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November Page III

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


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Tenured Teacher Subject to Discipline Is Entitled to a Hearing Pursuant to Education Law 3020-a Notwithstanding an Alternative Procedure in a Collective Bargaining Agreement


The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that a tenured teacher subject to discipline is entitled to a hearing pursuant to Education Law 3020-a, notwithstanding the existence of an alternative procedure agreed to in a collective bargaining agreement which was negotiated (or renegotiated) after Section 3020-a went into effect in 1994:


...[I]t is plain that the legislative intent informing its 1994 amendment (L 1994, ch 691) was to assure that tenured educators against whom formal disciplinary charges were lodged could avail themselves, if they so chose, of the procedural protections set forth in contemporaneously amended Education Law § 3020-a. While section 3020 (1) does "grandfather" pre-September 1, 1994 CBA discipline review procedures contained in unaltered CBAs, its evidently dominant purpose was prospectively to secure the right of tenured employees to avail themselves of the process set forth in Education Law § 3020-a. That purpose and the indefinite retention of mandatory alternative CBA review procedures are not easily, if at all, reconcilable. With that in mind, we believe the statute must be understood to sunset CBA provisions depriving tenured employees of the § 3020-a recourse to which they are otherwise entitled. Matter of Kilduff v Rochester City School District, 2014 NY Slip Op 08056, CtApp 11-20-14





Rent-Stabilized Apartment Lease Is Exempt from the Bankruptcy Estate


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined that a rent-stabilized apartment lease is exempt from the bankruptcy estate because it qualifies as a "local public assistance benefit" under Debtor and Creditor Law (DCL) 282 (2):


Section 522 (b) of the Bankruptcy Code permits the debtor to exempt certain property from the bankruptcy estate, and section 522 (d) provides a list of property that may be exempt. However, the Code also permits states to create their own list of exemptions, and New York has done so. DCL § 282 sets forth the permissible exemptions in personal bankruptcy. Debtors domiciled in New York have the option of choosing either the federal exemptions or New York exemptions (11 USC § 522 (b); DCL § 285). DCL § 282 (2), entitled "Bankruptcy exemption for right to receive benefits" lists the following as exemptions:


"The debtor's right to receive or the debtor's interest in: (a) a social security benefit, unemployment compensation or a local public assistance benefit; (b) a veterans' benefit; (c) a disability, illness, or unemployment benefit; (d) alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and (e) all payments under a stock bonus, pension, profit sharing, or similar plan or contract on account of illness, disability, death, age, or length of service . . . "


When the rent-stabilization regulatory scheme is considered against the backdrop of the crucial role that it plays in the lives of New York residents, and the purpose and effect of the program, it is evident that a tenant's rights under a rent-stabilized lease are a local public assistance benefit.   Matter of Santiago-Monteverdi, 2014 NY Slip Op 08051, CtApp 11-20-14





Passive Website Informing Readers of a Surgical Procedure Offered In Florida Does Not Constitute "Transaction of Business" In New York---New York Courts Do Not Have Personal Jurisdiction Over the Florida Defendants


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that a passive website explaining the availability of back surgery in Florida is not enough to afford New York courts long-arm jurisdiction (pursuant to CPLR 302---doing business in New York) over Laser Spine Institute (LSI) which subsequently treated the New York plaintiff in Florida: 


In May 2008, plaintiff was suffering from severe back pain. While on the homepage of a well-known internet service provider plaintiff discovered an advertisement for LSI, a surgical facility specializing in spine surgery, with its home facility and principal place of business in Tampa, Florida. Plaintiff clicked on the LSI advertisement, and viewed a 5-minute video presentation of a testimonial from a former LSI patient and professional golfer, extolling LSI's medical services. The advertisement appeared to hold out the promise of relief for plaintiff's back problems so he communicated with LSI by telephone and internet to inquire about possible surgical procedures to alleviate his pain. These would be the first of plaintiff's several contacts with LSI, which led to his eventual decision to undergo surgical procedures by LSI medical professionals in Florida. Those surgeries are the underlying basis for plaintiff's action against defendants. * * *


In order to satisfy "'the overriding criterion' necessary to establish a transaction of business" within the meaning of CPLR 302 (a) (1), a non-domiciliary must commit an act by which it "purposefully avails itself of the privilege of conducting activities within [New York]" ... . Plaintiff here admits that he was the party who sought out and initiated contact with defendants after viewing LSI's website. According to plaintiff, that website informed viewers about LSI medical services and its professional staff. However, he has not asserted that it permitted direct interaction for online registration, or that it allowed for online purchase of LSI services ... . Passive websites, such as the LSI website, which merely impart information without permitting a business transaction, are generally insufficient to establish personal jurisdiction ... . Paterno v Laser Spine Inst, 2014 NY Slip Op 08054, CtApp 11-20-14





Judge Effectively Rescinded the Initial Declaration of a Mistrial and Left the Decision Whether to Declare a Mistrial Up to the Defendant---Because the Defendant Ultimately Agreed to the Mistrial the Double Jeopardy Prohibition Was Not Triggered


The Court of Appeals determined that, although the trial judge initially declared a mistrial without defense counsel's consent, the judge effectively rescinded the declaration by leaving it up to the defendant to decide whether a mistrial should be declared (defense counsel had objected to the way the judge was handling the trial).  Because the mistrial was ultimately agreed to by the defendant, a second trial was not precluded by the double jeopardy prohibition:


Until the jury is discharged, a court may rescind its previous declaration of mistrial (see People v Dawkins, 82 NY2d 226 [1993]). Defendant argues that in this case the trial judge never formally rescinded his initial mistrial ruling, and so whether or not she indicated her consent after that ruling is irrelevant. Certainly, the judge never expressly said "I rescind my order declaring a mistrial." But we have never required any particular language to be used to retract a prior order. Here, the record makes clear that the trial judge was leaving the mistrial decision up to defendant. Because she decided to "go with a mistrial," and thus consented to it, her double jeopardy claim fails. Matter of Gorman v Rice, 2014 NY Slip Op 07923, CtApp 11-18-14





Defendant Who Pled Guilty Without Counsel and Who Was Not Advised of His Right to Appeal May Raise a "Deprivation of the Right to Counsel" Claim In a Motion to Vacate the Judgment of Conviction, Even Though the Issue Could Have Been Raised on Direct Appeal (No Appeal Was Perfected)


The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the defendant should be allowed to raise the argument that he was deprived of his right to counsel in a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law (CPL) 440.10, even though the issue could have been raised on direct appeal.  The defendant had appeared pro se, had pled guilty and did not appeal.  The judge did not advise the defendant of his right to appeal:


It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief ... .  * * *


But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures. * * *


We conclude, in short, that defendant was not barred from raising his right to counsel claim in a CPL 440 motion. We express no opinion on the merits of the claim.  People v Grubstein, 2014 NY Slip Op 07924, CtApp 11-18-14





Evidence of Defendant's Silence at the Time of Arrest Should Not Have Been Allowed---New Trial Ordered


The Court of Appeals reversed defendant's conviction and ordered a new trial because evidence of defendant's silence at the time of arrest was erroneously allowed:


Absent "unusual circumstances," evidence of a defendant's silence at the time of arrest is generally inadmissible under common-law evidentiary principles ... . And the use for impeachment purposes of a defendant's silence after receiving Miranda warnings has been deemed impermissible as a matter of due process ... . Under the circumstances presented, we conclude that defendant did not open the door to evidence of his post-Miranda silence and, therefore, Supreme Court erred in permitting its introduction at trial. Nor can the error be viewed as harmless in this case.  People v Hill, 2014 NY Slip OP 07925, CtApp 11-18-14





Although "Zone of Danger" Damages Were Asserted in the Complaint, the Failure to Request a "Zone of Danger" Jury Instruction and the Failure to Object to the Verdict Sheet (Which Did Not Mention "Zone of Danger" Damages) Precluded the Trial Court from Setting Aside the Verdict and Ordering a New Damages Trial


The Court of Appeals determined the trial court should not have set aside the verdict because "zone of danger" damages to loved ones who witnessed the death of plaintiff's decedent (apparently caused by a collapse of a roof) were not presented to the jury. Although asserted in the complaint, no jury instruction on "zone of danger" damages was requested and no mention of "zone of danger" damages appeared on the verdict sheet.  Plaintiffs did not object to the jury charge or verdict sheet:


The issue of whether plaintiffs Gary Motelson and Evan Motelson had suffered and/or would continue to suffer emotional distress, as a result of being placed in a zone of danger wherein they witnessed the death of Steven Motelson, while asserted in the complaint, was not argued to the jury at trial. Nor was this question addressed in Supreme Court's charge or submitted to the jury on the verdict sheet. Significantly, the questions on the verdict sheet concerning the roof support system asked the jury about the causation of "Steven Motelson's injuries and death," and not about harms to any others. Plaintiffs did not object to the jury charge or verdict sheet. In these circumstances, Supreme Court erred when it set aside the jury verdict and ordered a new trial on damages. Motelson v Ford Motor Co, 2014 NY Slip Op 07926, CtApp 11-18-14




New Notice of Claim Did Not Need to Be Filed After Plaintiff's Decedent's Death Due to Injuries Described in the Pre-Death Notice of Claim


The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that plaintiffs, in an asbestos-exposure action against the Port Authority, did not need to file a new notice of claim after plaintiff's decedent's death from injuries described in the notice of claim filed when plaintiff's decedent was alive.  After plaintiff's decedent's death, the original notice of claim was amended to add the administratrix and reference to the wrongful death claim:


A statute requires anyone who brings a lawsuit against the Port Authority of New York and New Jersey first to serve a notice stating the nature of the claim. We hold that under this statute a notice of a claim for personal injuries is a sufficient notice of a claim for wrongful death, where the person injured dies of his injuries between the service of the notice of claim and the beginning of the lawsuit.


The Port Authority was created in 1921 by a bi-state compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states' legislatures in 1950. The New York version of the legislation is found in sections 7101 through 7112 of the Unconsolidated Laws.


The contents of a notice of claim are specified in section 7108:


"The notice of claim required by section [7107] shall be in writing, sworn to by or on behalf of the claimant or claimants, and shall set forth (1) the name and post office address of each claimant and of his attorney, if any, (2) the nature of the claim, (3) the time when, the place where and the manner in which the claim arose, and (4) the items of damage or injuries claimed to have been sustained so far as then practicable."


Here, the relevant statutory requirements are that a notice must specify the claimant, the time and place where the claim arose, the nature of the claim, and "so far as then practicable" the items of damage or injuries sustained (see Unconsolidated Laws § 7108 ...). Those requirements were sufficiently met by the explanation in [plaintiff's] notice of claim that he had contracted malignant mesothelioma as a result of his exposure to asbestos on the World Trade Center site in the early 1970s, and suffered physical and emotional injuries and incurred medical expenses as a result. This information was definite enough to fulfill the purpose of the notice of claim requirement: to allow the State to investigate the claim and to estimate its potential liability. It is hard to see how a later notice adding the information that the claimant had died of his disease could have been necessary to an investigation. Matter of New York City Asbestos Litig, 2014 NY Slip Op 08053, CtApp 11-20-14




Plaintiff Failed to Raise a Question of Fact Concerning Whether the Driver of a Police Vehicle Exhibited "Reckless Disregard" for the Safety of Others In Responding to an Urgent Call---Defendant Police Officer Was Driving Against Traffic on a One-Way Street When the Collision Occurred


The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined that plaintiff did not raise a question of fact concerning whether defendant police officer exhibited reckless disregard for the safety of others when the officer responded to an urgent call by driving against traffic on a one-way street.  While on the one-way street the officer collided with another police vehicle driven by the plaintiff (another police officer) who was responding to the same call.  The court noted that the defendant had activated his emergency lights and was travelling at 15 to 20 miles an hour when the collision occurred:


Vehicle and Traffic Law § 1104 grants the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation. Those privileges include passing through red lights and stop signs, exceeding the speed limit and disregarding regulations governing the direction of movement or turning in specified directions (see Vehicle and Traffic Law § 1104 [a], [b]). But drivers of emergency vehicles are not relieved of their duty to drive "with due regard for the safety of all persons" and section 1104 does not "protect the driver from the consequences of his reckless disregard for the safety of others" (Vehicle and Traffic Law § 1104 [e]).


This "reckless disregard" standard demands "more than a showing of a lack of 'due care under the circumstances'—--the showing typically associated with ordinary negligence claims" ... . Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that "'the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome" (id., quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]). This heightened standard is grounded in the Legislature's recognition that, although the exercise of the privileges granted in section 1104 may increase the risks to pedestrians and other drivers, emergency personnel "should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities" ... . This approach avoids "judicial 'second-guessing' of the many split-second decisions that are made in the field under highly pressured conditions" and mitigates the risk that possible liability could "deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants" ... . Frezzell v City of New York, 2014 NY slip Op 08055, CtApp 11-20-14





Apartment Buildings Used to House Actors and Staff of a Youth and Summer Theater Entitled to Exemption from Real Property Tax Under Real Property Tax Law (RPTL 420-a)---Property Used to Further "Educational, Moral and Mental Improvement"


The Court of Appeals, in a full-fledged opinion by Judge Lippman, affirmed the appellate division's finding that two apartment buildings used to house the actors and staff of a not-for-profit theater corporation (Merry-Go-Round Playhouse) were entitled to (real estate) tax-exempt status. The fact that admission is charged for performances did not warrant denial of  the exemption:


Under the Real Property Tax Law, "[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes . . . and used exclusively for carrying out thereupon one or more of such purposes . . . shall be exempt from taxation as provided in this section" (RPTL 420-a [1] [a]). The burden of establishing that the property is entitled to a tax exemption rests with the taxpayer ... .


Here, it is clear that petitioner is organized exclusively for an exempt purpose, in that it is intended to promote appreciation for the arts/musical theater, thereby providing education to the community and advancing the moral or mental improvement of area residents. The summer stock theater does not have the same educational component as the youth theater, but is similarly geared toward promoting the arts. In addition, although the summer stock theater charges admission, that bare fact cannot nullify petitioner's tax exempt purpose. We have previously observed that "[a] 'commercial patina' alone is not enough to defeat tax-exempt status" ... . Merry-Go-Round asserts without contradiction that the theater generally either breaks even or operates at a loss. There is no indication that petitioner is organized for the purpose of making a profit and this limited commercial aspect does not preclude it from receiving a tax exemption.


"The test of entitlement to tax exemption under the used exclusively clause of the statute is whether the particular use is reasonably incidental to the primary or major purpose of the facility. Put differently, the determination of whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes" ... . ... 


...[T]he primary use of the apartment buildings is in furtherance of Merry-Go-Round's primary purpose. Petitioner established that the housing is used to attract talent that would otherwise look to other theaters for employment, that the living arrangement fosters a sense of community and that the staff spends a significant portion of its off-hours in furtherance of theater-related pursuits. In addition ...the record shows that petitioner would have difficulty recruiting qualified staff if it did not provide the housing, which would undermine its primary purpose. Although we have not previously addressed the provision of tax exempt housing in relation to an arts organization, the statute does not elevate one exempt purpose over another. Under these circumstances, the use of the property to provide staff housing is reasonably incidental to petitioner's primary purpose of encouraging appreciation of the arts through theater. Matter of Merry-Go-Round Playhouse Inc v Assessor of City of Auburn, 2014 NY Slip Op 07928, CtApp 11-18-14




Fact that Property Has a Use "Auxiliary or Incidental to the Main Exempt Purpose" Does Not Defeat the Real Property Tax Exemption Under RPTL 420-a


The Court of Appeals, in finding the property owned by a not-for-profit religious corporation exempt from real estate tax, determined that the "exclusive use" clause of Real Property Tax Law (RPTL) 420-a should be interpreted broadly:


Under [RPTL 420-a], real property owned by a corporation that is "organized and conducted exclusively" for charitable and/or religious purposes, if "used exclusively" for such purposes, "shall be exempt from taxation" (RPTL 420-a [1] [a]). We have defined the term "exclusively" as used in this context "to connote 'principal' or 'primary,' such that purposes and uses merely 'auxiliary or incidental to the main and exempt purpose' and use will not defeat the exemption'" ... . Matter of Maetreum of Cybele, Magna Mater Inc v McCoy, 2014 NY Slip Op 07929, CtApp 11-18-14





New "Medical Treatment Guidelines" Do Not Exceed Statutory Authority of the Workers' Compensation Board


The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the Workers' Compensation Board did not exceed its statutory authority when in promulgated its "Medical Treatment Guidelines" ( 12 NYCRR 324.2 [a]-[f]).  The Board had rejected payment for claimant's acupuncture treatments which exceeded the duration of such treatments allowed by the guidelines:


The Guidelines include the list of pre-authorized medical procedures and set forth limitations on the scope and duration of each procedure. They also set forth a variance procedure, under which medical treatment providers can, on behalf of a claimant, request authorization for medical care not included in the Guidelines or in excess of the scope and/or duration that is pre-authorized (see 12 NYCRR § 324.3 [a] [1]). The medical treatment provider requesting a variance must demonstrate that the requested treatment is appropriate for the claimant and medically necessary ... . * * *


The Board is authorized to "adopt reasonable rules consistent with and supplemental to the [Workers' Compensation Law]" (Workers' Compensation Law § 117 [1]). Courts will uphold regulations that have "a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated" ... . * * *


Under the regulations, the burden of proof to establish that a variance is appropriate and medically necessary rests on the treating medical provider (12 NYCRR 324.3 [a] [2]). Whether a treating medical provider has met this burden is a threshold determination that must be made whenever a carrier properly and timely articulates an objection to a variance request. Matter of Kigin v State of NY Workers' Compensation Bd, 2014 NY Slip OP 08052, CtApp 11-20-14









Complaint Based Upon Injury Caused by a Horse Which Had Gotten Loose After Defendant Rode the Horse to a Tavern Could Be Amended to Plead Negligence of the Horse's Owner as Well as Strict Liability/Vicious Propensities in the Alternative


The Third Department determined plaintiff should be allowed to amend the complaint to include a negligence cause of action against the owner of a horse (Whiskey) which injured plaintiff.  The two theories, negligence and strict liability, can be pled in the alternative. The defendant rode the horse to a tavern.  While the defendant was in the tavern, the horse broke loose.  Plaintiff helped get control of the horse and was injured when he was holding the reigns.  The Third Department noted the 2013 Court of Appeals decision (Hastings) which held that a lawsuit based upon injury caused by a cow which had escaped the farm could be based upon the negligence of the owner in allowing the cow to escape, and not upon strict liability for the vicious propensities of the cow.  Here, both the negligence of the owner and vicious propensity/strict liability issues are raised by the facts:


Defendant apparently disputes plaintiff's claim that Whiskey's conduct constituted a vicious propensity--as opposed to normal equine behavior--upon which strict liability can be based. If defendant were successful in establishing the absence of a vicious propensity, this would lead to the very outcome of which the Court of Appeals disapproved in Hastings — defendant would be immunized for Whiskey's behavior despite having been allegedly negligent in allowing the horse to roam from where it was being kept [FN3]. Inasmuch as we cannot predict how a jury will decide the question of whether Whiskey's actions constituted a vicious propensity, we discern no reason why the two theories could not be pleaded in the alternative. Thus, if Whiskey's actions were determined to constitute a vicious propensity, plaintiff would be limited to pursuing a claim based on strict liability ... . If, however, a jury determined that Whiskey's conduct did not constitute a vicious propensity, the jury could then decide whether defendant is liable based upon his alleged negligence in allowing the horse to stray from where it was kept... . Carey v Burton P Schwab, 2014 NY Slip Op 08096, 3rd Dept 11-20-14





Filing of Article 78 Petition Itself Constituted a Demand that Respondent Perform Its Duty, the Triggering Event for the Four-Month Statute of Limitations in a Mandamus to Compel Proceeding/Supreme Court and Surrogate's Court Have Concurrent Jurisdiction Over the Administration of an Estate


The Second Department noted that Supreme Court and Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate. The petitioner commenced the Article 78 proceeding to compel the NYC Employees' Retirement System (NYCERS) to accept a designation of a beneficiary form.  Surrogate's Court had declined to exercise jurisdiction over the proceeding. The Second Department explained that the filing of the petition itself triggered the four-month statute of limitations for mandamus, so the proceeding was timely:


In a proceeding in the nature of mandamus to compel, the four-month statute of limitations begins to run "after the respondent's refusal, upon the demand of the petitioner . . . to perform its duty" (CPLR 217[1]...). The filing of a CPLR article 78 petition can itself be construed as a demand ... . Here, the petitioner made her demand that NYCERS perform its duty to accept her late husband's fully completed and notarized designation of beneficiary form by filing the petition in this proceeding ... . Accordingly, the petition is not time-barred ... . Matter of Gopaul v NYC Employees' Retirement Sys, 2014 NY Slip Op 0802-0, 2nd Dept 11-19-14




Defendant's Unsigned Deposition Transcript Admissible In Support of Defendant's Summary Judgment Motion/Okay to Submit Deposition Excerpts As Long As They Are Not Misleading


The First Department noted that the fact that a deposition transcript submitted in support of a summary judgment motion was not signed did not render the transcript inadmissible and further noted that it is proper to submit excerpts from depositions provided they are not misleading.  The lawsuit alleged the defendant driver of a sanitation truck, Wygand, was negligent. Summary judgment was granted to the defendants:


There was no requirement that Wygand's deposition transcript be signed by him in order to be admissible in support of the City defendants' motion because Wygand accepted its accuracy by submitting it in support of his motion for summary judgment dismissing the complaint ... . There was also nothing improper about submitting only excerpts of deposition transcripts in support of the motion, as long as they were not misleading. Castano v Wygand, 2014 NY Slip Op 07940, 1st Dept 11-18-14






Failure to File Proof of Service Is a Procedural Irregularity Which Can Be Cured


The Second Department reversed Supreme Court, finding that plaintiff's failure to file proof of service of a complaint was a procedural irregularity which had been promptly cured.  The defendant (Hernandez), who was in default, was given 30 days to appear and answer:


The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004 ... . Here, in light of the plaintiff's prompt action in moving to correct the irregularity following the denial of his motion for leave to enter a default judgment and the lack of prejudice to Hernandez, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was to deem the filing of proof of service on Hernandez timely nunc pro tunc ... . However, contrary to the plaintiff's contention, a court may not grant such relief retroactive to Hernandez's prejudice by placing him in default as of a date prior to the order ... . In other words, service will not be deemed complete ..., as the plaintiff argues (see CPLR 308[4]). Rather, Hernandez must be afforded an additional 30 days after service upon him of a copy of this decision and order to appear and answer ... . Khan v Hernandez, 2014 NY Slip Op 07985, 2nd Dept 11-19-14




Absence of a Certificate of Conformity Not a Fatal Defect Re: a Motion for a Default Judgment/Court Should Not Have Raised, Sua Sponte, a Defense to the Motion on Behalf of Defendant Who Did Not Answer or Appear


The Second Department reversed Supreme Court, finding that the absence of a certificate of conformity was not fatal to the motion for a default judgment:


In 2012, the plaintiff, a resident of the State of Georgia, commenced this action against the defendant, alleging breach of contract and unjust enrichment. On June 22, 2012, the defendant was served with a copy of the summons and complaint pursuant to CPLR 308(1). He neither appeared in the action, interposed an answer, nor otherwise moved with respect thereto. Thereafter, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. The Supreme Court determined that the plaintiff's affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.


" A party's right to recover upon a defendant's failure to appear or answer is governed by CPLR 3215'" ... . Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to appear or answer (see CPLR 3215[f]...). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements ... . Although the Supreme Court found that the plaintiff's affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect ... . Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant's behalf ... . Todd v Green, 2014 NY Slip OP 08004, 2nd Dept 11-19-14




Matter First Raised In a Reply Affirmation Is Not Properly Before an Appellate Court


The First Department affirmed the denial of defendants' motion for summary judgment noting that a matter raised for the first time in defendants' reply affirmation is not properly before an appellate court.  Anderson v Pena, 2014 NY Slip Op 07948, 1st Dept 11-18-14




Declaratory Judgment Finding that the Insurer Was Not Obligated to Defend or Indemnify the Insured Precluded, Under the Doctrine of Collateral Estoppel, Suit by Plaintiff Against the Insurer---Plaintiff Was In Privity with the Insured Pursuant to Insurance Law 3420 and Had No Greater Rights than the Insured


The defendant insurer had obtained a declaratory judgment finding that the insurer was not obligated to defend or indemnify the insured, VTEQE group, because the insured had not complied with the policy's notice requirements.  Plaintiff obtained a judgment against VTEQE.  The instant action was brought seeking payment of the judgment from VTEQE's insurer.  The Second Department determined that plaintiff was collaterally estopped from suing the insurer because of the declaratory judgment.  By suing the insurer plaintiff stood in the shoes of the insured and has no greater rights than the insured.  The court explained the relevant analysis:


"Collateral estoppel, or issue preclusion, 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 . . . whether or not the tribunals or causes of action are the same'" ... . "The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the [party against whom the issue was decided] had a full and fair opportunity to litigate the issue in the earlier action" ... . The party seeking the protection of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior action and is decisive of the present action ... . " The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination'" ... . "Generally, a nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation" ... .


Here, Hudson established, prima facie, that the plaintiff is in privity with the VTEQE group for the purpose of the application of collateral estoppel ... . When a plaintiff maintains a direct action against an insurer pursuant to Insurance Law § 3420, it "stands in the shoes" of the insured and can have no greater rights than the insured ... . River View at Patchogue LLC v Hudson Ins Co, 2014 NY Slip Op 08000, 2nd Dept 11-19-14





Defendant Cannot Meet Its Burden In a Summary Judgment Motion Solely by Pointing to Proof Problems in the Plaintiff's Case/Court, Pursuant to Its Power to Search the Record in Determining a Summary Judgment Motion, Cannot Address Claims that Were Not the Subject of the Motion


In a private nuisance action, the Third Department noted that a defendant cannot prevail on a summary judgment motion solely by arguing gaps or proof problems in the plaintiff's case and the court cannot "search the record" to dismiss claims that were not the subject of the summary judgment motion:


In support of their motions for summary judgment, defendants did nothing more than argue that plaintiffs failed to plead — and ultimately will be unable to prove — compensable damages and, therefore, dismissal of plaintiffs' first and second causes of action sounding in private nuisance and trespass was warranted. Even assuming, without deciding, that defendants' assessment of plaintiffs' pleadings and examination before trial testimony is accurate, the case law makes clear that the moving party must affirmatively demonstrate its entitlement to summary judgment "and does not meet its burden [in this regard merely] by noting gaps in its opponent's proof" ... . * * *


...Although CPLR 3212 (b) — cited by Supreme Court here — indeed permits a court to search the record and grant summary judgment to a nonmoving party, Supreme Court's authority in this regard extends "only . . . to a cause of action or issue that is the subject of the motions before the court" ... . Stated another way, "[a] motion for summary judgment addressed to one claim or defense does not provide a basis for the court to search the record to grant summary judgment on an unrelated claim or defense" ... . Schillaci v Sarris, 2014 NY Slip Op 08072, 3rd Dept 11-20-14




Plaintiff Had Made Out a Prima Facie Case of Undue Influence---Trial Judge Erred by Making Credibility Determinations and Granting a Judgment In Favor of the Defendant As a Matter of Law (CPLR 4401)


In reversing Supreme Court, the Second Department determined the motion for a judgment as a matter of law pursuant to CPLR 4401 should not have been granted.  The plaintiff sought to set aside a conveyance by deed on the ground of undue influence. The Second Department held that plaintiff had made out a prima facie case and sent the matter back for trial in front of a different judge:


" A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'" ... . " In considering the motion, the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'" ... .


The burden of proving undue influence generally rests with the party asserting its existence ... . "However, where there is a confidential relationship between the beneficiary and the grantor, [a]n inference of undue influence' arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction" ... . "In the absence of an explanation, the beneficiary has the burden of proving by clear and convincing evidence that the transaction was fair and free from undue influence" ... .


Here, in granting the defendant's motion pursuant to CPLR 4401, the Supreme Court improperly resolved issues of the credibility of the witnesses against the plaintiff ... . Viewing the evidence in a light most favorable to the plaintiff, and resolving all issues of credibility in the plaintiff's favor, we find that the plaintiff established, prima facie, that a confidential relationship existed between the decedent and the defendant, requiring the defendant to come forth with an explanation of the circumstances of the transaction. Palladino v McCormick, 2014, NY Slip Op 07992, 2nd Dept 11-19-14





Defendant, a County Sheriff, May Not Have Had the Authority to Order the Plaintiff to Leave the Airport/Questions of Fact Raised About Whether Defendant Had Probable Cause to Arrest Plaintiff for Trespass and Disorderly Conduct/Questions of Fact Raised About Whether Excessive Force Was Used and Whether Plaintiff Was Subjected to Retaliation for the Use of Protected Speech


The Third Department determined Supreme Court properly denied defendant's motion for summary judgment on plaintiff's "false arrest" cause of action, and Supreme Court erred in granting the defendant's motion for summary judgment on plaintiff's "excessive force" and "retaliation for the use of protected speech" causes of action. The lawsuit stemmed from plaintiff's being told by airport personnel that her daughter had not arrived as expected because she missed a connecting flight.  Plaintiff became upset when she couldn't learn more about the status of her daughter.  Defendant, a county sheriff, came on the scene, ordered plaintiff to leave the airport, and, when plaintiff refused, arrested her for trespass and disorderly conduct. The Third Department determined there were questions of fact about whether defendant had probable cause to arrest plaintiff, as well as whether excessive force was used and whether the defendant acted in retaliation for protected speech. With respect to the trespass arrest, the court noted that defendant may not have had the authority to order plaintiff to leave the airport:


In assessing whether defendant met his initial burden of establishing that he had arguable probable cause to arrest plaintiff for trespass, proof of defendant's authority to issue the blanket order directing plaintiff to leave the public facility must be examined. This is so because the "right to exclude 'has traditionally been considered one of the most treasured strands in an owner's bundle of property rights'" ... and, unless otherwise authorized, police do not have the inherent and general rights of a property owner (see e.g. US Const 4th Amend). The record demonstrates that, on the day in question, defendant was a county employee working in the county airport, a public facility. In support of his motion, defendant provided no proof that he was either prescribed by law or directed by the Tompkins County legislature to exercise any authority to lawfully order a citizen to leave this public property (see County Law § 650...). Nor did defendant's proffer demonstrate that he was asked to remove plaintiff from the airport property by someone with the authority to do so ... . Therefore, defendant did not establish as a matter of law that he had arguable probable cause to arrest plaintiff for criminal trespass because issues of fact exist as to whether, at the time of arrest, it was reasonable for defendant to believe that plaintiff was disobeying a lawful order ... . Brown v Hoffman, 2014 NY Slip Op 08099, 3rd Dept 11-20-14





Defendants Unable to Demonstrate that Plaintiff's Alleged Breach of a Related Contract Relieved Defendants of the Obligation to Pay a Promissory Note---No Showing the Promissory Note and Oral Agreement Were "Intertwined"


The First Department determined the allegations that plaintiff's breach of a related oral agreement relieved defendants of the obligation to pay a promissory note were insufficient to defeat summary judgment on the note:


" [T]he general rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only unless it can be shown that the contract and the instrument are "intertwined" and that the defenses alleged to exist create material issues of triable fact'" ... . Here, the defendants failed to demonstrate that the alleged oral construction management agreement was "inextricably intertwined" with the promissory note ... . Castle Restoration & Constr Inc v Castle Restoration LLC, 2014 NY Slip Op 07972, 2nd Dept 11-19-14




Contract Could Potentially Be Performed Within a Year---Dismissal on Statute of Fraud Grounds Properly Denied


The Fourth Department affirmed the denial of defendant's motion to dismiss the complaint on the ground that the oral agreement violated the statute of frauds.  The court determined the contract was capable of being performed within a year:


"As long as [an] agreement may be fairly and reasonably interpreted' such that it may be performed within a year, the [s]tatute of [f]rauds will not act as a bar [to enforcing it] however unexpected, unlikely, or even improbable that such performance will occur during that time frame" ... . Here, although the parties' original agreement provided that the purchase price would be paid in monthly installments over a period of five years, the agreement was revised to provide that if plaintiff, inter alia, transferred the accounting practice or ceased to practice for a period of 30 days, plaintiff would owe defendant the remainder of the purchase price in a lump sum. Thus, because plaintiff could have fully performed the alleged agreement within the first year by paying defendant such a lump sum, defendant did not meet her burden of establishing that the statute of frauds renders the agreement void and unenforceable ... . Stevens v Perrigo, 2014 NY Slip Op 08195, 4th Dept 11-21-14





Complaint Against Highest Bidder on Real Property Which Subsequently Refused to Execute the Contract of Sale Properly Dismissed---No Agreement Which Satisfied the Statute of Frauds and No Part Performance


The Third Department affirmed Supreme Court's dismissal of the complaint seeking specific performance of a real estate contract or damages for breach of contract.  Defendant executed and delivered the bidding package and the required down payment, bid on the property on line and was the highest bidder.  When the contract of sale was delivered to the defendant, the defendant refused to execute it.  Supreme Court dismissed the complaint because there was no agreement which satisfied the statute of frauds and there was no part performance.  The court explained the relevant analytical criteria:

The statute of frauds provides, as relevant here, that a contract for the sale of real property "is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged" (General Obligations Law § 5-703 [2]). To satisfy that statute, the memorandum "must designate all parties, identify and describe the subject matter and state all of the essential terms of a complete agreement" ... . The memorandum is not required to be contained in one document; separate "signed and unsigned writings [can] be read together, provided that they clearly refer to the same subject matter or transaction," contain all of the essential terms of a binding contract ..., and the "unsigned writing [was] prepared by the party to be charged" .. . At least one document signed by the party to be charged must "establish[] a contractual relationship between the parties," with the unsigned documents referring on their face to the same transaction ... . * * *


A contract may be enforced, despite failing to comply with the statute of frauds, "in cases of part performance" (General Obligations Law § 5-703 [4]). When analyzing part performance for potential invocation of equitable principles, courts should only consider the actions and detrimental reliance of the party seeking enforcement of the contract ... . Additionally, the conduct must be "unequivocally referable" to the alleged agreement ... . Post Hill LLC v E Tetz & Sons Inc, 2014 NY Slip Op 08089, 3rd Dept 11-20-14





Re: Breach of Fiduciary Duty Claims Against the Directors of a Corporation, the Plaintiffs Failed to Rebut the Presumptions of Loyalty, Prudence and Good Faith Under the Business Judgment Rule


In finding that the breach of fiduciary duty claims against the directors of a corporation were properly dismissed, the First Department explained the relevant analysis:


The court, after citing and applying the correct standard of review ..., properly dismissed the breach of fiduciary duty claims against [defendant-directors of the corporation] ..., due to plaintiffs' failure to rebut the presumptions of loyalty, prudence and good faith under the business judgment rule ... . In particular, plaintiffs failed to allege facts that support a finding of interest or lack of independence by a majority of the board members ... . Giuliano v Gawrylewski, 2014 NY Slip Op 07941, 1st Dept 11-18-14




Waiver of Appeal Invalid/The Way Defendant Was Holding a Cigarette Justified the Vehicle Stop/No Probable Cause for Warrantless Search of Trunk of Defendant's Car


The First Department determined (1) the waiver of appeal, which included a signed written waiver, was not valid; (2) the stop of defendant's vehicle, the removal of the occupants, and the search of the interior of the car was justified by the police officer's belief defendant was smoking a marijuana cigarette held between his thumb and index finger and the observation of an empty glassine envelope; and (3) the warrantless search of the trunk where ecstasy was found was not justified by probable cause:


A waiver of the right to appeal is not effective unless it is apparent from the record that it was made knowingly, intelligently and voluntarily ... . For a waiver to be effective, the record must demonstrate that the defendant has a full appreciation of the consequences of the waiver ..., including an understanding "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty ... .


Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Accordingly, the waiver was invalid and unenforceable ... . The written waiver signed by defendant was no substitute for an on-the-record explanation of the nature of the right to appeal ... . In addition, the court's statement that defendant was "going to be required" to waive his right to appeal could have misled him into believing that he had no choice but to do so ... . * * *


...Officer Rivera, an experienced policeman who had participated in approximately 30 arrests involving marijuana, testified to the court's satisfaction that, in his opinion and experience, the manner in which defendant was handling the cigarette indicated that it was a marijuana cigarette. "[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses" ... . That Rivera was not "certain" that defendant was smoking marijuana is of no moment, since "[t]he standard for [a forcible stop is] merely reasonable suspicion, not absolute certainty or even probable cause" ... . 


Defendant effectively concedes that the police were entitled to search in the area of the car where Officer Rivera claims to have smelled marijuana, but not anywhere else, and certainly not in the trunk. This, he argues, is because any grounds the police may have had to believe that the trunk contained drugs were belied by the lack of evidence that they existed anywhere else in the car.


Indeed, there was scant evidence of drugs in the car. After approaching the car, Rivera never saw the marijuana cigarette that he claimed he saw when he drove past defendant's car, and he was equivocal about whether he smelled burning or unburnt marijuana. Further, the glassine envelope that Officer Ali uncovered was empty, and it was not until later that day, after defendant and his companions were arrested, that Rivera concluded that it contained marijuana. Rivera also conceded that defendant did not appear to be under the influence.  * * * Accordingly, we find that the police lacked probable cause to search the trunk, and that the Ecstasy found there should have been suppressed.  People v Ramos, 2014 NY Slip Op 07931, 1st Dept 11-18-14




Reversible Error to Deny Defendant's Request for a Jury Instruction on the Terretorial Jurisdiction Requirement


The First Department, in a full-fledged opinion by Justice Richter, determined that the trial court's failure, at the defendant's request, to instruct the jury on the terretorial jurisdiction requirement (pursuant to Criminal Procedure Law (CPL) 20.20, an element of the charged offense must have been committed within New York State) was reversible error.  It was alleged that defendant, who worked in New York for a Danish company, essentially wrote checks from the company account to himself.  The defense requested a jury instruction on the requisites for the terretorial jurisdiction of a New York court over the alleged crime and the People did not oppose the request.  The First Department explained that, like a jury instruction on the requisites of venue, a jury instruction on the requisites of jurisdiction should be given upon request:


When a defendant requests the court to instruct the jury on venue, it is error to deny the request even if the People's proof as to venue may be uncontradicted ... . Thus, "when requested to submit the issue to the jury it is doubtful whether it would ever be proper for the court to deny the request and decide the issue as a matter of law on the theory that the People have met their burden by uncontradicted proof" ... . These principles apply equally to the issue of territorial jurisdiction, which has a higher burden of proof and which "goes to the very essence of the State's power to prosecute" ... . * * *


Under [CPL 20.20] ... "a person may be convicted . . . of an offense . . . committed . . . by his [or her] own conduct . . . when . . . [c]onduct occurred within this state sufficient to establish . . . [a]n element of such offense." The CJI charge on territorial jurisdiction mirrors the statutory language, and further requires the jury to determine jurisdiction before they begin deliberations on whether the People have proven the defendant guilty of the charged crime. * * * ... [T]he purpose of the jurisdiction charge is to focus the jury on this question, and the standard charge on the elements of the crime does not advise the jury that they must decide the threshold jurisdictional issue before deciding anything else. Accordingly, defendant's conviction should be reversed and the matter remanded for a new trial. People v Thomas, 2014 NY Slip Op 07965, 1st Dept 11-18-14




Fact that Prosecutor Had Represented the Defendant in the Past Did Not Require Disqualification---No Substantial Risk of an Abuse of Confidence


The Third Department determined that the fact that the District Attorney had represented the defendant 16 years before did not require disqualification:


Ordinarily, "[a] public prosecutor should be removed only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence" ... . Here, the fact that the District Attorney may have previously represented defendant in prior, unrelated criminal matters, without more, does not require his disqualification ... . Further, although the District Attorney sought to impeach defendant using prior contempt convictions arising from marital problems that defendant alleges he had discussed with the District Attorney, County Court's refusal to allow any inquiry into the underlying facts of these convictions eliminated any possible avenue by which the District Attorney might have utilized any confidential information that he may have acquired ... . As 16 years had passed since any such alleged confidences had been shared, the passage of time had also diminished the risk of prejudice ... . As defendant did not demonstrate a substantial risk of an abuse of confidence or any actual prejudice, we find no error in County Court's determination ... . People v Giroux, 2014 NY Slip Op 08060, 3rd Dept 11-20-14




County Court Failed to Warn the Defendant that His Lack of Knowledge, When Compared with that of a Lawyer, Would Be Detrimental---Defendant Did Not Validly Waive His Right to Counsel


The Third Department reversed defendant's conviction and ordered a new trial because County Court failed to ensure that defendant validly waived his constitutional right to counsel.  County Court did not adequately explain that defendant's lack of knowledge, as compared to the knowledge of a lawyer, would be detrimental:


A defendant seeking permission to proceed pro se must "effectuate[] a knowing, voluntary and intelligent waiver of the right to counsel" .... To this end, the trial court is required to "conduct a 'searching inquiry' to clarify that [the] defendant understands the ramifications of such a decision" ... . The court's inquiry "'must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication'" ... . As the reviewing court, we may "look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel" (People v Providence, 2 NY3d at 583).


* * * [The court] did not sufficiently advise [defendant] of "the 'dangers and disadvantages' of proceeding pro se and the value of trained trial counsel knowledgeable about criminal law and procedure" ... . In fact, with respect to the dangers of self-representation, the court merely noted that defendant risked "losing objectivity" by representing himself. Absent from County Court's inquiry was any warning that defendant's "lack of knowledge, relative to that of a lawyer, [would] be detrimental if [he] cho[se] to waive the right to counsel" ... . People v Guarnieri, 2014 NY Slip Op 08067, 3rd Dept 11-20-14




Waiver of Right to Appeal Invalid Despite the Signing of a Written Waiver


The Second Department determined defendant's waiver of his right to appeal was not valid because the right was not adequately explained and because there was no indication that the written waiver signed by the defendant was translated for him:


...[T]he record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ... . The Supreme Court's statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal ... . Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty ... . Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature ... . In any event, the court's terse colloquy at the plea allocution, which included the language suggesting that the waiver of the right to appeal was mandatory, failed to sufficiently advise the defendant of the nature of the right to appeal ... . People v Guarchaj, 2014 NY Slip Op 08044, 2nd Dept 11-19-14




Fabricated Checks Using Defendant's Name and Signature Were Not "Forged Instruments"


The Third Department affirmed the dismissal of forgery charges because, although the defendant fabricated the checks at issue, the defendant did not portray herself as someone other than herself in executing the checks:


...[A] "... person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind" as described under Penal Law § 170.10 (Penal Law § 170.25). A forged instrument is defined as a "written instrument which has been falsely made, completed or altered" (Penal Law § 170.00 [7]). Importantly, a person "'falsely makes' a written instrument when he [or she] makes . . . [an] instrument, which purports to be an authentic creation of its ostensible maker . . ., but which is not such either because the ostensible maker . . . is fictitious or because, if real, he [or she] did not authorize the making . . . thereof" ... . Determining whether a document is forged "does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity" ... .


Defendant did not attempt to portray herself as someone other than herself in executing the checks ... . Nor does this case present a situation in which defendant made out the checks without attaining the requisite authorization from another individual ... . Thus, the checks at issue in this matter "were not falsely made," as provided in the forgery statute ... . Defendant's fabrication of the checks bearing her name and address, as the purported bank account holder, makes her the ostensible maker ... and the placement of defendant's signature on the checks renders defendant the actual maker of the checks. Where, as here, the ostensible maker and the actual maker of the written instrument are the same person, the alleged crime of criminal possession of a forged instrument in the second degree must be dismissed ... . People v Zeller, 2014 NY Slip Op 08068, 3rd Dept 11-20-14




Defendant Not Given Adequate Time to Decide Whether to Testify Before the Grand Jury---Conviction Reversed


In reversing defendant's conviction, the Fourth Department determined defendant was not given adequate time to decide whether he wished to testify before the grand jury:


We agree with defendant that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.20 (1) (c) because he was denied his right to testify before the grand jury. The prosecutor notified defendant and his counsel at the arraignment on the felony complaint that the matter would be presented to the grand jury the next morning, in less than 24 hours. Later that day, defense counsel notified the court that he could no longer represent defendant due to a conflict of interest. The following morning, after the grand jury voted to indict defendant, he was assigned new counsel. Defense counsel objected to the short notice of the grand jury proceeding and gave the prosecutor written notice of defendant's intent to testify. The prosecutor offered defendant the opportunity to testify before the grand jury before it filed the indictment, but refused defendant's request to testify before a different grand jury.


We agree with defendant that he was not given "reasonable time to exercise his right to appear as a witness" before the grand jury (CPL 190.50 [5] [a]). "CPL 190.50 (5) (a) does not mandate a specific time period for notice; rather, reasonable time' must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury" ... . Under "the particular facts" of this case (id. ), including the less than 24 hours' notice of the grand jury proceeding and assigned counsel's withdrawal from representation, we conclude that defendant did not have reasonable time to consult with counsel and decide whether to testify before the case was presented to the grand jury ... . People v Hymes, 2014 NY Slip Op 08202, 4th Dept 11-21-14




Cross-Examination of People's Witness About Her Past Status as a Confidential Informant Properly Precluded---Status Ended a Year Before and Witness Had Legitimate Safety Concerns


The First Department determined the defense was properly precluded from cross-examination of one of the People's witnesses about her past status as a confidential informant:


The witness's service as an informant had concluded a year before the instant crime and did not involve defendant, the People demonstrated that the witness had legitimate safety concerns regarding disclosure of her status, and there was nothing in the circumstances of the case to raise a suspicion that her past informant status contributed to her becoming a prosecution witness in this case. People v Lopez, 2014 NY Slip Op 08117, 1st Dept 11-20-14




Denial of Pistol Permit Application Was Based Upon a Misinterpretation of Penal Law 400.00


The Third Department determined County Court had based its denial of petitioner's pistol permit application upon a misreading of Penal Law 400.00.  County Court interpreted the statute to mean that the prior revocation of a pistol permit for any reason rendered the petitioner ineligible.  However, the statute should have been interpreted to refer only to prior revocations pursuant to Criminal Procedure Law 530.14 and Family Court Act 842-a:


Respondent denied petitioner's pistol permit application based upon Penal Law § 400.00 (1) (k) (formerly Penal Law § 400.00 [1] [e]), finding that petitioner was ineligible for a pistol permit because of the prior revocation of his permit. Penal Law § 400.00 (1) (k) provides that no permit may be issued to an individual "who has [] had a license revoked or who is [] under a suspension or ineligibility order issued pursuant to the provisions of [CPL] 530.14 . . . or [Family Ct Act § 842-a]." Respondent interpreted this statute as two separate clauses and automatically barred petitioner from being issued a permit because his license had previously been revoked, despite the fact that the revocation was unrelated to either CPL 530.14 or Family Ct Act § 842-a.


We agree with petitioner that this was erroneous, as our reading of the statute indicates that the bar to issuance of a pistol permit "applies only in conjunction with the application of the Criminal Procedure Law and Family Court Act sections cited therein, which deal with orders of protection, and provides that a person who has previously had a firearms license revoked pursuant to those sections is ineligible to hold such a license"... .  * * *


Although the revocation of petitioner's pistol permit and the reasons therefor unquestionably could have some bearing on whether there is "good cause" to deny his current application (Penal Law § 400.00 [1] [n]), respondent's denial of the application was based, not on a finding of "good cause" but, rather, upon respondent's misinterpretation of Penal Law § 400 (1) (k). Matter of Gerard v Koweek, 2014 NY Slip Op 08084, 3rd Dept 11-20-14




Measure of Damages for Taken Land Explained


In affirming Supreme Court's acceptance of claimant's appraisal of the land taken for public use, the Second Department explained the analytical criteria:


When private property is taken for public use, the condemning authority must "compensate the owner so that [the owner] may be put in the same relative position, insofar as this is possible, as if the taking had not occurred'" ... . "The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time" ... . A property's market value is defined as " the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell'" ... . Moreover, "[i]t is necessary to show that there is a reasonable possibility that the property's highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award" ...  Matter of Metropolitan Transp Auth, 2014 NY Slip Op 08027, 2nd Dept 11-19-14





Regulation of Use of Vacant Wetlands Constituted a Regulatory Taking---Analytical Criteria Explained


The Second Department determined that the regulations imposed on vacant wetlands constituted a regulatory taking of the land and affirmed Supreme Court's evaluation of the taking.  The court included an in-depth discussion of the analytical criteria:


In a condemnation proceeding, a property restricted by wetlands regulations is valued pursuant to the restrictions imposed by the wetlands regulations at the time of the taking, unless the claimant can demonstrate a reasonable probability that "a higher or more productive use of the property would have been available by reason of a legislative rezoning or a judicial declaration of invalidity of the use restriction" ... . "A landowner who claims that land regulation has effected a taking of his [or her] property bears the heavy burden of overcoming the presumption of constitutionality that attaches to the regulation and of proving every element of his [or her] claim beyond a reasonable doubt" ... .


Generally, while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking ... . Analysis of whether nonpossessory governmental regulation of property has gone so far as to constitute a taking involves factual inquires in which three factors of particular significance have been identified: (1) "[t]he economic impact of the regulation on the claimant"; (2) "the extent to which the regulation has interfered with distinct investment-backed expectations"; and (3) "the character of the governmental action" ... . 


As to the first factor, "the property owner must show by dollars and cents' evidence that under no use permitted by the regulation under attack would the properties be capable of producing a reasonable return; the economic value, or all but a bare residue of the economic value, of the parcels must have been destroyed by the regulations at issue" ... . Accordingly, standing alone, a serious and significant diminution of property value will typically not be deemed to constitute a regulatory taking ... . * * *


Although the claimants admit that, at trial, they did not set forth any evidence with respect to the second factor ..., under the circumstances presented here, such an omission is not fatal to their claim, especially upon consideration of the third factor. Under the third factor, generally, a property owner "must establish that the regulation attacked so restricts his [or her] property that he [or she] is precluded from using it for any purpose for which it is reasonably adapted" ... . Matter of New Cr Bluebelt, Phase 4, 2014 NY Slip OP 08029, 2nd Dept 11-19-14





Criteria for Sexual Harassment Lawsuit Against Employer Explained


The Third Department determined plaintiff had raised questions of fact about whether her employer was aware of and condoned the alleged harassment, allowing her sexual harassment suit to go forward.  The court explained the relevant analytical criteria:


Pursuant to Executive Law § 296 (1) (a), it is "an unlawful discriminatory practice [] [f]or an employer . . ., because of an individual's . . . sex, . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment" ... . An employee may succeed on a sexual harassment claim pursuant to Executive Law § 296 (1) (a) upon establishing that he or she is a member of a protected group, is subjected to unwelcome sexual harassment based on his or her gender that affects a term, condition or privilege of his or her employment, and that the employer "knew or should have known of the harassment and failed to take remedial action" ... . An employer will be liable for "an employee's discriminatory act [where] the employer became a party to it by encouraging, condoning, or approving it," and the term condonation includes, as relevant here, "[a]n employer's calculated inaction in response to discriminatory conduct" ... . Tidball v Schenectady City Sch Dist, 2014 NY Slip Op 08092, 3rd Dept 11-20-14





Unwed Birth Father's Consent for Adoption Properly Required


The Second Department affirmed Family Court's ruling that the unwed birth father's consent for adoption was required:


There is no basis to disturb the Family Court's determination that the unwed birth father was a person whose consent was required in order for the child to be adopted. The Family Court found that during the six-month period prior to the subject child's placement with the appellants upon her birth, the unwed birth father promptly asserted his interest in the child, manifested his ability and willingness to assume custody of the child, and provided financial and moral support to the birth mother ... . Matter of Baby Girl N ..., 2014 NY Slip Op 08028, 2nd Dept 11-19-14




Nonparents Did Not Demonstrate Standing to Bring Petition to Adopt


The Second Department determined the nonparents' petition to adopt was properly denied:


"As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances" ... . The burden of proof is on the nonparent to prove such extraordinary circumstances ... . Absent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered ... . Here, the Family Court properly determined that the nonparent petitioners, whose petition to adopt the subject child was correctly denied ..., failed, in this custody proceeding, to allege the existence of extraordinary circumstances. Accordingly, the Family Court properly granted the father's motion to dismiss their custody petition for lack of standing ... . Matter of Santiago v Henderson, 2014 NY Slip Op 08033, 2nd Dept 11-19-14





Family Court Properly Issued an Order of Protection Against the 13-Year-Old Respondent In Favor of Petitioner's 13-Year-Old Daughter Pursuant to Family Court Act 812---Respondent and Daughter Had Been Boyfriend-Girlfriend and Had Been Intimate But They Were Not Members of the Same Family or Household and Never Lived Together---Respondent Fit Within the Expanded Definition of "Member of the Same Family or Household" As the Phrase Is Used In Family Court Act 812, Thereby Providing Family Court with Jurisdiction Over the Proceedings


The Third Department determined Family Court had jurisdiction over a family offense proceeding brought by a parent on behalf of her daughter against the respondent seeking an order of protection.  Both the daughter and the respondent were 13 years old. They had been boyfriend-girlfriend off and on since fifth grade.  There had been some sexual activity.  Family Court Act 812 gives Family Court jurisdiction over family offenses by a respondent against a "member of the same family or household."  The legislature, in 2008, expanded the definition of "member of the same family or household" to include "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time."  Respondent fit within that expanded definition:


The daughter testified that she and respondent had been classmates since kindergarten and began a "boyfriend-girlfriend" relationship in fifth grade that continued, on and off, through eighth grade. At first, the relationship consisted of holding hands, kissing and exchanging texts and phone calls. By sixth grade, according to the daughter, respondent was texting or calling her 5 or 10 times daily and becoming jealous, "controlling" and "isolat[ing]." The daughter testified that she and respondent had some sexual contact in sixth grade, including an incident in which he allegedly caused her to touch his erect penis at school in the presence of other students, and another in which he put his hand down her shirt to touch her breasts without her permission. According to the daughter, she and respondent did not date for most of seventh grade. However, late in that year they began talking again, and in eighth grade they met twice, each time at respondent's request. The daughter testified that during the first encounter, she reluctantly acceded to respondent's request for oral sex, believing that he would "leave [her] alone" if she did so. When they met the second time, they had sexual intercourse; the daughter testified that she asked respondent to stop and that he complied at first, but then continued. The daughter distanced herself from respondent after these events, and reported them to petitioner after she began having suicidal thoughts... . Matter of Samantha L v Luis J, 2014 NY Slip Op 08073, 3rd Dept 11-20-14





Father's Consent to Adoption Not Required


In a proceeding to terminate the mother's parental rights, the Second Department affirmed Family Court's determination that the father's consent to the adoption of the child was not required:


In this proceeding pursuant to Social Services Law § 384-b to terminate the mother's parental rights on the ground of permanent neglect, the Family Court's determination that the father's consent to the adoption of the subject child was not required was supported by clear and convincing evidence ... . The father failed to meet his burden of establishing that he maintained substantial and continuous or repeated contact with the child through the payment of support and either regular visitation or other communication with the child ... . Matter of Tanay RS ..., 2014 NY Slip Op 08032, 2nd Dept 11-19-14





Heightened Pleading Requirements for Fraud Not Met


The First Department determined that plaintiff's fraud cause of action was properly dismissed for failure to meet the heightened pleading requirements:


Plaintiff has not satisfied the heightened pleading standard for a fraud claim under CPLR § 3016(b) because it failed to identify any of the allegedly, false representations that [defendant] made with the then present intent to induce plaintiff's investment in the project. Moreover, the fraudulent inducement claim duplicates the breach of contract claim because plaintiff has not alleged any representation that is collateral to the contract ... . "A fraud-based claim is duplicative of breach of a contract claim when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract." MMCT LLC v JTR Coll Point LLC, 2014 NY Slip Op 08103, 1st Dept 11-20-14





Duty to Defend


The First Department determined that the insurer was obligated to defend the defendants even though subsequently it may be able to demonstrate the insured did not cause the injuries.  The duty to defend is determined by comparing the policy to the complaint.  If the pleaded claims are potentially within the scope of coverage, the insurer's duty to defend is triggered:


An insurer may obtain a declaration absolving it of its duty to defend only when a comparison of the policy and the underlying complaint on its face shows that, as a matter of law, "there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the insurance policy" ... . As this Court has observed, "[T]he primary obligation of an insurer is to provide its insured with a defense" ..., an obligation that is incurred "if facts alleged in the complaint fall within the scope of coverage intended by the parties at the time the contract was made" ... . "By contrast, the duty to indemnify requires a determination of liability" ... .


Because the underlying complaints pleaded claims that were potentially within the scope of coverage, plaintiff is obligated to defend the underlying actions. Whether plaintiff might ultimately be able to establish that its insured did not cause the injuries alleged in the underlying actions involves questions of fact yet to be resolved; it is not an issue that can be determined as a matter of law by examination of the insurance contract. Thus, it does not afford a basis to relieve plaintiff of its duty to provide a defense... . Greewich Ins Co v City of New York, 2014 NY Slip Op 07933, 1st Dept 11-18-14





The Existence of Probable Cause Required Dismissal of Causes of Action for False Arrest, False Imprisonment, Malicious Prosecution and Violation of Civil Rights (42 USC 1983)


The Second Department, reversing Supreme Court, determined the existence of probable cause was a complete defense to the causes of action alleging false arrest, false imprisonment, malicious prosecution and violation of civil rights (42 USC 1983):


The existence of probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution ..., including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that are the federal-law equivalents of state common-law false arrest and malicious prosecution causes of action ... . Generally, probable cause is established where an identified crime victim "communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator" ... .


The appellants demonstrated their prima facie entitlement to judgment as a matter of law by establishing the existence of probable cause for the plaintiff's arrest. Paulos v City of New York, 2014 NY Slip Op 07994, 2nd Dept 11-19=-14





Owners' Intent, at the Time Plaintiff Was Injured, to Use the Property As a Second Home Triggered the Homeowners' Exemption to Labor Law Liability Notwithstanding that the Owners Never Occupied the Property and Started Leasing It Two Years After the Accident


The First Department, over a dissent, determined that plaintiff was unable to raise a question of fact about whether defendant-homeowners intended to use the renovated house as income property,  Therefore the homeowners' exemption under Labor Law 240(1) and 241(6) precluded recovery for injuries suffered by the plaintiff during the renovation.  The homeowners did not direct or control plaintiff's work. The accident occurred in 2005.  One of the owners, Parry, testified that they intended to use the place as a second home.  In 2007, having never occupied the house, the owners decided to lease the house and did so.  The court determined the owners' intent at the time of the accident in 2005 controlled:


The owners made a prima facie showing of their entitlement to the homeowner's exemption by demonstrating that their premises consist of a one-family dwelling and that they did not direct or control plaintiff's work ... . Therefore, the burden shifted to plaintiff to "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ... . Plaintiff has failed to meet this burden as his arguments before this Court and the motion court are based on unfounded speculation that the owners intended to use the house solely for commercial purposes.


The availability of the homeowner's exemption hinges upon "the site and the purpose of the work, a test which must be employed on the basis of the homeowners' intentions at the time of the injury" ... . Accordingly, plaintiff and the dissent misplace their reliance on the lease, which the owners entered into almost two years after plaintiff's injury. Farias v Simon, 2014 NY Slip Op 07932, 1st Dept 11-18-14




Wooden Flooring With Gaps Between the Planks Constituted an Elevation-Related Hazard


The First Department noted that wooden planks with gaps between them high above the bottom of a shaft constituted and elevation-related hazard to which Labor Law 240 (1) applied "regardless of whether the flooring was permanent."  Kircher v City of New York, 2014 NY Slip Op 07951, 1st Dept 11-18-14





Defendant Homeowner Demonstrated She Did Not Have Actual or Constructive Notice of the Dangerous Condition and Did Not Create the Dangerous Condition (Deck Collapsed When Plaintiff Was Inspecting the Property Prior to Beginning Work)


The Second Department affirmed the grant of summary judgment to the defendant homeowner.  While inspecting defendant's property before beginning work, the deck collapsed when plaintiff was walking on it.  The plaintiff sued under Labor Law 200 and common law negligence, alleging a dangerous condition.  Defendant demonstrated she did not have actual or constructive notice of the condition:


Where, as here, a plaintiff's alleged injury arose from a dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing that he or she neither created the dangerous condition nor had actual or constructive notice of it ... . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected ... . "When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" ... .


Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law by establishing that the she did not have actual or constructive notice of the defect in the deck, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that she did not create the defect. Nicoletti v Iracane, 2014 NY Slip Op 07991, 2nd Dept 11-19-14




Cause of Action Against Landlord for Nuisance, Based Upon a Noisy Tenant, Does Not Lie Where the Landlord Did Not Create the Nuisance and the Landlord Has Surrendered Control of the Premises to the Tenant


In affirming the denial of summary judgment to the landlord in an action alleging a tenant's noise constituted a nuisance (because the papers submitted were inadequate), the First Department noted that a cause of action for nuisance does not lie against a landlord who did not create the nuisance and who has surrendered control of the premises to a tenant.  Clarke v 6485 & 6495 Broadway Apt Inc, 2014 NY Slip Op 07961, 1st Dept 11-18-14





Plaintiff's Double-Parked Vehicle Furnished a Condition for the Accident But Was Not a Proximate Cause of the Accident


The First Department reversed Supreme Court finding the fact that plaintiff was double-parked furnished the condition for the event but was not one of the causes of the accident.  The defendant driver had pulled around in front of plaintiff's vehicle and then backed into it:


The fact that a vehicle is double parked "does not automatically establish that such double parking was the proximate cause of the accident" ... . Here, plaintiff established her prima facie entitlement to summary judgment by demonstrating that the location of her vehicle merely furnished the condition or occasion for the occurrence of the event but was not one of its causes ... .


The record demonstrates that plaintiff's vehicle was double parked on a one way street. Defendants' vehicle, moving in the same direction, successfully passed plaintiff's vehicle on the left and pulled approximately three to four car lengths in front of it before stopping. One to two seconds later, defendants' vehicle drove in reverse in an erratic manner and struck the front of plaintiff's car, which was stationary at all times. Cervera v Moran, 2014 NY Slip Op 07945, 1st Dept 11-18-14




Evidence of General Inspection Practices, As Opposed to the Specific Inspection and Cleaning Practices Re: Where the Plaintiff Slipped and Fell, Insufficient to Entitle Defendant to Summary Judgment


The Second Department affirmed the denial of defendant's motion for summary judgment in a slip and fall case.  The plaintiff slipped on a wet floor in the ladies room.  The defendant submitted only general information about its inspection practices without any specifics about the inspection or cleaning of the area where plaintiff fell:


"A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" ... . "In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall" ... . "A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case" ... . Moreover, a defendant's reference to general inspection practices, without evidence as to when the area at issue was inspected relative to the plaintiff's slip-and-fall, will not suffice to establish the lack of constructive notice of the existence of a dangerous condition ... .


Here, the Supreme Court properly denied the defendant's motion for summary judgment, since the defendant failed to submit any evidence regarding particularized or specific inspections or cleaning procedures that were utilized in the subject area relative to the time of the plaintiff's accident ... . Fernandez v Festival Fun Parks LLC, 2014 NY Slip Op 07978, 2nd Dept 11-19-14




Plaintiff's Deposition Testimony Stating that She Did Not Know the Cause of Her Fall Was Fatal to the Action---the Deposition Testimony Was Not Overcome by a "Feigned Issue" Subsequently Raised in an Affidavit or by Expert Opinion Evidence Alleging the Cause of the Fall


The Second Department determined that plaintiff's deposition testimony that she did not look down and did not know the cause of her fall was fatal to the action.  The court determined that plaintiff's affidavit in opposition to the summary judgment motion stated a "feigned issue" designed to avoid the consequences of her deposition testimony.  In addition, the expert affidavit alleging the cause of the fall was a depression could not overcome the plaintiff's ignorance of the cause of the fall:


Here, the defendant established its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, in which she admitted to not knowing what her foot had been caught on, or what caused her to fall. Notably, the plaintiff testified that, as she exited a pharmacy, she walked straight, looking forward, and did not look down ... .


In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony ... . The deposition testimony of the plaintiff's friend, who was present when the accident occurred, also failed to raise a triable issue of fact, as this witness was unable to identify what caused the plaintiff to fall. The plaintiff also submitted an affidavit of an expert who alleged that the proximate cause of the plaintiff's injuries was a depression of the walkway pavers, which created a one-inch height difference between the pavers and the abutting concrete curb, thereby causing a tripping hazard. However, since the plaintiff did not know what caused her to fall, it would be speculative to assume that this alleged condition proximately caused her fall ... . Rivera v J Nazzaro Partnership LP, 2014 NY Slip OP 08001, 2nd Dept 11-19-14




Questions of Fact Raised About Whether a Single Riser Was a Dangerous Condition, Despite the Obviousness of the Condition, the Fact that Plaintiff Had Negotiated the Riser Many Times Before, and the 
Absence of Any Code Violation


The Third Department reversed Supreme Court finding that there were questions of fact about whether a riser constituted a dangerous condition, despite the absence of a code violation, the submission of an affidavit from an expert, the fact that the plaintiff had negotiated the riser many times before, and the obvious nature of the condition:


To prevail on its motion for summary judgment, defendant was required to show that it maintained the premises in a reasonably safe condition and that it did not create or have notice of any allegedly dangerous condition ... . While the existence of a dangerous or defective condition is generally a question for the factfinder ..., "summary judgment is appropriate where a plaintiff fails to demonstrate the existence of any dangerous condition" ... .


Here, defendant failed to establish as a matter of law that it maintained the premises in a reasonably safe condition ... . In support of its argument that the riser did not constitute a dangerous condition, defendant presented an affidavit of Ronald Bova, a professional engineer who inspected the premises. Bova observed that the single-step riser was immediately apparent, as it was located in a doorway and the flooring on either side of the riser was of a contrasting color and material. Although Bova further opined that the riser did not violate the 2002 or 1964 state building codes because the building was constructed prior to their enactment, whether the building code applies to the riser is not dispositive of plaintiff's claim, which is premised on common-law negligence principles ... . Based on his inspection and measurements, Bova asserted that neither the height of the step nor the lack of a handrail made the riser dangerous; however, he failed to definitively state the height of the riser and establish that it comported with generally accepted standards at the time the building was constructed or thereafter ... .


Additionally, plaintiff testified that it was difficult for her and her coworkers to traverse the step because it was "very high." While defendant places great emphasis on plaintiff's admission that she stepped over the riser many times, as it was the only way to access the women's restroom, and that she was aware of the drop at the time that she fell, "[t]he germane issue in this case is not a failure to warn, but whether these premises were reasonably safe" ... . The fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition ... , and plaintiff's familiarity with the allegedly defective condition may be considered with respect to her comparative negligence ... . Viewing the evidence in the light most favorable to plaintiff, as the nonmoving party, we find that defendant failed to demonstrate as a matter of law that the height of the riser was not a dangerous or defective condition. Barley v Robert J Wilkins Inc, 2014 NY Slip Op 08086, 3rd Dept 11-20-14





In a Lead-Paint-Injury Case, Non-party Medical Records Not Discoverable (Re: Plaintiff's Mother and Siblings)--Non-party Academic Records Should Be Submitted for In Camera Review--Mother Cannot Be Compelled to Submit to an IQ Test


The Third Department determined the extent of allowable discovery re: non-parties in a lead-paint-injury case.  The defense sought medical and academic records of plaintiff's mother and siblings, all non-parties, and sought to compel the mother to undergo an IQ test.  The Third Department held that the non-party medical records were not discoverable (except for the mother's records during pregnancy), the non-party academic records should be submitted to the court for in camera review, and the mother should not be compelled to undergo an IQ test:


A subdivision of the main disclosure statute provides that "[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable" (CPLR 3101 [b]). Medical records are protected by a doctor-patient privilege and cannot be disclosed without consent or a waiver of the privilege (see CPLR 4504 [a]...). A plaintiff waives the privilege by commencing an action that places his or her mental or physical condition at issue, but nonparties are not subject to having their medical histories made public merely because a relative commences an action ... . As plaintiff's mother and siblings did not consent and have not waived that privilege, Supreme Court should not have ordered disclosure of their medical records ... . An exception exists for the mother's medical records during the time of her pregnancy with and birth of plaintiff, but plaintiff has already provided an authorization for those records ... . 


Regarding the mother's and siblings' academic records, defendants have submitted an expert affidavit, as noted above, indicating that those records are relevant and necessary to determine whether other factors caused plaintiff's injuries ... . Considering that these records are private but not privileged, Supreme Court reasonably balanced defendants' need for them and their possible relevance against the burden to these nonparties from disclosure, requiring that the siblings' records be produced to the court for an in camera review ... . The mother's academic records should similarly be submitted to the court for review and redaction of any privileged material. ...


Defendants' need for her IQ test results, however, are not outweighed by the burden on her to undergo such a test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff's condition, such as all of the factors contributing to the mother's IQ ... . Considering the private and personal nature of the information sought and the potential delay due to myriad collateral issues, defendants should not be able to compel plaintiff's mother, a nonparty, to undergo an IQ test ... . Perez v Fleischer, 2014 NY Slip Op 008101, 3rd Dept 11-20-14




Slip and Fall Suit Against Out-Of-Possession Landlord Properly Dismissed


The Third Department affirmed the dismissal of the complaint against the out-of-possession landlord (SJM).  The plaintiff slipped and fell because of a loose stairway-tread block.  The stairway was constructed by defendant-company, Stanley, with which SJM had contracted.  However SJM did not supervise or control Stanley's work. There was evidence the stairway (used only by employees of the tenant, not the general public) did not conform to the tread-width requirements of the building code:


As a general rule, "'an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'" ... . There are exceptions. For example, a landlord has a "'nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'" ... . Liability may attach where the out-of-possession landlord has contracted to repair or maintain the premises, has affirmatively created the condition ... or has retained a right to reenter the premises for inspection or repairs and the injury arises from a structural defect or specific statutory violation ... . ...


SJM's nondelegable duty to the public is not relevant because plaintiff's injury did not occur in an area open to the public * * * Although SJM retained a right under the lease to re-enter the premises, this "'is insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord'" ... .


....[T]he condition of the stairway was not sufficient to impose liability upon SJM. Assuming, without deciding, that the stairway did not conform to the New York State Building Code provision with regard to the width of stair treads (see 9 NYCRR former 713.1), the condition does not constitute a significant structural defect or statutory violation as would be necessary to find that SJM had constructive notice of the loose concrete block ... . Accepting plaintiff's descriptions of the accident, the stairway and the condition of the step, his fall was not attributable to the width of the tread, but rather its instability. ...Supreme Court properly determined that SJM did not create the allegedly dangerous condition. Plaintiff's expert does not assert that the stairs were negligently designed, but rather that they were not constructed in accordance with the specifications. Although SJM retained Stanley to construct the stairway in accordance with the architectural plans, as a general rule, SJM is not liable for the independent contractor's alleged negligent construction ... . Wayman v Roy Stanley Inc, 2014 NY Slip Op 08087, 3rd Dept 11-20-14





The Toll of the Statute of Limitations Under the Continuing Representation Doctrine Ceased When the Attorney Was Discharged, Not When the Consent to Change Attorney Was Subsequently Filed---Various Ways In Which the Attorney-Client Relationship Can Be Terminated In this Context Explained In Some Depth


The Second Department, in a full-fledged opinion by Justice Dillon, held that the continuing representation toll of the statute of limitations ceases when the attorney is actually discharged and not when the consent to change attorney is subsequently filed:


An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim (see CPLR 214[6]...). Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court ... , regardless of when the operative facts are discovered by the plaintiff ... . However, "causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies" ... . The three-year statute of limitations is tolled for the period following the alleged malpractice until the attorney's continuing representation of the client on a particular matter is completed ... . For the doctrine to apply, there must be clear indicia of "an ongoing, continuous, developing, and dependent relationship between the client and the attorney" ... . * * *


There are different ways that attorney-client relationships can be ended. One way is for the client to discharge the attorney, which can be done at any time with or without cause ... . A second way is for the attorney and client to execute a Consent to Change Attorney or for counsel to execute a stipulation of substitution, which is then filed with the court in accordance with CPLR 321(b) (see Vincent Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C321:2). Alternatively, if the attorney deems it necessary to end the relationship without the consent of the client, such as where there is an irretrievable breakdown in the relationship or a failure of cooperation by the client, the attorney may move, on such notice as may be directed by the court, to be relieved as counsel by court order (see e.g. CPLR 321[2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c]...).


An affirmative discharge of an attorney by the client is immediate. By contrast, from the standpoint of adverse parties, counsel's authority as an attorney of record in a civil action continues unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321 ... . This rule protects adverse parties from the uncertainty of when or whether the authority of an opposing attorney has been terminated ..., even when the adverse party is informally aware that a discharge or substitution of an opposing counsel is pending or imminent ... . * * *


The essence of a continuous representation toll is the client's confidence in the attorney's ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered ... . "One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties"' ... . What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client's actions. Farage v Ehrenberg, 2014 NY Slip OP 07977, 2nd Dept 11-19-14





Defendant-Doctor's Failure to Mention He Was Under a Stayed License-Suspension In His Affidavit In Support of His Motion for Summary Judgment Was One Factor In Finding the Affidavit Insufficient to Meet Defendant's Burden on the Motion


The Third Department determined defendant's motion for summary judgment in a medical malpractice action was properly denied on several grounds.  The court noted that it was troubled that the defendant doctor's (Stanger's) license was under a stayed suspension at the time he wrote his affidavit in support of the summary judgment motion, and he failed to mention the stayed suspension in his affidavit.  For that reason, among others, the court deemed the affidavit an insufficient basis for summary judgment:


...[W]e nonetheless are ... by the fact that Stanger failed to disclose the status of his medical license when he prepared his affidavit in support of defendants' motions for summary judgment. The very first paragraph of Stanger's affidavit recites, "I am a physician duly licensed to practice in the State of New York." Noticeably absent from both that opening paragraph and Stanger's affidavit as a whole is any mention of the fact that, only two months earlier, a one-year stayed suspension of his medical license had been imposed and that he was practicing medicine subject to certain terms of probation. This glaring omission is entirely inconsistent with Stanger's ethical obligations as a practicing physician and, in our view, [*4]seriously calls into question the medical opinion he has rendered regarding his diagnosis, care and treatment of decedent. Additionally, further review of Stanger's affidavit reveals that the opinion set forth therein was "[b]ased on [Stanger's] review of the [medical] records in this matter, as well as [his] personal recollection of the care and treatment rendered to [decedent]." In this regard, Stanger acknowledged that he did not complete his charting of decedent's January 29, 2009 hospital visit until after he (1) learned that decedent had returned to the emergency department the following day, (2) was advised that decedent had died, and (3) had been questioned by another physician regarding the care and treatment he had provided to decedent the previous day. Under these circumstances, we do not find Stanger's affidavit to be sufficient to satisfy defendants' initial burden on the motions for summary judgment, thereby warranting the denial thereof. Howard v Stanger, 2014 NY Slip Op 08088, 3rd Dept 11-20-14





Infant's Injury Not Apparent for Several Months---Application to File Late Notice of Claim Properly Granted


The First Department affirmed Supreme Court's grant of an application to file a late notice of claim.  The injury did not become apparent until several months after the infant plaintiff was born, and all the other criteria for allowing a late notice of claim were met:


...[T]he mother's assertion that she waited to file a notice of claim because she did not know until several months after the child was born that he was injured is a reasonable excuse for the delay in moving to file a late notice of claim ... . Moreover, respondent's experts have not disputed the assertion made by claimant's experts that periventricular leukomalacia (PVL), the injury alleged here, does not generally manifest itself until the infant fails to meet his developmental milestones, which in this case was approximately six months after the injury was inflicted, and that a layperson, such as the child's mother, would be unable to tell that he was injured ... .


Claimant has demonstrated that respondent acquired actual knowledge of the facts surrounding the instant claim within 90 days or a reasonable time thereafter, because the expert affidavits of Dr. Richman and Dr. Singh establish that the records, on their face, evinced respondent's failure to provide the mother with proper labor and delivery care ... . * * *


Respondent will not be unduly prejudiced by being compelled to defend this case, because it had actual notice of the underlying facts of the infant plaintiff's claim within a reasonable time after his birth, and the hospital has been in possession of the records since the alleged malpractice. Matter of Kellel B v New York City Health & Hosps Corp, 2014 NY Slip Op 07963, 1st Dept 11-18-14





Pursuant to the NYC Administrative Code, Abutting Property Owners Are Not Responsible for the Maintenance of Tree Wells Within the Sidewalk


The Second Department noted that the abutting property owner's responsibility for the safety of the sidewalk (under the New York City Administrative Code) does not extend to tree wells within the sidewalk:


"Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land" ... . "Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner; however, a tree well is not part of the sidewalk' for purposes of that section of Administrative Code of the City of New York"... . Avezbakiyev v Champion Commons LLC, 2014 NY Slip Op 07966, 2nd Dept 11-19-14





25 Minute Response Time by Fire Department Was Not Actionable---No Special Relationship Between Plaintiffs and Fire Department---Fire Department's Duty Is to the Public At Large


In reversing Supreme Court, the Second Department determined a complaint against a fire department alleging a "delinquent" (25 minute) response to a 911 call should have been dismissed.  The fire department's duty is to the public at large and there was no special relationship between the plaintiffs and the fire department:


Generally, a municipality may not be held liable for the failure to provide fire protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual ... . An exception to this rule exists where there is a special relationship between the municipality and the injured parties ... . "The elements of this special relationship' are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" ... .  


Contrary to the Supreme Court's conclusion, there was no question of fact as to whether there was "direct contact" between the defendant and the plaintiffs. * * *


Moreover, there was no question of fact as to whether the plaintiffs justifiably relied upon any affirmative undertaking by the defendant. In this respect, the plaintiffs failed to raise a triable issue of fact as to whether the defendant's conduct "lulled [them] into a false sense of security, induced [them] either to relax [their] own vigilance or forgo other avenues of protection, and thereby placed [them] in a worse position than [they] would have been had the [defendant] never assumed the duty" ... . Kirchberger v Senisi, 2014 NY Slip Op 07986, 2nd Dept 11-19-14





Plaintiff Was Injured When an Anvil Fell Out of a Co-Worker's Vehicle When Plaintiff Opened the Tailgate to Retrieve a Hat---Because Retrieving the Hat Was Work-Related, Plaintiff Was Unable to Sue the Defendant In Negligence (Failure to Warn Re: the Anvil) Under the Theory that Placement of the Anvil in the Vehicle Was Not Work-Related


The Third Department determined the exclusive-remedy aspect of the Workers' Compensation Law required the dismissal of a negligence suit.  Plaintiff and defendant were co-employees, horse trainers.  While they were working, plaintiff asked defendant for a hat because she was chilled.  Defendant gave plaintiff the keys to his vehicle, telling her the hat was in the rear cargo area. Plaintiff opened the tailgate of the vehicle and an anvil fell out, injuring her foot.  Although plaintiff received workers' compensation benefits, she argued she should be able to sue under a negligence theory because the defendant's placing an anvil in his vehicle had nothing to do with work.  The Third Department held that, because the request for a hat was work-related, the negligence suit was properly dismissed:


Whether defendant's actions were "within the scope of employment or purely personal" involves an assessment of whether they were "both reasonable and sufficiently work related under the circumstances" ... . While at work, defendant offered to lend an uncomfortable coworker a hat and, because "some advantage to the employer, even though slight, can be discovered in [that] conduct, his act cannot be regarded as purely personal and wholly unrelated to his employment" ... . Notwithstanding the lack of any connection between the anvil and defendant's employment, he was "acting within the scope of his employment" when he lent plaintiff the hat — and allegedly committed a tortious act by failing to warn plaintiff that objects may fall if she opened the tailgate — so as to trigger the exclusivity provisions of the Workers' Compensation Law... .  Correa v Anderson, 2014 NY Slip Op 08093, 3rd Dept 11-20-14













Pursuant to the Doctrine of Caveat Emptor, Seller of Home Was Not Obligated to Disclose Information About the Possibility of the Incursion of Golf Balls from the Neighboring Golf Course


The Second Department determined a complaint alleging fraudulent concealment against the seller of plaintiffs' home (Glickenhous) was properly dismissed.  Plaintiffs bought property bordering a golf course.  After a tree bordering the course fell, golf balls landed on plaintiffs' property.  The doctrine of caveat emptor required the dismissal of the complaint pursuant to CPLR 3211(a)(1) [documentary evidence utterly refutes allegations in the complaint] and CPLR 3211(a)(7) [pleading does not state a cause of action] :


"New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment" ... . "Mere silence on the part of the seller, without some affirmative act of deception, is not actionable as fraud" ... . " To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor'" ... . "Where the facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations" ... .


Here, Glickenhaus had no duty to disclose any information regarding the premises under the doctrine of caveat emptor ... . Moreover, any risk to the property posed by the incursion of golf balls was a matter readily ascertainable by the plaintiffs through the exercise of ordinary intelligence, and the documentary evidence submitted on the motion demonstrates that any such concerns were a matter of public record not peculiarly within the knowledge of Glickenhaus ... . Behar v Glickenhaus Westchester Dev Inc, 2014 NY Slip Op 07969, 2nd Dept 11-19-14





Payroll Deduction for Health Benefits Should Be Added to Teacher's Salary When Calculating Retirement Benefit


The Third Department reversed Supreme Court finding that the pre-tax payroll deduction from a teacher's pay for health benefits must be added to the teacher's salary to determine the retirement benefit:


We agree with petitioner's assertion that respondents' exclusion of the premium surcharge payment from the calculation of her final average salary was irrational and arbitrary and capricious and, therefore, we reverse. A teacher's final average salary for purposes of determining public retirement benefits is "the average regular compensation earned as a teacher during the three years of actual service immediately preceding his [or her] date of retirement" (Education Law § 501 [11] [b]). The "wages" used in calculating the final average salary consist of "regular compensation earned by and paid to a member by a public employer" (21 NYCRR 5003.4 [b]). Notably, Retirement and Social Security Law § 79 provides, as relevant here, that, "[t]o the extent permitted by [26 USC § 125] and any regulations adopted pursuant thereto, any salary reduction elected by an employee who is a participant in [the Retirement System] under a cafeteria plan or flexible benefit plan shall be considered part of annual compensation for the purpose of . . . computing retirement benefits."  Matter of Felice-zwaryzuk v NYS Teachers' Retirement System, 2014 NY Slip Op 08095, 3rd Dept 11-20-14





Persons Who Deliver Gannett Newspapers Are Employees Entitled to Unemployment Insurance Benefits Notwithstanding the "Independent Contractor" Designation in the Operating Agreements


The Third Department affirmed the unemployment insurance appeal board's determination that the claimants, who delivered Gannett's newspapers, were employees entitled to unemployment insurance benefits, notwithstanding the "independent contractor" designation in the operating agreements:


Whether an employer-employee relationship exists "is a factual determination for the Board, 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" ... . Here, while there is evidence to support a contrary outcome ..., we find that the record contains substantial proof to support the Board's finding that Gannett exercised control over claimants' work. Gannett assigned claimants specific routes within predetermined delivery areas, required proof of a driver's license and vehicle insurance where a vehicle was used to make deliveries and, while claimants were permitted to use a substitute carrier to fulfill delivery duties, they were required by contract to provide Gannett with proof that the substitute had a driver's license and insurance if a vehicle would be used to complete deliveries. Additional contractual provisions included, among other things, requirements that claimants remove unsold publications from newspaper racks, ensure that racks were properly maintained, reserve publications of vacationing customers and create and maintain accurate circulation records that could be turned over, upon notice, to Gannett. Further, Gannett controlled other aspects of claimants' activities, including directives to not insert or attach "foreign matter on, into or with copies of any publication, nor insert copies of any publication into or with copies of any other publication" without receiving Gannett's approval. Notwithstanding the existence of evidence in the record that could weigh in favor of a finding that claimants were independent contractors, including that the operating agreements expressly designated claimants as independent contractors, in light of the indicia of control that Gannett had over claimants, we find that substantial evidence supports the Board's decisions in these matters... . Matter of Armison..., 2014 NY Slip Op 08079, 3rd Dept 11-20-14




Workers' Compensation Board's Recovery of a Portion of Benefits Paid by the Board to an Injured Employee from the Special Disability Fund Did Not Operate to Satisfy the Board's Judgment Against the Employer Re: those Benefits (Which the Employer Failed to Pay)


The Third Department determined that the Workers' Compensation Board's recovery from the Special Disability Fund (SDF) of a portion of the amount of a judgment against an employer did not operate to satisfy the judgment against the employer.  The judgment represented workers' compensation benefits owed by the employer to an injured employee and paid by the Board:


In 2010, the Legislature added a clause to Workers' Compensation Law § 50 (3-a) (7) (b) to provide that, ... where a member fails to pay a levied assessment, the member "shall be deemed in default" (see L 2010, ch 56, part R, § 4). Once in default, the member is subject to the enforcement mechanism contained in Workers' Compensation Law § 26, which provides, in pertinent part, that, where the employer defaults "in the payment of any compensation due under an award," plaintiff may file, among other things, a certified copy of the decision awarding compensation and "thereupon judgment must be entered" ... . * * *


When plaintiff [the Workers' Compensation Board] was reimbursed by the SDF — which is also funded through plaintiff ... it was essentially deprived of the ability to levy an assessment therefor. Thus, the judgment at issue here is intended to assist in recovering the money that plaintiff paid ..., as plaintiff is authorized to do under Workers' Compensation Law § 50 (5) (g). In sum, notwithstanding defendant's claim that Supreme Court's order results in a double recovery for plaintiff, given the statutory scheme, we conclude that no impermissible benefit to plaintiff results. Accordingly, we find that plaintiff's judgment was not satisfied by reimbursement payments made by the SDF and, therefore, defendant's motion for the filing of a satisfaction piece was properly denied. NYS Workers' Compensation Bd v Bast Hatfield Inc, 2014 NY Slip Op 08082, 3rd Dept 11-20-14




Employer Did Not Submit Employee Benefit Plan as Required by Workers' Compensation Law 25 (4) (c)---Therefore the Employer Was Entitled to Reimbursement Only for the Workers' Compensation Benefits Paid to the Employee and Not for the Amounts Paid Under the Employee Benefit Plan


The Third Department determined the employer was entitled to reimbursement only of the amount paid to an injured employee as worker's compensation benefits, and not for the payments to the injured employee from a supplement (employee benefit) plan which paid the difference between the worker's salary and the benefits:


The employer argues that the Board erred in applying Workers' Compensation Law § 25 (4) (c), rather than subdivision (4) (a) of that section, in resolving its reimbursement request. Section 25 (4) (c) requires that employers seeking reimbursement for benefits paid to an injured employee pursuant to an employee benefit "plan . . . [that] provide[s] that the injured employee . . . shall be limited in the amount of benefits or payments thereunder if he or she shall be entitled to [workers' compensation] benefits under this chapter" must file "proof of the terms of [the employee benefit] plan . . . before award of compensation is made" (Workers' Compensation Law § 25 [4] [c]...). This Court has held that an employer's right to "seek credits against schedule awards for moneys paid pursuant to an employee benefit plan . . . stems from Workers' Compensation Law § 25 (4) (c) and is limited by the restrictions in that provision" ... . We concluded that subdivision (4) (a), which imposes no requirement to file the terms of a plan and, indeed, "makes no reference to proof of plan terms[,] . . . was not intended to address moneys paid from an employee benefit plan" ...


Here, ...the employer's workers' compensation supplement plan limited the amount of benefits that an employee with a work-related injury would receive as compared to an employee entitled to benefits under the employer's short-term disability plan--essentially deducting workers' compensation benefits from the amount paid in salary under the short-term disability plan. Even considering the workers' compensation supplement plan alone, we conclude that the injured employee is limited in the amount of benefits paid "thereunder"--meaning from the plan itself--if he or she is awarded workers' compensation benefits (Workers' Compensation Law § 25 [4] [c]). While the employee initially receives his or her full salary from the supplement plan, if the employer is reimbursed out of a workers' compensation award, then the employee has received less in (or is "limited in the amount of") benefits from the supplement plan itself due to his or her entitlement to those workers' compensation benefits. Thus, Workers' Compensation Law § 25 (4) (c) is applicable and, inasmuch as the employer admittedly failed to file proof of the terms of the plan prior to the first award of benefits, the Board properly determined that the employer's right to compensation was limited to the amount paid to claimant as workers' compensation benefits... . NYS Workers' Compensation Bd v Bast Hatfield Inc, 2014 NY Slip Op 08082, 3rd Dept 11-20-14





Failure to Apply for Zoning Variance Re: Sale of Adult Materials Rendered Plaintiff's Free-Speech Challenge to the Code Speculative, i.e., Not Ripe for Review


The Third Department determined that plaintiff's free-speech-violation claims re: the city's failure to specify a zone for the sale of adult material were not ripe for review.  Plaintiff did not inform the city of his intent to sell adult material and did not use the procedures in place to obtain a zoning variance allowing the sale of adult material:


We shall not address plaintiff's assertion that the failure of the Code of the City of Troy to specify a zone where adult materials may be sold violates plaintiff's free speech rights under both the US and NY Constitutions, as this issue is not ripe for our review. According to the City's Assistant Plans Examiner, if a particular use was not set forth in the list of allowed uses or special permit uses enumerated in the Code, as was the case with adult establishments, a use variance could be obtained by seeking approval from the appropriate zoning board. Because [plaintiff's principal] did not disclose the extent of plaintiff's sale of adult material in applying for a certificate of occupancy, and therefore did not follow the process set out in the Code to apply for a use variance, any harm that plaintiff may have suffered pursuant to such Code was speculative and contingent upon the City's anticipated rejection of plaintiff's proposal. Under these circumstances, plaintiff's challenge to the constitutionality of the Code is not ripe for review ... . Your Place LLC v City of Troy, 2014 NY Slip Op 08098, 3rd Dept 11-20-14





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