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May Page IV

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


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Circumstances Warranted Overcoming Physician-Patient Privilege---Substantive Explanation of the Privilege and Its Application (Including When a Court May Decline to Enforce It)


In a medical malpractice case, the plaintiff sought logs from the defendant-hospital which described the surgical procedures done by defendant surgeon during the times of plaintiff's surgeries. The plaintiff sought to demonstrate the surgeon was doing too many procedures in too short a time to have properly performed them.  Although the hospital produced the logs, the information describing each procedure was redacted. Plaintiff's motion to compel was denied by Supreme Court, which held the information about surgeries on non-party patients was privileged. The Second Department reversed.  Although the information was deemed privileged by the Second Department, the information could properly be discovered because it was "material and necessary" to the plaintiffs' case and the privacy of the non-party patients could be protected by redaction.  The facts presented a situation where the court could properly decline to enforce the privilege. The Second Department provided a substantive explanation of the physician-patient privilege and its application:


... CPLR 4504(a) ... provides that "[u]nless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity" (CPLR 4504[a]...).


The enactment of the statutory physician-patient privilege "was based on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment" ... . "The privilege applies not only to information communicated orally by the patient, but also to information obtained from observation of the patient's appearance and symptoms" .... "Moreover, the form in which the information is sought to be introduced is irrelevant, as the privilege operates whether the information is contained in a patient's medical files or is sought to be introduced at trial in the form of expert testimony" ... .


"That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person's medical history" ... . The statute "is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge" ... . Accordingly, although the privilege protects a patient from the disclosure of a communication made to a doctor, "a witness may not refuse to answer questions regarding matters of fact . . . merely because those topics relate to events that required medical care or advice from a physician" ... .


Furthermore, "where the application of a privilege will not serve to further the legitimate purposes for which it was created, there is little reason to permit its invocation" ... . Accordingly, "courts may properly decline to enforce the physician-patient privilege where its invocation does not serve its policy objectives" ... .


However, even where redaction of identifying information will ensure that the policy objectives of CPLR 4504(a) are not subverted, disclosure of otherwise privileged information should not be permitted where it is not "material and necessary in the prosecution or defense of [the] action" (CPLR 3101[a][1]...). Here, although the listing of each surgical procedure ... was privileged under CPLR 4504(a) ..., the plaintiff established that the subject information is indeed "material and necessary" (CPLR 3101[a]) in the prosecution of the action, and that the circumstances warrant overcoming the privilege ... .Cole v Panos, 2015 NY Slip Op 04269, 2nd Dept 5-20-15






Sale of Notes Was Champertous---Seller Subcontracted Out Its Litigation for Political Reasons In Violation of Judiciary Law 489 (1)


The First Department determined plaintiff's purchase of notes was champertous. Champerty "is the purchase of claims with the intent and for the purpose of bringing an action that [the purchaser] may involve parties in costs and annoyance, where such claims would not be prosecuted if not stirred up . . . in [an] effort to secure costs". Champerty is prohibited by Judiciary Law 489 (1). Although purchases of claims for more than $500,000 are not subject to the champerty prohibition (Judiciary Law 489 (2)), the First Department held that the $500,000 must actually be paid.  Here the price was set at $1,000,000 but nothing had been paid. The court determined the seller of the notes had subcontracted out its litigation to plaintiff for political purposes:


The purported sale of the notes is champertous since [the seller] maintained significant rights in the notes and expected the lion's share of any recovery from defendants ... . There is every indication that plaintiff entered into the Purchase Agreement with the intent of pursuing litigation on [the seller's] behalf in exchange for a fee; plaintiff's intent was not to enforce the notes on its own behalf .... Indeed, plaintiff could not enforce all of the rights under the notes, since, as the motion court noted, "No reasonable finder of fact could conclude that [plaintiff] was making a bona fide purchase of securities." On the contrary, "[t]he only reasonable way to understand the [Purchase Agreement] is that [the seller] was subcontracting out its litigation to [plaintiff] for political reasons." Accordingly, the sale of the notes violated Judiciary Law § 489(1). Justinian Capital SPC v WestLB AG, 2015 NY Slip Op 04381, 1st Dept 5-21-15






Sua Sponte Dismissal for Lack of Standing Improper---Defense Waived by Failure to Answer---Lack of Standing is Not a Jurisdictional Defect


The Second Department, in a mortgage foreclosure proceeding where defendants did not answer, determined the complaint should not have been dismissed sua sponte for lack of standing.  Because the complaint was not answered, the lack-of-standing defense was waived.  In addition, lack-of-standing is not a jurisdictional defect warranting sua sponte dismissal:


A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'" ... . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint and the cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing ... . In any event, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court ... . US Bank Natl. Assn. v Flowers, 2015 NY Slip Op 04308, 2nd Dept 5-20-15






Foreign Corporation's Sole Residence for Venue Purposes Is the County Designated In Its Filed Application to Conduct Business in New York State


In the context of a dispute over proper venue, the Second Department determined that plaintiff foreign corporation's sole residence in New York State is the county designated in its application for authority to conduct business in New York State as filed with the State. Therefore plaintiff's bringing the action in Nassau County, where it alleged its principal place of business is located, as opposed to New York County, the county designated in its filed application, was improper:


...[T]he law is clear that "[f]or purposes of venue, the sole residence of a foreign corporation is the county in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York" ..., regardless of where it transacts business or maintains its actual principal office (see CPLR 503[c]; Business Corporation Law § 102[a][10]...). We note that, since the plaintiff's response to the defendants' demand to change venue failed to set forth factual averments that were prima facie sufficient to show that its designation of Nassau County for trial of the action was proper, the defendants were authorized to notice their motion to change venue to be heard in Saratoga County (see CPLR 511[b]...). Further, the defendants are not responsible for the delay occasioned by the denial of their motion by the Supreme Court, Saratoga County.


In view of the foregoing circumstances, the Supreme Court should have granted the defendants' motion to change the venue of the action from Nassau County to Saratoga County, despite the fact that an order granting class certification had already been issued in the action. American Bldrs. & Contrs. Supply Co., Inc. v Capitaland Home Improvement Showroom, LLC, 2015 NY Slip Op 04262, 2nd Dept 5-20-15





Disagreement About the Meaning of a Term in the Shared-Fee-Agreement Did Not Render the Contract Ambiguous---No Need for Interpretation of the Term by the Court


The First Department, in an extensive decision, over a two-justice partial dissent, determined the shared-fee arrangements among attorneys were unambiguous and must be enforced as written, without reference to extrinsic evidence. The underlying personal injury case eventually settled for $8 million.  Along the way, plaintiff's attorney, Menkes, entered into agreements with two attorneys for assistance with the case. Most of the decision addresses the agreement with an attorney, Golomb, concerning mediation and settlement negotiations. If the mediation resulted in a settlement, Golomb was entitled to 12% of the attorney's fees.  If further work, beyond the mediation, were required, Golomb was entitled to 40% of the attorney's fees. Menkes argued that, although the mediation session did not result in a settlement, the mediation was a "process" which continued beyond the initial session culminating in a settlement. The majority held that the term "mediation," pursuant to the language of the contract, encompassed only the one session.  Once that session ended without a settlement, the 40% shared-fee-arrangement kicked in:


The issue before us is one of simple contract interpretation. Under well established precedent, agreements are to be generally construed in accord with the parties' intent ... . The best evidence of the parties' intent is "what they say in their writing" ... . "[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" ... . This rule is particularly applicable where the parties are sophisticated and are negotiating at arm's length ... . Language in a written agreement is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning or interpretation ... . Finally, "[e]xtrinsic evidence may not be introduced to create an ambiguity in an otherwise clear document" ... .


Here, as the dissent agrees, the language of the contract is unambiguous. Menkes argues that she interpreted the term "mediation" to constitute an ongoing process that would not be limited to a single session but rather would continue until an impasse or other termination had occurred. However, the assertion by a party to a contract that its terms mean something to him or her "where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract" is not sufficient to make a contract ambiguous so as to require a court to divine its meaning ... . The specific fee language that Menkes now claims supports her position was added to the agreement at her request. She takes the untenable position that she was never advised that the mediation reached an impasse or had been terminated. Yet despite the fact that the agreement went through several revisions, neither party saw fit to add any language to that effect. Both parties to the agreement are attorneys and thus know the importance of precision in the words used ... . These clear terms, under these circumstances, need no interpretation by the court. Marin v Constitution Realty, LLC, 2015 NY Slip Op 04225, 1st Dept 5-19-15







Parol Evidence Demonstrated What Appeared to Be a Contract Was Not---There Was No Meeting of the Minds Re: the Consideration for the Contract


The Third Department, over a dissent, reversing Supreme Court, determined extrinsic evidence should have been considered on the issue whether a contract was ever formed, i.e., whether there was a "meeting of the minds." Based upon that extrinsic evidence, the breach of contract complaint was dismissed by the Third Department. The defendant argued that the contract was premised upon the understanding plaintiff would execute a power of attorney, which plaintiff refused to do. The parol evidence, emails, demonstrated that defendant agreed to the terms of the contract in return for the power of attorney executed by the plaintiff.  The power of attorney was the consideration for the contract. Therefore, the parol evidence demonstrated no contract was ever formed:


In order "'[t]o create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms' and consideration" ... . Defendant is not arguing that a valid agreement between the parties included an unstated commitment by plaintiff to execute the power of attorney; instead, she is asserting that she proposed an agreement upon that understanding, but that there was never a meeting of the minds on the issue sufficient to give rise to a valid agreement. Accordingly, she was entitled to use parol evidence "to show that what appears to be a contractual obligation is, in fact, no obligation at all"... . Libasci v Singares, 2015 NY Slip Op 04357, 3rd Dept 5-21-15



Despite the Fact that Defendant Entered Guilty Pleas in Two Counties, Only One SORA Disposition for the "Current Offenses" (Which Included the Offenses from Both Counties) Can Be Held


The Defendant was convicted (by guilty pleas) of sex offenses committed in two counties.  The two district attorney offices coordinated the defendant's sentences to run concurrently.  Prior to defendant's release a SORA hearing was held in one of the two counties, taking into account all of the offenses to which defendant pled guilty.  When defendant was notified the second county had scheduled a SORA hearing he filed a motion to dismiss the second proceeding, arguing it was unauthorized by SORA and barred by the doctrine of res judicata.  The Second Department agreed and dismissed the second proceeding.  The decision includes a substantive discussion of statutory interpretation and the purposes and application of the Sex Offender Registration Act:


...[T]he defendant pleaded guilty to charges contained in accusatory instruments filed in two different counties, two in Queens County and one in Richmond County. Nonetheless,... all of those offenses constituted "Current Offenses" for the purpose of determining the defendant's risk level pursuant to SORA and, indeed, were considered as such by the Board of Examiners of Sex Offenders and the Supreme Court, Richmond County, in conducting their SORA assessment.


The only reasonable interpretation of the statute and Guidelines, and the one that most effectuates SORA's purpose, is that only one SORA "disposition" may be made per "Current Offense," or group of "Current Offenses." Once a court has rendered "an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based" and submitted such order to the Division (Correction Law § 168-d[3]), the Division has all the information it needs to create a file for the defendant and add it to the registry (see Correction Law § 168-b[1]). In this case, once the Division received the SORA order from Richmond County, it had the information it needed to serve SORA's goal of "protect[ing] the public from" this particular sex offender ... . People v Cook, 2015 NY Slip Op 04295, 2nd Dept 5-20-15






Seasonal Residents Properly Deemed "Residents" of a Town for Election Purposes


The Third Department, in a full-fledged opinion by Justice Peters, determined that seasonal residents of a condominium were properly deemed "residents" of the town where the condominium is located for voting purposes under the Election Law. The court noted that, under the Election Law, a voter may have two residences and choose one of them for election purposes. The Election Law requires only that the voter have legitimate, significant and continuing attachments to the residence and there be no "aura of sham:" 


The [County Election] Board's determination upholding the voter registrations at issue constituted presumptive evidence of the ... voters' residence for voting purposes; thus, petitioner was saddled with the weighty burden of proffering sufficient evidence to overcome that presumption (see Election Law § 5-104 [2]...). The Election Law defines "residence" as "that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return" (Election Law § 1-104 [22]...). As the courts of this state have repeatedly explained, the Election Law "does not preclude a person from having two residences and choosing one for election purposes provided he or she has 'legitimate, significant and continuing attachments' to that residence" ... . "The crucial [factor in the] determination [of] whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence 'without any aura of sham'" ... . Matter of Maas v Gaebel, 2015 NY Slip Op 04353, 3rd Dept 5-21-15






Non-Parent Petitioner, the "Nongestational" Spouse In a Same-Sex Marriage, Did Not Have Standing to Seek Custody 


Family Court properly dismissed a nonparent's action for custody for lack of standing.  [Apparently (not spelled out) petitioner is the spouse of the biological parent of the child in a same-sex marriage.] ... "[P]etitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody". Petitioner did not show "the parent has relinquished [his/her] right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances" ... . In addition, petitioner, as the nongestational spouse in a same-sex marriage, could not establish she was a "parent" within the meaning of Family Court Act 417 and Domestic Relations Law 24. The statutes refer to a biological relationship, not legal status. Matter of Paczkowski v Paczkowski, 2015 NY Slip Op 04325, 2nd Dept 5-20-15






Criteria for Setting Aside a Foreclosure Sale Explained---Not Met Here


In finding the motion to vacate a foreclosure sale was properly denied, the Second Department explained the circumstances in which a foreclosure sale will be set aside: "In the exercise of its equitable powers, a court has the discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct" ... . "Absent such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience"... . Chiao v Poon, 2015 NY Slip Op 04268, 2nd Dept 5-20-15






Supreme Court Used the Wrong Standards When It Denied Petitioner's Request for Documents Relating to Complaints Alleging the Improper Use of School Property by an Employee of the Department of Education (the Employee Gave a Speech on School Property Which May Have Violated the Chancellor's Regulations re: the Use of School Property for Political Purposes)---Correct Analytical Criteria Explained and Applied


The First Department determined Supreme Court used the wrong criteria when it denied petitioner's request for documents relating to the investigation of complaints about the use of school buildings for political purposes.  The complaints concerned a speech given by an employee of the Department of Education (DOE) which criticized the positions on education policy taken by unnamed mayoral candidates.  The speech was put up on the DOE website. Petitioner alleged the speech violated specified Chancellor's Regulations re: the conduct of school employees with respect political campaigns and elections.  Supreme Court erroneously held that petitioner must show that the denial of the request for documents was "arbitrary and capricious," "an abuse of discretion," "irrational," or "unlawful."  The proper analysis is whether the determination "was affected by an error of law" and  places the burden on the respondent to show the request falls within one of the statutory exceptions to disclosure.  The First Department reversed Supreme Court, applied the correct analytical criteria and found that any relevant privacy interests did not outweigh the public interest in disclosure:


The appropriate standard of review is whether the determination "was affected by an error of law" (CPLR 7803[3]...). Moreover, the burden is on respondents to establish "that the material requested falls squarely within the ambit of one of the[] statutory exemptions" from disclosure ... . Under the circumstances of this case, the application of an improper legal standard is reversible error since it resulted in substantial prejudice to petitioner ... .


Respondents failed to establish that disclosure of the materials at issue would "constitute an unwarranted invasion of personal privacy under the provisions of [§ 89(2)]" (Public Officers Law § 87[2][b]). They do not claim that any personal privacy category enumerated in § 89(2) is applicable. Therefore, we must determine whether any invasion of personal privacy would be unwarranted "by balancing the privacy interests at stake against the public interest in disclosure of the information" ... . The speech at issue excoriated unspecified candidates in the 2013 mayoral election who had taken certain positions on education policy. Notwithstanding that the speech did not name any individual candidate or political party, the complaints to [the school district]  raised serious questions about the propriety of the speech and its publication on DOE's website. We find that there is a "significant public interest" in the requested materials, which may shed light on whether this matter was adequately investigated ... . Respondents failed to establish that the claimed privacy interests outweigh this public interest ... . They assert that the materials contain personally identifying information such as home addresses, dates of birth, and Social Security numbers. However, that information can be redacted and does not provide a basis for withholding entire documents ... . . Matter of Thomas v Condon, 2015 NY Slip Op 04237, 1st Dept 5-19-15






Documents Relevant to a Civil Investigation by the Department of Taxation and Finance Were Not Protected from FOIL Disclosure by a Statute which Specifically Relates to Criminal Investigations


The Third Department affirmed Supreme Court's determination that documents which were pertinent to a civil, as opposed to a criminal, investigation, were not shielded from disclosure by Public Officers Law 87(2)(e)(iv).  The petitioners were notified they were subject to an "interrogation" by the Department of Taxation and Finance about job-related expense deductions. Under a FOIL request, the petitioners sought documents which included "interrogation" questions.  Because Public Officers Law 87(2)(e)(iv) protects such documents from disclosure only if they are part of a criminal investigation, Supreme Court properly held the documents should be disclosed:


"Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law § 87 (2)" ... . In this regard, "[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access" ... .


Here, in denying access to the 68 pages of proposed interrogation questions, respondents relied exclusively upon Public Officers Law § 87 (2) (e) (iv), which exempts from disclosure "records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures." The statute — on its face — references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution ... . Matter of Aurigemma v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 04356, 3rd Dept 5-21-15






The Insurer Properly Reserved Its Rights to Disclaim Coverage When It Agreed to Defend a Legal Malpractice Action


The insurer agreed to defend an attorney in a legal malpractice action, but reserved its rights to disclaim coverage based upon the exclusion in the policy for actions arising from the conduct of a business owned by the attorney (as opposed to the law practice). The First Department rejected the argument that the insurer's reservation of rights violated the policy:


The issuance of a reservation of rights allows the insurer the flexibility of fulfilling its obligation to provide its insured with a defense, while continuing to investigate the claim further. In fact, an insurance company's failure to reserve the right to disclaim coverage may later result in the insurer being equitably estopped from doing so ... . Thus, although plaintiffs are correct that the counterclaims, broadly construed, triggered defendants' duty to provide them with a defense, defendants did not breach that duty by agreeing to do so, but with a reservation of rights to, among other things, later recoup their defense costs upon a determination of non-coverage ... . Law Offs. of Zachary R. Greenhill P.C. v Liberty Ins. Underwriters, Inc., 2015 NY Slip Op 04382, 1st Dept 5-21-15






To Be Entitled to Summary Judgment on a Labor Law 200 Cause of Action, the Defendant Must Demonstrate the Defendant (1) Did Not Control the Plaintiff's Work and (2) Did Not Create or Have Constructive Knowledge of the Dangerous Condition 


The Second Department determined summary judgment should not have been granted to defendant homeowners in this Labor Law 200 action. It was alleged the homeowners created a dangerous condition by placing an unsecured tarp in the area where plaintiff placed his ladder. Plaintiff was injured when he fell from the ladder.  The Second Department explained that the defendants, to be entitled to summary judgment, were required to demonstrate (1) they did not "have authority to supervise or control the methods or materials of the injured plaintiff's work" and (2) they did not create the dangerous condition that caused the accident or have actual or constructive notice of the dangerous condition. Here the defendants failed to demonstrate they did not create the dangerous condition:


Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both of the foregoing liability standards ... . A defendant moving for summary judgment in such a case may prevail "only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard" ... . Pacheco v Smith, 2015 NY Slip Op 04293, 2nd Dept 5-20-15






Injury During Tree-Removal Not Covered by Labor Law Even though the Tree-Removal Was a Prerequisite to the Removal of a Fence---Work on the Fence Had Not Begun at the Time of the Injury


Plaintiff was injured during the cutting and removal of trees along a property line which included a fence.  Although the fence was to be removed, the fence-removal project had not been started at the time of the accident. A fence is a "structure" within the meaning of the Labor Law, so injury while removing a fence would be covered. But because tree-related work is not covered by the Labor Law, and because the fence removal was not underway at the time of the injury, defendants' motion for summary judgment was properly granted:


Labor Law § 240 (1) affords protection to workers engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Under settled case law, a tree does not qualify as a building or structure ..., and — generally speaking — neither tree removal ... constitutes one of the enumerated statutory activities. Although plaintiff correctly notes that a fence qualifies as a structure within the meaning of Labor Law § 240 (1) ... and, further, that the statutory protections extend to duties that are ancillary to the enumerated activities set forth therein ..., the fact remains that Labor Law § 240 (1) "afford[s] no protection to a plaintiff [who is] injured before any activity listed in the statute [is] under way" ... . Cicchetti v Tower Windsor Terrace, LLC, 2015 NY Slip Op 04375, 3rd Dept 5-21-15







Insanity Acquittee Not Entitled to Blanket Sealing of Record of a Recommitment Proceeding But Is Entitled to Sealing of His Clinical Record


The Third Department determined respondent, who is subject to Criminal Procedure Law 330.20 based on his acquittal of criminal charges by reason of mental disease or defect, was not entitled to a blanket sealing of the record of a recommitment proceeding pursuant to Mental Hygiene Law 9.31 (F), but was entitled to the sealing of his clinical record pursuant to Mental Hygiene Law 33.13:


Here, respondent was subject to CPL 330.20 based upon his acquittal of criminal charges by reason of mental disease or defect. A lack of responsibility for criminal conduct by reason of mental disease or defect is an affirmative defense that a defendant must raise and prove by a preponderance of the evidence (see Penal Law §§ 25.00 [2]; 40.15). By avoiding criminal penalties and becoming subject to CPL 330.20, "this places insanity acquittees in a significantly different posture than involuntarily committed civil patients" ..., and "rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law are justifiable" ... . In light of this distinction, we agree with Supreme Court that the blanket sealing of the record that is specifically applicable to the involuntarily admission of civil patients under Mental Hygiene Law § 9.31 (f) is not applicable to respondent ... .


We reach a different conclusion, however, regarding defendant's clinical record. Pursuant to Mental Hygiene Law § 33.13, a clinical record for each patient or client shall be kept containing "information on all matters relating to the admission, legal status, care, and treatment of the patient or client and shall include all pertinent documents relating to the patient or client" (Mental Hygiene Law § 33.13 [a]) and "such information about patients or clients . . . shall not be a public record," subject to certain exceptions (Mental Hygiene Law § 33.13 [c]). Although Supreme Court ruled that respondent's clinical treatment records, related hospital records and unrelated medical records must be sealed, it is unclear if other information intended to be included in his clinical record under Mental Hygiene Law § 33.13 (a) would be made public. In our view, respondent is entitled to the full protection of Mental Hygiene Law § 33.13, and all information contained in his clinical record, as defined in Mental Hygiene Law § 33.13 (a), shall not be made public, subject to the statutory exceptions (see Mental Hygiene Law § 33.13 [c]). Matter of John Z. (John Z.), 2015 NY Slip Op 04361, 3rd Dept 5-21-15






Installing, Pursuant to a Resolution, a Temporary Barrier to Address Traffic and Speeding Problems Did Not Violate the "Prior Public Use" Doctrine


The Second Department determined the town's passing of a resolution installing a temporary barrier on a street to address complaints about traffic and speeding was proper.  Installing the barrier did not violate the "prior public use" doctrine because the barrier did not interfere with a prior public use:


The prior public use doctrine limits "the general grant of the power of eminent domain extended in Town Law § 64(2)" by prohibiting towns from "acquir[ing] rights in property already devoted to another public use where the acquisition will interfere with or destroy the prior public use" ... . The subject breakaway barrier that the Town installed on Samuel Road did not interfere with or destroy the prior public use of Samuel Road. Accordingly, the prior public use doctrine is inapplicable, and does not prohibit the Town from installing the barrier ... . Matter of County of Rockland v Town of Clarkstown, 2015 NY Slip Op 04314 2nd Dept 5-20-15






Question of Fact Whether Movie Theater Breached Its Duty to Protect Patrons from Assault


The Second Department determined defendant movie theater's motion for summary judgment was properly denied.  Plaintiffs were assaulted at the theater.  Depositions revealed there had been four or five similar incidents at the theater and one of the plaintiffs screamed for help throughout the 15-to-20-minute assault:


A property owner must act in a reasonable manner to prevent harm to those on its premises, which includes a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so ... . However, "the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" ... . Solomon v National Amusements, Inc., 2015 NY Slip Op 04306, 2nd Dept 5-20-15






Tractor-Trailer Veered Into Oncoming Lane Striking Bus/Emergency Doctrine Required Dismissal of Complaint Against Bus Company and Driver as a Matter of Law/Lessor of Trailer Protected Against Vicarious Liability by Graves Amendment/Negligent Entrustment Cause of Action Against Lessor of Trailer Dismissed as a Matter of Law (No Special Knowledge Use of Trailer by Lessee Would Render It Unreasonably Dangerous)


A tractor trailer suddenly veered into oncoming traffic and struck a bus owned by one of the defendants, Schoolman.  The Second Department determined the emergency doctrine precluded, as a matter of law, the suit against the bus company and the driver of the bus (Zimmardi). The court also determined the company which leased the trailer, EMH,  was protected from vicarious liability by the Graves Amendment, and was not liable, as a matter of law, under a negligent entrustment theory. The leasing company had no special knowledge of a use of the trailer by the lessee that would render the use of the trailer unreasonably dangerous: 


Here, Schoolman established its prima facie entitlement to judgment as a matter of law dismissing the complaints ... by demonstrating that its driver, Zimmardi, was faced with an emergency situation not of his own making when the truck suddenly veered into his lane of traffic, and that he acted reasonably in the context of that emergency ... . * * *


EMH established its prima facie entitlement to judgment as a matter of law in connection with the vicarious liability causes of action by demonstrating, prima facie, that the Graves Amendment (49 USC § 30106) applied to shield it from liability for the plaintiffs' injuries by virtue of its status as a commercial lessor of motor vehicles that was free from negligence in maintaining the subject vehicle (see Castillo v Amjack Leasing Corp., 84 AD3d 1297, 1297-1298; Graham v Dunkley, 50 AD3d 55, 57-58). Further, EMH established its prima facie entitlement to judgment as a matter of law dismissing the negligent entrustment causes of action insofar as asserted against it by demonstrating that it did not possess special knowledge concerning a characteristic or condition ... that rendered the use of the leased vehicle ... unreasonably dangerous ... . Pacelli v Intruck Leasing Corp, 2015 NY Slip Op 04292, 2nd Dept 5-20-15





Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained---Criteria for Motion to Dismiss Based on Documentary Evidence Explained---Pleading Requirements for Legal Malpractice Explained


In finding the legal malpractice complaint properly survived motions to dismiss, the Second Department explained the criteria for a motion to dismiss for failure to state a cause of action where documentary evidence is submitted (question is whether plaintiff has a cause of action, not whether one has been stated, affidavits considered to remedy defects in complaint), the criteria for a motion to dismiss founded on documentary evidence (documents must utterly refute allegations in complaint), the elements of legal malpractice, and the adequacy of damages allegations in a legal malpractice complaint (cannot be conclusory or speculative but plaintiff not obligated to show it actually sustained damages) :


On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026...). Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" ... . " [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'" ... . 


A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law... . 


To state a cause of action to recover damages for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained ... . A plaintiff must plead "actual[,] ascertainable damages" resulting from the attorney's negligence ... . Conclusory or speculative allegations of damages are insufficient... . However, "[a] plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant's malpractice might be reasonably inferred" ... . Randazzo v Nelson, 2015 NY Slip Op 04299, 2nd Dept 5-20-15






A Police Report of a Vehicle Accident Involving Respondent's Employee Was Not Sufficient to Alert Respondent to the Facts Underlying Petitioner's Claim---Petition to File Late Notice of Claim Properly Denied


The Second Department determined the petition to file a late notice of claim was properly denied because there was no showing the respondent school district was aware of the facts underlying the claim, there was no showing the school district was not prejudiced by the two-month delay, and there was no showing of an adequate excuse for the delay.  The petitioner argued that a police report describing a vehicle accident provided notice of the facts to the school district. But the report indicated only that respondent's employee was involved in the accident, which was not sufficient to establish respondent's knowledge of the facts of plaintiff's claim:


For a police accident report to serve as sufficient notice to the public corporation, the public corporation must have been "able to readily infer from that report that a potentially actionable wrong had been committed by the [employee of] the public corporation" ... . A report which describes the circumstances of the accident without making a connection between the petitioner's injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim ... . The petitioners' contention that the respondent had actual knowledge of their claim solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit ... . Matter of Thill v North Shore Cent. School Dist., 2015 NY Slip Op 04332, 2nd Dept 5-20-15






School Employee's After-Hours Inappropriate Behavior Involving a Student Was Not Proximately Caused by Negligent Supervision/Retention of the Employee or Negligent Supervision of the Student on the Part of the School District 


The Second Department reversed Supreme Court and granted the defendant school district's motion to dismiss the complaint.  The school's marching band director, Perna, engaged in inappropriate communications with plaintiff's child, KS, a student who was in the marching band.  The communications by computer and cell phone took place off school grounds after hours.  The Second Department determined the band director's after-hours behavior was not proximately caused by negligent retention or supervision of Perna or negligent supervision of KS:


Because the inappropriate conduct by Perna toward KS, the plaintiff's child, occurred after school hours and off school grounds by means of their personal computers and cellular phones, the causes of action alleging negligent retention and supervision cannot provide a basis for liability against the appellants. Although KS first met Perna through the marching band, KS's injuries were not proximately caused by any negligent retention or supervision by the appellants ... . In opposition, the plaintiff failed to raise a triable issue of fact.


Additionally, the Supreme Court should have granted that branch of the appellants' motion which was for summary judgment dismissing so much of the complaint as alleged negligent supervision of KS, since the appellants established, prima facie, that the wrongful acts occurred outside of the school grounds ... and, in opposition, the plaintiff failed to raise a triable issue of fact. MS, etc. v Arlington Cent. School Dist., 2015 NY Slip Op 04290, 2nd Dept 5-20-15






Question of Fact Whether Embankment Near a Stream Was an "Open and Obvious" Dangerous Condition at 3 a.m.


The Second Department reversed Supreme Court's grant of summary judgment to the defendants (property owners).  Plaintiff, who had been invited onto the property, fell off an embankment near a stream and fractured his ankle.  Plaintiff was among a group who had gathered around a bonfire in an area which had been used for that purpose by defendants.  The fall took place at 3 a.m.  The Second Department determined there was a question of fact whether the dangerous condition was open and obvious (because it was dark):


"A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ... . "The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff's presence on the property" .... "Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain" ... .


However, a landowner does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous ... . Moreover, the question "of whether a condition is hidden or open and obvious is generally for the finder of fact to determine" ..., although, in a proper case, a condition may be found open and obvious as a matter of law. Nonetheless, whether a condition is open and obvious "cannot be divorced from the surrounding circumstances," and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured ... . Barone v Risi, 2015 NY Slip Op 04265, 2nd Dept 5-20-15






Release Null and Void Under the General Obligations Law--Plaintiff Paid a Fee to Participate in the Basketball Game In Which He Was Injured


Plaintiff paid a fee to participate in a basketball league and signed a release of liability.  He was injured during a game when his hand went through the glass of a door behind a basketball hoop. The defendants sought permission to amend their answer to assert the defense of release and Supreme Court allowed the amendment. The Second Department determined the motion for leave to amend the answer should have been denied because the affirmative defense was "patently devoid of merit." General Obligations Law 5-326 nullifies any such release where the owner or operator of a sports facility charges a fee for use of the facility. Falzone v City of New York, 2015 NY Slip Op 04273, 2nd Dept 5-20-15


[General Obligations Law 5-326 provides: "Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable."]






Compliance With the Rules of the City of New York (RCNY) Re: a Sidewalk Vault Cover Did Not Override Cable Company's General Duty Not to Create a Hazardous Condition


Plaintiff tripped on a sidewalk in front of defendant's (Palm Beach's) property in the vicinity of a vault cover installed by defendant cable company (Cablevision).  The Second Department determined the causes of action against both defendants properly survived summary judgment. There was no showing Palm Beach did not have constructive notice of the condition. Cablevision argued that dismissal was warranted because it had complied with the Rules of the City of New York (RCNY) concerning sidewalk installations.  Supreme Court properly held that the duties imposed by the regulations were in addition to the generally duty not to create a hazardous condition:


Contrary to the contention of the Cablevision defendants, they cannot be absolved of such liability by either the "guarantee period" set forth in 34 RCNY 2-11(e)(16)(ii) ("Permittees shall be responsible for permanent restoration and maintenance of street openings and excavations for a period of three years on unprotected streets") or the 12-inch rule set forth in 34 RCNY 2-07(b)(1) and (2) (requiring owners of covers or gratings to "monitor[ ] the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware" and to "replace or repair" any defective cover or grating and any defective street condition found within twelve inches of the cover or grating). As the Supreme Court correctly concluded, the regulations relied on by the Cablevision defendants impose upon them a duty to maintain their vault and the surrounding area that is separate from, and in addition to, their duty not to create hazardous conditions ... . Shehata v City of New York, 2015 NY Slip Op 04305, 2nd Dept 5-20-15







Driver of Street Sweeper Which Struck Plaintiff's Car Entitled to Statutory Immunity


The Third Department determined the driver of a street sweeper was engaged in highway work (re: Vehicle and Traffic Law 1103) at the time the sweeper collided with plaintiff's vehicle.  Therefore the "reckless disregard for the safety of others" standard of care applied to the sweeper driver. The driver was working on a highway and had to make several passes to clean up spilled gravel.  Because it was a divided highway, the sweeper driver had to make a u-turn and return on the opposite side of highway to make another pass.  The immunity afforded by Vehicle and Traffic Law 1103 applies only when actual work on the highway is being done, not when a worker is driving to or from the work site. The Third Department held that the statutory immunity was available here, even though the accident did not occur as the sweeper was engaged, because the driver was forced to use a circuitous route to complete the assigned task:


With exceptions not applicable here, the safety rules and regulations set forth in the Vehicle and Traffic Law do "not apply to persons . . . while actually engaged in work on a highway nor . . . to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation" (Vehicle and Traffic Law § 1103 [b]...). If the person is "actually engaged" in work or a hazardous operation, the applicable standard of care is "reckless disregard for the safety of others," but the exception does not apply where the person is traveling to or from the hazardous operation ... . Matsch v Chemung County Dept. of Pub. Works, 2015 NY Slip Op 04374, 3rd Dept 5-21-15





Restrictive Covenant Was Part of a Common Development Scheme and Was Enforceable by All Property Owners In the Subdivision


The Second Department determined a restrictive covenant requiring that one parcel in a subdivision remain undeveloped was enforceable by property owners in the subdivision. The covenant was part of a common development scheme created for the benefit of all property owners. The covenant stated that the parcel "shall be maintained . . . in perpetuity as open space preserving same in its present natural condition and not permitting or causing thereon any construction, improvements or alterations of the existing natural state of the premises. This restriction shall run with the land in perpetuity."  Defendants were seeking to build an access road across the parcel.  The Second Department explained: . "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 ... . Courts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence ... . However, where proved by clear and convincing evidence, they are to be enforced pursuant to their clear meaning...". [internal quotations omitted] Fader v Taconic Tract Dev., LLC, 2015 NY Slip Op 04272, 2nd Dept 5-20-15






Customer Service Representative Working from Home Properly Determined to Be an Employee


The Third Department determined there was substantial evidence to support the finding claimant was an employee of PRF.  Claimant worked from home booking reservations at off-site parking facilities near airports:


Although claimant and other representatives worked from home and were required to provide their own Internet service, PRF furnished them with special phones that utilized the voice over Internet protocol necessary to assist customers. In addition, PRF provided training on use of the phones as well as the services that it provided to its customers. Although PRF did not establish set hours and allowed the representatives to hold other jobs, it set up a schedule online that the representatives completed by selecting the hours that they wished to work, and PRF emailed them their final schedules. Claimant and the other representatives submitted invoices for hours worked that PRF would, in turn, check against their work schedules. Notably, PRF was able to monitor the representatives while they were assisting customers to verify that they were working and to ensure quality service. Moreover, PRF handled customer complaints and took corrective action where necessary. Matter of Aussicker (Park Ride Fly USA--Commissioner of Labor), 2015 NY Slip Op 04376, 3rd Dept 5-21-15






"Special Errand" Exception to the "Going and Coming" Rule Applied---Workers' Compensation Claim Is Plaintiff's Sole Remedy


The Second Department determined plaintiff's sole remedy against her employer (defendant Margaret Layton) was a Workers' Compensation claim.  Plaintiff was asked by Layton to walk Layton's dog because Layton was in court on a personal matter and could not walk the dog herself. Plaintiff fell down a staircase in Layton's home, apparently in the course of walking the dog. The Second Department held that the walking of the dog "fell within the 'special errand' exception to the 'going and coming' rule of the Workers' Compensation Law, thus making workers' compensation the plaintiffs' sole remedy" ... In the usual case, injury incurred going to or coming from work is not within the ambit of the Workers' Compensation Law . Curley v Layton, 2015 NY Slip Op 04270, 2nd Dept 5-20-15







Town Planning Board's Approval of the Installation of Wind Turbines Should Not Have Been Reversed---Board Properly Considered All the Factors Mandated by the Land Use Ordinance and Supreme Court Did Not Have the Authority to Substitute Its Judgment for the Board's


The Third Department, reversing Supreme Court, determined that the town planning board had properly issued a special use permit for the installation of wind turbines. The court noted that the burden of proof on the owner for seeking a special exception (special use permit) is lower than the burden for seeking a variance.  The court held that all of the analytical factors mandated by the land use ordinance had been properly considered by the board and Supreme Court did not have the authority to substitute its own judgment for the board's:


The Land Use Ordinance permits specified uses in the area where the project is to be built and allows "[a]ll other uses" for which a special use permit is obtained. Contrary to petitioners' assertion, while the project is not allowed as of right in the district, the fact that it is "permitted . . . is 'tantamount to a legislative finding that [it] is in harmony with the general zoning plan and will not adversely affect the neighborhood'" ... . As such, "the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance, [with] the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use" ... . The determination of the Board that those conditions had been met here will be upheld if it "has a rational basis and is supported by substantial evidence in the record" ... .


The parties do not dispute upon this appeal, and we agree with Supreme Court, that the Board's findings with regard to six of the eight conditions enumerated in the Land Use Ordinance are supported by substantial evidence. The first of the remaining two conditions requires that the "[l]ocation, use and size of structure, nature and intensity of operations involved, size of site in relation to it, and location of site with respect to existing or future streets giving access, are such that it will be in harmony with orderly development of the district." The second requires that the "[l]ocation, nature and height of buildings, walls, fences and signs will not discourage the appropriate development and use of adjacent land and buildings or impair their value."


With regard to those two conditions, the wind turbines are almost 500 feet tall when the rotor blades are fully vertical [FN2]. Notwithstanding their size, the Board pointed out that the turbines are located in an area where high-voltage electric transmission lines have already altered the landscape, and noted that other factors minimized the impact of the project upon the viewshed. The project will have minimal impact upon traffic after construction is completed and, given the economic benefits that will accrue to participating landowners, the Board found that it would help to preserve existing uses of the surrounding properties. Moreover, the Board cited a study in the record finding that property values would not be impacted by the project. The Board also pointed to proof that the applicant had entered into setback agreements with nonparticipating landowners who resided within 2,000 feet of the turbines, further ensuring that the project would not impair the use of nearby parcels or development in the zoning district. Supreme Court pointed to conflicting evidence submitted by petitioners with regard to both conditions but, even if that evidence was properly considered, "a court may not substitute its own judgment" where substantial evidence supports the determination of the Board ... . Matter of Frigault v Town of Richfield Planning Bd., 2015 NY Slip Op 04355, 3rd Dept 5-21-15

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