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


Res Ipsa Loquitur Proof Requirements Not Met Re: Cause of Fire

A fire apparently started in the vicinity of a gas grill resulting in the destruction of an apartment building.  In affirming summary judgment granted to the defendants, the Third Department noted that an unsigned report from the fire department was properly ignored by the motion court and plaintiff was not entitled to an inference of negligence based on the doctrine of res ipsa loquitur:

           …[P]laintiff has not established its entitlement to an inference of negligence pursuant to the doctrine of res ipsa loquitur. To do so, plaintiff was required to demonstrate, among other things, that the fire was one that ordinarily would not have occurred in the absence of defendants' negligence….   While plaintiff need not have eliminated every alternative explanation for the event, it was required to demonstrate that the probability of other causes was so reduced that defendants' negligence was more likely than not to have caused the injury….  In view of plaintiff's failure to proffer any admissible evidence – or, indeed, any evidence whatsoever based upon more than pure speculation – that negligence was a factor in the cause of the fire, plaintiff has not met its burden of demonstrating that res ipsa loquitor applies … .  92 Court Street…. v Monnet, et al, 514458, 3rd Dept, 5-30-13

Emergency Doctrine Not Applicable to Striking Plaintiff’s Decedent’s Body in Roadway

The Third Department determined summary judgment should not have been granted to the defendant based upon the emergency doctrine.  Defendant struck the decedent’s body which was in the roadway.  Although defendant slowed when she saw the brake lights and flashers on vehicles ahead of her, she continued driving at about 50 miles per hour:

           We are not persuaded that these facts demonstrate, as a matter of law, that defendant was confronted with an emergency situation that left her with little time for deliberation or that her reaction was reasonable such that there was nothing she could have done to avoid the accident.  Notably, "it is not uncommon for motorists to encounter debris or other hazards in the roadway" …and, here, by defendant's own testimony, she had  notice from at least 20  or 30  car lengths away that something  out of the ordinary was  happening  on  the highway ahead  ….   Further, there is also deposition testimony of the front seat passenger in codefendants' vehicle, which had arrived at the scene and  first struck either decedent or his motorcycle.  This witness testified that, as decedent was  lying in the roadway, other vehicles stopped at the scene without striking him, and at least one other vehicle passed through the scene without incident.  In light of  this testimony,  "a question  arises as to whether defendant should have anticipated and been prepared to deal with the situation confronting [her]" and  whether  her actions were reasonable under the circumstances… .  Hallenbeck …v Smith…, 515155, 3rd Dept, 5-30-13

No Negligence Based on Defendant’s Dog Barking [Which Allegedly Caused Plaintiff to Fall from Her Horse as the Horse Broke Into a Run]

Plaintiff was injured when she fell from her horse.  The defendant was jogging behind the horse with her dogs. Plaintiff alleged barking caused the horse to break into a canter or a run.  The Third Department determined Supreme Court should have granted defendant’s motion for summary judgment.  After discussing the principles underlying assumption of the risk in this context and the permissible causes of action based on the behavior of animals, the Third Department wrote:

           "The mere act of [walking] . . . in close proximity to an unknown horse, as the complaint alleges, does  not present an  issue of negligence, as a matter of law" …. In this regard, defendant – who had  no  prior experience with horses – was  walking on  a public highway, where  she had  every right to be  (see Vehicle and  Traffic Law  §  1156  [b]).  She slowed down  to evaluate the horses and riders ahead  of her, and, while she did not stop, she was  still 50 yards away when plaintiff and her daughter lost control of their horses. Morever, plaintiffs' negligence claim also fails because they alleged no facts from which it could be inferred that defendant's actions, in walking on a public street or otherwise, were the proximate cause of plaintiff's injuries … . Filer v Adams, 515403, 3rd Dept, 5-30-13


No “Negligent Supervision” Cause of Action Against School Based on Student Attacking Another Student

In ruling that the defendant school district’s motion for summary judgment in a “negligent supervision” case should have been granted, the Third Department determined the school district could not have reasonably anticipated the attack of one student upon another.  The school personnel had been alerted to the possibility of an impending fight between the two students and had intervened.  The school personnel were assured by the student who ultimately attacked plaintiff’s daughter that she did not intend to fight plaintiff’s daughter.  The Third Department wrote:

           …[A] school district will only be held liable for injuries intentionally inflicted by another  student  where  it is established that the dangerous conduct "could reasonably have been anticipated," i.e., where school authorities had actual or constructive notice of prior similar conduct on the part of the offending student ….  Even where such notice is present and the consequent duty of supervision is breached, the plaintiff must further show that the alleged injury "was a normal or foreseeable consequence of the situation created by the school's negligence"  … .The adequacy of supervision and the existence of proximate cause  are generally factual issues for a  jury to resolve … .
Regardless of any questions of fact regarding whether enough staff members were present in the hallway to prevent or break up the fight, defendant was entitled to summary judgment because it established that it could not have reasonably anticipated the attack.  Conklin v Saugerties Central School District, 515709, 3rd Dept, 5-30-13


Driver Who Had Right of Way But Allowed Another Driver to Turn Can Be Liable to Motorist Struck by Turning Car

The defendant stopped in the roadway when she had the right of way and gestured to an on-coming driver to make a left turn in front of her.  Plaintiff passed the defendant on the right and collided with the car making the turn.  The Third Department determined defendant’s motion for summary judgment should not have been granted:

           When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances; this duty is owed to pedestrians and other motorists and passengers as well as to the person who is being signaled … .  Dolce v Sheridan, 515766, 3rd Dept, 5-30-13


Town Failed to Demonstrate It Conducted a Sufficient Search for Written Notice of Defect in Slip and Fall Case

The Second Department determined a slip and fall case could go ahead because the town failed to submit sufficient proof in its summary judgment motion that town records were searched for the notice:
Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it had no prior written notice of the alleged defect in the parking lot…. In support of its motion, the defendant submitted the deposition testimony of its deputy director of the Department of General Services and an affidavit from its deputy comptroller. However, neither of those individuals averred that they had specifically searched the records maintained by the Town Clerk and the Town Superintendent of Highways to determine whether the defendant had prior written notice of the defect at issue. Accordingly, the burden never shifted to the plaintiff to raise a triable issue of fact, and this Court need not review the sufficiency of the plaintiff's opposition papers ….   Betz v Town of Huntington, 2013 NY Slip Op 03809, 2nd Dept, 3-29-13

Attorney-Client Communications Not Discoverable in Legal Malpractice Action

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

          The court properly denied the motion to compel because there is no merit to defendants' argument that the filing of this malpractice action placed the subject matter of the privileged communications "at issue." The invasion of the privilege is not required to determine the validity of plaintiffs' malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

Town Failed to Demonstrate It Did Not Create Dangerous Condition---Summary Judgment in Favor of Town Denied---Exception to Written Notice Requirement

The Second Department determined, in a slip and fall case, the town did not demonstrate (in support of its motion for summary judgment) that it did not create the alleged dangerous condition (an allegedly inadequate cover on a catch basin):

           If one of the recognized exceptions applies, written notice [of a defect] is not required…. Here, the plaintiff clearly alleged in her pleadings that the Town's construction of the catch basin was faulty in that an inadequate cover was installed on the catch basin. Consequently, the Town was required to address that issue satisfactorily as part of its initial burden on its motion for summary judgment…. The Town failed to establish, prima facie, that it had not created the dangerous condition by placement of an inadequate cover on the catch basin; in this respect, a defendant does not establish its entitlement to summary judgment merely by pointing out gaps in the plaintiff's case …. In the absence of the required showing, the Town's motion was properly denied, without regard to the sufficiency of the plaintiffs' papers submitted in opposition….  Giaquinto v Town of Hempstead, 2013 NY Slip Op 03814, 2nd Dept, 5-29-13

Question of Fact Raised---Tennis Player Injured Stepping on Plastic Bottle at Edge of Court

In playing tennis on defendant’s court, plaintiff, when back-pedaling to reach the ball, was injured when he stepped on a plastic water bottle which was behind a curtain separating the court from an adjacent wall.  In reversing Supreme Court’s grant of summary judgment to the defendant [Lifeplex], the Second Department determined Lifeplex had not demonstrated (1) it did not create the defective condition, (2) it did not have constructive notice of the condition, (3) plaintiff was injured in the playing area, and (4) whether the condition was concealed:


           Here, Lifeplex failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff's injury was within the playing area of the tennis court, and whether the condition was concealed. Thus, Lifeplex failed to make a prima facie showing that the plaintiff assumed a risk inherent in the sport of tennis ….  Moreover, in moving for summary judgment dismissing the complaint, Lifeplex had the initial burden of establishing "that it neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident"…. . "To meet its initial burden on the issue of . . . constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell"…. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice… .  Herman v Lifeplex, LLC, 2013 NY slip Op 03815, 2nd Dept, 5-29-13

Failure to Eliminate Comparative Negligence Precluded Summary Judgment to Plaintiff In Car-Accident Action

In reversing the grant of summary judgment to the defendant in a car accident case, the Second Department noted there can be more than one proximate cause of an accident and defendant failed to demonstrate freedom from comparative fault:

           "There can be more than one proximate cause of an accident"…. A driver who has the right-of-way may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in an intersection…. Indeed, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative…. Here, the transcripts of the deposition testimony of the plaintiff and the defendant, which were submitted in support of the defendant's motion, raised a triable issue of fact as to what actions the defendant took in order to avoid the collision. Therefore, the defendant failed to establish her prima facie entitlement to judgment as a matter of law … .  Jones v Vialva-Duke, 2013 NY Slip Op 03816, 2nd Dept, 5-29-13

Injury Not Connected to Accident/Motion to Set Aside Should Have Been Granted

In reversing Supreme Court and finding the motion to set aside the verdict should have been granted, the court determined there was no valid line of reasoning that led to the conclusion plaintiff’s serious injury was related to the car accident at issue:

           Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff's alleged serious injury was causally related to the subject automobile accident. Given the evidence of the plaintiff's previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff's expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff's injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury. McDonald v Kohanfars, 2013 NY Slip Op 03821, 2nd Dept, 5-29-13

Emergency Doctrine Did Not Apply to Police Officer’s Striking Plaintiff with Patrol Car

In reversing Supreme Court, the Second Department determined the emergency doctrine did not apply to a police officer’s striking the plaintiff with his patrol car and ordinary negligence principles applied:


           In the instant case, Officer DeMarco acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct - the failure to see that which was there to be seen - was not conduct specified in Vehicle and Traffic Law § 1104(b) as exempt from the rules of the road …. Accordingly, his conduct was governed by the principles of ordinary negligence …. In any event, since Officer DeMarco acknowledged at his deposition that, at the time he struck the plaintiff, he was "not aware of any emergency situation that needed to be addressed," the common-law emergency doctrine is not applicable to this case. Accordingly, the fifth affirmative defense, which is based upon Vehicle and Traffic Law § 1104, and the sixth affirmative defense, which is based upon the common-law emergency doctrine, must be dismissed.

           Under the principles of ordinary negligence, Officer DeMarco's failure to see what was there to be seen established the plaintiff's entitlement to judgment as a matter of law on the issue of liability… .  Starkman v City of Long Beach, 2013 NY Slip Op 03829, 2nd Dept, 5-29-13


Provision Which Violates General Business Law 395-a (Re: Maintenance Agreements) Did Not Render Contract Null and Void

In a full-fledged opinion by Judge Read (with a dissent by Judge Smith) the Court of Appeals determined that a contract provision which violated General Business Law 395-a (2) did not render the contract null and void and a private right of action pursuant to General Business Law section 349 did not lie for the violation.  Section 395-a provides that a maintenance agreement covering parts and/or service can not be terminated by the party offering the agreement during the term of the agreement.  The maintenance agreement at issue included a “store closure” provision which allowed the defendant to terminate the maintenance agreement in the event of closure of the store issuing the agreement.  The Court assumed that the “store closure” provision violated the General Business Law but held the violation did not render the contract null and void.  The Court further determined the violation did not constitute a deceptive practice within the meaning of General Business Law 349.  Schlessinger…v Valspar Corporation, No 66, CtApp, 5-30-13

Defective Acknowledgment Rendered Prenuptial Agreement Invalid

In a full-fledged opinion by Judge Graffeo, the Court of Appeals

determined that a defective acknowledgment on a prenuptial agreement was the type of defect that could be cured but that the notary’s affidavit was not sufficient to cure the defect.  Therefore, the prenuptial agreement was invalid.  The opinion includes an extensive discussion of the statutory requirements for acknowledgments and the limited circumstances in which defects can be cured.  With regard to the specific defect at issue, the Court of Appeals wrote:

           In the certificate of acknowledgment relating to the husband's signature, the "to me known and known to me" phrase was inexplicably omitted, leaving only the following statement: "On the 8 [sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same." Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective. Thus, we agree with the Appellate Division, which unanimously concluded that the certificate of acknowledgment did not conform with statutory requirements.  Galetta v Galetta, No 94, CtApp, 5-30-13

Negligence and Fraudulent Misrepresentation Causes of Action Can Not Be Based on Allegations of Breach of Contract

In determining Supreme Court should have dismissed the negligence and fraudulent misrepresentations cause of action in a complaint based upon breach of contract, the Third Department wrote:

           "[A] simple breach of contract claim is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . .[, which] legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract" ….  Plaintiffs have not demonstrated any special relationship or legal duty aside from the contractual relationship….   The  negligence and  fraudulent misrepresentation claims are based upon  the same  alleged wrongful conduct as the breach of contract claim, rendering them duplicative … .  Rorok v Moore’s Flatwork…, 515459, 3rd Dept, 5-30-13

Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial

The First Department determined that a retainer agreement for work “up to” a trial in a divorce action precluded the law firm from recovering any fees for the trial.  To cover those fees a second retainer agreement was required:

           The plain language of the retainer states that the law office's representation of Blisko includes work leading "up to" a trial, "but not including an actual trial." Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer …. Law Off of Sheldon Eisenberger v Blisko, 2013 NY Slip Op 03802, 1st Dept,. 5-28-13

Contract Provision Protected Contractee from Damages for Delay Caused by Regulators

In a full-fledged opinion by Justice Mazzarelli, the First Department determined, among many other contract-issues, that delays allegedly caused by regulators (re: asbestos-removal) were included in the contract provision which insulated the contractee from delay-related damages:

           "A clause which exculpates a contractee from liability to a contractor [Bovis] for damages resulting from delays in the performance of the latter's work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally"…. However, such a clause may be disregarded under certain recognized exceptions, including one for delays that are "uncontemplated" …. Delays are not considered uncontemplated when they "are reasonably foreseeable, arise from the contractor's work during performance, or . . . are mentioned in the contract" …. Further, a party seeking to invoke any of the exceptions to the general rule that no damages for delay clauses are enforceable bears a heavy burden … .


           Here, Bovis failed to carry its heavy burden. The contract specifically anticipated the possibility that the involvement of regulators would delay the process. Again, Bovis expressly acknowledged that it assumed the "risk of all regulatory and other Governmental Authority delays." Certainly this lifted the no damages for delay clause out of the exception for uncontemplated delays. There is no basis for Bovis to argue that by alleging that the extent of the regulatory delays was extreme and unprecedented it stated a claim for delay damages. As this Court has stated in finding a no damages for delay clause enforceable, "[W]hile the conditions themselves may not have been anticipated, the possibility, however unlikely, of their arising was contemplated and addressed by the parties in their agreement" … .  Bovis Lend Lease (LMB), Inc v Lower Manhattan Dev Corp, 2013 NY Slip Op 03804, 1st Dept, 5-28-13


Imposition of Separate and Contradictory Permanency Goals for Father and Mother Disallowed

In reversing Family Court, the Third Department determined the imposition of separate and contradictory permanency goals violated Family Court Act 1089 [d] [2] [i]:

           At the end of the hearing, Family Court continued the children's placement and approved petitioner's goal of reunification as to the mother only. As to the father, the court disapproved the goal of reunification, directed petitioner to commence a permanent neglect proceeding to terminate his parental rights and suspended his supervised visitation.  *  *  *

           Family Court erred by imposing separate and contradictory permanency goals on the mother and father.  Upon concluding at the end of a permanency hearing that a child is not to be returned immediately to a parent, the court must determine whether the permanency goal should be approved or modified and may select among five statutory permanency goals (see Family Ct Act § 1089 [d] [2] [i]; …).  These "goal[s] are listed as alternatives, with the court to choose only one.  Nothing in the statute indicates that the court may select and impose on the parties two or more goals simultaneously" … .  The statute contemplates the commencement of termination proceedings against a parent only when the permanency goal is "placement for adoption" (Family Ct Act § 1089 [d] [2] [i] [B]). To require such proceedings as to one parent where, as here, the permanency goal is reunification with the other parent is not only inconsistent with the statutory goals but also with the overall goal of permanent neglect proceedings, to further the children's best interests by freeing them for adoption when positive parental relationships no longer exist … .  In the Matter of Julian P, 512450, 3rd Dept, 5-30-13

Mother’s Prior Consent to Placement with Sister Did Not Preclude Mother’s Petition for Custody

The Third Department reversed Family Court’s dismissal of the biological mother’s petition for custody of a child who had been placed with her sister with the biological mother’s consent.  The Third Department determined the mother’s prior consent to custody did not preclude her petition and the respondent, as a nonparent, bore the responsibility to demonstrate extraordinary circumstances warranting her custody of the child.  The Third Department noted:

           …[W]hile "no parent has an absolute right to custody of a child . . . it is settled law that, as between a biological parent . . . and a nonbiological parent . . ., the parent has a superior right that cannot  be  denied  unless the nonparent  can establish that the parent has relinquished that right because of 'surrender, abandonment,  persisting neglect, unfitness or other like extraordinary circumstances'" … .  In the Matter of Evelyn C …, 514179, 3rd Dept, 5-30-13

Family Court Should Have Allowed Mother to Subpoena Medical Records to Rebut Allegations Against Her In Custody Proceeding

The Second Department determined Family Court erred when it denied the mother’s subpoena for medical treatment records to rebut the allegations against her in a custody proceeding:

           Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court ….  Matter of Murphy v Lewis, 2013 NY Slip Op 03843, 2nd Dept, 5-29-13


Family Court Has Power to Issue Judgment for Child Support Arrearages

After Family Court ruled it did not have jurisdiction to issue a judgment for child support arrearages, the Third Department determined that the court did in fact have jurisdiction.   In a full-fledged opinion by Justice Peters, the Third Department wrote:

           While "Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute" …, it is empowered "to determine applications to modify or enforce judgments and orders of support" … .In that regard, petitioner [child support collection unit] is authorized to commence violation proceedings "on behalf of persons" who receive child support pursuant to a court order … .  *  *  *

           Petitioner thus acted well within its statutory authority in commencing this proceeding to enforce a child support order that respondent had "fail[ed] to obey,"  and  Family  Court  likewise had  subject  matter  jurisdiction to consider it… .  In the Matter of Chemung County Support Collection Unit…v Greenfield, 515864, 3rd Dept, 5-30-13


Statute of Limitations for Fraud Applies to Forgery

The Second Department noted that the statute of limitations provisions for fraud are applied to forgery:

           Contrary to the plaintiff's contention, the statute of limitations for a fraud cause of action applies to a cause of action alleging forgery … .The statute of limitations for a fraud-based cause of action requires that the action be commenced within six years after the allegedly fraudulent act or within two years after discovery, whichever is later….   Faison v Lewis, 2013 NY Slip OP 03813, 2nd Dept, 5-29-13


Preclusion Proper Remedy for Discarding of Computer Containing Crucial Evidence

The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence:


           Plaintiff's conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court's assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff's bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff's disposal of the subject computer was, at the very least, grossly negligent ….  Defendants established that plaintiff's spoliation of critical evidence compromised defendants' ability to prosecute their counterclaims … . Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Harry Wiess, Inc v Moskowitz, 2013 NY Slip Op 03927, 1st Dept, 5-30-13


Appellate Court Can Grant Summary Judgment to Nonappealing Party

In the course of a decision awarding partial summary judgment to the defendant, the Third Department noted that “this Court has the authority to grant summary judgment to a nonappealing party” and did so with regard to a nonappealing defendant as well.  Shree Shiv Shakti Corp… v Khalid Properties, LLC, 515810, 5-30-13


Erroneous Boundary Line Agreement Presents Triable Issue of Fact Re: Liability of Title Insurance Company

In reversing Supreme Court, the Second Department determined there was a triable issue of fact about whether the defendant title insurance company was liable for a defect in title (boundary line agreement) which resulted in plaintiffs owning half the property they thought they were purchasing:

           …Chicago Title established, prima facie, that the defect in title fell within exclusion 3(c) of the policy, which excludes from coverage defects "resulting in no loss or damage to the insured claimant." Chicago Title presented an affidavit from a certified real estate appraiser opining that the plaintiffs have not sustained any loss in property value as a result of the boundary line agreement. Indeed, Chicago Title's appraiser opined that the boundary line agreement resulted in a benefit to the plaintiffs and added significant value to their property due to the government's maintenance and nourishment of the beach. In opposition, however, the plaintiffs raised a triable issue of fact as to whether they suffered a loss or damages as a result of the defect in title. The plaintiffs submitted an affidavit of their certified real estate appraiser, who opined that the total loss to the plaintiffs of all title to the portion of their purchased premises lying to the south of the 188-foot line constituted a measurable diminution in the value of the plaintiffs' purchase. In light of these conflicting expert opinions, there is a triable issue of fact as to whether the plaintiffs sustained a loss or damages as a result of the defect in title …. Nastasi v County of Suffolk, 2013 NY Slip Op 03824, 2nd Dept, 5-29-13

Fact Deed Not Recorded Did Not Rebut Presumption of Delivery and Acceptance of Deed

In reversing Supreme Court, the Second Department determined the proof in this action to quiet title demonstrated that plaintiff’s decedent was the rightful owner of the subject property.  The Second Department noted the fact that the deed was not recorded did not overcome the presumption of delivery and acceptance of the deed:


           Although the presumption of delivery and acceptance of a deed as of its date "must yield to opposing evidence…, here, no admissible evidence which would have overcome the presumption was presented in opposition to the evidence showing that the 1996 deed was executed in the presence of and delivered to the parties' mutual attorney …. The fact that the deed was not recorded was not sufficient evidence to overcome the presumption of delivery of the deed to the attorney, the mutual agent of both parties, since recording is not required in order to transfer title to real property (see Real Property Law § 291). No evidence was presented that the delivery of the deed on the date of its execution was conditional.  Saline v Saline, 2012 NY Slip Op 03827, 2nd Dept, 5-29-13


Absent Defendant Did Not Receive Effective Assistance of Counsel

The Court of Appeals held that a defendant who was absent from his trial received ineffective assistance of counsel:

           It is well established that a defendant may not, by his absence alone, "waive his right to effective assistance of counsel" …. Although a defendant's willful absence from trial surely hampers an attorney's ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel's lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant's cooperation with his attorney in formulating a defense before absconding, there was a "reasonable basis for an active defense" ….  People v Diggins, No 96, CtApp, 5-30-13

No Error in Using Interpreter Who Was Acquainted With Complainants

In a full-fledged opinion by Judge Pigott (with a dissent by Judge Rivera), the Court of Appeals determined the denial of defense counsel’s request to replace a state-employed court interpreter because he was acquainted with the complainants was not an abuse of discretion:


           The interpreter complied with his ethical obligation by notifying the court that he was a friend of complainant husband. Upon receiving that information, the court questioned the interpreter as to whether he (1) knew the facts of the case, and (2) would be uncomfortable translating for complainant wife. Having received a negative answer to both questions, the trial court allowed defense counsel to question the interpreter. Satisfied that its questioning and that of defense counsel uncovered no bias on the part of the interpreter, the court properly exercised its discretion in not removing him.  People v Lee, No 111, CtApp, 5-30-13

Failure to Comply with Statutory Procedure Re: Jury Note Was Not “Mode of Proceedings” Error

The Court of Appeals determined the trial court’s failure to comply precisely with the requirements of CPL 310.30, and the trial court’s having a court officer tell the jury they could not have a written copy of the jury instructions, did not constitute mode of proceedings errors.  The Court wrote:

           We are not persuaded by defendant’s argument that a mode of proceedings error occurred, when the trial court did not comply precisely with the requirements of People v O’Rama (78 NY2d 270 [1991]; CPL 310.30). Where, as here, defense counsel had notice of a jury note and “failed to object . . . when the error could have been cured,” lack of preservation bars the claim … .

           Nor did the court commit a mode of proceedings error by delegating delivery of its answer to a jury question to a court officer. That task was in this context practically ministerial and defense counsel consented to the procedure … . People v Williams, No 112, CtApp, 5-30-13

Includable/Excludable Time Under Speedy Trial Statute Explained

The Third Department explained the principles and proof requirements with respect to excludable time under the speedy trial statute, including a detailed analysis of all the relevant types of excludable/includable time raised by the facts of the case:

           Where, as here, a defendant is charged with a misdemeanor punishable by a sentence of more than three months of incarceration, the People are required to be ready for trial within 90 days of the commencement of the criminal action (see CPL 30.30 [1] [b];…).   "Whether  the People  complied  with this obligation is 'determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any  periods of delay that are excludable under  the terms  of the statute and  then  adding  to the result any postreadiness periods of delay that are actually attributable to the People  and  are ineligible for an  exclusion'"… .  People v Sydlar, 103777, 3rd Dept, 5-30-13

Indictment Count Did Not State an Offense/Jurisdictional Defect Can Not Be Cured by Amendment

The Third Department determined one count of an indictment was jurisdictionally defective and the People’s attempt to cure the defect by amendment was prohibited by CPL 200.70, which does not allow amendment to fix the failure to state or charge an offense:

           Here, count 3 of the indictment charged defendant with conspiracy in the second degree, a crime which requires an "intent that conduct constituting a class A  felony be  performed" (Penal Law § 105.15). While count 3 references the relevant statutory section for conspiracy in the second degree and expressly states that defendant acted "with intent that conduct constituting a class A felony be performed," it does not include any statutory reference to the class A  felony listed in count 1 of the indictment. * * *

           While it is true that "[t]he incorporation [in an indictment] by  specific reference to the statute [defining the crime charged] operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon" …, such reference may be negated, as it was here, by the inclusion of conduct that does not constitute the crime charged ….  People v Boula, 104053, 3rd Dept, 5-30-13

Defense Counsel’s Assessment of the Merits of Defendant’s Pro Se Motion Rendered Her Position Adverse to Defendant’s

The defendant made a pro se motion to withdraw his plea of guilty.  In response to the sentencing court’s question, the defendant’s attorney told the court that she saw no legal basis for the motion. The Third Department determined defense counsel acted appropriately in not supporting the pro se motion, but the sentencing court should not have questioned defense counsel about the merits of the motion and should have assigned new counsel to the defendant once it was clear counsel’s position was adverse to defendant’s:

           Under  established principles, defense counsel has no  duty to support a pro se motion that he or she has determined to be without merit, and failing to support such a motion "does not constitute a position adverse to the client" ….   Here, after properly informing County Court that she would not be making the motion on behalf of defendant, defense counsel responded to the court's substantive inquiry that she found no  "legal basis" for his motion. Indeed, in denying defendant's request for new counsel or for more time to make the motion, the court reiterated that defense counsel "in her knowledge and  understanding of this case [stated] that there's no legal basis to withdraw your plea of guilty."  "[O]nce counsel took a position adverse to . . . defendant, the court should not have proceeded  to determine the motion  without first assigning. . . defendant new counsel" … . People v McCray, 104161, 3rd Dept, 5-30-13


Relationship Between Defendant’s Act and Fatal Car Accident Too Attenuated to Support Criminally Negligent Homicide

The Third Department determined that the relationship between the defendant’s act and a fatal car accident was too attenuated to support a conviction for criminally negligent homicide.  The defendant, a passenger, jerked the steering wheel, apparently in an attempt to intimidate or strike a car that was along side of the car defendant was in.  The car defendant was in struck a guard rail and caused the blockage of one lane of traffic.  The one car accident caused traffic to back up.  30 minutes later the fatal accident occurred.  The Third Department wrote:

           “[A]n act 'qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen'"… .   A connection between the conduct and the death that is obscure or "merely probable" will not suffice ….  On the other hand, we note that the mere lapse of time will not  necessarily serve to break the chain of causation … .  Nor  does  a  defendant's conduct  need  to be  the  sole cause  of death  in order  for criminal responsibility to attach ….  * * *

           Here, the People failed to present evidence directly linking defendant's act to the victims' deaths …. Although the accident reconstructionist called as a witness by the People provided an opinion as to the sequence of the five-car collision, he could not estimate the speed of the vehicles involved, he did not attempt to reconstruct the initial accident and he offered no opinion to support the conclusion that the third and fatal accident was  a foreseeable result of the initial accident … .  People v Ballenger, 104664, 3rd Dept, 5-30-13


Challenge to Superior Court Information Does Not Survive Guilty Plea

The Third Department noted that a challenge to the factual sufficiency of a superior court information must be preserved by objection and does not survive a guilty plea (after indictment).  People v Martinez, 104837, 3rd Dept, 5-3-13

No Determinate Sentences for Youthful Offenders

In a full-fledged opinion by Justice Stein, the Third Department concluded that the sentencing guidelines for youthful offenders do not allow the imposition of a determinate sentence:

           Penal Law  §  60.02 (2) provides, as relevant here, that a sentencing court must  impose  upon  a youthful offender "a sentence authorized to be imposed upon a person convicted of a class E felony" (emphasis added).   In turn, the permissible prison sentence for a person convicted of an undesignated class E felony is an indeterminate sentence with a minimum of one year and a maximum of four years (see Penal Law §  70.00  [2] [e]). 

* * *

           When Penal Law § 60.02 (2) is read in conjunction with CPL 720.20 (1) (a), it is clear that the authorized sentence for a youthful offender adjudication substituted for any  felony conviction is an indeterminate term that does not exceed a maximum of four years, "regardless  of  the  classification of  the  felony  committed"… .  People v Jorge D, 104930, 3rd Dept, 5-30-13

“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

           The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: "(1) The police must have reasonable grounds to believe that there is an emergency at hand  and an immediate  need  for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched" … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

Grabbing and Spinning a Person Does Not Constitute Unlawful Imprisonment

The Second Department determined that grabbing a woman by the waist, spinning her around and releasing her did not amount to unlawful imprisonment:

           …[T]he evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crime of unlawful imprisonment in the second degree (see Penal Law § 135.05). At the fact-finding hearing, the complaining witness testified that the appellant grabbed her by the waist and spun her around, and that, when she ordered him to release her, he immediately complied. This evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant "restrict[ed] a person's movements intentionally and unlawfully in such manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commence[d] or in a place to which [s]he ha[d] been moved, without consent and with knowledge that the restriction [was] unlawful" (Penal Law § 135.00; see Penal Law § 135.05…).  Matter of Terry JP, 2013 NY Slip Op 03844, 2nd Dept, 5-29-13

Insufficient Evidence of Depraved Indifference Assault and Assault on a Police Officer

The Second Department determined there was insufficient evidence to support defendant’s convictions for depraved indifference assault and assault on a police officer.  The facts did not demonstrate defendant acted with depraved indifference, nor was the injured police officer engaged in a “lawful duty” when he stopped defendant’s car in the absence of reasonable suspicion of criminal activity:

           Under these facts, where the defendant was attempting to get away from the officers' unlawful questioning, where the injuries were caused not by the direct crash, but when the police car pivoted after being hit, and where it all happened in an instant, "the evidence did not establish the degree of depravity and indifference to human life required for depraved indifference [assault]" ….  * * *

           A person commits the crime of assault on a police officer when, "with intent to prevent a . . . police officer . . . from performing a lawful duty, he [or she] causes serious physical injury to" the officer (Penal Law § 120.08). "To sustain a conviction of assault in the second [or first] degree under Penal Law § 120.05(3), the People must establish that the injured police officer was engaged in a lawful duty at the time of the assault by the defendant" … .Here, the police conduct in pulling in front of the defendant's parked vehicle so as to block his ability to pull out of the parking space "constituted a stop, which required reasonable suspicion that the defendant [was] either involved in criminal activity or posed some danger to the police"…. However, Sergeant Pagnotta's testimony was clear that, at no time prior to the positioning of the police car so as to block the defendant's vehicle, nor during the ensuing encounter after Sergeant Pagnotta got out of the police car and approached the window of the defendant's vehicle, was the defendant observed to be engaged in any criminal activity, or in any activity that would have aroused reasonable suspicion.  People v Hurdle, 2013 NY Slip Op 03849, 2nd Dept, 5-29-13


No Reasonable Suspicion of Criminal Activity---Frisk of Defendant Improper

Applying a “DeBour” analysis, the Second Department determined the police did not have the right to frisk the defendant.  The police approached the defendant because he was holding two or three cigarettes and the police thought he may be selling loose cigarettes.  The police noticed evidence of gang membership and defendant acknowledged being a member. The police asked defendant if he had a weapon and defendant did not answer.  At that point, based on seeing a bulge in defendant’s pocket, the defendant was frisked and searched. The Court wrote:


           The level one request for information may include " basic, nonthreatening questions regarding, for instance, identity, address or destination'" …. However, " [o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing . . . the officer is no longer merely seeking information'" … and the encounter has become a level-two common-law inquiry, which must be supported by " "a founded suspicion that criminal activity is afoot"'" …"[A] police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot" ….

           "[T]o elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior" …. " [I]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand'" …. Thus, "in order to justify a frisk of a suspect's outer clothing, a police officer must have "knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety"'"….

           Even assuming that the police were justified in conducting a level-two common-law inquiry, they lacked the reasonable suspicion necessary to support a level-three encounter consisting of a pat-down or "stop-and-frisk" search… .  People v Kennebrew, 2013 NY Slip Op 03854, 2nd Dept, 5-29-13

10-Year Period for Predicate Felony Tolled by Incarceration

The Second Department noted that incarceration tolls the 10-year period for consideration of a predicate felony:

          Although the period of time between the defendant's 1999 conviction and the commission of the felonies for which he stands convicted in this case was more than 10 years, the 1999 conviction constituted a predicate felony for purposes of second felony offender sentencing, since the 10-year statutory period was tolled while the defendant was incarcerated from May 5, 2000, to February 22, 2007 (see Penal Law §§ 70.06[1][b][iv], [v]; 70.70[3][b][i]). People v McCray, 2013 NY Slip Op 03851, 2nd Dept, 5-29-13


Failure to Get Court’s Permission to Represent to a Grand Jury Required Dismissal of Indictment

The First Department determined that the prosecutor’s failure to get court permission to represent a case to a grand jury need not be preserved by objection and required dismissal of the indictment:

           The failure to obtain court authorization to re-present the charges to a second grand jury implicates the power to prosecute…; thus, defendant was not required to alert the court to the authorization requirement of CPL 190.75(3), or otherwise object, in order to preserve the issue for appellate review. Where, as here, the prosecutor presented charges and the grand jury failed to vote to either dismiss them or indict the defendant, a situation arose "in which the court, and not the prosecutor, should have decided whether re-presentation to a second grand jury was appropriate"…. In the absence of court authorization, dismissal of the indictment is required …. People v Miller, 2013 NY Slip Op 03928, 1st Dept, 5-30-13


SORA Amendments Did Not Render Statute Punitive---Ex Post Facto Clause Not Applicable

In a full-fledged opinion by Justice Andrias, the First Department determined the amendments to the Sex Offender Registration Act (SORA) did not render the statute punitive and thereby violate the Ex Post Facto Clause or violate the Double Jeopardy prohibition with respect to the defendant:

           It may be true that subjecting sex offenders to lifetime registration and notification requirements, with their attendant obligations and restrictions, increases the difficulties and embarrassment a sex offender may endure, even where he has led a law-abiding life since his conviction. However, in assessing the constitutionality of a statute, this Court does not review the merits or wisdom of the Legislature's decisions on matters of public policy …, and the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional. Although "one can argue that such laws are too extreme or represent an over-reaction to the fear of sexual abuse of children, . . . they do not violate the ex post facto clause . . . . People v Parilla, 2013 NY Slip Op 03931, 1st Dept, 5-30-13

Court Did Not Abuse Discretion In Not Sentencing Pursuant to Jenna’s Law Even Though Defendant Qualified

The Second Department, over a dissent by Justice Balkin, affirmed a determinate sentence of five years in prison.  The sentencing court chose not to apply Penal Law 60.12 (Jenna’s Law) which allows indeterminate terms of imprisonment for first-time violent felons if the victim’s domestic violence was a factor in the commission of the crime (criteria met by the defendant).  The sentencing court noted that the defendant would probably never commit another crime, but imposed the sentence as a deterrent to others: 

           While the court accurately noted that the sentence would have limited deterrent and rehabilitative impact on this particular defendant, the court's aim in imposing the sentence was, in large part, to deter others from engaging in similar misconduct. Indeed, the court stated at sentencing that "[s]ociety certainly must be concerned with self-help, violent behavior that is not sanctioned by law." Since the court viewed general deterrence as an overriding sentencing principle, we cannot say that the emphasis was erroneous or that the interest of justice calls for a reduction in the defendant's sentence …. People v Sheehan, 2013 NY Slip Op 03859, 2nd Dept, 5-29-13


Failure to Raise Denial of Constitutional Right to Present a Complete Defense Precluded Appeal

The Second Department noted that the defendant’s failure to raise the denial of his constitutional right to present a complete defense and confront witnesses (re: cross-examination of victim about an alleged motive to fabricate) at trial rendered the issue unpreserved for appellate review.  People v Simmons, 2013 NY Slip Op 03861, 2nd Dept, 5-29-13


A Default Judgment Not Supported by “Proof of the Facts Constituting the Claim” as Required by CPLR 3215 (f) Is Not a Nullity

In a full-fledged opinion by Judge Smith, the Court of Appeals determined that the failure to file “proof of the facts constituting the claim” (as required by CPLR 3215(f)) in an application for a default judgment is not a jurisdictional defect that renders a default judgment a nullity.  The Court wrote:

            …[T]he word "jurisdiction" is often loosely used. But in applying the principle "that a judgment rendered without subject matter jurisdiction is void, and that the defect may be raised at any time and may not be waived" …, it is necessary to understand the word in its strict, narrow sense. So understood, it refers to objections that are "fundamental to the power of adjudication of a court" …. "Lack of jurisdiction" should not be used to mean merely "that elements of a cause of action are absent" …, but that the matter before the court was not the kind of matter on which the court had power to rule.

           The defect in the default judgment before us is not jurisdictional in this sense. A failure to submit the proof required by CPLR 3215(f) should lead a court to deny an application for a default judgment, but a court that does not comply with this rule has merely committed an error -- it has not usurped a power it does not have. The error can be corrected by the means provided by law -- i.e., by an application for relief from the judgment pursuant to CPLR 5015. It does not justify treating the judgment as a nullity.  Manhattan Telecommunications Corporation v H & A Locksmith, Inc…, No 118,CtApp, 5-30-13

Hearsay Evidence Can Be Considered in Opposition to Summary Judgment Motion As Long As It Is Not the Only Evidence

In affirming the denial of defendant’s summary judgment motion where plaintiffs’ complaint alleged defendant coerced decedent into executing estate planning documents, the First Department noted that hearsay evidence may be considered as long as it is not the only evidence offered:


           While defendant correctly asserts that plaintiffs submitted certain hearsay evidence in opposition to the summary judgment motion, including certain physician and attorney notes, such hearsay evidence may be considered when submitted in opposition to a summary judgment motion, so long as it is not the only proof submitted …. Here, nonhearsay evidence, including affidavits from the decedent's friends as well as the decedent's first daughter, described the contentious nature of the marriage and the decedent's declining mental health. Moreover, the decedent, who was 83 years old and undisputedly suffered from some degree of cognitive impairment when he signed the documents, initiated this lawsuit during his lifetime and attested, by his verified complaint, to his declining health and defendant's abusive and coercive conduct.  Plaintiffs further rely on a nonhearsay affidavit from a forensic document examiner that concluded that the decedent's signature was forged on the retainer letter, possibly by defendant, as additional evidence that defendant coerced the decedent into retaining counsel to execute these documents and did not want the decedent to have separate counsel in the event of any conflict. All of this raises triable issues of fact whether defendant wielded sufficient influence over the decedent to overcome his free will …. Bishop v Maurer, 2013 NY Slip Op 03771, 1st Dept, 5-28-13

Unsigned Depositions Admissible

In ruling that both defendant’s and plaintiff’s unsigned deposition transcripts could be considered in slip and fall summary judgment motion, the Second Department wrote:

           Contrary to the plaintiff's contention, the Supreme Court properly considered the deposition transcripts submitted in support of the motion. The unsigned but certified deposition of the defendant was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent…. Additionally, in reply to the plaintiff's opposition, the defendant submitted evidence which showed that the plaintiff's certified deposition transcript had been submitted to her for review, but that she failed to sign and return it within 60 days. Thus, the plaintiff's deposition transcript was properly used as fully as though it were signed…. Moreover, this evidence demonstrating the defendant's compliance with CPLR 3116(a) was properly considered in reply because it was submitted in direct response to allegations raised for the first time in the plaintiff's opposition papers…. David v Chong Sun Lee, 2013 NY Slip Op 03811, 2nd Dept, 5-29-13

Submission of Affidavit of Merit in Reply Improper

In reversing the vacation of the dismissal of a medical malpractice action, the Second Department noted that it was improper to submit an affidavit of merit from a medical expert in reply papers:

           The assertion of the plaintiff's counsel that he incorrectly calendared the date on which the note of issue was due amounted to a reasonable excuse of law office failure…. However, the plaintiff failed to provide in her initial moving papers an affidavit of merit from a medical expert competent to attest to the meritorious nature of the cause of action alleging medical malpractice…. It was improper for the plaintiff to submit an affidavit of merit from a medical expert for the first time in her reply papers….  King v Dobriner, 2013 NY Slip Op 03817, 2nd Dept., 5-29-13


“Hose Company” Not Entitled to Payment of Tax Monies to Fire Department

The Third Department determined that a “hose company” was not part of the fire department and thus was not entitled to the payment of tax monies slated for the fire department:

            The members of Citizens Hose are not trained to perform interior or exterior firefighting and, on the rare occasions when they are paged to assist the fire department, the few members who respond are limited to performing auxiliary services such as coiling hoses, directing traffic and  cleaning equipment. The evidence at trial established that whenever  the fire department  requires assistance in actually fighting a fire, it makes  a mutual aid call to volunteer fire companies in surrounding communities. Citizens Hose is not part of the mutual aid call system.  Krol … v Porter, 516002, 3rd Dept, 5-30-13


No Conversion Action for Real Property/No Conversion Action Where Money Transferred Pursuant to Agreement

In affirming the dismissal of a complaint in which it was alleged the purchase of a building was induced by misrepresentations, the First Department noted there can be no action for conversion of real property, and there can be no action for conversion of money which was transferred pursuant to an agreement:

           The motion court properly dismissed plaintiff's sixth cause of action alleging conversion. As it accurately noted, to the extent plaintiff based that cause of action on an alleged conversion of its 7% fee interest in the premises, the claim must fail because a party may not sustain a claim for conversion of real property …. Similarly, while a party can properly assert a claim for conversion of money …the $2 million cannot be the subject of a conversion claim here. Even accepting the truth of the allegations in the complaint, plaintiff does not allege that defendants wrongfully exercised dominion over those funds in derogation of plaintiff's ownership … [conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights][internal citations omitted]). On the contrary, by alleging that it agreed to, and did, transfer the funds in return for the 7% interest in the property, plaintiff tacitly concedes that possession of the money was authorized. B & C Realty, co v 159 Emmut Props LLC, 3013 NY Slip Op 03913, 1st Dept, 5-30-13

Intentional Infliction of Emotional Distress Action Against Governmental Entity Barred by Public Policy

In affirming the dismissal of plaintiff’s complaint for false arrest, malicious prosecution, assault and battery, etc., the Second Department noted:  “ [p]ublic policy bars claims for intentional infliction of emotional distress against a governmental entity’”… .  Rodgers v City of New York, 2013 NY Slip Op 03926, 2nd Dept, 5-29-13


Only Personnel Records Used to Evaluate Police Officer’s Performance Protected from Disclosure

In a full-fledged opinion by Justice Peters, the Third Department determined that the records of a hit-and-run accident involving a state trooper, sought in a Freedom of Information Law (FOIL) request made by a newspaper journalist, may be protected by the Civil Rights Law 50-a if they are personnel records used to evaluate performance toward continued employment, even after employment has been terminated.  In this particular case, however, the Third Department ruled that the respondent (police department) failed to demonstrate that the records sought fell squarely within the Civil Rights Law exception and the motion to dismiss should not have been granted.

           Respondent's motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records "fall[] squarely within the exemption"….   Here, petitioners' FOIL request sought all "records, in any form" that "relate[d] to" the off-duty incident involving Beardsley. In reply, respondent withheld all of the requested records on the basis of a blanket invocation of Civil Rights Law § 50-a, without describing any of the documents withheld or offering a specific basis for the claimed exemption … .  In the Matter of Hearst Corporation… v New York State Police, 515693, 3rd Dept, 5-30-13

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