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May Page V

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


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Lack of Standing Defense Waived By Absence from Answer---Objections to Authority to Sign Lease Waived by Ratification of the Signed Documents


The Third Department, in a dispute over what was due and owing under a lease agreement, determined the "lack of standing" defense had been waived by the failure to raise it in the answer, and allegedly unauthorized execution of relevant documents had been ratified:


Initially, defendant claims that plaintiff lacks standing to enforce any obligations created by the lease or confirmation agreement, as it was not a party to either document. We agree with Supreme Court that this claim was waived by defendant's failure to assert it in the answer (see CPLR 3211 [a]; [3]; [e]...).. Defendant further argues that the confirmation agreement is not legally valid, as it was not signed by plaintiff and ... PDC [the original lessor, Provident Development Corporation] had transferred the building to plaintiff prior to executing the confirmation agreement. However, "[a];n unauthorized execution of an instrument affecting the title to land or an interest therein may be ratified by the owner of the land or interest so as to be binding upon him [or her];" ... . Such a ratification may be shown by the owner's failure to timely repudiate the unauthorized actions, or by conduct consistent with an intent to be bound ... . Here, plaintiff has never repudiated PDC's execution of the confirmation agreement; on the contrary, the record reveals that, beginning on the commencement date established by the agreement and continuing through 2011, plaintiff regularly invoiced defendant for payments due at the intervals and in the amounts specified in that agreement and accepted defendant's resulting payments — thus ratifying the confirmation agreement by accepting benefits due thereunder ... . Provident Bay Rd LLC v NYSARC Inc, 2014 NY Slip Op 03895, 3rd Dept 5-29-14




English Judgment Enforceable by New York Courts Without Demonstration of Subject Matter Jurisdiction or Ownership of Property in New York


The First Department determined a judgment rendered in England was enforceable by New York courts without any need to demonstrate subject matter jurisdiction over the underlying matter or the ownership of property in New York.  In addition, the court noted that the imposition of post-judgment interest on the foreign judgment by New York courts was found appropriate:


...New York adopted the Uniform Foreign Country Money-Judgments Recognition Act as CPLR article 53 ..., which was intended to codify and clarify existing case law applicable to the recognition of foreign country money judgments based on principles of international comity, "and, more importantly, to promote the efficient enforcement of New York judgments abroad by assuring foreign jurisdictions that their judgments would receive streamlined enforcement here" ... .


Generally, a foreign country judgment is "conclusive between the parties to the extent that it grants or denies recovery of a sum of money" (CPLR 5303), "unless a ground for nonrecognition under CPLR 5304 is applicable" ... . CPLR 5304(a) provides that "[a]; foreign country judgment is not conclusive if the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law" (subd [1]) or "the foreign court did not have personal jurisdiction over the defendant" (subd [2]). CPLR 5304(b) permits nonrecognition on eight other grounds. Significantly, "in proceeding under article 53, the judgment creditor does not seek any new relief against the judgment debtor, but instead merely asks the court to perform its ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment" ... . Abu Dhabi Commercial Bank PJSC v Saad Trading, 2014 NY Slip Op 03767, 1st Dept 5-27-14





Claim Re: Ownership of Real Property Precluded by Laches Defense


The Second Department determined a counterclaim was properly dismissed pursuant to the laches defense.  The counterclaim alleged that a mortgage was void because the property passed by operation of law to the defendants upon the death of the property owner in 1988.  The defense of laches in this context was explained as follows:


"The essence of the equitable defense of laches is prejudicial delay in the assertion of rights" ... . " To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant'" ... . "In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that [the]; plaintiff inexcusably failed to act when [he or]; she knew, or should have known, that there was a problem with [his or]; her title to the property. In other words, for there to be laches, there must be present elements to create an equitable estoppel'" ... . " Equitable estoppel arises when a property owner stands by without objection while an opposing party asserts an ownership interest in the property and incurs expense in reliance on that belief. The property owner must inexcusably delay in asserting a claim to the property, knowing that the opposing party has changed . . . position to his [or her ]; irreversible detriment'" ... . "Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense" ... . Deutsche Bank Natl Trust Co v Joseph, 2014 NY Slip Op 03794, 2nd Dept 5-28-14



Evidence Defendant Had Victimized Other Children Justified Upward Departure in SORA Proceeding


The Second Department determined that clear and convincing evidence defendant had victimized other children justified an upward departure in the SORA proceeding:


...[T]he court's classification of the defendant as a level three sex offender was justified. The People proved by clear and convincing evidence that the defendant had engaged in sexual misconduct with children other than the child whose victimization led to the defendant's conviction. This constituted aggravating factors of a kind not otherwise taken into account by the guidelines that warranted an upward departure to level three ... . People v DeJesus, 2014 NY Slip Op 03815, 2nd Dept 5-28-14




Case Summary by Board of Examiners of Sex Offenders Constitutes Clear and Convincing Evidence in a SORA Proceeding


The Second Department determined the case summary provided by the Board of Examiners of Sex Offenders and the sworn felony complaint provided clear and convincing evidence of continuing sexual misconduct against the victim:


In establishing a defendant's risk level pursuant to the Sex Offender Registration Act (hereinafter SORA) (see Correction Law art 6-C), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168-n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]...). " In assessing points, evidence may be derived from . . . the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay'" ... .


Here, the case summary and the sworn felony complaint constituted "reliable hearsay" (Correction Law § 168-n[3]...)  and provided clear and convincing evidence to warrant the assessment of 20 points under risk factor four, for engaging in a continuing course of sexual misconduct against the victim ... .  People v Patronick, 2014 NY Slip Op 03816, 2nd Dept 5-28-14




"Serious Physical Injury" Element of Gang Assault Not Supported by Legally Sufficient Evidence


The Second Department determined the evidence of the "serious physical injury" element of the gang assault charge was not supported by legally sufficient evidence:


The defendant challenges his conviction of gang assault in the first degree, asserting that the People failed to present legally sufficient evidence that [the victim] suffered a "serious physical injury," which is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (Penal Law § 10.00[10]). * * *


Although [the victim] was stabbed in the right flank, his wounds required no stitches, and there was no evidence that he suffered any permanent damage to his kidney, which suffered a small laceration. Moreover, when he was examined, [the victim] was oriented and alert, able to converse, and had normal vital signs and blood pressure. Further, the only evidence of protracted disfigurement or impairment of health was that he had a scar, which the jury saw, and that he felt pain on the scar. The record, however, includes no description of the scar or what, if any, limitations [the victim] suffered as a result of his injury. Thus, the People failed to adduce legally sufficient evidence that [the victim] suffered a "serious physical injury" within the meaning of Penal Law § 10.00(10), which is an element of gang assault in the first degree ... . People v Mazariego, 2014 NY Slip Op 03863, 2nd Dept 5-28-14




Quantity and Nature of Child Pornography Warranted an Upward Departure in a SORA Proceeding


The Second Department determined the quantity and nature of the child pornography in defendant's possession warranted an upward departure in a SORA proceeding:


...[I]n light of the large quantity of child pornography recovered from the defendant's possession and the nature of that material, which included, among other things, images and videos depicting the torture of children, the County Court properly determined that there were aggravating factors not adequately taken into account by the SORA guidelines ... . Upon making such a determination, the court providently exercised its discretion in granting the People's application for an upward departure from the presumptive sex offender risk level ... . People v Rotunno, 2014 NY Slip Op 03817, 2nd Dept 5-28-14




Defendant's Refusing to Be Interviewed by the Probation Department Was a Valid Ground for Sentence Enhancement


The Second Department determined the defendant's refusing to be interviewed by the probation department was a valid ground for a sentence enhancement:


A defendant's "failure to abide by a condition of a plea agreement to truthfully answer questions asked by [a]; probation department is an appropriate basis for the enhancement of the defendant's sentence" ... . Here, the plea condition requiring the defendant to cooperate with the Dutchess County Office of Probation and Community Corrections (hereinafter the OPCC) was explicit and objective, and the plea allocution reveals that the defendant acknowledged, understood, and accepted such condition ... . Accordingly, the Supreme Court properly imposed an enhanced sentence based upon the defendant's violation of the condition by refusing to be interviewed by the OPCC. People v Mazyck, 2014 NY Slip Op 03864, 2nd Dept 5-28-14




Warrantless Entry Justified by Exigent Circumstances


The Third Department, over a dissent, affirmed County Court's finding that the warrantless entry of a building was justified by exigent circumstances:


"Appraising a particular situation to determine whether exigent circumstances justified a warrantless intrusion into a protected area presents difficult problems of evaluation and judgment. This difficulty is highlighted by the fact that Judges, detached from the tension and drama of the moment, must engage in reflection and hindsight in balancing the exigencies of the situation against the rights of the accused" ... . Pursuant to the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if three prerequisites are met: "(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 requisite reasonable grounds for the belief that an emergency exists must be based upon objective facts, rather than the subjective feelings of the police ... . * * *


In our view, the information known to law enforcement rendered it objectively reasonable for the officers to believe that the armed perpetrator could still be inside the building. Although the dissent stresses the fact that the subject building was a multi-family house, thus discounting the officer's observation of people on the second floor, the evidence adduced at the suppression hearing does not establish that the responding officers had any knowledge of the building's configuration. To the contrary, both the arresting officer and one of the officers who ultimately entered the apartment testified that, at that point in time, they were unaware of the layout of the building. While further investigation and consideration removed from the exigencies of the situation may have uncovered this fact, "the requirement of reasonable grounds to believe that an emergency existed must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences" ... . People v Gibson, 2014 NY Slip Op 03877, 3rd Dept 5-29-14




Violation of Defendant's Right to Remain Silent Was Harmless Error---Elements of "Extreme Emotional Disturbance" Defense to Murder Explained


The Third Department, over a dissent, determined that the error in eliciting testimony, in violation of defendant's post-Miranda right to remain silent, about defendant's failure to apprise law enforcement that he shot the victims while under extreme emotional disturbance, was harmless error.  The decision includes a detailed discussed of the relevant criteria for "extreme emotional disturbance:"


As the Court of Appeals has instructed, the extreme emotional disturbance defense is comprised of both subjective and objective elements. "The subjective element focuses on the defendant's state of mind at the time of the crime and requires sufficient evidence that the defendant's conduct was actually influenced by an extreme emotional disturbance" ..., i.e., "that the [defendant's]; claimed explanation as to the cause of his [or her]; action [was]; not contrived or [a]; sham" ... . This subjective element is "generally associated with a loss of self-control" ... . The objective element, in turn, "requires proof of a reasonable explanation or excuse for the emotional disturbance . . . [, which]; must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the]; emotional disturbance was reasonable" ... .


To be sure, the extreme emotional disturbance defense "is significantly broader in scope than the 'heat of passion' doctrine [that]; it replaced" ... and, for that reason, the "[a];ction[s]; influenced by [such defense]; need not be spontaneous" ... . "'Rather, it may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore'" ... . That said, evidence demonstrating a defendant's "high degree of self-control" ... , as well as any "postcrime conduct . . . suggest[ing]; . . . that [the defendant]; was in full command of his [or her]; faculties and had consciousness of guilt" ... , is entirely inconsistent with an extreme emotional disturbance defense.  People v Pavone, 2014 NY Slip Op 03881, 3rd Dept 5-29-14





Suicide Notes Not Protected by Marital Privilege---Substance Had Been Revealed to Third Parties


The Second Department determined that suicide notes left by the defendant were not protected by the marital privilege:


"One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)" ... .. While a suicide note can be a communication made during marriage for the purpose of the privilege ..., the spousal privilege falls "when the substance of a communication . . . is revealed to third parties" ... . Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the marital privilege ... . People Jacob, 2014 NY Slip Op 03861, 2nd Dept 5-28-14




To Demonstrate "Defamation by Implication" Where the Factual Statements Are Substantially True, It Must Be Shown the Communication as a Whole Imparts a Defamatory Inference and the Author Intended or Endorsed the Defamatory Inference 


In a full-fledged opinion by Justice Feinman, the First Department adopted criteria for determining whether a publication is defamatory by implication.  The subject of the case was a published magazine article describing a conspiracy in Russia involving hundreds of millions in illicit funds.  The plaintiffs alleged that the article defamed them by implying involvement in the conspiracy. The First Department affirmed the dismissal of the complaint and adopted a standard which requires the plaintiff to demonstrate the defamatory inference of the substantially true statements, as well as that the author intended or endorsed that inference:


"Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements" ... . The implied defamation cause of action was recognized by the Court of Appeals in a 1963 decision determining that, although the publication at issue contained no directly defamatory statements, "a jury should decide whether a libelous intendment would naturally be given to it by the reading public acquainted with the parties and the subject-matter" ... . The following year, the U.S. Supreme Court's landmark decision in New York Times Co. v Sullivan (376 US 254 [1964]) found that the free speech protections guaranteed by the First Amendment to the U.S. Constitution placed substantial limits on the right to recover for defamatory statements ... . In a 1977 libel decision, after discussing the impact Sullivan had on defamation jurisprudence, the Court of Appeals addressed an aspect of the plaintiff's claim that was akin to implied defamation, noting that although an author "could not make up facts out of whole cloth, omission of relatively minor details in an otherwise basically accurate account is not actionable. This is largely a matter of editorial judgment in which the courts, and juries, have no proper function" ... . * * *


"[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning" ... .


...[T]his inquiry requires "an especially rigorous showing": the "language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference"... . * * *


... To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. We believe this rule strikes the appropriate balance between a plaintiff's right to recover in tort for statements that defame by implication and a defendant's First Amendment protection for publishing substantially truthful statements... . Stepanov v Dow Jones & Co Inc, 2014 NY Slip Op 03940, 1st Dept 5-29-14





Probationary Employee Fired in Bad Faith for Union Work---Supreme Court Had the Power to Reinstate Her But Not to Grant Her Tenure


The Second Department determined a probationary teacher demonstrated she was terminated in bad faith.  The court noted that Supreme Court did not have the power to grant the probationary teacher tenure, something only the administrative agency has the power to do:


A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law ... . The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose ... . Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods. Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith ..., in response to the petitioner's showing, the appellants failed to establish that the discontinuance of the petitioner's probationary employment was the result of poor performance. The record demonstrates that the petitioner began [*2]to receive "Unsatisfactory" ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner's performance began to precipitously decline. Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits ... .


However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009. " While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance'" ... . Matter of Capece v Schultz, 2014 NY Slip Op 03834, 2nd Dept 5-28-14




Domestic Relations Order Must Conform to Stipulation of Settlement


The Second Department noted that a domestic relations order must conform to any relevant stipulation.  If it does not conform, it must be amended to conform:


"Where a [domestic relations order]; is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the [domestic relations order]; to accurately reflect the provisions of the stipulation pertaining to the pension benefits" ... . "A proper [domestic relations order]; obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment"... . Mondshein v Mondshein, 2014 NY Slip Op 03806, 2nd Dept 5-28-14




Father's New York Custody Petition Not Preempted by Dominican Republic Court's Denial of Father's Application for Return of the Child


The Second Department determined Family Court should not have dismissed father's petition for custody, despite a Dominican Republic court-ruling denying father's application for return of the child. The application for return of the child was made pursuant to the Convention on the Civil Aspects of International Child Abduction (Convention). The father's petition for custody in New York was deemed proper under the Uniform Child Custody Jurisdiction and Enforcement Act.  The New York custody petition was not preempted by the court ruling in the Dominican Republic:


The Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court's jurisdiction in international child custody matters (see Domestic Relations Law § 75-d). Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this Sate has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (see Domestic Relations Law § 76[a]). "Home state" is defined [*2]as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (see Domestic Relations Law § 75-a[7]). While "state" is defined as a "state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States" (Domestic Relations Law 75-a[15]), pursuant to Domestic Relations Law § 75-d, a "court of this state shall treat a foreign country as if it were a state of the United States" (Domestic Relations Law § 75-d[1]).


The Convention, "done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights" (42 USC § 11601[a];[4]). "The Convention seeks to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States" ... . The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply ... . Return is not required, for example, if the abducting parent can establish that there is a grave risk that the child's return would expose him or her "to physical or psychological harm or otherwise place the child in an intolerable situation" ... . A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence ... .


Here, it is undisputed that the United States was the child's country of habitual residence, and that, at the time the petition was filed, New York was the child's "home state." Thus, the Family Court had jurisdiction to determine the father's petition for custody (see Domestic Relations Law § 76[a]). Moreover, the denial, by the court in the Dominican Republic, of the father's application for a return of the child pursuant to the Convention, did not preempt his custody proceeding ... . Accordingly, the Family Court erred in dismissing the father's petition. Matter of Katz v Katz, 2014 NY Slip Op 03841, 2nd Dept 5-28-14





Child's Testimony Is Enough to Demonstrate Abuse When It Is Supported by the Totality of the Circumstances


In affirming the finding of neglect, the Second Department explained the evidentiary requirements where the primary evidence of the commission of the act and the identity of the abuser is the testimony of the child:


"It is not necessary that specific evidence, outside of the child's statement, exist as to the identity of the abuser, as long as the totality of the evidence provides strong confirmation of the credibility of the child's statements concerning commission of the act and the identity of the abuser" ... . Here, the caseworker observed lacerations and welts on the subject child's forehead, cheek, and back, as well as bruising on his ear, which comported with the child's claim of being hit with an extension cord. Photographs documenting the injuries were also admitted as evidence. This evidence sufficiently corroborates the subject child's out-of-court statements alleging abuse ... . Matter of Eddie Z B, 2014 NY Slip Op 03831, 2nd Dept 5-28-14




No Completed Gift--Symbolic Delivery Did Not Reach "Point of No Return"


The First Department determined the complaint did not state causes of action based upon the allegation that defendant made a completed gift of the shares and proprietary lease interest re: a cooperative apartment.  The plaintiff, who was the successor trustee of a grantor retained income trust (GRIT), alleged the shares and lease interest were the subject of a completed gift to the GRIT.  Because the lease included a lessor's consent provision imposing conditions on any assignment of the lease, and because plaintiff did not allege the cooperative consented to the assignment to the trust, the court determined the complaint did not allege a completed gift:


A GRIT is an estate planning device that allows a grantor to transfer ownership of an asset while retaining the income derived from or use of the property during the trust term. Plaintiff bases his claims upon an irrevocable GRIT agreement executed by the settlor... . * * *


A valid gift requires a donor's intent to make a present transfer, actual or constructive delivery of the gift to the donee and the donee's acceptance ... . "[The] delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit" ... . An interest in a cooperative apartment is sui generis in property law and essentially consists of a right to possess real property ... . Plaintiff unpersuasively argues that the subject of the gift, i.e., the settlor's interest in the cooperative apartment, was actually delivered upon the execution of the GRIT agreement and the accompanying documents.   * * *


...[P]laintiff correctly cites Pell St. Nineteen Corp. v Yue Er Liu Mah (243 AD2d 121 [1st Dept 1998], lv denied 93 NY2d 808 [1999]) for the proposition that constructive or symbolic delivery as opposed to physical delivery of a stock certificate may suffice to transfer shares in a corporation (id. at 126). To be sufficient, however, a symbolic delivery must proceed to "a point of no return" ... .


We are persuaded by the bankruptcy court's reasoning in In re Lefrak (215 BR 930 [Bankr SD NY 1998], affd 227 BR 222 [SD NY 1998]). The issue in Lefrak was whether the debtor's interest in a cooperative apartment had been effectively transferred by virtue of the execution of an assignment of the proprietary lease and an acceptance and assumption agreement (id. at 933). The lease in Lefrak contained a lessor's consent provision that is materially identical to the one before this Court (id. at 933). The court found that the debtor's interest in the apartment had not been transferred prior to the bankruptcy because the shares had not been delivered to the transferee and "the Corporation [like the cooperative in this case]; never recorded the transfer on its stock records." Towbin v Towbin, 2014 NY Slip Op 03766, 1st Dept 5-27-14





Guardian-Attorney Generally Entitled to Compensation for Guardianship Duties and Attorney's Fees for Related Work---Here, However, No Compensable Legal Work Was Actually Done


The Second Department determined Surrogate's Court has the power both to compensate the guardian of property and, where the guardian is an attorney, pay related attorneys fees.  In this case, however, the court determined the guardian-attorney did not provide any legal services over and above the guardianship duties:


Pursuant to SCPA 2307(1), a guardian of the property, like any other "fiduciary" (SCPA 103[21]), is entitled to a commission for receiving and paying out sums of money. Moreover, as relevant here, SCPA 2307(1) also authorizes the Surrogate's Court to award "just and reasonable" compensation to any fiduciary other than a trustee if that fiduciary is an "attorney of this state" and has "rendered legal services in connection with his [or her]; official duties" (SCPA 2307[1]). Such compensation is to be "in addition" to the statutory commission (id.). Matter of Shydasha JS, 2014 NY Slip Op 03847, 2nd Dept 5-28-14





Plaintiff Alleged Brokers Negligently Failed to Provide a Requested Umbrella Policy---Brokers Entitled to Summary Judgment


The Second Department determined the complaint against insurance brokers was properly dismissed. The complaint alleged the brokers failed to provide a requested umbrella policy.  The defendants demonstrated plaintiff was informed they could not provide an umbrella policy and no special relationship existed between the defendants and plaintiff:


" [I];nsurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so'" ... . However, "[a];bsent a specific request for coverage not already in a client's policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage" ... . A special relationship may exist where " there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on'" ... . This notice may be established through evidence that the broker received compensation for its insurance advice apart from the payment of premiums, that the client delegated his or her insurance decision making to the broker, or that there was some interaction regarding a question of coverage with the insured relying on the expertise of the agent ... .


Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that they informed the plaintiff that they could not provide him with the umbrella insurance policy that he requested. The defendants also demonstrated that there was no special relationship between the parties. Lehneis v Neill, 2014 NY Slip Op 03801, 2nd Dept 5-28-14




Question of Fact Raised About Whether No-Fault Insurer's Denial of a Claim Was Timely--Relevant Law Explained


In finding that a question of fact existed about whether the no-fault insurer had timely denied plaintiff's claim, the Second Department explained the relevant law:


A defendant-insurer is required either to pay or deny a claim for no-fault benefits within 30 days of "proof of claim, which shall include verification of all relevant information requested" (11 NYCRR 65-3.8[a];[1]; see Insurance Law § 5106[a]...).. "When a no-fault claim has been assigned to a hospital or medical provider and the hospital or medical provider sends an N-F 5 form to the no-fault insurer, the no-fault insurer's receipt of an N-F 5 form triggers the running of the 30-day period within which the insurer has a duty to pay or to deny the claim, or to seek verification of it" ... . "Subsequent to the receipt of the N-F 5 form, if the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of the receipt of the N-F 5 form in order to toll the 30-day period" ... . A proper request for verification will serve to toll the 30-day statutory time period for payment of the claim ... . New York Univ Hospital-Tisch Inst v Government Employees Ins Co, 2014 NY Slip Op 03812, 2nd Dept 5-28-14




Defendants' Verdict Reversed Because of Erroneous and Incomplete Responses to Jury's Requests for Further Instructions


The First Department determined a defendants' verdict must be reversed because of the judge's erroneous and incomplete responses to the jury's request for further instructions.  The case stemmed from a shooting by a law enforcement officer.  The complaint alleged excessive force and battery in the performance of a duty:  


A new trial is required when an erroneous jury instruction "precluded the jury's fair interpretation of the evidence" ... . The trial court incorrectly told the jury that a battery committed in the performance of a public duty does not require excessive force when the law is clear --as the trial court initially instructed the jury--that it does ... .


The court compounded the error by refusing to re-read the charge. It is apparent from notes #8, #10, and #11 that the jury was confused regarding the definition of "battery" in this context. Rather than clearing up the evident confusion, the court worsened it by contradicting its own charge. Faced with two diametrically opposed definitions, the jury was left to speculate. Under the circumstances, a new trial is required. Disla v City of New York, 2014 NY Slip Op 03769, 1st Dept 5-27-14







Plaintiff, Who Was Struck by a Stone Block Which Apparently Fell from a Pallet of Blocks, Was Not Injured Because of the Inadequacy of a Safety Device---Labor Law 240 (1) Cause of Action Properly Dismissed


The First Department determined summary judgment dismissing plaintiff's 240 (1) cause of action was properly granted.  Plaintiff alleged that a tarp covering a pallet of stone blocks was not properly secured and, as a result, a stone block fell and injured him.  The court determined that the tarp could not be considered a safety device for purposes of a cause of action under Labor Law 240 (1):


Section 240(1) does not apply automatically every time a worker is injured by a falling object ... . Rather, the "decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ... . The worker must establish that the object fell because of the inadequacy or absence of a safety device of the kind contemplated by the statute ... . In order for something to be deemed a safety device under the statute, it must have been put in place "as to give proper protection" for the worker (§ 240[1]).


Here, we conclude that plaintiff's injury was not caused by the absence or inadequacy of the kind of safety device enumerated in the statute ... . Plaintiff does not contend that the block itself was inadequately secured. Instead, plaintiff argues that § 240(1) is applicable because his injuries were caused by defendants' failure to provide an adequate safety device to hold the plastic tarp in place. Specifically, plaintiff maintains that the plastic tarp was inadequately secured because, if it had been properly secured, such as with ropes and stakes, plaintiff's injury would not have occurred.


Plaintiff's argument is unconvincing. The plastic tarp was not an object that needed to be secured for the purposes of § 240(1) ..., nor is there any indication that the tarp caused plaintiff's injuries. The tarp was in place to keep the stone blocks dry, not to secure the stones stacked on the pallet underneath it. The purpose of the tarp was to keep possible rain off the object, not to protect the workers from an elevation-related risk... . Guallpa v Leon D DeMatteis Constr Corp, 2014 NY Slip Op 03768, 1st Dept 5-27-14




Plaintiff Was Told Not to Use the Only Safe Equipment for the Job and Was Therefore Entitled to Partial Summary Judgment on the Labor Law 240 (1) Cause of Action


In a full-fledged opinion by Justice Acosta, the First Department determined plaintiff was entitled to partial summary judgment on his Labor Law 240 (1) cause of action.  Plaintiff was demolishing a wall.  A scaffold was available and was the appropriate equipment for the job, but plaintiff was ordered to use a step-ladder.  The only step-ladder available was wobbly.  When plaintiff swung his hammer, the ladder tipped and plaintiff fell.  The court determined the only available safe equipment for the job was the scaffold, and defendant's telling plaintiff not to use the scaffold precluded the defendant from raising the  "plaintiff's-negligence-was-the-sole-proximate-cause-of-the-accident" defense:


The Labor Law requires building owners and contractors who conduct construction or demolition projects to "furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, . . . ladders, . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed" (Labor Law § 240[1]). The duty to furnish adequate safety devices is nondelegable, and those who fail to furnish such devices are absolutely liable for injuries that proximately result from an employee's elevation-related accident ... . A defendant who provides an adequate safety device may assert the defense that an injured worker — who neglected to use or misused the available device — was the sole proximate cause of his or her injuries ... . However, "[t];he sole proximate cause defense does not apply where [a]; plaintiff was not provided with an adequate safety device as required by the Labor Law" ... .


* * * As plaintiff was not provided with an adequate safety device, defendant cannot avail itself of the sole proximate cause defense ... .


* * * There is no practical difference between what happened here — where a supervisor directs an employee to not use an otherwise available safety device — and a situation where a scaffold simply was not present at the worksite ... . DeRose v Bloomingdale's Inc, 2014 NY Slip Op 03786, 1st Dept 5-27-14




Labor Law 240 (1) and 200 Actions Precluded by Homeowner's Exemption


The Second Department determined the homeowner's exemption precluded the Labor Law 240 (1) and 200 causes of action.  Plaintiff was injured when he fell from a ladder as he was power washing defendant's home.  The defendant supplied the ladder and other materials:


The defendant made a prima facie showing of her entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) based upon the applicability of the one- and two-family homeowner exemption ... . The "homeowner's exemption" to liability under Labor Law § 240(1) "is available to owners of one and two-family dwellings who contract for but do not direct or control the work'" ... . Here, it is undisputed that the defendant's home where the accident occurred is a single-family private residence. The defendant also submitted the parties' deposition testimony and her affidavit establishing, prima facie, that she did not direct or control the method or manner of the work. The defendant's "involvement was merely a retention of the limited power of general supervision, and was no more extensive than would be expected of the typical homeowner who hired a contractor to renovate his or her home" ... . Moreover, the defendant did not lose the protection of the statutory exemption by furnishing the ladder, bleach, and hose ... . ...


Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work ... . "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'" ... . Where a plaintiff's injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it " either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" ... . When an accident is alleged to involve 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 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" ... .


Here, the defendant established, prima facie, both that she did not create or have actual or constructive notice of the alleged condition which caused the injured plaintiff's injury, and that she did not have the authority to supervise or control the means and methods of the injured plaintiff's work ... . DiMaggio v Cataletto, 2014 NY Slip Op 03795, 2nd Dept 5-28-14





Plaintiff Struck by Piece of Building-Facade--Questions of Fact Re: Negligent Building Maintenance and Constructive Notice of the Defect


The First Department determined the common law negligence cause of action should not have been dismissed.  Plaintiff was struck by a piece of a facade on a building which fell.  Questions of fact were raised about whether the building was properly maintained and whether the defendant had constructive notice of the defect. Plaintiff was not, however, entitled to summary judgment under the res ipsa loquitur doctrine:


...[T]he common-law negligence claim should be reinstated. While defendant established that it did not create or have actual notice of any defect in the facade, it failed to establish that it exercised reasonable care in maintaining the facade of the building through a program of inspection. Defendant's managing member testified only that he would observe the exterior facade of the building as he walked past the building, and plaintiff's engineer opined that even a cursory inspection would have disclosed the issues that required repair. Thus, the record presents an issue of fact as to whether defendant exercised reasonable care in maintaining the facade, and whether constructive notice may be imputed ... .


Further, while plaintiff may be entitled to invoke the doctrine of res ipsa loquitur at trial ..., since the inference of negligence arising from plaintiff's circumstantial proof is not inescapable, she is not entitled to partial summary judgment in her favor... . Stubbs v 350 E Fordham Rd LLC, 2014 NY Slip Op 03924, 1st Dept 5-29-14




Out-of-Possession Landlord Not Liable for Slip and Fall---Alleged Violation of a General Safety-Related Code Provision Not Sufficient Basis for Suit


The Second Department determined the out-of-possession landlord (Realty defendants) could not be liable for a slip and fall on a wet surface in a restaurant.  The court noted that the alleged violation of a code provision requiring that a premises be maintained in a safe condition was not specific enough to be the basis of the suit:


Generally, an out-of-possession owner or lessor is not liable for injuries that occur on its premises unless it has retained control over the premises and is obligated by contract or statute to maintain or repair the premises ... . Here, the appellants established the prima facie entitlement of the Realty defendants to judgment as a matter of law by demonstrating that the Realty defendants had relinquished control of the premises and were not contractually bound to maintain or repair the leased premises ... .


In opposition, the plaintiff failed to raise a triable issue of fact. While the Realty defendants retained a right to reenter the premises, the plaintiff failed to raise a triable issue of fact as to whether they violated any specific statutory provision ... . In this regard, the provision of the Administrative Code of the City of New York which the plaintiff contends was violated by the Realty defendants is nonspecific and reflects only a general duty to maintain the premises in a safe condition ... . McNeil v HMB E 40th St Corp, 2014 NY Slip Op 03804, 2nd Dept 5-28-14




Defendant Did Not Make a Sufficient Showing to Warrant Summary Judgment Under the Storm in Progress Rule


The Second Department determined defendant was not entitled to summary judgment under the storm in progress rule.  The evidence concerning the weather was inconsistent and defendant did not demonstrate that the snow removal efforts did not exacerbate the hazardous condition:


"Under the so-called storm in progress' rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" ... . However, even if a storm is ongoing, once a property owner elects to remove snow, it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm ... .


Contrary to the defendant's contention, he failed to establish his prima facie entitlement to judgment as matter of law based on the storm in progress rule. The evidence he relied upon which included, inter alia, climatological data from a nearby location, was inconsistent and contradicted the deposition testimony of the parties ... . Since the evidence submitted by the defendant was in conflict, it could not establish, as a matter of law, that the storm in progress rule applied ... .


The defendant also failed to make a prima facie showing that the snow removal efforts he and his family undertook prior to the accident, while it was still snowing, did not create or exacerbate the hazardous condition which allegedly caused the plaintiff ... to fall ... . Yassa v Awad, 2014 NY Slip Op 03828, 2nd Dept 5-28-14




3-Inch Wide 1/2-Inch Deep Chip in Step Was a Trivial Defect


The Second Department determined a 3-inch wide, 1/2-inch deep chip in a step, which was not on the walking surface, constituted a trivial defect as a matter of law:


"[W];hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ... . "However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" ... . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury" ... . "[T];here is no minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" ... . "Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" ... . Zelichenko v Oriental Blvd LLC, 2014 NY Slip Op 03829, 2nd Dept 5-28-14




Driver Was an Independent Contractor---Employer Not Liable for Driver's Negligence


In finding that the employer (Big City) could not be held liable for an accident involving a driver (Aguero-Borges) who was an independent contractor, the Second Department explained:


As a general rule, an employer who hires an independent contractor, as distinguished from an employee or servant, is not liable for the negligent acts of the independent contractor .... Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability ... . Factors relevant to assessing control include whether a worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll, and (5) was on a fixed schedule ... .


Here, the evidence submitted by Big City shows that Aguero-Borges was free to engage in other employment, did not receive any fringe benefits, and was not on Big City's payroll. No taxes were withheld from his paycheck, and he received a 1099 form, not a W-2. He testified at his deposition that he generally worked from 8:00 a.m. to 6:00 p.m. and was paid per delivery. If he did not make deliveries, he did not get paid. If he arrived after 8:00 a.m., the only consequence was that he had to check to see if work was available. He testified at his deposition that Big City "threw . . . out" a target of 35 deliveries per day, but nothing happened if a driver did not meet that target. Kenneth Maurer, president and CEO of Big City, testified at his deposition that drivers came to Big City any time they wanted between 8:00 a.m. and 6:00 p.m., and deliveries were assigned on a first come, first served, basis. Maurer testified that the number of deliveries made by a driver would not affect whether his contract was renewed or not. Maurer testified that a driver could make one delivery in a year and renew his contract if he wanted to. The operator agreement signed by Aguero-Borges provides that the character of the operator's services was solely within the operator's discretion, that the operator was free to devote his full time and attention to any delivery services that he desired to engage in, and that the operator was permitted to work any hours he chose to work. The record shows that the drivers worked at their own convenience, and were not on a fixed schedule like the employees. Furthermore, the drivers provided, maintained, and obtained insurance for their own vehicles pursuant to the operator agreement, and did not wear uniforms or carry business cards. Sanabria v Borges, 2014 NY Slip Op 03820, 2nd Dept 5-28-14





Hearsay Evidence that Driver May Have Been Unconscious When He Ran a Stop Sign Not Sufficient to Defeat Plaintiff's Motion for Summary Judgment


The Second Department determined hearsay evidence that a driver (decedent) lost consciousness before he ran a stop sign and collided with plaintiff was not sufficient to raise a question of fact about the application of the emergency doctrine:


The plaintiff established her entitlement to judgment as a matter of law, since she had the right to assume that the decedent would obey the mandate of the stop sign, stop at the intersection, and not proceed until he could do so safely ..., and she established that she was free from comparative fault ... . At issue here is whether there is sufficient evidence in the record to raise a triable issue of fact as to whether the decedent was confronted with an emergency not of his own making--—loss of consciousness prior to the accident--—which absolved him of liability ... . The hearsay statements in the police report indicate that this was the case. However, "[w]hile hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where it is the only evidence submitted in opposition" ... . In this case, the only evidence that the decedent lost consciousness prior to the accident was hearsay.  Weinstein v Nicolosi, 2014 NY Slip Op 03827, 2nd Dept 5-28-14





Petitioner Entitled to Notice of Charges and Evidence Against Him Before Pistol Permit Can Be Revoked


The Second Department determined the pistol licensing officer erred when she revoked petitioner's pistol permit without giving petitioner notice of the charges (made in documents sent to the officer by petitioner's wife) and the evidence:


"While a formal adversarial hearing is not required before a pistol license is revoked, the licensee must be given notice of the charges and evidence against him [or her], and be given an opportunity to appear with his [or her]; lawyer to rebut the charges" ... . Here, the record reflects that the petitioner was not given notice of the charges and evidence against him, and that the respondent specifically relied on evidence of which the petitioner was unaware and was denied an opportunity to rebut ... . Matter of McAvoy v Klein, 2014 NY Slip Op 03843, 2nd Dept 5-28-14





Attorney's Fees Properly Assessed Against Counsel for Claimant for Bringing an Unnecessary Action



The Third Department determined attorney's fees were properly assessed against counsel for bringing an unnecessary action.  The attorney sought review of the Worker's Compensation Law Judge's (WCLJ's) ruling a proper award could not be made without a closing statement re: claimant's settlement of a third-party action:


Workers' Compensation Law § 114-a (3) (ii) permits the Board to assess reasonable counsel fees against an attorney "who has instituted or continued proceedings without reasonable grounds." Claimant here requested that the Board make an award ..., but the carrier's credit for future benefits owed to her needed to be taken into account in apportioning litigation costs .... Generally, future benefits do not begin to accrue until "the day that a claimant actually collects the recovery" in his or her third-party action ... . The WCLJ accordingly found that he could not make a proper award without a signed closing statement that indicated the date of payment in the third-party action, and directed claimant to produce that document. Claimant sought Board review of the WCLJ's decision, but did not assert that the WCLJ erred in requiring a signed statement and, indeed, filed one shortly after the decision was issued. Substantial evidence thus supports the determination of the Board that claimant's application for Board review was unnecessary and, as such, that an assessment of reasonable counsel fees against counsel for claimant was warranted ... . Matter of Clark v New York City Dept of Human Resources Admin, 2014 NY Slip Op 03896, 3rd Dept 5-29-14






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