-14





Vehicle On a Flatbed Tow Truck Is Not In "Use or Operation" Within Meaning of Vehicle and Traffic Law 388


The Second Department reversed Supreme Court finding that the owner (Rosa) of a vehicle which is on a flatbed tow truck when the truck is involved in an accident cannot no be liable under Vehicle and Traffic Law 388:


Vehicle and Traffic Law § 388(1) imposes liability on all vehicle owners for accidents resulting from negligence in the permissive "use or operation" of their vehicles, including use "in combination with one another, by attachment or tow" (Vehicle and Traffic Law § 388[1]...). The statute's primary objective is " to provide recourse to an injured party against a person, financially able to respond, without whose conduct in permitting use of the vehicle the accident would not have happened'" ... .


Here, Rosa's vehicle was not in use at the time of the accident, either on its own or in combination with the flatbed tow truck... . Rather, it was merely cargo on the flatbed tow truck. Gibson v Sing Towinf Inc, 2014 Slip Op 03483, 2nd Dept 5-14-14





Injunction Enforcing Restrictive Covenant Properly Granted Despite Substantial Construction In Violation of the Covenant


The Second Department determined plaintiff property owner was entitled to summary judgment in her action to enforce a restrictive covenant in a neighbor's (Bryant's) deed.  The restriction was a setback requirement which was violated.  Because plaintiff started her action early on, the fact that the neighbor's house was substantially constructed did not matter.  The neighbor was on notice when the construction was done:


...[T]he restrictive covenant in Bryant's deed was part of a common development scheme created for the benefit of all property owners within the subdivision. As such, the plaintiff has standing to enforce the restrictive covenant at issue ... .


We ... reject Bryant's assertion that the Supreme Court erred in declining to dismiss the causes of action seeking injunctive relief on the ground that they had been rendered academic. As the plaintiff correctly argues, those causes of action were not rendered academic, despite the substantial completion of the home ... . Under the circumstances, the plaintiff acted promptly in commencing this action and Bryant was put on notice that if she proceeded with construction, she would do so at her own risk ... .


On the merits, we find that the Supreme Court properly granted the plaintiff's cross motion for summary judgment. The law has long favored free and unencumbered use of real property, and covenants restricting use are "strictly construed against those seeking to enforce them" ... . "[C]ourts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence" ... . Here, the plaintiff established, prima facie, that the restrictive covenant was applicable and that Bryant's construction violated that restrictive covenant insofar as the side setback distances were concerned. In opposition to this prima facie showing, Bryant failed to raise a triable issue of fact ... .  Hildago v 4-34-68 Inc, 2014 NY Slip Op 03491, 2nd Dept 5-14-14






Unrecorded Purchase Money Mortgage Did Not Have Priority Over Mortgage Recorded by Good-Faith Lender for Value


The Second Department determined that plaintiff's complaint failed to state a cause of action concerning whether plaintiff's purchase money mortgage had priority over the recorded mortgage held by defendant bank.  Plaintiff's mortgage was not recorded:


Pursuant to "New York's Recording Act (Real Property Law § 291), a mortgage loses its priority to a subsequent mortgage where the subsequent mortgagee is a good-faith lender for value, and records its mortgage first without actual or constructive knowledge of the prior mortgage" ... . Further, the plaintiff's purchase money mortgage "is as much subject to the Recording Act as any other" ... .


The amended complaint failed to allege that [defendants] had constructive or actual notice of the plaintiff's purchase money mortgage, that either made any representation to the plaintiff, or otherwise acted in bad faith. Thus, the plaintiff may only establish that the purchase money mortgage had priority over [defendant's] mortgage on the basis that it was recorded first. However, the amended complaint averred that the purchase money mortgage was not recorded, and further stated that [defendant] holds a first Mortgage to the property." Carrion v 162 Pulaski LLC, 2014 NY Slip Op 03470, 2nd Dept 3-14-14





Releases Effectively Prohibiting Decedent's Exercise of a Power of Appointment In Favor of Decedent's Wife Were Not Procured by Constructive Fraud


The First Department reversed Surrogate's Court and determined that releases restricting decedent's power of appointment were not procured by constructive fraud (as a matter of law) and were enforceable.  The releases allowed decedent to exercise powers of appointment re: a trust only in favor of a descendant. Decedent's wife was the beneficiary of a codicil, executed by the decedent after the execution of the releases, which purported to award her 25% of the trust plus the income from 75% of the trust for life. In finding the wife had not raised a question of fact about whether the releases were procured by constructive fraud, the court wrote:


The principles underlying the concept of constructive fraud are of long-standing duration:


"It may be stated as universally true that fraud vitiates all contracts, but as a general thing it is not presumed but must be proved by the party seeking to relieve himself from an obligation on that ground. Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood. This doctrine is wellsettled." ...


"To avoid a release on the ground of fraud, a party must allege every material element of that cause of action with specific and detailed evidence in the record sufficient to establish a prima facie case ... . "In the absence of a fiduciary relationship between the parties to the release, the party seeking to avoid the release bears the burden of proving such fraud or other vitiating circumstances"... . Moreover, a release should "not be treated lightly" and "should never be converted into a starting point for renewed litigation" except in cases of "grave injustice" and then, only under "the traditional bases of setting aside written agreements" ... . * * *


It is well established that a "party who signs a document without any valid excuse for having failed to read it is conclusively bound by its terms" ... . The record is devoid of any excuse, let alone a valid excuse, for failing to read the release prior to signing it ... . * * * "[T]o hold a release forever hostage to legal afterthoughts basically vitiates the nature of the release" ... .

 Matter of Aoki v Aoki, 2014 NY Slip Op 03433, 1st Dept 5-13-14





Misconduct Serious Enough to Warrant Firing Did Not Disqualify Employee from Receiving Unemployment Benefits


The Third Department affirmed the appeal board's determination that, although the employee's misconduct was serious enough to warrant firing, the employee was still entitled to unemployment insurance:


"Not every discharge for cause rises to the level of misconduct disqualifying a claimant from receiving unemployment insurance benefits" ... . Here, the Board, in its capacity as the "final arbiter of factual matters involving questions of credibility" ..., found it significant that, while claimant did not lock out the machine properly, this was the first time that he was disciplined for violating this procedure, and he "self-reported the matter to the employer." Although disqualifying misconduct can be found where an employee disregarded "an employer's established procedures and policies, particularly where it is potentially detrimental to the employer's best interest" ..., here, there was proof in the record confirming that claimant's lapse in judgment resulted in little risk of injury to him due to the lack of water and paper products in the system during the shutdown. Under the particular circumstances herein, we conclude that there is substantial evidence supporting the Board's decision, regardless of proof that would support a contrary result... . Matter of Lee (Commissioner of Labor), 2014 Slip Op 03563, 3rd Dept 5-15-14




Participation in One's Own Business, Even If the Business Generates No Income, Can Render One Ineligible for Unemployment Benefits


The Third Department determined claimant's participation in his own business, even if minimal and the business is not profitable, supports the denial of unemployment benefits:


"A claimant who actively participates in his or her own business will not necessarily be considered totally unemployed even if his or her activities are minimal and the business is not profitable" ... . Here, on behalf of the corporation, claimant obtained a credit card and opened a bank account with an initial deposit of $25,000. He wrote checks against the account for office furniture, charged travel expenses and solicited business. Although claimant did not receive any income through the corporation during the time he was collecting benefits, he intended to make money with it, and the record reflects that the corporation was still operating after claimant stopped collecting benefits and it ultimately generated income. Matter of McCann v Commissioner of Labor, 2014 NY Slip Op 03568, 3rd Dept 5-15-14





Vocational Factors Not Considered Re: "Temporary Marked Partial Disability Rate"


The Third Department determined the Workers' Compensation Board applied the correct standards when determining a claimant's temporary marked partial disability rate.  The claimant argued that the Board should have considered "vocational factors" in determining the compensation rate, i.e., claimant's level of education and her ability to find other work.  The Third Department, in a detailed analysis of the language of the applicable statutes, disagreed:


As pertinent here, the compensation rate for temporary partial disability resulting in reduced earning capacity is based upon the difference between the claimant's pre-injury average wages "and his [or her] wage earning capacity after the accident in the same or other employment" (Workers' Compensation Law § 15 [5]...). In almost identical language, the compensation rate for permanent partial disabilities that are not amenable to schedule awards is based upon the difference between the claimant's previous wages "and his or her wage-earning capacity thereafter in the same employment or otherwise" (Workers' Compensation Law § 15 [3] [w]...)). For both temporary and permanent partial disabilities, the "wage earning capacity" of a claimant with no actual earnings is to be set by the Board at a reasonable level not greater than 75% of the claimant's previous full-time earnings, "having due regard to the nature of his [or her] injury and his [or her] physical impairment" (Workers' Compensation Law § 15 [5-a]...)). These provisions include no reference to vocational factors. However, when determining a claimant's "loss of wage-earning capacity" in order to set the duration of permanent partial disability benefits following classification (Workers' Compensation Law § 15 [3] [w] ...), the Board considers not just the nature and degree of the injury, but also "work restrictions, [the] claimant's age, and any other relevant factors, with the [claimant's] 'wage earning capacity' as its inverse" ...).


We reject claimant's contention that this analysis should be applied to the determination of "wage earning capacity" as the term is used in Workers' Compensation Law § 15 (5-a). Matter of Canales v Pinnacle Foods Group LLC, 2014 NY 
Slip Op 03576, 3rd Dept 5-15-14

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