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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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The Agency's Determination Was Based Upon Its Own Precedents and Related Jurisprudence and Was Therefore "Rationally Based"---The Determination Should Not, Therefore, Be Disturbed by a Court---A Court May Not Substitute Its Own Judgment for that of the Agency


The First Department, in a full-fledged opinion by Justice Acosta, reversed Supreme Court's denial of a motion to dismiss a petition to annul an agency-determination. The underlying proceedings involved two nurses accused of submitting false time sheets. In seeking a hearing allowed by the collective bargaining agreement, the union, on behalf of the nurses, requested certain documents relevant to the allegations from the New York City Human Resources Administration (HRA). HRA refused to turn over the documents, arguing that such "discovery" is not allowed in disciplinary actions (by the relevant regulations). The Board (of Collective Bargaining) ultimately ruled that some, but not all, of the requested documents (those kept in the regular course of business) should be turned over. HRA filed an Article 78 petition seeking to annul the Board's determination. Supreme Court denied the union's motion to dismiss the petition.  The First Department held the petition should have been dismissed. In reviewing an agency determination, the court looks only at whether the determination is rationally based. Here the Board's determination was based upon its own precedents and related jurisprudence. Therefore, the determination must stand.  A court cannot substitute its own judgment for that of the agency:


"In reviewing an administrative agency determination, courts must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious" ... . "A court cannot simply substitute its judgment for that of an administrative agency when the agency's determination is reasonable" ... . Moreover, "[i]t is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld" ... . "Broad deference must therefore be accorded determinations of the Board, which ... is the body charged with interpreting and implementing the [regulations] and determining the rights and duties of labor and management in New York City" ... .


Given this deferential standard of review, we are compelled to hold that the petition should have been dismissed. The Board's decision had a rational basis and was not arbitrary and capricious. To be sure, the Board engaged in a relatively expansive interpretation of the duty to furnish information embodied in [the regulations], when it determined that the duty applies in the context of these disciplinary proceedings instituted pursuant to the Agreement. But its interpretation was based on the holdings of some nine prior decisions and was not irrational ... . The Board based its decision on its own precedents and related jurisprudence, and its interpretation of the [regulations], a statutory provision within its purview and expertise, was sufficiently reasonable to preclude our "substitut[ing] another interpretation" ... . Matter of City of New York v New York State Nurses Assn., 2015 NY Slip Op 04437, 1st Dept 5-26-15





Re: Review of an agency determination by a court: Find out exactly what the court's review powers are to more accurately assess the strength of your client's position. The court should first look only at whether the agency's determination is "rationally based," and should not make that decision based upon the relative merits of the positions taken by either side.  Consider submitting a memorandum of law explaining the limits on the court's review powers.






Conclusory Affidavit Insufficient to Meet Burden of Demonstrating Documents Were Privileged Because the Documents Were Prepared Solely In Anticipation of Litigation---Motion for a Protective Order Limiting Discovery Properly Denied


The Second Department determined the appellants were not entitled to a protective order precluding discovery of documents pursuant to CPLR 3103.  The appellants argued the documents were privileged because they were prepared in anticipation of litigation.  However, the conclusory attorney affidavit offered in support of the protective order did not meet the appellants' burden to demonstrate the specific documents sought were "prepared solely in anticipation of litigation or trial...":


CPLR 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." Unlimited disclosure is not mandated, however, and a court may issue a protective order pursuant to CPLR 3103 denying, limiting, conditioning or regulating the use of any disclosure device "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]...). "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" ... .


In support of that branch of their motion which was pursuant to CPLR 3103 for a protective order preventing the disclosure of certain witness statements and certain investigation and inspection reports, the appellants contended that such evidence was privileged as it was prepared in anticipation of litigation (see CPLR 3101[d][2]). "The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery" ... . Such burden is met "by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation" ... .


Here, the appellants failed to meet their burden of establishing that the requested material was prepared solely in anticipation of litigation and, therefore, is protected from disclosure by the qualified immunity privilege of CPLR 3101(d)(2). An attorney's affirmation containing conclusory assertions that requested materials are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain a party's burden of demonstrating that the materials were prepared exclusively for litigation ... . Ligoure v City of New York, 2015 NY Slip Op 04456, 2nd Dept 5-27-15





The burden of proving documents are immune from discovery (pursuant to CPLR 3103) because they were prepared in anticipation of litigation is met by "by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation" ... . A "conclusory" attorney-affidavit does not meet that burden.






Deliberate Joinder of Claims for Legal and Equitable Relief Arising from the Same Transaction Constitutes a Waiver of the Right to Demand a Jury Trial


The Second Department noted that the deliberate joinder of claims for legal and equitable relief arising from the same transaction constitutes a waiver of the right to demand a jury trial. In addition, the court dismissed the aspect of the appeal for which the relevant portions of the record were omitted from the appendix. With respect to the contents of the appendix submitted on appeal, the Second Department wrote:


" An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal'" ... . "The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent" (22 NYCRR 670.10-b[c][1]; see CPLR 5528[a][5]). Here, the plaintiff omitted material excerpts from the transcripts of trial testimony and critical exhibits she relies on in seeking review of the dismissal of her disability discrimination cause of action. These omissions inhibit this Court's ability to render an informed decision on the merits of the appeal ... . Accordingly, the appeal from so much of the judgment as is in favor of the defendants and against the plaintiff, in effect, dismissing the second cause of action must be dismissed. Zutrau v ICE Sys., Inc., 2015 NY Slip Op 04479, 2nd Dept 5-1715





Deliberate Joinder of claims for legal and equitable relief arising from the same transaction waives the right to demand a jury trial.






"Conclusory" Affidavit Submitted In Support of Motion to Dismiss for Failure to State a Cause of Action Did Not Demonstrate the Allegation Defendants Were Directly Liable for Negligent Maintenance of a Taxi Cab Was "Not a Fact At All"---Analytical Criteria Explained


The Second Department determined plaintiff's complaint should not have been dismissed in its entirety because the documentary evidence submitted in support of the motion to dismiss for failure to state a cause of action (CPLR 3211(a)(7)) did not demonstrate the facts alleged (which could support defendants' direct liability for negligent maintenance of a taxi cab) "were not facts at all." Plaintiff was injured when his motorcycle struck a tire which had come off defendants' taxi cab. Although the information in the affidavit submitted by a defendant was sufficient to warrant the dismissal of causes of action which relied on piercing the corporate veil, the information did not demonstrate defendants could not be directly liable for negligent maintenance of the cab. The related causes of action should not have been dismissed.  The Second Department explained the analytical criteria to be applied when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:


"In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ... . Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, "the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ... .


Here, [defendant's] affidavit falls short of establishing, conclusively, that [plaintiff] has no cause of action. The affidavit completely fails to address [plaintiff's] allegation that the subject taxi was not "roadworthy." The affidavit, while offering conclusory statements, did not supply competent evidence as to which of the various defendants, if any, might have had a duty to maintain, or might in fact have maintained, the offending taxi prior to the accident. Indeed, [defendant's] conclusory statements are completely unsupported with evidence or specific factual references ... and, hence, are of no probative force ... . Rathje v Tomitz, 2015 NY Slip Op 04467, 2nd Dept, 5-27-15




Documentary Evidence Submitted In Support of a Motion to Dismiss for Failure to State a Cause of Action Must Directly Address the Relevant Facts Alleged in the Complaint and Demonstrate the Alleged Facts Are "Not Facts at All." A "conclusory" affidavit will not be enough. 






Sole Officer of Dissolved Corporation Personally Liable for Post-Dissolution Debts Attributed to "New Business"


The Third Department determined the sole officer of a corporation dissolved in 1997 was personally liable for the post-dissolution debts incurred for the purchase of fuel. The court explained the relevant law:


Business Corporation Law § 1005 (a) (1) provides, in relevant part, that, following dissolution, "[t]he corporation shall carry on no business except for the purpose of winding up its affairs." Winding up, in turn, is defined as "the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets" (...see Business Corporation Law § 1005 [a] [2]...). Notably, a dissolved corporation is precluded from engaging in new business ... and "has no existence, either de jure or de facto, except for a limited de jure existence for the sole purpose of winding up its affairs" ... . As a result, "[a] person who purports to act on behalf of a dissolved corporation is personally responsible for the obligations incurred" ... . Long Oil Heat, Inc. v Polsinelli, 2015 NY Slip Op 04542, 3rd Dept 5-28-15






City Was Not Required to Consider the Petitioners' Preferred Scenario for Development---City Was Required Only to Consider the "No Action" Alternative


The First Department determined the city (NYC) took the requisite "hard look" at a development project and provided a "reasoned elaboration" of the basis for its approval of the project. The court noted that, although the City Environmental Quality Review (CEQR) requires that the Final Environmental Impact Statement (FEIS) include an analysis of a "No Action" alternative (an analysis based on the assumption the project will not be constructed), the CEQR does not require the FEIS to consider the petitioners' preferred alternative development scenario. Matter of Residents for Reasonable Dev. v City of New York, 2015 NY Slip Op 04560, 1st Dept 5-28-15






Town Board Should Not Have Considered the Environmental Impact of Only One Small Part of a Revitalization Project, as Opposed to the Entire Revitalization Project, without Explaining the Reasons for Limiting Its Review In Accordance with the Requirements of the State Environmental Quality Review Act 


The Second Department determined the town board did not complete the required review under the State Environmental Quality Review Act (SEQRA) in connection with an Eminent Domain Procedure Law (EDPL) 207 proceeding to condemn certain land for drainage and storm water management improvements (drainage plan).  Even though the drainage plan is part of a much larger revitalization plan, the town board considered only the drainage plan in its SEQRA review, a limited review which can be done only if certain SEQRA requirements are met.  The matter was remitted to the town board for compliance with the relevant provisions of SEQRA:


...[U]nder SEQRA, the Town Board was obligated to consider the environmental concerns raised by the entire project (see 6 NYCRR 617.3[g][1]...). If, at this stage, the larger project is merely speculative or hypothetical, then the Town's separate consideration of the drainage plan would not constitute impermissible segmentation ... . However, the respondents are not claiming that the larger project is speculative or hypothetical. Moreover, to the extent that the Town Board concluded that segmenting the environmental review of the drainage plan from that of the larger revitalization project was warranted under the circumstances presented here, it was required under the SEQRA regulations to "clearly state in its determination of significance . . . the supporting reasons[,]" "demonstrate that such review is clearly no less protective of the environment[,]" and to identify and discuss "[r]elated actions . . . to the fullest extent possible" (6 NYCRR 617.3[g][1]). The Town Board failed to do so. Since the Town Board failed to properly comply with SEQRA, the determination and findings must be rejected, and the matter remitted to the Town Board to undertake an appropriate review ... . Matter of J. Owens Bldg. Co., Inc. v Town of Clarkstown, 2015 NY Slip Op 04487, 2nd Dept 5-27-15






Grandparents Did Not Have Standing to Bring a Petition for Visitation


The Second Department determined Family Court properly dismissed the grandparents' petition for visitation with the grandchildren without a hearing. Family Court properly determined the grandparents did not have standing to bring the petition because no triable issues of fact were raised in the submitted papers. The standing question is determined by applying equitable principles re: the nature of the grandparents' relationship with the children and the nature and basis of the parents' objection to visitation:


When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry" ... . "First, it must find that the grandparent has standing, based on, inter alia, equitable considerations" ... . "If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child" ... .


"In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene' (Domestic Relations Law § 72[1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,' among other factors" ... . Additionally, the court must consider " the nature and basis of the parents' objection to visitation'" ... . "A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers" ... .


Here, the Family Court properly denied the grandparents' petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents ... . Matter of Moskowitz v Moskowitz, 2015 NY Slip Op 04490, 2nd Dept 5-27-15






Documents Which Reveal the Identity of Sex Offense Victims Are Categorically Excluded from Disclosure Under the Civil Rights Law and Public Officers Law (Even If the Identifying Information Can Be Redacted)


The Third Department determined petitioner's request for evidence held by the district attorney's office was properly denied.  The requested evidence consisted of chat logs and the contents of computers which identified the victims of sex offenses. The court noted that, even if the identification could be reacted, the documents are categorically excluded from disclosure under the Civil Rights Law and Public Officers Law.  Matter of MacKenzie v Seiden, 2015 NY Slip Op 04537, 3rd Dept 5-28-15






Ambiguity Should Have Been Resolved Against the Insurer


Reversing Supreme Court, the Second Department determined the ambiguity in the supplemental underinsured motorist (SUM) endorsement about whether a snowmobile was a covered "motor vehicle" should have been resolved against the insurer. "We find that the policy, when read as a whole, is ambiguous as to whether the term "motor vehicle" in the SUM endorsement refers to the snowmobile, the only vehicle covered by the policy. Contrary to State Farm's contention and the Supreme Court's determination, this ambiguity must be resolved 'against the insurer and in favor of coverage' ... , without reference to the definition of 'motor vehicle' set forth in the Vehicle and Traffic Law."  Matter of State Farm Mut. Auto. Ins. Co. v Jones, 2015 NY Slip Op 04493, 2nd Dept 5-27-15






"Whistleblower Statute" Cause of Action Should Have Survived the Motion to Dismiss---No Need to Cite Particular Statute, Rule or Regulation Alleged to Have Been Violated by the Employer in the Complaint


The Second Department determined plaintiff's Labor Law 740 cause of action should have survived a motion to dismiss for failure to state a cause of action.  "A cause of action based upon Labor Law § 740, commonly known as the 'whistleblower statute,' is available to an employee who 'discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety'...". The court noted that, to survive dismissal, the particular law, rule or regulation which was purportedly violated need not be specified in the complaint:


Here, the amended complaint alleged, inter alia, that the plaintiff's employment with the corporate defendants was terminated after he complained to the individual defendants and the human resources department about certain activities and practices which the corporate defendants engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public safety. Notably, "for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct" ... . Ulysse v AAR Aircraft Component Servs., 2015 NY Slip Op 04474, 2nd Dept 5-27-15





Medical Examiner's Testimony Did Not Rule Out the Possibility that Someone Other than the Defendant Contributed DNA to a Mixture from At Least Three Persons---Conviction Reversed as Against the Weight of the Evidence


The First Department, over a dissent, determined that defendant's conviction of criminal possession of a weapon was against the weight of the evidence. The medical examiner testified there was a mixture of DNA from at least three persons found on the weapon and defendant "could" have been a contributor to that mixture. "In other words, the medical examiner could not rule out the reasonable possibility that another unrelated individual could match the DNA profile."  The court explained its role in a "weight of the evidence," as opposed to a "legal insufficiency," analysis:


On this appeal, defendant does not ask us to reverse his convictions of criminal possession of a weapon in the second and third degrees on the ground that the trial evidence was legally insufficient to support such convictions. Instead, defendant argues that his convictions should be reversed because the jury's verdict was against the weight of the evidence. An appellate court weighing the evidence "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" ... . "If based on all the credible evidence a different finding would not have been unreasonable" and if the "trier of fact has failed to give the evidence the weight it should be accorded, the appellate court may set aside the verdict" ... . When an appellate court performs weight of the evidence review, it sits, in effect, as a "thirteenth juror" ... .


We agree with defendant that the verdict was against the weight of the evidence ... . The evidence failed to connect defendant with a pistol that had been discarded during a shooting incident. People v Graham, 2015 NY Slip Op 04401, 1st Dept 5-26-15




If the evidence supporting a conviction has sufficient flaws, be sure to ask for a "weight of the evidence" review of the evidence on appeal. Note the subtle difference between whether a verdict is supported by legally sufficient evidence (an issue which must be preserved by specific motions to dismiss) and whether a verdict is against the weight of the evidence, which need not be preserved by a motion. Here the defendant successfully argued the DNA evidence presented by the medical examiner did not have sufficient weight to support the conviction. [Editor's note: I find this distinction difficult to understand and articulate in the context of this decision.  In the usual case a "weight of the evidence" analysis looks at the credibility of (conflicting) witness testimony. If a witness provides sufficient evidence to make out a prima facie case, a motion to dismiss for legal insufficiency will fail. However, if the credibility of  witness' testimony is sufficiently suspect, a "weight of the evidence" review may result in reversal.]






Defense Counsel's Main Reason for the Peremptory Challenges To Which the Prosecutor Objected, i.e., the Potential Jurors Had Been Crime-Victims, Was Not Pretextual


The Second Department reversed defendant's conviction because Supreme Court improperly applied the Batson doctrine and denied defense counsel's peremptory challenges to two jurors.  The prosecutor raised a "reverse-Batson" objection to defense peremptory challenges alleging the defense was excluding "Asian persons."  Defense counsel offered race-neutral reasons for the peremptory challenges, the principal reason being that the potential jurors had been crime victims. Supreme Court found the proffered race-neutral reasons were pretextual.  The Second Department determined they were not:


"In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories. In step one, the moving party must make a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason. If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome. Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and the trial court must determine whether the proffered reasons are pretextual" ... . A trial court's step-three determination that the facially race-neutral reasons for a nonmoving party's peremptory challenges to particular jurors were pretextual is entitled to great deference on appeal and will not be disturbed where such determination is supported by the record ... . * * *


The record does not support the trial court's step-three finding of fact as to the subject prospective juror, to wit, that other prospective jurors who were crime victims and who indicated that the incident would not affect them had nevertheless been seated. "[A]ssurances from a challenged prospective juror that he or she could assess the evidence in a fair manner even though he or she was a crime victim are irrelevant to the determination of whether the basis of a peremptory challenge is pretextual" ... . Nonetheless, the record indicates that defense counsel treated such jurors consistently by exercising a peremptory challenge for another prospective juror who was not Asian but was a crime victim who provided assurance that nothing in her experience would affect her as a juror. In addition, although defense counsel did not exercise peremptory challenges for K.A.M. and G.A., defense counsel sufficiently distinguished the experiences of those jurors from that of the subject prospective juror, who had been robbed at gunpoint ... . Consequently, the record supports a finding that defense counsel had legitimate, nonpretextual reasons for challenging prospective jurors based on their crime victim status ... .People v Grant, 2015 NY Slip Op 04505, 2nd Dept 5-17-15






"Preamble" Read to Defendant Before the Miranda Warnings Neutralized the Effect of the Warnings---Defendant's Statement Should Have Been Suppressed


The Second Department determined defendant's suppression motion should have been granted because the "preamble" read to him before he waived his right to remain silent neutralized the effect of the Miranda warnings. "Before the defendant was read his Miranda rights, the detective investigator said to him (1) "if you agree to speak with us, you may, if you wish, explain what you did and what occurred at that date, time, and place," (2) "[i]f . . . you have an alibi . . . and you want to tell us where you were, we will ask that you please give us as much information as you can, including the names of any people you were with," and (3) "[i]f you agree to speak to us and your version of the events of that day differs from what we have heard, you may, if you so choose, tell us your story." Thus, a clear implication was conveyed to the defendant that he ought to speak to the detective investigator and the assistant district attorney present at the interview in order to set forth his version of events so that they could be investigated. As such, the preamble here ... rendered the subsequent Miranda warnings inadequate and ineffective in advising the defendant of his rights ...". People v Rivera, 2015 NY Slip Op 04517, 2nd Dept 5-27-15






Juvenile Delinquency Adjudication Should Not Have Been Considered in SORA Risk Assessment---Criteria for an Upward Departure Explained


The Second Department determined defendant's juvenile delinquency adjudication should not have been considered in determining the defendant's risk level. The court explained the proper procedure for considering an upward departure: ... "[T]he County Court upwardly departed without following the required three analytical steps of determining, first, whether an aggravating factor exists as a matter of law, second, whether the People have adduced clear and convincing evidence of the facts in support of that aggravating factor, and third, whether, in the court's discretion, the totality of the circumstances warrant the upward departure to avoid an under-assessment of the defendant's dangerousness and risk of sexual recidivism ...". People v Ruland,  2015 NY Slip Op 04464, 2nd Dept 5-27-15






Upward Departure Proper In Light of Felony Conviction Not Considered in the Risk Assessment--Criteria for Upward Departure Explained In Some Detail


The Second Department determined County Court properly departed (upward) from the presumptive risk level based upon a felony conviction which pre-dated the sexual offenses considered in the risk assessment. The Second Department explained in some detail the criteria for an upward departure:


A court is permitted to depart from the presumptive risk level if "special circumstances" warrant departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). An upward departure is permitted only if the court concludes "that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (id. at 4...). In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a multi-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the existence of that aggravating factor in the case before it. Upon the People's satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of circumstances relevant to the offender's risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart ... . People v Williams, 2015 NY Slip Op 04465, 2nd Dept 5-27-15











Lease and Lease Amendment Invalid Even Though Approved by County Legislature---County Charter Required that All Contracts with the County Be Executed by the County Executive---The County Executive Signed the Lease But Not the Lease Amendment (Which Was Integral to the Agreement)---Lease Required All Modifications to Be In Writing, So Signing the Lease Amendment Was Not a "Purely Ministerial Act"---A Municipal Contract Which Does Not Comply with Statutory Requirements or Local Law Is Invalid and Unenforceable


The Second Department determined that a lease and a lease amendment were invalid and unenforceable, even though the documents had been approved by the Nassau County Legislature.  The Nassau County Charter required that any contract entered into by the county be executed by the County Executive. The County Executive signed the lease, but not the lease amendment (which was integral to the final agreement). Execution of the lease amendment was not a "purely ministerial act" because the lease required that any modifications be in writing:


" A municipal contract which does not comply with statutory requirements or local law is invalid and unenforceable'" ... . Here, the County demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the lease amendment, which was integral to the final agreement between the parties, was not executed by the County Executive or his authorized designee, as required by Nassau County Charter § 2206. Contrary to the defendant's contention, the execution of the lease amendment by the County Executive or his designee was not a purely ministerial act in light of the express language in the lease requiring any modifications thereto to be in writing ... . Further, the express terms of the proposed lease provided that it could not be modified "except by a writing subscribed by both parties" (emphasis added), and the lease amendment expressly contemplated that it would be effective when "last executed by the parties." Since the lease amendment was integral to the final agreement between the parties, and the proposed lease and lease amendment together constituted the entirety of the parties' understanding of their obligations, the County established, prima facie, that the County Executive's determination not to execute the lease amendment rendered the proposed lease unenforceable because there was no meeting of the minds between the parties ... . County of Nassau v Grand Baldwin Assoc., L.P., 2015 NY Slip Op 04445, 2nd Dept 5-27-15






The Amount of Alcohol Consumed by Defendant and the Extent of His Intoxication at the Time of the Vehicle-Accident Evinced "Wanton and Reckless" Conduct Which Supported a Punitive-Damages Award


The Second Department determined the award of punitive damages by the jury was supported by clear and convincing evidence.  Defendant was intoxicated at the time of the vehicle accident.  The fact that defendant was driving while intoxicated would not, standing alone, warrant punitive damages. However, other factors, including defendant's high blood-alcohol level and his "incoherence" at the time of the accident evinced the requisite "wanton and reckless" conduct:


Whereas compensatory damages are intended to assure that the victim receives "fair and just compensation commensurate with the injury sustained," punitive damages are meant to "punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future" ... . Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages ... . However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in "wanton and reckless" conduct evincing heedlessness and an utter disregard for the safety of others ... . Chiara v Dernago, 2015 NY Slip Op 04444, 2nd Dept 5-27-15





Ask for punitive damages where it can be argued that a defendant's behavior rises to the level of "wanton and reckless" conduct and punitive damages will serve the broader "societal" purpose of deterring others from indulging in the conduct attributed to the defendant.





Question of Fact Whether Plaintiff Was Fraudulently Induced to Sign a Release---Relevant Law Explained


The Second Department determined plaintiff raised a triable issue of fact concerning whether plaintiff was fraudulently induced to sign a release re: a potential personal-injury action. The release was signed three days after the accident when the plaintiff was still on pain medication and it was alleged the insurance adjuster told her the offered funds were for plaintiff's "inconvenience" and not to compensate for her injuries.  The court explained relevant law:


" A release is a contract, and its construction is governed by contract law'" ... . "Generally, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress'" ... .


"A signed release shifts the burden of going forward . . . to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release'" ... . "A plaintiff seeking to invalidate a release due to fraudulent inducement must establish the basic elements of fraud, namely a representation of a material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury'" ... . Moreover, there is a requirement that a release covering both known and unknown injuries be " fairly and knowingly made'" ... . Powell v Adler, 2015 NY Slip Op 04466, 2nd Dept 5-27-15






Contract Attorney Was an Employee Despite "Independent Contractor" Designation in a Written Employment Agreement


The Third Department determined a "contract attorney" hired by an attorney (Brody) for document-review in a class-action case was an employee entitled to unemployment insurance benefits, despite claimant's designation as an independent contractor in a written agreement:


Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence" ... . As here, "in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means" ... .


Here, claimant was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50. He was also given specified hours each day to report to his assigned work station, he was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends. He was allowed to take unpaid days off, provided that he requested the time off in advance. He received daily assignments from an associate attorney of Brody, who supervised his work. In addition to document review, claimant also assisted in the litigation by providing Brody with written memoranda summarizing deposition testimony, work that included claimant's attendance at meetings with attorneys from other firms involved in the litigation. In our view, substantial evidence supports the Board's decision that Brody retained sufficient overall control of claimant's services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion ... . The fact that claimant signed a written agreement designating him as an independent contractor does not compel a different result ... . Matter of Singhal (Commissioner of Labor), 2015 NY Slip Op 04550, 3rd Dept 5-28-15






Election Poll Worker Not an Employee---Not Entitled to Unemployment Insurance Benefits


The Third Department determined an election poll worker was not an employee entitled to unemployment insurance benefits:


"An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results [although] control over the means [used to achieve those results] is the more important factor to be considered" ... .


Here, claimant testified that she responded affirmatively to a card received in the mail from the Board of Elections asking if she was available to work on election day; she thereafter received training and was assigned to a polling place, where she worked as a poll worker or inspector on election day. Her duties included setting up and overseeing tables, signing in voters, showing them how to use the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were reported to the Board of Elections.


Poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections (see Election Law §§ 3-400, 3-402, 3-404, 3-412, 3-420; see also Election Law § 3-102). In the City of New York, they are compensated at a per diem rate established by the Mayor (see Election Law § 3-420 [1]). While, pursuant to those governing statutes, the Board of Elections may have exercised some supervision over the poll workers and their training, this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute ... . Matter of Chorekchan (New York City Bd. of Elections--Commissioner of Labor), 2015 NY Slip Op 04552, 3rd Dept 5-28-15






Music Teachers Were Employees Entitled to Unemployment Insurance Benefits---Criteria for Professionals, Like Musicians, Who Do Not Lend Themselves to Direct Supervision or Control, Explained


The Third Department determined music teachers were employees of Encore Music, a service which connected students with teachers for a portion of the fees paid by the students.  Encore unsuccessfully argued the teachers were independent contractors:


..."[W]here the details of the work performed are difficult to control because of considerations such as professional . . . responsibilities," courts have applied the "'overall control'" test, which requires that the employer exercise control over "'important aspects of the services performed'" ..., a test which has been applied to musicians who "do not easily lend themselves to direct supervision or control" ... . Further, "an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship" ... . 


...Encore screened the teachers, checked their references, conducted criminal background checks and then matched students to teachers based upon a variety of factors, including qualifications. Encore thereafter followed up with the students after lessons to ensure that they were satisfied. Encore set the lesson fees, which were generally the same for all teachers with some exceptions, billed students directly and paid teachers regardless of whether the students paid Encore. Although teachers used their own equipment, determined the lesson plans or methods and could decline students, they were required to sign a contract that provided that they would, "when reasonably requested by [Encore], act as a music lesson instructor." The contract also contained a clause prohibiting teachers from soliciting Encore's students that was in effect during the contract and for three years after its expiration, although teachers were allowed to work for competitors and to have their own private students. Matter of Encore Music Lessons LLC (Commissioner of Labor), 2015 NY Slip Op 04553, 3rd Dept 5-28-15





Sales Rep Was an Employee Entitled to Unemployment Insurance Benefits


The Third Department determined a cellular phone sales representative was an employee entitled to unemployment insurance benefits:


Whether an employer-employee relationship exists within the meaning of the unemployment insurance law "is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence" ... . "While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important" .... .

... The record establishes that Cellular Sales precluded sales representatives from selling competing products and its products outside of the "territory" absent its prior written consent, suggested, and in certain instances required, that products be sold at a minimum price, set sales goals for the sales representatives to attain and provided a script that sales representatives were to "[s]tick to . . . on every customer opportunity" regarding a certain cellular phone. In addition, Cellular Sales specified a certain dress code and provided that any sales representative not meeting such dress code in its store would be "address[ed]" by a leader. Cellular Sales also required sales representatives to, among other things, complete certain mandatory training that it paid for, to "strictly comply" with its directives regarding use, disclosure and application of marketing information and to know and follow certain "procedures for the market." ...[T]he record establishes that Cellular Sales dictated the number of sales representatives that would work in the store on a given day, provided each sales representative with a Cellular Sales email address and business cards, required, for a certain period of time, that sales representatives send customers thank you cards that it provided and supplied the sales representatives with products for demonstrations. The record also indicates that Cellular Sales reprimanded sales representatives regarding tardiness, held mandatory meetings, required sale representatives who chose to work in the store to submit their availability and requests for days off and, once a shift was assigned, required a sales representative to secure coverage if he or she could not work on the assigned shift. Matter of Pratt (Cellular Sales of N.Y., LLC--Commissioner of Labor), 2015 NY Slip Op 04549, 3rd Dept 5-28-15






Promissory Note Reflecting a Loan to a Limited Liability Company Was Criminally Usurious As Well As Void Under the General Obligations Law---Provision Purporting to Reduce the Interest Rate to a Non-Usurious Rate If the Original Rate Were Found to be Usurious Did Not Save the Note


The Second Department determined a promissory note imposing an annual interest rate of more than 25% (60% here) was criminally usurious (Penal Law 190.40) and could not be saved by a provision purporting to reduce the interest rate to a non-usurious rate if the original rate were found to be usurious. The court noted that, although a limited liability company (the defendant here) cannot assert the defense of civil usury, a limited liability company can assert the defense of criminal usury.  In addition, the note was void under General Obligations Law 5-511 because the interest rate exceeded 16%. Fred Schutzman Co. v Park Slope Advanced Med., PLLC, 2015 NY Slip Op 04447, 2nd Dept 5-27-15






Open Question About Whether Claimant Was Permanently Disabled Indicated Claimant's Case Was Not Truly Closed in 2005---Transfer of Claim to the Special Fund (for Closed Cases) Properly Denied


The Third Department determined open questions about whether the claimant was permanently disabled demonstrated that claimant's case was not truly closed in 2005.  Therefore transfer of the claim to the Special Fund was not warranted:


"Workers' Compensation Law § 25-a shifts liability for a claim to the Special Fund where a workers' compensation case that was fully closed is reopened more than seven years after the underlying injury occurred and more than three years after the last payment of compensation" ... . "Whether there has been a true closing of the case is a factual issue for the Board to resolve and its determination in this regard will be upheld if supported by substantial evidence" ... .


Here, a report based upon an independent medical examination of claimant was filed with the Board in 2005 in which the examiner opined that claimant had reached maximum medical improvement at that time and classified her as suffering from a mild degree of disability. Inasmuch as this report raised the issue of claimant having a permanent disability, which remained unresolved in 2011 when the employer requested that liability shift to the Special Fund, substantial evidence supports the Board's decision that the case was not truly closed at that time and Workers' Compensation Law § 25-a did not apply ... . Matter of Kettavong v Livingston County SNF, 2015 NY Slip Op 04556, 3rd Dept 5-28-15






Application for Area Variances Properly Denied---Court's Review Criteria Explained---General City Law and Town Law Criteria for Area Variance Explained


The Second Department determined the city zoning board properly denied the application for area variances.  The court explained its role in reviewing the board's determination and the criteria applied to applications for area variances under the General City Law and the Town Law:


" Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'" ... . "Therefore, a zoning board's determination should be sustained if it is not illegal, has a rational basis, and is not arbitrary and capricious" ... .


In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing "the benefit to the applicant if the variance is granted . . . against the detriment to the health, safety and welfare of the neighborhood or community by such grant" (General City Law § 81-b[4][b];... see also Town Law § 267-b[3]). The zoning board must also consider: "(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (ii) whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance" (General City Law § 81-b[4][b]...). Matter of Goodman v City of Long Beach, 2015 NY Slip Op 04484, 2nd Dept 5-27-15





Application for Area Variance Properly Denied---Analytical Criteria Described


The Second Department determined the village zoning board properly denied petitioner's application for an area variance by considering all of the required factors enumerated in Village Law 7-712-b(3): "When determining whether to grant an application for an area variance, a Village zoning board of appeals, pursuant to Village Law § 7-712-b(3), must engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted" ... . A Village board of zoning appeals must also consider "whether (1) an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some other method, other than an area variance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self created" ... . Matter of Affordable Homes of Long Is., LLC v Monteverde, 2015 NY Slip Op 04480, 2nd Dept 5-27-15

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