JUST RELEASED

November Page II

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

 

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CIVIL PROCEDURE/CORPORATION LAW

 

Individual Defendants' Ties to New York, Including Business Activities in New York, Were Not Sufficient to Afford New York Jurisdiction, Pursuant to CPLR 302,  Over a Lawsuit Stemming from a Personal Injury in New Jersey---CPLR 301, Which Affords New York Courts Jurisdiction Over Corporations Doing Business in New York, Does Not Extend to Individuals Doing Business in New York

 

The Second Department reversed Supreme Court's finding that New York courts had jurisdiction over plaintiff's personal injury action.  Plaintiff was injured by an allegedly defective saw provided by the defendants while doing work for defendants at the defendants' home in New Jersey.  Jurisdiction pursuant to CPLR 302 was lacking because there was no real connection between the the defendants' activities in New York (they ran a church in New York) and the personal injury action.  Jurisdiction pursuant to CPLR 301 was lacking because CPLR 301 does not apply to individuals, as opposed to corporations, doing business in New York:

 

In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court must determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction ... .

 

The Court of Appeals has interpreted the second prong of the jurisdictional inquiry to require that, in light of all the circumstances, there must be an "articulable nexus" ... , between a defendant's in-state activity and the claim asserted ... . Although "causation is not required," the Court of Appeals has stated that "at a minimum [there must be] a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former" ... . "[W]here at least one element arises from the New York contacts, the relationship between the business transaction and the claim asserted supports specific jurisdiction under the statute" ... .

 

Here, the relationship between the causes of action asserted in the complaint and the [defendants'] activities within New York were too insubstantial to warrant a New York court's exercise of personal jurisdiction over them pursuant to CPLR 302(a)(1). * * *

 

In contrast to the common-law approach to corporations, the common law, as developed through case law predating the enactment of CPLR 301, did not include any recognition of general jurisdiction over an individual based upon that individual's cumulative business activities within the State ... . Since the enactment of CPLR 301 did not expand the scope of the existing jurisdictional authority of the courts of the State of New York, that section does not permit the application of the "doing business" test to individual defendants ... . Accordingly, contrary to the plaintiff's contention, since the [defendants] were served with process in New Jersey, the Supreme Court was not authorized to exercise personal jurisdiction over them pursuant to CPLR 301, based on their cumulative individual business activities within the State. Pichardo v Zayas, 2014 NY Slip Op 07639, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/FRAUD

The Proper Vehicle to Address Fraud Which Is Alleged to Have Tainted a Completed Proceeding Is a Motion to Vacate the Judgment, Not the Institution of a New Plenary Action

 

The Second Department noted that the remedy for addressing fraud in a completed action is a motion to vacate the judgment in that action, not a new plenary proceeding:

 

"Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence" ... . The "plaintiff's remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the . . . judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action" ... . Stewart v Citimortgage Inc, 2014 NY Slip Op 07648, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE

Criteria for a Change of Venue Not Met---Party Seeking Change Must First Demonstrate Existing Venue Is Improper

 

Reversing Supreme Court, the Second Department held that defendant's motion to change venue should have been denied.  The court explained the analytical criteria:

 

"In the context of determining the proper venue of an action, a party may have more than one residence" ... . Under CPLR 503(d), the county of an individual's principal office is a proper venue for claims arising out of that business (see CPLR 503[d]...). Here, the plaintiff seeks to recover damages for medical malpractice allegedly committed by, among others, the defendant Jung Lack Lee in his capacity as a medical doctor. Accordingly, the county in which that defendant maintains his principal office is a proper venue in this case.

 

To prevail on a CPLR 510(1) motion to transfer venue, a defendant bears the burden of demonstrating that the plaintiff's choice of venue was improper on the day the action was commenced, and that the defendant's choice of venue is proper (see CPLR 511[b]...). Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper ... . Here, the defendants failed to establish that Kings County was improper ... . Accordingly, the Supreme Court should have denied the defendants' motions to transfer venue and granted that branch of the plaintiff's cross motion which was to retain venue in Kings County. Young Sun Chung v Kwah, 2014 NY Slip Op 07656, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/ADMINISTRATIVE LAW/ENVIRONMENTAL LAW

 

Four-Month Statute of Limitations Started When Petitioner's Attorney Received the Order, Not When the Order Was Served on Petitioner

 

With respect to an Article 78 proceeding to contest a determination of the Commissioner of the Department of Environmental Conservation, the four-month statute of limitations began when petitioner's attorney received the Commissioner's order, not when the order was served on petitioner.  Matter of Sutherland v New York State Dept of Envtl Conservation, 2014 NY Slip Op 07674, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/ADMINISTRATIVE LAW/ENVIRONMENTAL LAW/MUNICIPAL LAW

 

Failure to Bring Timely Article 78 Proceedings to Contest Town Planning Board Decisions Approving Construction of a Condominium Cannot Be Circumvented by Bringing an Action for a Declaratory Judgment

 

The Fourth Department affirmed Supreme Court's finding that the statute of limitations for an Article 78 proceeding contesting the determination(s) of a town planning board cannot be circumvented by bringing an action for a declaratory judgment.  The dispute concerned whether "substantial work" had been commenced on a condominium construction project such that the approval of the project did not terminate automatically due to the passage of time. The planning board had concluded that "substantial work" included efforts to finance the project and was not limited to physical construction:

 

We reject plaintiff's contention that the action was timely and properly brought as a declaratory judgment action pursuant to CPLR 3001. Although a six-year limitations period governs declaratory judgment actions (see CPLR 213 [1]), it is well settled that if such claim could have been brought in another form, then the shorter limitations period applies ... . Here, Town Law § 274-a (11) provides for a 30-day limitations period for challenging "a decision of the [planning] board or any officer, department, board or bureau of the town" under CPLR article 78. Thus, plaintiff's challenge to the Town Code Enforcement Officer's determination of the meaning of "significant work" under Code § 170-94 (J) could have been brought in a CPLR article 78 proceeding under Town Law § 274-a (11). Assuming arguendo, as plaintiff contends, that no administrative appeal from such determination was required or available, the action was not commenced within the 30-day limitations period set forth in section 274-a (11), and the court therefore properly granted defendants' motions to dismiss on that ground ... . Likewise, any challenge to the 2005, 2009 or 2012 Planning Board's actions could have been brought in a CPLR article 78 proceeding, and thus the instant action, even though denominated as one for a declaratory judgment, also was not timely commenced within the 30-day limitations period applicable to each such action of the Planning Board (see Town Law § 274-a [11]; see also Town Law §§ 267-c [1]; 282).

 

We reject plaintiff's further contention that, with respect to the Town Code Enforcement Officer's determination, there was no administrative action and thus "nothing to appeal." Contrary to plaintiff's contention, Code § 170-92 (B) specifically provides for an appeal to the Zoning Board of Appeals where it is alleged that there is an error in any order or decision made by an administrative officer or body in the enforcement of the Code ... . Thus, plaintiff failed to pursue the available administrative appeal ..., and the 30-day period of limitations applicable to judicial review therefrom cannot be circumvented by "the simple expedient of denominating the action one for declaratory relief" ... . Bristol Homeowners Envtl Preserv Assoc LLC v Town of Bristol, 2014 NY Slip Op 07790, 4th Dept 11-14-14

 

CIVIL PROCEDURE/ATTORNEYS

 

Procedure for Handling a Motion to Dismiss for Failure to State a Cause of Action When Documentary Evidence Is Submitted in Support of the Motion Explained---Attorney Discharged For Cause Is Not Entitled to "Quantum Meruit" Attorney's Fees 

 

In affirming the dismissal of plaintiff's complaint, the Second Department explained the relevant analysis when documentary proof is submitted by a defendant in connection with a motion to dismiss for failure to state a cause of action pursunt to CPLR 3211(a)(7).  The action was brought by an attorney who had been discharged for cause by his clients prior to the settlement of a personal injury action:

 

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ... . Where, however, a defendant has submitted evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, "unless it has been shown that a material fact as 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" ... . Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action ... . * * *

 

A client has the right to discharge his or her attorney at any time ... . While an attorney who is discharged without cause before the completion of services may recover the reasonable value of his or her services in quantum meruit, an attorney who is discharged for cause is not entitled to any compensation or lien ... . Here, the court held a hearing pursuant to 22 NYCRR 603.13(b) with respect to the plaintiff's cross motion for attorney's fees. The court determined that the plaintiff was properly discharged for cause, and, therefore, was not entitled to recover in quantum meruit. Siskin v Cassar, 2014 NY Slip Op 07646, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/CRIMINAL LAW/CONSTITUTIONAL LAW

Petition by the District Attorney Against the Sentencing Judge Seeking Vacation of the Sentence Imposed, Because the District Attorney Did Not Agree to It, Dismissed---Granting the Petition Would Direct the Judge to Violate Criminal Procedure law 220.10(4) and Would Violate the Defendant's Protection Against Double Jeopardy

 

The Fourth Department dismissed a petition brought against a judge by a district attorney seeking the vacation of a plea on the ground that the district attorney did not agree to it.  The district attorney argued he had agreed to a six-year sentence, not the five-year sentence imposed by the judge:

 

The extraordinary remedy of mandamus " is never granted for the purpose of compelling the performance of an unlawful act' " ..., and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant's objection, a plea taken in contravention of CPL 220.10 or related statutory provisions ... . Indeed, absent extrinsic fraud, "[i]n no instance ha[s the Court of Appeals] recognized a court's inherent [or statutory] power to vacate a plea and sentence over defendant's objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment" ... . Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4) (a) after the commencement of sentence.

 

Furthermore, "restor[ing] the matter to its pre-plea status," as petitioner seeks, would violate defendant's constitutional protections against double jeopardy ... . Contrary to petitioner's contention, CPL 40.30 (3) "does not aid the analysis of the double jeopardy issue" ... . The Court of Appeals has held that a plea taken without the People's consent is not a nullity for purposes of that provision ... .

 

Apart from the legal infirmities of petitioner's position, we further conclude that the record does not factually support that position. Specifically, the record belies petitioner's contention that his consent to defendant's plea was conditioned on the imposition of a determinate, six-year term of imprisonment. Matter of Budelmann v Leone, 2014 NY Slip Op 07797, 4th Dept 11-14-14

 

CIVIL PROCEDURE/EMPLOYMENT LAW/EDUCATION-SCHOOL LAW

 

Procedure for Determining a Pre-Answer Motion to Dismiss a Declaratory Judgment Action Explained

 

In the context of an action for a declaratory judgment concerning the legality of the collective bargaining agreement (re: the waiver of seniority rights), the Second Department explained how a pre-answer motion to dismiss pursuant to CPLR 3211 (a)(7) [failure to state a cause of action] should be considered:

 

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'" ... . "Thus, where a cause of action is sufficient to invoke the court's power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'" ... . A court may reach "the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented [by the controversy]'" ... . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action "should be taken as a motion for a declaration in the defendant's favor and treated accordingly"... .  Bregman v East Ramapo Cent Sch Dist, 2014 NY Slip Op 07610, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/MUNICIPAL LAW/ENVIRONMENTAL LAW

 

The Striking Down (by the Court of Appeals) of a Retroactive Zoning Ordinance Which Prohibited the Operation of a Landfill Did Not Require the Striking Down of a Subsequent Health and Safety Regulation Which Had the Same Effect

 

The Fourth Department determined that the striking down (by the Court of Appeals) of a 2005 retroactive zoning ordinance which prohibited the continued use of petitioner's property as a landfill did not require the striking down of a 2007 health and safety regulation which had the same effect.  Because the two regulations are different in nature, the collateral estoppel doctrine is not available:

 

...[W]e agree with defendants that collateral estoppel does not apply here. "The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party' " ... . The doctrine "applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action' " ... . "The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination" ... . Here, the issue in this case—the legality of the 2007 Law as applied to plaintiffs—was neither raised by the parties nor decided by the Court of Appeals in Jones I. The issue before the Court of Appeals in Jones I was whether the 2005 Law was constitutional as applied to plaintiffs, i.e., whether the 2005 Law extinguished plaintiffs' legal use of their land for the purpose of operating a C & D landfill on the entire parcel (see Jones I, 15 NY3d at 145-146). The Court of Appeals held that "the zoning ordinance at issue in this case [i.e., the 2005 Law], which restricted the development of landfills, does not apply to plaintiffs because they acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law" (id. at 142 [emphasis added]).

 

Although the 2005 Law and the 2007 Law both regulate landfill operations, they are not identical. The 2005 Law amended the Zoning Law to eliminate sanitary and demolition landfills as a permitted use in the AR-1 zoning district. The 2007 Law did not amend the Zoning Law to eliminate landfills in a particular zoning district but, rather, it enacted a Town-wide ban on solid waste management facilities. In concluding that the 2005 Law did not apply to plaintiffs, the Court of Appeals relied upon its [prior] decisions... . Those cases involve the nonconforming use doctrine, which shields vested property rights from the retroactive effect of zoning ordinances... .

 

The 2007 Law, however, is a health and safety regulation, not a retroactive zoning ordinance ... . Unlike the 2005 Law, the 2007 Law does not "regulate[] the location of certain facilities within particular zoning districts" but, rather, it "generally regulat[es] the operation of [solid waste management] facilities in the interest of public safety and welfare" ... . It is well established that "a municipality has the authority, pursuant to its police powers, to impose conditions of operation . . . upon preexisting nonconforming uses to protect public safety and welfare" (id.) and "may even eliminate [a] nonconforming use provided that termination is accomplished in a reasonable fashion" ... . Jones v Town of Carroll, 2014 NY Slip Op 07780, 4th Dept 11-14-14

 

 

CIVIL PROCEDURE/MUNICIPAL LAW

 

Town Board Is Not a Necessary Party In an Action Against the Town---Acts of the Town Board Under Statutory Authority Are the Acts of the Town---Court's Power to Join a Necessary Party Sua Sponte Noted (Not Properly Exercised Here)

 

The Second Department explained that, in a declaratory judgment action against a town challenging a local law, the town board is not a necessary party:

 

A "court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties" ... . "In a matter seeking a declaratory judgment challenging a legislative act, the legislative body that enacted the challenged law or ordinance is a necessary party" ... .

 

In this declaratory judgment action against the Town of Huntington, challenging a Local Law enacted by the Town Board of the Town of Huntington (hereinafter the Town Board), the Supreme Court, sua sponte, directed the joinder of the Town Board as a defendant on the ground that it is a necessary party without which the action cannot proceed. However, a town board "shall be vested with all the powers of such a town" (Town Law § 60[1]) and "cannot and does not exist separately and independently from the town of which it is the governing body . . . [T]he acts of a town board when performed under statutory authority are the acts of the town" ... . Accordingly, as the Town is a party defendant in this action, it was unnecessary for the court to have directed the joinder of the Town Board as a defendant ... . Dish Realty LLC v Town of Huntington, 2014 NY Slip Op 07616, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/PRIVILEGE/CRIMINAL LAW/EVIDENCE

 

Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

 

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

 

We reject defendant's contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is "entirely a creature of statute" .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 ... . In determining whether the physician-patient privilege applies, we must consider "whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential" ... . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied ... , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator's presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

CIVIL PROCEDURE/PRIVILEGE/APPEALS

 

Inadvertently Disseminated Investigative Report [Concerning a Doctor's Conduct With Respect to Plaintiff's Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable---Matter Must Be Returned to the "Status Quo Prior to the [Inadvertent] Disclosure"

 

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent's death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court's order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

 

...[W]e conclude that Supreme Court erred in granting defendants' motion only in part, and should have granted the motion in its entirety. "Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions," including Public Health Law § 230 (9), which are not applicable here ... . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor's] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the "status quo prior to the[inadvertent] disclosure"... . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14

 

CONTRACT LAW/DEBTOR-CREDITOR/UNIFORM COMMERCIAL CODE/MONIES HAD AND RECEIVED

Agreement to Pay over $500,000 (Re: Prior Loans Allegedly Made Over a Period Time) Not Enforceable Because the Agreement Did Not Express Any Consideration---Past Consideration Is No Consideration Because the Detriment Did Not Induce the Promise

 

The Second Department determined that an agreement to pay over $500,000, allegedly constituting the amount of past loans made over a period of time, was not enforceable because the agreement did not express any consideration.  However, the cause of action for monies had and received properly survived summary judgment:

 

The lack of consideration for a note is a bona fide defense to payment thereof ... . Generally, past consideration is no consideration and cannot support an agreement because "the detriment did not induce the promise" ... . That is, "since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise" ... . However, a "promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed" (General Obligations Law § 5-1105 [emphasis added]).

 

Here, as indicated, the agreement did not express any consideration. Thus, it is not enforceable as a promissory note or as a contract (see General Obligations Law § 5-1105; Uniform Commercial Code § 3-104[1][a]-[d]; [2][d...). Samet v Binson, 2014 NY Slip Op -7643, 2nd Dept 11-12-14

 

 

CONTRACT LAW/MUNICIPAL LAW

 

Work Performed by Plaintiff Was Not "Home Improvement"---No License Required

 

The Second Department affirmed Supreme Court's finding that the installation of motorized window shades did not constitute "home improvement" and therefore plaintiff was not required to be licensed to perform the work.  If a license had been required by the Administrative Code of the City of New York, plaintiff would not have been able to recover under contract or quantum meruit:

 

"Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed both under the contract and on a quantum meruit basis" ... . Here, contrary to the defendants' contention, the Supreme Court properly determined that the plaintiff's installation of motorized window shades in their condominium did not constitute "home improvement" work within the meaning of Administrative Code of the City of New York § 20-386(2)...). Rather, the plaintiff's installation of motorized window shades constituted decorative work, which was not "incidental or related to" the separate home improvement renovations being performed by other contractors at the defendant's condominium (Administrative Code of City of NY § 20-386[2]...). Schimko v Haley, 2014 NY Slip Op 07644, 2nd Dept 11-12-14

 

 

CRIMINAL LAW

 

Delay In Seeking DNA Sample Contributed to Violation of Speedy Trial Statute---Indictment Dismissed

 

The Second Department dismissed the indictment because the unexcused delay in seeking a DNA sample resulted in the violation of the speedy trial statute (CPL 30.30):

 

The defendant moved pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. Contrary to the People's contention, because the People failed to exercise due diligence in obtaining the DNA sample from the defendant, the 161-day period between June 5, 2009, and November 13, 2009, was not excludable on the ground that their need to obtain the DNA test results constituted excusable, exceptional circumstances (see CPL 30.30[4][g]...). Adding this period of time to the periods of delay correctly conceded by the People, the People exceeded the six-month period in which they were required to be ready for trial (see CPL 30.30[1][a]). Accordingly, the judgment must be reversed, the defendant's motion pursuant to CPL 30.30 granted, and the indictment dismissed. People v Clarke, 2014 NY Slip Op 07680, 2nd Dept 11-12-14

 

 

CRIMINAL LAW/EVIDENCE

Proof of "Physical Injury" Legally Insufficient (Lacerated Finger)

 

The Second Department determined the evidence of "physical injury" suffered by Sergeant Klein , required for the offense of Assault in the Second Degree, was legally insufficient:

 

Physical injury is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00[9]). Sergeant Klein did not testify at trial. His medical records, which were admitted into evidence, indicated that he suffered a laceration to a finger on his right hand, with abrasions, pain, and swelling. While it is true that, to constitute physical injury, the pain caused by such a wound need not "be severe or intense to be substantial" ..., it must, at a minimum, cause "more than slight or trivial pain" (id. at 447) or, to some extent, result in the impairment of the use of the finger (see Penal Law § 10.00[9]). No evidence was introduced that the injuries sustained by Sergeant Klein caused him more than trivial pain, or that the use of his finger was impaired by these injuries ... . Accordingly, the defendant's conviction of assault in the second degree under count two of the indictment must be vacated, and that count of the indictment must be dismissed. People v Perry, 2014 NY Slip Op 07689, 2nd Dept 11-12-14

 

 

CRIMINAL LAW/EVIDENCE

Request for Missing-Witness Jury Instruction Should Have Been Granted---Prosecutor's Statement that the Witness Would Exercise His Fifth Amendment Privilege Against Self-Incrimination Not Enough to Demonstrate Witness' Unavailability

 

The Fourth Department granted defendant a new trial because the defense request for a missing witness jury instruction was denied.  The witness, who had testified before the grand jury,  was the only eyewitness to the relevant events.  The prosecutor argued the witness was unavailable because he would assert his Fifth Amendment privilege against self-incrimination.  The Fourth Department determined the witness' unavailablity was not sufficiently established:

 

Contrary to the People's contention, they failed to establish that the eyewitness was unavailable. Although the People correctly note that "a witness who on Fifth Amendment grounds refuses to testify will be considered unavailable' although the witness's presence is known and apparent" ..., the People failed to establish that the eyewitness was unavailable on that ground. An uncharged accomplice may be considered unavailable in certain circumstances ..., but the statements made by the prosecutor were not sufficient to establish that the eyewitness was an accomplice or that he faced any criminal liability for his actions ... . The People's further contention that the prosecutor could not call the eyewitness inasmuch "as his attorney will have him plead the Fifth Amendment" is not supported by evidence in the record before us. It is well settled that a trial court "should . . . be reasonably sure that the witness will in fact invoke the privilege, and where there is doubt the witness should be brought before the court and asked the relevant questions" ... . Here, the prosecutor did not call the eyewitness and there was no communication from the eyewitness's attorney; thus, "there was no verification that [the eyewitness] would plead the Fifth Amendment on the stand" ... . The People's "bare allegation that the witness in question apparently' would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable" ... . People v Fuqua, 2014 NY Slip Op 07784, 4th Dept 11-14-14

 

 

CRIMINAL LAW/EVIDENCE

Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

 

The Fourth Department reversed defendant's conviction because the trial judge, sua sponte, struck all of his co-defendant's testimony after the co-defendant invoked his privilege against self-incrimination.  The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

 

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial ... . We conclude that the court erred in failing to "weigh the options" in a "threshold inquiry" to determine whether "less drastic alternatives" were available, other than striking the entire testimony of the codefendant ... . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant's positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such "relevant and exculpatory testimony considered by the jury" ... . We also conclude that the court's error in striking the codefendant's testimony is not harmless inasmuch as "the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error" ... . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

 

CRIMINAL LAW/EVIDENCE

 

People Failed to Prove Low IQ Defendant Validly Waived His Miranda Rights and Gave Statements Voluntarily---Convictions Reversed, Some Charges Dismissed and New Trial Ordered

 

The Fourth Department, in a full-fledged opinion by Justice Peradotto, found that the defendant's statements should have been suppressed because the People failed to prove the defendant intelligently waived his right to remain silent and because the People failed to prove his statements were made voluntarily.  The evidence indicated defendant has an IQ of 63 or 68.  There was a video of defendant's interrogation. And the defense presented expert opinion evidence that the defendant was not capable of intelligently waiving his Miranda rights, and, because of the leading nature of the interrogation and defendant's excessively compliant nature, the defendant did not make his statements voluntarily:

 

At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People's expert acknowledged that defendant was "intellectually handicapped," with a full-scale IQ of 68, but concluded that defendant was "not that retarded" and could understand his Miranda rights. The defense expert testified that defendant's IQ placed him in the "mentally retarded range of intellectual functioning." Defendant's verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant's "very poor" level of verbal functioning, the defense expert opined that, although defendant was "able to understand the words of the Miranda rights," he was "not capable of intelligently waiving" those rights. He further opined that defendant was "a very suggestible and very compliant man as is not atypical of persons who are mentally retarded," which placed him at risk of falsely confessing. * * *

 

Where a "person of subnormal intelligence" is involved, "close scrutiny must be made of the circumstances of the asserted waiver" ... . "A defendant's mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant's awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them" ... . A suspect of "subnormal intelligence" may effectively waive his or her Miranda rights "so long as it is established that he or she understood the immediate meaning of the warnings" ..., i.e., "how the Miranda rights affected the custodial interrogation" (id. at 289). It must therefore be shown that the suspect "grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject's disadvantage; and that an attorney's assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next" ... . * * *

 

As the defense expert testified at trial, "[w]hat became very clear in the video . . . was that [defendant] changed his answers based on the kind of questioning that was done to him. In other words, he was asked the question, the same question over and over again. So it no doubt became clear to him that he was answering the wrong way. So he changed his answers to be what he believed the cop wanted to know." Many, although not all, of defendant's responses consisted of "mmm-hmm," yes, and a parroting back of the detective's statements. The detective also told defendant that he had spoken to the victim and her mother, that the victim was "not lying," and that the medical examination was going to show that "something happened" between defendant and the victim. The defense expert testified that such tactics "would lead [defendant] to question his own memory of the situation which isn't good to begin with. He's got deficits in memory. So if presented with memory that would counteract what he believed to be true, he would change his answer." People v Knapp, 2014 NY Slip Op 07801, 4th Dept 11-14-14

 

CRIMINAL LAW/EVIDENCE

Inventory Search of Impouded Vehicle Proper

 

In upholding the validity of an inventory search of defendant's vehicle, the Fourth Department explained the analytical criteria:

 

It is well settled that, "[w]hen the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to reasonable police regulations relating to inventory procedures administered in good faith' " ... . Thus, "[h]aving arrested the defendant [in] a public [parking lot], the officers were thereafter entitled to impound the vehicle" ... . Furthermore, "[i]t is settled law that the police may search an impounded vehicle to inventory its contents" ... . "Such searches, conducted as routine procedures, are permitted to protect an owner's property while it remains in police custody, to protect the police against false claims for missing property and to protect the police from potential danger" ... . Here, the police officers properly impounded the vehicle that defendant drove to the scene of the crime and performed an inventory search of that vehicle pursuant to a reasonable Cheektowaga Police Department procedure, during which they discovered the handgun. Consequently, the court properly refused to suppress the evidence seized during that inventory search. People v Tardi, 2014 NY Slip Op 07880, 4th Dept 11-14-14

 

CRIMINAL LAW/EVIDENCE

 

Abuse of Discretion to Entertain a Motion to Suppress Brought More than 45 Days After Arraignment (the Motion Had Been Granted and the People Appealed)

 

The Fourth Department determined defendant's motion to suppress the results of a chemical blood test should not have been granted because the motion was made more than 45 days after arraignment:

 

The People appeal from an order granting defendant's motion to suppress the results of a chemical test of defendant's blood, which had been taken from defendant more than two hours after his arrest (see generally Vehicle and Traffic Law § 1194 [2] [a] [1]). The motion was made ... more than 45 days after defendant's arraignment ..., and was therefore untimely as a matter of law (see CPL 255.20 [1]). We conclude that County Court abused its discretion in entertaining and granting the untimely motion because there was no good cause shown by defendant for an extension of time (see CPL 255.20 [3]...). People v Enright, 2014 NY Slip Op 07850, 4th Dept 11-14-14

 

DISCIPLINARY HEARINGS (INMATES)

 

Under the Facts, the Failure to Call a Witness Requested by the Inmate Was a Regulatory, Not a Constitutional, Violation---New Hearing Ordered

 

The Fourth Department noted that where a good faith reason for not calling a witness requested by the inmate appears on the record, the error is regulatory, not constitutional, in nature and a new hearing, not expungement, is required:

 

...[T]he Hearing Officer violated petitioner's right to call witnesses as provided in the regulations (see 7 NYCRR 254.5...). Although petitioner seeks expungement, he is not entitled to that relief at this juncture. Where, as here, "a good faith reason for the denial appears on the record, this amounts to a regulatory violation" rather than a violation of petitioner's constitutional rights, "requiring that the matter be remitted for a new hearing" ... . Matter of Johnson v Prack, 2014 NY Slip Op 07859, 4th Dept 11-14-14

 

 

EMPLOYMENT LAW/HUMAN RIGHTS LAW

 

Employer Not Required to Accommodate Employee with Epilepsy with Permanent Light-Duty Assignment

 

The Fourth Department determined petitioner's employer, the Erie County Sheriff's Office (ECSO), was not required to accommodate the petitioner, who has epilepsy, with permanent light duty employment:

 

"Pursuant to Executive Law § 296 (3) (b), employers are required to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer. A reasonable accommodation is defined in relevant part as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner" (... see § 292 [21-e]). "In reviewing the determination of SDHR's Commissioner, this Court may not substitute its judgment for that of the Commissioner . . . , and we must confirm the determination so long as it is based on substantial evidence' " ... . 

 

Petitioner, a deputy sheriff assigned to the position of "inmate escort" at ECSO's correctional facility, does not dispute that her epilepsy does not permit her to be assigned to duties involving direct inmate contact, i.e., duties that require uninterrupted vigilance and emergency response capability ... . Thus, petitioner also does not dispute that she cannot perform the essential functions of an "inmate escort" without presenting a direct threat to her own safety and others in the workplace (see 42 USC § 12113 [b]...). In order to accommodate her disability, however, petitioner ultimately requested assignment to a light-duty position. It is well settled that an employer is neither required to create a new light-duty position to accommodate a disability (see 9 NYCRR 466.11 [f] [6]...), nor to assign an employee with more than a temporary disability to a position in a light-duty program designed to accommodate only temporary disabilities ... . The fact that an employer has been lax in enforcing the temporary nature of its light-duty policy does not convert the policy into a permanent one ... . Although ECSO maintained a "light-duty" program (Policy # 03-01-07, Light Duty Assignments), the purpose of that program is to assist employees with temporary disabilities by modifying work assignments and duties or arranging for a temporary transfer to a "Transitional Duty Assignment (TDA)" until the employee is medically released to resume regular duties. The express intent of ECSO's "policy is not to create a permanent Transitional Duty Assignment, nor is [the policy] to be used in cases where an employee cannot perform the essential functions of a job with reasonable accommodation." Petitioner's epilepsy seizure disorder was described by her own treating physician as "long-term." Thus, we conclude that there is no basis to disturb SDHR's (State Division of Human Rights') determination that petitioner's disability was of a permanent nature and that ECSO had no permanent light-duty police assignments available. Matter of Coles v New York State Div of Human Rights, 2014 NY Slip Op 07788, 4th Dept 11-14-14

 

Similar issue and result in Matter of County of Erie v New York State Div of Human Rights, 2014 NY Slip Op 07829, 4th Dept 11-14-14

 

 

FAMILY LAW

 

Gifts from One Spouse to the Other Are Marital Property Subject to Equitable Distribution

 

The Second Department noted that gifts given by one spouse to the other are marital property subject to equitable distribution:

 

Gifts given by one spouse to another during a marriage are marital property and, thus, are subject to equitable distribution ... . Here, the defendant testified that, during the marriage, the plaintiff gave her a diamond ring valued at $16,900. The Supreme Court erred in failing to equitably distribute the value of that item. Accordingly, the plaintiff is entitled to a credit of $8,450 ... . Smithie v Smithie, 2014 NY Slip Op 07647, 2nd Dept 11-12-14

 

 

FAMILY LAW

Retroactive Suspension of Child Support Payments Based On Interference With Payor's Parental Rights Proper

 

In a lengthy and complex decision which addressed the proper allocation of marital and separate property, including the application of credits for the contribution of separate property to marital assets, the Third Department determined that child support payments can be suspended retroactively based upon interference with the payor's parental relationship.  In a concurring decision, two justices expressed their concern that the availability of retroactive suspension of child support would lead to self-help, i.e., the unilateral suspension of payments without a court order.  To avoid that circumstance, the concurring justices suggested that child support payments be made to an escrow account pending a decision on the application to cease the payments (as was done in this case).  From the concurring decision:

 

While we agree with the result reached by the majority, we are compelled to voice our concerns regarding the practical effect of, and policy considerations surrounding, the retroactive suspension of a noncustodial parent's obligation to pay child support. According to the longstanding jurisprudence of this Court, in certain circumstances, such as here, in which a custodial parent interferes with the parental rights of the noncustodial parent, a court may suspend the noncustodial parent's child support obligation retroactive to the date an application for such suspension was made ... . While we interpret the relevant statutes as prohibiting the child support payor from unilaterally discontinuing his or her payments during the pendency of a suspension application in the absence of a court order permitting such action, we are concerned that our previous decisions — and, to a certain extent, the majority decision here — which apply a suspension of child support retroactively, could actually promote such self-help. We, therefore, write separately to advocate for clarification and/or a modification of our precedent on this issue. * * *

 

...[W]e are of the view that a retroactive suspension of child support payments is appropriate only where, as here, the child support payor has, with court authorization, either paid child support into an escrow account or has obtained a temporary court order suspending payments during the pendency of the suspension application. In our opinion, requiring that child support payments be made in escrow is preferable, as it ensures that the noncustodial parent fulfills his or her child support obligations if the case is ultimately decided in favor of the custodial parent, while also making certain that the financial support is readily available for court-directed withdrawals, if necessary, for the custodial parent to meet the needs of the children ... . If, on the other hand, the noncustodial parent prevails, a subsequent suspension of child support can truly be retroactive and allow for the return of monies paid into the escrow account without violating the public policy against recoupment and without encouraging the accrual of arrears. Whitaker v Case, 2014 NY Slip Op 07707, 3rd Dept 11-13-14

 

FAMILY LAW/CONTRACT LAW

 

Questions of Fact Raised About Whether Premarital Agreement Was the Product of Overreaching

 

The Second Department reversed Supreme Court, finding that defendant-wife had raised a question of fact about the validity and enforceability of the premarital agreement.  The agreement purported to resolve all financial issues in the event of divorce and entitled defendant-wife only to a payment of $25,000.00 for each year of marriage.  Plaintiff-husband had assets of $10,000,000.00 and defendant-wife had assets of $170,000.00 at the time of the marriage:

 

An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse ... . Such an agreement may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct ... .

 

There is evidence that the defendant was not represented by independent counsel in connection with the preparation and execution of the allegedly "take-it-or-leave-it" premarital agreement that is the subject of this appeal. In addition, contrary to the plaintiff's contention, the preprinted financial forms executed by the parties do not demonstrate that they were expecting to enter into a premarital agreement, as the forms recite that they were furnished by a commercial bank in connection with an application for a mortgage. The defendant therefore raised triable issues of fact as to whether the premarital agreement was the product of overreaching, such that it would be rendered unenforceable ... . Bibeau v Sudick, 2014 NY Slip Op 07608, 2nd Dept 11-12-14

 

 

FAMILY LAW/CRIMINAL LAW

 

Appellant's Running From Area Where Gunshots Were Heard and a Visible Bulge Under Appellant's Clothing Provided Police With Reasonable Suspicion to Justify Stopping Appellant

 

The Second Department, over a partial dissent, determined that seeing the appellant running shortly after hearing gunshots, and seeing a bulge under appellant's clothing, provided the police with reasonable suspicion sufficient to justify stopping the appellant.  The suppression of the weapon thrown down by the appellant, therefore, was not required:

 

Appellate courts have held under the same or similar factual circumstances that the police have reasonable suspicion to pursue an individual observed with a bulge at the waistband while in geographic and temporal proximity of gunshots, who then flees from the police ... . The Court of Appeals has recognized that reasonable suspicion, and not probable cause, is the applicable standard in assessing a police stop or detention and that, in determining whether reasonable suspicion exists, a defendant's flight may be considered ... .

 

Here, because the pursuit of the appellant was justified, the gun he discarded during the pursuit was not subject to suppression as a result of any unlawful police conduct ... . Matter of Ya-Sin S, 2014 NY Slip Op 07672, 2nd Dept 11-12-14

 

 

FREEDOM OF INFORMATION LAW (FOIL)

 

Legal Opinions, Software, and a Manual for the Software Properly Withheld 

 

The First Department determined the respondent NYS Division of Human Rights properly withheld certain materials requested pursuant to the Freedom of Information Law (FOIL).  Legal opinions were exempt as "intra-agency materials" and were also exempt because the person who was the subject of the documents did not consent to the release.  In addition, software which was requested was not "information" within the meaning of FOIL:

 

Respondent properly withheld the four legal opinions requested by petitioner pursuant to the "intra-agency materials" exemption (see Public Officers Law § 89[2][g]), since they are essentially "predecisional memoranda, prepared to assist the agency in its decision-making process and . . . are not final agency determinations or policy" ... . Contrary to petitioner's argument, the opinions do not fall under the exceptions to this exemption for "statistical or factual tabulations or data" (Public Officers Law § 89[2][g][i]) or "instructions to staff that affect the public" (Public Officers Law § 89[2][g][ii]...).

 

Moreover, three of the four opinions are "specifically exempted from disclosure by state . . . statute" (Public Officers Law § 87[2][a]...) pursuant to Executive Law § 297(8), which prohibits respondent from making public information contained in reports obtained by it with respect to a particular person without his or her consent. ...

 

Respondent properly denied the request for its "Case Management System Legal Resources Notebook," which does not constitute a record within the meaning of FOIL, since it is not "information" (Public Officers Law § 86[4]) but rather a software application providing the means of accessing information in its electronic file system. It also properly withheld the user's manual for that application, since its disclosure "would jeopardize [respondent's] capacity . . . to guarantee the security of its . . . electronic information systems" (Public Officers Law § 87[2][i]).  Matter of Miller v New York State Div of Human Rights, 2014 NY Slip Op 07742, 1st Dept 11-13-14

 

 

REPLEVIN/CONVERSION/FRAUD/CIVIL PROCEDURE

 

Complaint Did Not State Causes of Action for Replevin or Conversion Because the Specific Funds Involved Were Not Sufficiently Identified/Fraud Cause of Action Stated---Inference of Fraud Sufficiently Raised from Circumstances Alleged

 

The Fourth Department determined the complaint did not state causes of action for replevin and conversion, but did state a cause of action for fraud.  The motions to dismiss the replevin and conversion causes of action pursuant to CPLR 3211(a)(7) should therefore have been granted.  The basis of the complaint was the allegation that defendants embezzled as much as $4 million from an incapacitated person (Aida Corey):

 

Addressing first the replevin cause of action, we note that replevin is a remedy employed to recover a specific, identifiable item of personal property ..., and "[o]rdinary currency, as a rule, is not subject to replevin" ... . Unless the currency can be specifically identified, i.e., it consists of specific, identifiable bills or coins, replevin does not lie ... . Here, the amended complaint alleges that the individual defendants "have used some or all of Aida Corey's $4 million in cas[h] to purchase real and personal property and other tangible assets" and that they "have taken approximately $4 million of Aida Corey's cash and/or personal property." The sole focus of the parties, both in Supreme Court and on appeal, however, has been on the money allegedly taken by the ... defendants, and we therefore deem abandoned any allegations by plaintiffs concerning personal property ... . We thus conclude that the amended complaint fails to state a cause of action for replevin, because there is no "specifically identified" money that plaintiffs seek to recover ... . 

 

With respect to the plaintiff guardians' cause of action for conversion, the amended complaint likewise alleges that the individual defendants "have taken approximately $4 million of Aida Corey's cash and/or personal property," but as with the replevin cause of action we conclude that plaintiffs have abandoned any allegations concerning personal property ... . Money may be the subject of a cause of action for conversion only if "it can be identified and segregated as a chattel can be" ..., i.e., "where there is a specific, identifiable fund" ... . Contrary to the contentions of plaintiff guardians, the sums allegedly converted here do not constitute the type of specific, identifiable fund that would support a conversion cause of action ... . 

 

...[T]he court properly refused to dismiss the fraud cause of action against them. A fraud cause of action must allege that the defendant: (1) made a representation to a material fact; (2) the representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied on the statement and in accordance with the statement engaged in a certain course of conduct; and (5) as a result of the reliance, the plaintiff sustained damages ... . The allegations in the complaint must set forth the "basic facts constituting the fraud" ..., to "inform a defendant of the complained-of incidents" ... . The Court of Appeals has "cautioned that [CPLR] 3016 (b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting the fraud" (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [internal quotation marks omitted]). Here, much of the detail surrounding the alleged fraud is " peculiarly within the knowledge' " of the ... defendants ..., and we agree with plaintiffs that an inference of fraud arises from the circumstances alleged in the amended complaint ... . Heckl v Walsh, 2014 NY Slip Op 07787, 4th Dept 11-14-14

 

 

MUNICIPAL LAW/CIVIL PROCEDURE/ENVIRONMENTAL LAW

 

Provision of County Charter Requiring a Referendum to Amend the Drinking Water Protection Program Is Valid and Enforceable---Amendment Enacted Without the Referendum Is Null and Void---Both Individual and Organizational Plaintiffs Had Standing to Contest the Amendment

 

The Second Department reversed Supreme Court findng that: (1) the plaintiffs had standing to contest the amendment of the Suffolk County Drinking Water Protection Program (DWPP) on the ground that the referendum required by the county charter was not held; and (2) the resolution enacted in the absence of a referendum was null and void.  The court noted the fact that the pleadings were not included in plaintiffs' motion for summary judgment, the reason Supreme Court denied the motion, was not fatal to the motion:

 

The Supreme Court erred in granting that branch of the defendants' cross motion which was for summary judgment dismissing the complaint on the ground that the plaintiffs lacked standing. An action commenced by natural persons pursuant to General Municipal Law § 51 "may take the form of [an] action for a declaratory judgment" ... . To have standing based upon their status as taxpayers, the individual plaintiffs were required to allege that the challenged act constituted a waste of or injury to public funds or, alternatively, that the challenged act was both illegal and "imperil[ed] the public interests or [was] calculated to work public injury or produce some public mischief" ... . Here, the plaintiffs alleged, in detail, that the defendants violated the Suffolk County Charter by enacting the Amendment in the absence of approval pursuant to a public referendum, and that this enactment threatened public funds expressly dedicated to protecting the drinking water supply in the County and lands in the Pine Barrens. Under the circumstances presented here, we conclude that the plaintiffs adequately alleged that the enactment of the challenged amendment without a public referendum is illegal insofar as it violates the Suffolk County Charter, and that this enactment imperiled the public interest or was calculated to work public injury or produce some public mischief... . ...

 

Although the Supreme Court denied the plaintiffs' motion for summary judgment on the ground that they failed to submit a copy of the pleadings with their motion papers, we nonetheless exercise our discretion to reach the merits. Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to "disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced" ... . * * *

 

[The] provisions of the New York Constitution and the Municipal Home Rule Law do not prevent Suffolk County from adopting a charter provision like the one at issue here, which requires approval by a public referendum in order to amend or repeal the DWPP in the future (see Municipal Home Rule Law § 11[2][a]; § 34[4]...). Although the relevant charter provision requires a public referendum that is denominated as a "mandatory" referendum, that public referendum is not mandated by State law (cf. Municipal Home Rule Law § 23). Rather, the relevant charter provision constitutes the County's mode of granting permission to the electorate to approve or disapprove, by means of a public referendum, proposed changes to the DWPP. Hence, the public referendum countenanced by the Suffolk County Charter can properly be characterized as a "permissive" referendum within the meaning of the New York Constitution and the Municipal Home Rule Law ... . Long Is Pine Barrens Socy Inc v County of Suffolk, 2014 NY Slip Op 07633, 2nd Dept 11-12-14

 

 

MUNICIPAL LAW/CONTRACT LAW

 

"Notwithstanding Clause" in Contract Insulated Town from Liability for Bond Payments Re: a Waste Disposal Facility

 

The Second Department determined Supreme Court properly resolved conflicting contract provisions by reference to General Municipal Law 109-b (2) which governs installment contracts entered into by municipalities.  The contract concerned the operation of a waste disposal facility which closed before the bonds used to fund it were paid off.  The insurance company sought payment from the town's sanitary district. The court held that the clauses in the contract which insulated the district from liability for the payments (if the funds were not appropriated) were enforecable:

 

Consistent with the requirements of General Municipal Law § 109-b(2)(f), which applies to installment contracts entered into by municipalities, section 24 of the lease between the District and NCIDA states that:

 

"Notwithstanding any other provision of this Agreement, (i) this Agreement shall be deemed executory only to the extent of the moneys budgeted and appropriated and available for the purpose of this Agreement, and no liability on account thereof shall be incurred by the District beyond the amount of such moneys, and (ii) it is understood that neither this Agreement nor any representation by any public employee or officer creates any legal or moral obligation to request, budget, appropriate or make available moneys for the purpose of this Agreement."

 

Such clauses are intended to be utilized as a shield against the imprudent use of taxpayers' dollars, and not as a sword to divorce the State, for purposes of its own convenience, from a contract fairly entered into and honestly performed ... . Nevertheless, "even though a municipality may possess sufficient funds to satisfy a particular obligation, such funds cannot be deemed available' if the expenditure thereof would be improvident" ... . 

 

Here, although in its lease with the NCIDA the District promised to seek appropriations sufficient to make the lease payments, the lease also repeatedly stated that the District's liability for payments was conditioned upon the appropriation of funds. Indeed, the District's promise to seek appropriations was tempered by the provision stating that it was required to do so only "subject to the provisions of Section 24 hereof." Since "trumping language such as a notwithstanding' provision controls over any contrary language' in a contract," the Supreme Court properly relied upon this section as the basis for its determination ... . Frankenmuth Mut Ins v Waste Mgt of NY LLC, 2014 NY Slip Op 07624, 2nd Dept 11-12-14

 

 

NEGLIGENCE/EVIDENCE

 

Question of Fact Raised About Defendant's Comparative Negligence in Striking a Bicyclist Travelling the Wrong Way on a One-Way Street

 

The Second Department reversed Supreme Court's grant of summary judgment to the defendant in a bicycle-vehicle collision action.  The bicyclist was traveling the wrong way on a one-way street and the collision occurred in an intersection after defendant had stopped at a stop sign before entering the intersection.  Although the bicyclist was negligent as a matter of law, the court determined that a question of fact had been raised about defendant's failure to see what was there to be seen (comparative negligence):

 

... [T]he defendant failed to make a prima facie showing that she was free from comparative fault in the happening of the accident ... . When asked at her deposition when she first saw the plaintiff's bicycle, she responded "I saw an object. As I was — I stopped. And then as I proceeded to cross the intersection, I felt something. And I saw an object." This testimony demonstrated the existence of triable issues of fact exist regarding whether the defendant failed to see what was there to be seen through the proper use of her senses ... and whether she failed to exercise reasonable care to avoid the collision with the plaintiff's bicycle ... . Accordingly, since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied her motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers ... . Palmeri v Erricola, 2014 NY Slip Op 07637, 2nd Dept 11-12-14

 

NEGLIGENCE/LANDLORD-TENANT

Summary Judgment Properly Granted to Property Owner in Lead-Paint-Injury Case

 

The Fourth Department determined the property owner was entitled to summary judgment in a lead-paint-injury case.  There was no showing defendant had notice of the presence of lead paint hazard or that defendant was negligent in abating the lead paint hazard:

 

"In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so" ... . We conclude that plaintiffs failed to meet their initial burden of establishing that defendants had actual or constructive notice ... . Faison v Luong, 2014 NY Slip Op 07794, 4th Dept 11-14-14

 

NEGLIGENCE/CIVIL PROCEDURE/EVIDENCE/VEHICLE AND TRAFFIC LAW

 

Late Motion to Amend Answer Should Not Have Been Granted/Violation of Vehicle and Traffic Law Established Negligence as a Matter of Law/Striking of Affirmative Defense Based on Brake Failure Proper Because Brakes Were Replaced (Spoliation of Evidence)/Fact that Defendant-Driver's Negligence Was Sole Proximate Cause of the Accident As a Matter of Law Did Not Preclude Comparative Negligence Affirmative Defense

 

The defendant driver of a payloader struck a school bus and a personal injury action was brought by plaintiff, a school aide who was on the bus.  The Fourth Department determined defendants' late motion to amend the answer should not have been granted, the striking of an affirmative defense based upon brake failure was properly struck because the original brakes had been replaced (spoliation), defendant-driver's violation of Vehicle and Traffic Law 1143 established negligence as a matter of law, and the affirmative defense alleging comparative negligence on plaintiff's part should not have been dismissed:

 

We agree with plaintiff that Supreme Court abused its discretion in granting defendants' cross motion [to amend the answer], and we therefore modify the order accordingly. The motion was made seven months after plaintiff had filed the note of issue and more than two years after she commenced the action, yet defendants offered no excuse for their delay in making the motion ... . We further conclude that preclusion of the affirmative defenses based on brake failure is warranted as a sanction for spoliation ... . After the accident, Cerrone replaced the payloader's allegedly defective brake calipers and discarded the old calipers. * * *

 

Vehicle and Traffic Law § 1143 provides that "[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed." Here, plaintiff met her initial burden on the motion by establishing as a matter of law that " the sole proximate cause of the accident was [Freeman]'s failure to yield the right of way' " to the school bus in violation of section 1143 ... . At the time of the accident, the school bus was lawfully stopped on a public roadway, and the payloader collided with the school bus after entering the roadway from a parking lot ... . In opposition to the motion, defendants failed to provide a nonnegligent explanation for the accident ... . * * *

 

...T]he court erred in dismissing their affirmative defense of plaintiff's culpable conduct, and we therefore further modify the order by reinstating that affirmative defense. CPLR 1411 provides that, "[i]n any action to recover damages for personal injury . . . , the culpable conduct attributable to the [plaintiff] . . . , including contributory negligence . . . , shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the [plaintiff] . . . bears to the culpable conduct which caused the damages." The statute encompasses any culpable conduct that had a "substantial factor in causing the harm for which recovery is sought" ... . Here, as the court found, there is no question that the sole proximate cause of the accident was defendants' negligence. Defendants contend, however, that the injuries plaintiff allegedly sustained in the accident were caused, in whole or in part, by her position on the bus, i.e., the fact that she was kneeling or standing on the bus rather than sitting in a seat, and they submitted an expert affirmation to that effect ... . Simoneit v Mark Cerrone Inc, 2014 NY Slip Op 07783, 4th Dept 11-14-14

 

NEGLIGENCE/MUNICIPAL LAW/EDUCATION-SCHOOL LAW

 

School Not Liable for Injury to Student Crossing Street to Enter School--Student Was Not In the Custody or Control of the School When He Was Injured

 

The Fourth Department determined that plaintiff's son was not yet in the custody or control of the school when he was injured. Summary judgment dismissing the complaint was therefore required.  Plaintiff had dropped her son off across the street from the school, and told him to stay there while she directed cars to a parking area for an upcoming lacrosse game (in which plaintiff's son was to participate). A teammate told the plaintiff's son to go to the school to check in with the coach.  He was injured crossing the street:

 

...[I]t is well settled that "[t]he duty of a school district to its students is strictly limited by time and space and exists only so long as a student is in its care and custody" ... . We reject plaintiff's contention that defendants owed plaintiff's son a duty of care under the circumstances here. When plaintiff dropped off her son and told him to "stay there," she made a parental decision to keep her son across the street because she was concerned about him "crossing over" given that there was "lots of traffic" in the intersection where the accident occurred. Thus, plaintiff had not relinquished control of her son, and defendants had not yet gained the physical custody or control of him that is a prerequisite to imposing a legal duty on them ... . The fact that plaintiff's son disobeyed plaintiff's directive and crossed the street does not change that legal result.

 

We reject plaintiff's further contention that defendants owed plaintiff's son a duty because the defendants placed plaintiff's son in a "for[e]seeably dangerous setting that the [defendants] had a hand in creating." Because the child was never in the physical custody or control of the defendants, however, the defendants were "never in a position to . . . release [plaintiff's son] into a hazardous setting ... . Ritchie v Churchville-Chili Cent School Dist, 2014 NY Slip Op 07792, 4th Dept 11-14-14

 

NEGLIGENCE/MUNICIPAL LAW/IMMUNITY

 

Plaintiff Entitled to Damages from the City---Plaintiff Had a "Special Relationship" with the City and Was Injured When a City Employee, Performing Ministerial Functions, Directed Plaintiff to Perform a Dangerous Task---"Special Relationship," Which Gave Rise to a Duty Owed by the City to the Plaintiff, Defined

 

The Second Department affirmed Supreme Court's denial of a motion by defendant-city to set aside the verdict.  The city had been held responsible for plaintiff's injury based upon the jury's findings that there was a "special relationship" between the city and the plaintiff and the city-employee was performing ministerial, not discretionary, acts when he directed the plaintiff's work.  Plaintiff was injured when the city's plumbing inspector directed plaintiff to perform a dangerous air pressure test:

 

The Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship: "(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition" ... . Of the three ways that a duty may arise out of a special relationship, only the third is at issue on this appeal—whether the appellants took positive control of a known and dangerous safety condition. Contrary to the appellants' contention, the jury's determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to the plaintiff's injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence ... . Delanoy v City of White Plains, 2914 NY Slip Op 07615, 2nd Dept 11-12-14

 

 

 

 

 

 

 

 

UTILITIES/ENVIRONMENTAL LAW/ADMINSTRATIVE LAW/CIVIL PROCEDURE

 

Transmission Line from Hydroelectric Power Facility in Canada to Queens Properly Approved

 

The Third Department determined that the NYS Public Service Commission properly issued a certificate of environmental compatibility and public need (EC & PN) for an electric power transmission line running from a hydroelectric power facility in Canada to Queens.  After the issuance of the EC & PN, the petitioners sought a rehearing pursuant to Public Service Law 22.  The Commission denied the petition on the ground it had been filed and served one day late.  The Third Department held that the failure to timely file was nonprejudicial "law office failure" which should have been excused pursuant to CPLR 2005 and went on to review the Commission's grant of the EC & PN on the merits, including the economic feasibility of the plan, the public need for the hydropower-produced electricity (reduced carbon emissions),  and the effects of the transmission line on the environment:

 

We begin by recognizing that, as parties to the proceedings at the agency level, petitioners have standing ... . The criteria for authorizing the construction and operation of a major utility transmission facility are set forth in Public Service Law § 126. Under this statute, the Commission may not grant a certificate approving an electric transmission project unless it finds and determines (1) the need for the facility, (2) whether the facility will achieve the minimum adverse environmental impacts, (3) whether the facility will be located underground and comport with the state's long-range plan to expand the electric power grid, (4) that there has been conformance with applicable state and local laws and regulations, and (5) that the facility promotes the public interest, convenience and necessity (see Public Service Law § 126 [1] [a]-[d], [f], [g]). This project involves the placement of a high voltage, direct current transmission line extending from the Canadian border to a converter station in Queens and, from there, a high voltage, alternating current transmission line to the Rainey Substation. The line will be placed underwater in Lake Champlain and the Hudson River and underground in the upland segments. * * *

 

Petitioners contend that the Commission failed to adequately consider the potential harm to aquatic species, including the endangered shortnose and atlantic sturgeon, posed by the placement of cables underwater. The plan requires the underwater cables to be buried at least six feet beneath the lake/river bottom, except in areas of utility crossings and hard rock. In these areas, the cable will be covered by concrete mats. The specific risks emanate from the use of the concrete mats as well as magnetic and electromagnetic field impact. The record supports the Commission's determination that any risk has been minimized by the placement of the cable route utilizing existing habitat information designed to avoid significant coastal fish and wildlife habitat areas designated by the Department of State (see 19 NYCRR part 602) and the exclusion zones identified by the parties in the joint proposal. There is also expert record evidence supporting the Commission's conclusion that the magnetic fields' impact on sturgeon and other aquatic species would be minimal. Further, we agree with the Commission's observation that the July 5, 2011 letter from the Army Corps of Engineers addressing the cable route under Lake Champlain and the Hudson River was a preliminary assessment. Moreover, the certificate is conditioned on the applicants' procurement of a construction permit from the Army Corps of Engineers, which has jurisdiction over these navigable waterways, prior to commencing construction.  Matter of Entergy Nuclear Power Mktg LLC v New York State Pub Serv Comm, 2014 NY Slip Op 07711, 3rd Dept 11-13-14

 

 

RELIGION /CONSTITUTIONAL LAW

 

Dispute Within a Religious Organization Could Not Be Decided by Application of Neutral Law But Rather Would Require Looking Behind an Ecclesiastical Determination, An Inquiry Prohibited by the Establishment Clause

 

The First Department, in a full-fledged opinion by Justice Gische, over an extensive dissent, determined that the courts could not intervene in a dispute which had arisen within a Buddhist organization called the China Buddhist Association (CBA).  The court determined the dispute could not be decided by the application of neutral law, but rather would have required deciding whether petitioners had been properly excommunicated, an entirely religious inquiry:

 

The Establishment Clause of the First Amendment of the United States Constitution, which is binding on the states by the Fourteenth Amendment, guarantees religious bodies "independence from secular control or manipulation — in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine" ... . Consequently, courts are forbidden from "interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs" ... . Only when disputes can be resolved by neutral principles of law may the courts step in ... . The issues before us, however, cannot be resolved through the application of "neutral principles of law" but entail an inquiry into the validity of petitioners' excommunications. Because this is an entirely ecclesiastical matter, we are forbidden from such an inquiry ... . * * *

 

It is impermissible for a court to look behind an ecclesiastical determination or act to examine the subjective reasons for which it was undertaken ... . Matter of Ming Tung v China Buddhist Assn, 2014 NY Slip Op 07777, 1st Dept 11-13-14

 

 

MEDICAID/MUNICIPAL LAW/CONSTITUTIONAL LAW/CIVIL PROCEDURE

 

The "Special Facts" Exception to the Retroactive Applicability of a Statute Does Not Apply/A Statute Cannot Be Interpreted to Render Language Superfluous/A Municipality Cannot Challenge the Constitutionality of a State Statute/Lack of Capacity to Sue Does Not Deprive the Court of Jurisdiction

 

The Fourth Department determined that a 2012 amendment to the Social Services Law (section 61) eliminated the requirement that counties be reimbursed by the state for certain medicaid expenses (so-called "Overburden expenses") incurred prior to 2006, when the medicaid "Cap Statute" was enacted.  The court dealt with several issues, including:  (1) the retroactive effect of the 2012 amendment; (2) the effect of the amendment cannot be avoided under the "special facts" exception; (3) the amendment cannot be interpreted to render language superfluous; (4) municipalities cannot challenge the constitutionality of statutes; and (4) the lack of the capacity to sue, unlike standing, does not go to the jurisdiction of the court:

 

Section 61 clearly states that no further claims for reimbursement of overburden expenditures will be paid, notwithstanding Social Services Law § 368-h. Thus, the unequivocal wording of section 61 retroactively extinguishes petitioner's right to submit claims for reimbursement of overburden expenditures made prior to 2006. "The retroactivity of a statute which is expressly retroactive, as here, will generally be defeated only if such retroactivity would violate due process or some other specific constitutional precept" ... .

 

Here, however, in granting the cross motion, Supreme Court ordered that petitioner's claims be "treated under Social Services Law § 368-a as [they] existed at the time that Petitioner incurred the Overburden expenses on Respondents' behalf, pursuant to the special facts exception." We agree with respondents that the special facts exception does not apply in this situation. Insofar as relevant here, that exception provides that "a court may deny an agency the benefit of a change in the law when it has intentionally or even negligently delayed action on [a claim] until after the law had been amended to authorize denial of the" claim ... . There is no indication that resolution of the claims at issue was delayed until section 61 was enacted. * * *

 

It is well settled that, in interpreting a statute, a court " must assume that the Legislature did not deliberately place a phrase in the statute that was intended to serve no purpose' " ..., and must avoid an interpretation that " result[s] in the nullification of one part of [a statute] by another' " ... . Thus, "[a] construction that would render a provision superfluous is to be avoided" ... . * * *

 

In its cross motion for summary judgment, petitioner sought, inter alia, judgment declaring that section 61 is unconstitutional because the statute deprived petitioner of due process by removing its vested rights. "[T]he traditional principle throughout the United States has been that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation. This general incapacity to sue flows from judicial recognition of the juridical as well as political relationship between those entities and the State. Constitutionally as well as a matter of historical fact, municipal corporate bodies--—counties, towns and school districts—--are merely subdivisions of the State, created by the State for the convenient carrying out of the State's governmental powers and responsibilities as its agents. Viewed, therefore, by the courts as purely creatures or agents of the State, it followed that municipal corporate bodies cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants" ... .

 

It is equally well settled, however, that "[t]he issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing. Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived" ... . Matter of County of Niagara v Shah, 2014 NY Slip Op 07781, 4th Dept 11-14-14

 

TRUSTS AND ESTATES/CIVIL PROCEDURE/FIDUCIARY DUTY, BREACH OF

 

Relationship Between the "Open Repudiation [of Fiduciary Obligations] Rule" and the Laches Defense Explained/Allegations that Investments Made by the Fiduciary Underperformed Does Not State a Cause of Action for Breach of the Fiduciary Duty

 

In reversing Surrogate's Court's dismissal of objections to the fiduciary's final accounting based on the laches defense, the Fourth Department explained the "open repudiation rule" and its relationship to laches.  To take advantage of the laches defense, the fiduciary must have openly repudiated his or her obligation or there must have been a judicial settlement of the fiduciary's account, niether of which took place here.  The Fourth Department reached the same result as did Surrogate's Court by concluding, pursuant to CPLR 3211(a)(7), that the numerous specific objections failed to state any cause of action against the fiduciary.  With respect to the "open repudiation rule" and the "underperforming investments" allegations, the court wrote:

 

... [T]he open repudiation rule applies to the defense of laches ... . As the Court of Appeals stated in Barabash, "[a] fiduciary is not entitled to rely upon the laches of his beneficiary as a defense, unless he repudiates the relation to the knowledge of the beneficiary" ... . Moreover, the open repudiation rule "requires proof of a repudiation by the fiduciary which is clear and made known to the beneficiaries" ... . * * * Inasmuch as petitioner's repudiation of its role of fiduciary was a prerequisite to its assertion of the defense of laches, and because no such repudiation occurred, we conclude that the Surrogate erred in permitting petitioner to assert that defense and in dismissing the objections on the ground that the objections were barred thereby. * * *

 

The elements of a cause of action for breach of fiduciary duty are " the existence of a fiduciary duty, misconduct by the [fiduciary] and damages that were directly caused by the [fiduciary's] misconduct' " ... . * * *

 

We reject objectants' contention that they stated a cause of action for breach of fiduciary duty by filing an objection to petitioner's refusal to consider investment in nonproprietary funds. Objectants correctly concede that the Prudent Investor Act permits petitioner to invest trust assets in proprietary funds (see EPTL 11-2.3 [d]). The Prudent Investor Act also requires a trustee such as petitioner with "special investment skills" to "exercise such diligence in investing and managing assets as would customarily be exercised by prudent investors of discretion and intelligence having special investment skills" (EPTL 11-2.3 [b] [6]). Even under this standard, however, " it is not sufficient that hindsight might suggest that another course would have been more beneficial; nor does a mere error of investment judgment mandate a surcharge' " ... . Thus, it is well settled that " a fiduciary's conduct is not judged strictly by the success or failure of the investment . . . In short, the test is prudence, not performance, and therefore evidence of losses following the investment decision does not, by itself, establish imprudence' " ... . Here, objectants merely alleged that the proprietary funds were underperforming, which is insufficient to state a cause of action for breach of fiduciary duty ... . Matter of JPMorgan Chase Bank NA, 2014 NY Slip Op 07799, 4th Dept 11-14-14

 

UNEMPLOYMENT INSURANCE/LABOR LAW

 

Claimant Excluded from Eligibility for Unemployment Insurance Benefits by Labor Law 565 (Re: Major Policymaking or Advisory Positions)

 

The Third Department upheld the Unemployment Insurance Board's determination that claimant was not entitled to unemployment insurance benefits by virtue of a statutory exclusion (Labor Law 565) for persons holding a major nontenured policymaking or advisory position:

 

For purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law § 565 (2) (e) excludes from employment "services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position." Whether this exclusion applies presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis ... .

 

Here, claimant's position had three primary functions: (1) to investigate patterns of discrimination involving violations of the Human Rights Law appropriate for filing an administrative complaint by DHR, (2) to oversee the prosecution of complaints brought on behalf of individuals, and (3) to evaluate DHR's [Division of Human Rights'] issuance of exemptions for certain housing providers. In addition, claimant was a member of the stimulus oversight team responsible for ensuring that stimulus funds were distributed in a nondiscriminatory manner. In performing his duties, claimant reported directly to the Commissioner of Human Rights, had meetings with the Commissioner on a variety of matters and made recommendations on the implementation of agency policies. In addition, he represented the DHR in its dealings with other agencies while a member of the stimulus oversight team and devised a system for gathering accurate information concerning expenditures made in connection therewith. Although claimant did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner. Under these circumstances, there is a rational basis for the Board's decision that claimant held a major nontenured policymaking or advisory position excluded under Labor Law § 565 (2) (e) ... . Matter of Birnbaum..., 2014 NY Slip Op 07719, 3rd Dept 11-13-14