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November Page IV

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


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Motion to Amend Pleadings to Conform to the Proof Was Properly Granted by the Trial Court---Although the Counterclaim Was Not Pled, the Subject of the Counterclaim Was Central to the Trial---Amendment Did Not Prejudice the Plaintiffs


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the Appellate Division abused its discretion when it reversed Supreme Court's grant of a motion to amend the pleadings to conform to the proof. Although not pled as a counterclaim, whether the defendant was entitled to payments under a settlement agreement, and whether the settlement agreement extinguished defendant's liability under promissory notes held by the plaintiffs, were central to the lawsuit and were the subject of judicial admissions.  Therefore amending the pleadings to conform to the proof did not result in prejudice to the plaintiffs:


 This Court has in the past recognized that, absent prejudice, courts are free to permit amendment even after trial... . Prejudice is more than "the mere exposure of the [party] to greater liability" ... . Rather, "there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position" (id.). The burden of establishing prejudice is on the party opposing the amendment ... .


Applications to amend pleadings are within the sound discretion of the court, and that of the Appellate Division ... . Courts are given "considerable latitude in exercising their discretion, which may be upset by us only for abuse as a matter of law" ... . Nevertheless, we have found such an abuse of discretion where the Appellate Division reversed a trial court's grant of an amendment and the record established that the opposing party suffered "no operative prejudice" as a result of the mere omission to plead a defense ... . Kimso Apts LLC v Gandhi, 2014 NY Slip OP 08219, CtApp 11-25-14





Class Action Mechanism Is Available Where the Relevant Statute Imposes a Non-Mandatory Penalty and the Penalty Is Waived by the Class


The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that class action suits brought by tenants pursuant to CPLR 901 (b) were properly allowed to go forward.  The suits alleged the tenants, who were in rent-stabilized apartments, were overcharged when the landlords decontrolled the apartments despite their receipt of tax benefits under the J-51 program.  The Court of Appeals, in 2009, determined that the receipt of J-51 tax benefits precluded the landlords from decontrolling the apartments.  The central issue was the availability of the class action mechanism, which is generally not available where the suit seeks the imposition of a penalty.  Here the treble damages (penalty) provision of the Rent Stabilization Law (RSL 26-516) was waived by the plaintiffs. The waiver was deemed valid, clearing the way for the class actions:


CPLR 901 (b) prohibits any claim for penalties to be brought as a class action. It states, "[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action" (CPLR 901 [b]). The language of CPLR 901 (b) itself says it is not dispositive that a statute imposes a penalty so long as the action brought pursuant to that statute does not seek to recover the penalty. * * *


From a policy standpoint, permitting plaintiffs to bring these claims as a class accomplishes the purpose of CPLR 901 (b). Preemptively responding to the argument raised by defendants here, the State Consumer Protection Board emphasized the importance of class actions: "The class action device responds to the problem of inadequate information as well as to the need for economies of scale" for ". . . a person contemplating illegal action will not be able to rely on the fact that most people will be unaware of their rights — if even one typical person files a class action, the suit will go forward and the other members of the class will be notified of the action either during the proceedings or after a judgment is rendered in their favor" (Mem of State Consumer Protection Bd, Bill Jacket, L 1975, ch 207).


Where a statute imposes a non-mandatory penalty, plaintiffs may waive the penalty in order to bring the claim as a class action ... . Borden 400 E 55th St Assoc LP, 2014 NY Slip Op 08211, CtApp 11-24-14





Anonymous Tip Alone, In the Absence of "Predictive Information," Sufficient to Provide "Reasonable Suspicion" Justifying a Vehicle Stop


The Court of Appeals, in a short memorandum decision followed by lengthy concurring/dissenting opinions, determined that anonymous tips were sufficient to justify a vehicle stop in two cases (tips alleged possession of a weapon), but insufficient in a third case (tip alleged driver was sick or intoxicated). The concurring/dissenting opinions dealt with whether the "Aguilar-Spinelli" test or the "totality of the circumstances" test should be applied where reasonable suspicion (not probable cause) was required to justify a vehicle stop, and whether an anonymous tip alone, in the absence of so-called "predictive information," could be sufficient to justify a vehicle stop.  The significance of the decision is that an anonymous tip alone was found sufficient, under both the "Aguilar-Spinelli" and "totality of the circumstances" tests, in two of the three cases:


Regardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]), there is record support for the lower courts' findings that the stops were lawful in People v Argyris and People v DiSalvo. The police had reasonable suspicion to stop defendants' vehicle based on the contents of a 911 call from an anonymous individual and the confirmatory observations of the police. Specifically, because sufficient information in the record supports the lower courts' determination that the tip was reliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability of hearsay tips in this particular context and contained sufficient information about defendants' unlawful possession of a weapon to create reasonable suspicion, the lawfulness of the stop of defendants' vehicle is beyond further review. Furthermore, under these circumstances, the absence of predictive information in the tip was not fatal to its reliability ... .


In People v Johnson, whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established. The caller's cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff's deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated (see generally People v DeBour ...) . Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction (see CPL 140.10 [2] [a]), and defendant's actions in committing the violation did not elevate the deputy's suspicion sufficiently to justify the stop of defendant's car. People v Argyris, 2014 NY Slip Op 08220, CtApp 11-25-14




Defendant's Inability to Articulate a Reason for the Withdrawal of His Plea Was a Proper Basis for Refusal of His Request for An Adjournment of Sentencing to Consider Withdrawal of the Plea


The Court of Appeals, over a dissent, determined defendant's request for an adjournment of sentencing to consider whether he should withdraw his plea was properly denied (despite the absence of prejudice to the People) because defendant was unable to articulate a reason for withdrawing the plea:


Whether to grant an adjournment is within Supreme Court's discretion ... . Based upon the colloquy at sentencing, defendant had more than a fair amount of time to speak with counsel regarding his interest in withdrawing his plea. Although defendant was out of custody for two months, having been released on his own recognizance following his plea allocution, the record reflects that he only contacted defense counsel the day before sentencing in order to discuss his plea concerns. Despite defense counsel's inability to meet with defendant that day, defense counsel stated during sentencing that she had spoken with defendant that morning. People v Spears, 2014 NY Slip Op 08221, CtApp 11-25-14




The Failure of the Record to Indicate Whether Notes from the Jury Were Properly Addressed by the Court Constitutes a "Mode of Proceedings" Error


The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined the failure of the record to indicate whether notes from the jury were properly addressed by the court (pursuant to People v O'Rama, 88 NY2d 270) constituted "mode of proceedings" errors requiring reversal in the absence of preservation:


Although not every violation of CPL 310.30 is immune from normal preservation principles ..., a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error ... . The record therefore must indicate compliance with adequate procedures under O'Rama because reviewing courts "cannot assume" that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled ... . The "presumption of regularity" ... cannot salvage an ... error of this nature ... . People v Silva, 2014 NY Slip Op 08215, CtApp 11-24-14




Defendant's Conviction Properly Reversed Because the Verdict Was Inconsistent/Repugnant---Charge Which Was the Subject of Conviction in the Inconsistent/Repugnant Verdict Can Be Presented to a New Grand Jury


The Court of Appeals, in a full-fledged opinion by Judge Read, determined that defendant's conviction was properly reversed because the verdict was inconsistent/repugnant, but that the People should be allowed to resubmit that charge to a new grand jury. Defendant was convicted of manslaughter in the first degree as a hate crime, but the jury acquitted defendant of manslaughter in the first degree.  Because, to aquit, the jury must have found that at least one of the elements of manslaughter in the first degree was not proven, the manslaughter in the first degree as a hate crime necessarily suffered from the same failure of proof.  The People argued that the jury instructions gave the jurors the impression they could acquit on the non-hate-crime manslaughter and still find the defendant guilty of the hate-crime manslaughter:


The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime ... . Given that premise, "a verdict is repugnant only if it is legally impossible — under all conceivable circumstances — for the jury to have convicted the defendant on one count but not the other," and, "[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" ... .


Accordingly, repugnancy does not depend on the evidence presented at trial or the record of the jury's deliberative process, and "[t]he instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict" ... . In making these determinations, it is inappropriate for the reviewing court to "attempt to divine the jury's collective mental process" ... . "Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts" ... . * * *


There is no constitutional or statutory provision that mandates dismissal for a repugnancy error. Given that New York's repugnancy jurisprudence already affords defendants greater protection than required under the Federal Constitution, permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance. This is particularly so given that a reviewing court can never know the reason for the repugnancy. Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury ... . People v DeLee, 2014 NY Slip Op 08212, CtApp 11-24-14




Indictment Rendered Duplicitous By Trial Evidence Is Not a Mode of Proceedings Error---The Error Must Therefore Be Preserved by an Objection to Be Raised on Appeal


Resolving a split among the appellate division departments, the Court of Appeals determined that an indictment rendered duplicitous by the trial evidence is not a "mode of proceedings" error and the error must therefore be preserved in order to raise it on appeal. The indictment charged one count of attempted murder.  But the evidence presented two different occurrences to which the single count could apply:


The First and Second Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review ... . The Fourth Department, however, has held that duplicity created by trial evidence violates a defendant's right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant's right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary ... .


As we held in People v Alvarez (20 NY3d 75, 81 [2012], cert denied — US &mdash, 133 S Ct 1736 [2013]), in relation to the constitutional right to a public trial, "preservation of public trial claims is still required. Bringing a public trial violation to a judge's attention in the first instance will ensure the timely opportunity to correct such errors" ... . Therefore, defendant's argument that he need not preserve an issue that has constitutional significance is unconvincing.


Any uncertainty could have easily been remedied with an objection during opening statements, the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review. People v Allen, 2014 NY Slip Op 08222, CtApp 11-25-14





Notifying One's Broker of an Accident Does Not Constitute Notification of the Insurer


The Court of Appeals, over a partial dissent, determined that the plaintiff's providing notice of an accident to plaintiff's broker did not constitute notice to the insurer.  The decision focuses on distinguishing Mighty Midgets v Centennial Ins. Co. (47 NY2d 12 [1979]) where the roles of the broker the insurer were "uncommonly intertwined:"


We have long held that a policyholder's timely notice to a broker does not "constitute the notice contemplated by the [insurance] policy since a broker is normally the agent of the insured and notice to the ordinary insurance broker is not notice to the liability carrier" Our decision in Mighty Midgets does not alter this fundamental principle. Strauss Painting Inc v Mt. Hawley Ins Co, 2014 NY Slip Op 08214, CtApp 11-24-14




Disclaimer Notice Sent to Insureds' Insurer, But Not to Insureds, Invalid


The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the failure to notify the insureds of a disclaimer of liability invalidated the disclaimer.  The property owner and managing agent were insured under two different policies.  They were named insureds under their own policy (with GNY) and additional insureds under a contractor's insurer (Scottsdale). An employee of the contractor was injured. The contractor's insurer sent the notice of disclaimer to the insureds' own carrier (GNY), but not to the insureds themselves.  The notice did not meet the requirements of Insurance law 3420(d)(2):


Insurance Law § 3420 (d) (2) says:


"If under a liability policy issued or delivered in this state, an insurer shall disclaim liability or deny coverage . . . it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant" ... .


It is undisputed that Scottsdale did not give notice of its disclaimer directly to its additional insureds or to the lawyer who had been retained to represent them. Scottsdale argues that the disclaimer notice it sent to GNY was sufficient to satisfy the statute. We disagree.


GNY was not an insured under Scottsdale's policy; it was another insurer. While GNY had acted on the insureds' behalf in sending notice of the claim to Scottsdale, that did not make GNY the insureds' agent for all purposes, or for the specific purpose that is relevant here: receipt of a notice of disclaimer. GNY's interests were not necessarily the same as its insureds' in this litigation. There might have been a coverage dispute between GNY and the insureds, or plaintiff's claim might have exceeded GNY's policy limits. Because the insureds had their own interests at stake, separate from that of GNY, they were entitled to notice delivered to them, or at least to an agent — perhaps their attorney — who owed a duty of loyalty in this matter to them only. ... [T]he obligation imposed by the Insurance Law is "to give timely notice of disclaimer to the mutual insureds . . . not to . . . another insurer." Sierra v 4401 Sunset Park LLC, 2014 NY Slip Op 08216, CtApp 11-24-14




Successive Tenants of Same Apartment Limited to a Single Policy Limit Re: Recovery for Lead Paint Exposure


The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the children in two families who were successive tenants of the same apartment were restricted to recovery for exposure to lead paint to a single policy limit, and not multiple policy limits based upon annual policy renewals.  The two families' recoveries were limited to the single $500,000 policy limit:


In September 1991, Allstate Insurance Company issued a policy of liability insurance to the landlord of a two-family house in Rochester. The policy was renewed annually for the years beginning September 1992 and September 1993. It stated on the declarations page a $500,000 limit for "each occurrence," and contained the following noncumulation clause:


"Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability under the Family Liability Protection coverage for damages resulting from one accidental loss will not exceed the limit shown on the declarations page. All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss."


Felicia Young and her children lived in one of the two apartments in the house from November 1992 until September 1993. In July 1993, the Department of Health notified the landlord that one of the children had been found to have an elevated blood lead level and that several areas in the apartment were in violation of State regulations governing lead paint. The Department listed the violations and directed the landlord to correct them. The landlord made some repairs, and the Department advised him in August 1993 that the violations "have been corrected."


After the Young family moved out of the apartment in September 1993, Lorenzo Patterson, Sr. and Qyashitee Davis moved in with their two children. Again a child was found to have an elevated blood lead level, and the Department of Health sent another letter saying that violations had been found and instructing the landlord to correct them. (This letter was sent in December 1994, but the parties seem to assume that the elevated readings resulted at least in part from events on or before September 29, 1994, the last day of Allstate's coverage.) * * *


Young's children and Nesmith's grandchildren were exposed to the same hazard, lead paint, in the same apartment. Perhaps they were not exposed to exactly the same conditions; but to say that the "general conditions" were not the same would deprive the word "general" of all meaning. Nesmith argues that, because the landlord made an effort to correct the problem after Young's children were exposed and before Nesmith's grandchildren moved in, the "conditions" that injured her grandchildren must have been new ones. But she makes no claim, and the record provides no basis for inferring, that a new lead paint hazard had been introduced into the apartment. The only possible conclusion from this record is that the landlord's remedial efforts were not wholly successful, and that the same general conditions — the presence of lead paint that endangered children's health — continued to exist. Because Young's children and Nesmith's grandchildren were injured by exposure to the same general conditions their injuries were part of a single "accidental loss," and only one policy limit is available to the two families. Nesmith v Allstate Ins Co, 2014 NY Slip Op 08217, CtApp 11-25-14




Corporation Created by Seneca Nation to Operate a Golf Course Was Not Entitled to Sovereign Immunity---Contractor Hired to Build the Course Can Sue to Foreclose a Mechanic's Lien


The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that a corporation created by the Seneca Nation for the operation of a golf course (Lewiston Golf) was not entitled to sovereign immunity and, therefore, could be sued by the company with which the Seneca Nation contracted to build the golf course.  The contractor brought suit to foreclose on a mechanic's lien:


Indian tribes possess the common law immunity from suit traditionally enjoyed by sovereign powers, unless waived. In Matter of Ransom, we set out several factors for courts to [*6]use to determine whether an entity, such as a corporation or agency, that is affiliated with an Indian tribe has the right to claim sovereign immunity against suit.


"Although no set formula is dispositive, in determining whether a particular tribal organization is an 'arm' of the tribe entitled to share the tribe's immunity from suit, courts generally consider such factors as whether: [1] the entity is organized under the tribe's laws or constitution rather than Federal law; [2] the organization's purposes are similar to or serve those of the tribal government; [3] the organization's governing body is comprised mainly of tribal officials; [4] the tribe has legal title or ownership of property used by the organization; [5] tribal officials exercise control over the administration or accounting activities of the organization; and [6] the tribe's governing body has power to dismiss members of the organization's governing body. More importantly, courts will consider whether [7] the corporate entity generates its own revenue, whether [8] a suit against the corporation will impact the tribe's fiscal resources, and whether [9] the subentity has the power to bind or obligate the funds of the tribe. The vulnerability of the tribe's coffers in defending a suit against the subentity indicates that the real party in interest is the tribe." (Ransom, 86 NY2d at 559-560 [internal quotation marks, citations, and square brackets omitted; numbering added].) * * *


...[T]he primary purpose of creating the golf course in Lewiston was to act as a regional economic engine and thereby serve the profit-making interests of the Seneca Nation's casino operations in the area. While this may result in more funds for government projects on the Seneca Nation's reservations and elsewhere that benefit members of the tribe, ... the purposes of Lewiston Golf were sufficiently different from tribal goals that they militate against Lewiston Golf's claim of sovereign immunity. However, the purposes factor of Ransom is not determinative... . While some of the remaining Ransom factors favor the conclusion that Lewiston Golf is protected by sovereign immunity, the most important ones strongly support the opposite conclusion. Sue/Perior Concrete & Paving Inc v Corporation, 2014 NY Slip Op 08218, CtApp 11-25-14





Question of Fact Whether Residential Facility Exercised the Care a Reasonable Parent Would Have Provided In Supervising Infant Plaintiff Who Wandered Away from the Facility and Was Struck by a Car


Reversing the Appellate Division, the Court of Appeals determined there was a question of fact whether a residential facility (Saint Cabrini) in which infant plaintiff had been placed (as a neglected child) exercised reasonable care in supervising her. Plaintiff left the facility without permission and moved away when approached by staff members. She ultimately walked into the road where she was struck by a car:


The dissenting Justices concluded that Saint Cabrini had not "carried its initial burden of demonstrating the absence of triable issues of fact as to whether its staff met [the] duty to provide the degree of care to plaintiff that a reasonable parent would provide" (id.). Viewing the evidence in the light most favorable to plaintiff, we agree that Saint Cabrini has not met its threshold burden. It is up to the jury to decide if a parent of ordinary prudence in similar circumstances would have necessarily employed different means to protect plaintiff under the facts of this case.  DT v Rich, 2014 NY Slip Op 08223, CtApp 11-25-14




Question of Fact Whether City Had a Special Relationship with Plaintiff Such that the City Owed a Duty to the Plaintiff Over and Above the Duty Owed to the Public at Large


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, determined that there was a question of fact whether the city had a special relationship with the plaintiff, such that the city had a duty to protect the plaintiff from her abusive husband. After police officers assured plaintiff her husband (Coleson), who had been arrested, was going to jail, she was attacked and stabbed by him.  Plaintiff's seven-year-old son was with her when she was attacked but did not witness the stabbing because he had been placed in a closet for protection by a bystander.  Because plaintiff's son did not see the stabbing, the court concluded he was not in the "zone of danger" when his mother was stabbed:


Liability for a claim that a municipality negligently exercised a governmental function "turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public" ... . "[A] duty to exercise reasonable care toward [a] plaintiff" is "born of a special relationship between the plaintiff and the governmental entity" ... . This Court has determined that a special relationship can be formed in three ways:


"(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction in the face of a known blatant and dangerous safety violation"... .


In Cuffy v City of New York (69 NY2d 255), we listed the requisite elements for a duty voluntarily assumed:


"(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 (id. at 260). We noted that "the injured party's reliance is . . . critical" (id. at 261).


Applying the Cuffy factors here, we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first factor, a jury could conclude that the police officers made promises to protect plaintiff. Plaintiff was notified by the police that Coleson was arrested, that he was in front of a judge to be sentenced, would be in jail for a while, and that the police would be in contact with her. As to the second factor, the police officers conceivably knew that Coleson would harm plaintiff if he was not apprehended, as evidenced by his arrest and the issuance of an order of protection to plaintiff. Given that plaintiff was told by Officer Reyes that everything was in process and she would keep in contact, there is an issue of fact as to whether the police knew that their inaction could lead to harm. The third factor is easily met, as plaintiff had direct contact with the police, by the police responding to her call about Coleson's threats, making an arrest, escorting her to the police precinct, and plaintiff's phone call with Officer Reyes. Finally, regarding a party's justifiable reliance on the municipality's affirmative undertaking, given the assurances that plaintiff received from Officer Reyes that Coleson was in jail and that he would be there for a while, a jury could find that it was reasonable for plaintiff to believe that Coleson would be jailed for the foreseeable future, and that the police would contact her if that turned out not to be the case. Coleson v City of New York, 2014 NY Slip Op 08213, CtApp 11-24-14







Employees Terminated Pursuant to Civil Service Law 73 Are, as a Matter of Due Process, Entitled to a Posttermination Hearing


The Third Department determined that petitioner, who had been terminated from his position as a state college police officer, was entitled to a posttermination hearing.  To deny his request for the hearing denied petitioner due process:


...[T]he failure to conduct a posttermination hearing was violative of his right to due process. Employees who are terminated from their positions pursuant to Civil Service Law § 73 "are entitled to a full posttermination hearing" ... . Respondents speculate that it is unlikely that petitioner could produce medical evidence establishing his fitness to occupy his position as of the date of his termination from employment. If we were to accept respondents' reasoning, it would allow an agency that is intent on terminating an employee to arbitrarily decide whether a posttermination hearing was necessary, a determination which flies in the face of existing law. The rationale for providing petitioner with a posttermination hearing is to afford him a final opportunity to present proof demonstrating how his mental condition changed, if at all, and whether he is able to perform his job duties as of the date of his termination ... . To deny petitioner's request for a posttermination hearing was constitutionally infirm and, therefore, remittal of this matter is necessary for the completion of such administrative proceedings ... . Matter of Jiminez-Reyes v State of New York, 2014 NY Slip Op 08273, 3rd Dept 11-26-14





Commissioner, Due to His Prior Involvement with Discipline of the Petitioner, Should Have Disqualified Himself from Review of the Hearing Officer's Disciplinary Recommendation and from the Rendering a Final Judgment


In a detailed decision addressing many aspects of administrative law rarely mentioned in the case law (and not described here), the Third Department determined the commissioner of accounts for the city, because of his involvement in earlier related proceedings concerning the petitioner, should have disqualified himself from reviewing the hearing officer's final determination and rendering a final judgmet in a disciplinary action against the petitioner:


We do ... find merit to petitioner's claim that the Commissioner — having investigated petitioner's initial allegations of preferential assessment treatment, concluded that such allegations were unfounded, preferred the resulting charges of misconduct and insubordination against petitioner and testified at petitioner's disciplinary hearing in support of such charges — should have disqualified himself from reviewing the Hearing Officer's recommendation and rendering a final determination in this matter. Regardless of whether disciplinary charges are pursued in the judicial or administrative realm, "[t]he participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions" ... . Although a particular individual's involvement or participation in the disciplinary process does not automatically compel his or her recusal, the case law makes clear that "individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges" ... . Accordingly, "when an officer institutes charges of misconduct and testifies at [the] ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer's recommendations and rendering a final determination" ... . Matter of Zlotnick v City of Saratoga Springs, 2014 NY Slip Op 08289, 3rd Dept 11-26-14





Court Review of Elimination of Pension Benefits Proper Even though the Administrative Hearing Had Not Yet Been Held---No Need to Exhaust Administrative Remedies Where the Petition Does Not Raise an Issue of Fact that Should Initially Be Determined in the Administrative Hearing


The Third Department determined petitioner, a physician who served four school districts, could seek court review of the comptroller's removal of his service credits (on the ground petitioner was an independent contractor, not an employee) and the consequent elimination of pension benefits, before an administrative hearing had been held:


"It is well settled that the Comptroller is vested with the exclusive authority to determine all applications for retirement benefits" ... . Judicial review is limited to ascertaining whether the Comptroller's determination is supported by substantial evidence in the record as a whole, in which case the determination must be upheld ... .


Moreover, as a general rule, "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" ... . However, there are exceptions to the exhaustion doctrine, including where "resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury" or where "an agency's action is challenged as either unconstitutional or wholly beyond its grant of power" ... . * * *


...[W]e find that the allegations in the petition do not raise an issue of fact that "'should initially be addressed to the administrative agency having responsibility so that the necessary factual record can be established'" ... . Under these circumstances, we conclude that petitioner has a cognizable constitutional claim regarding the prehearing removal of his service credits and cancellation of his retirement application that is ripe for our review and survives respondents' motion to dismiss ... . Matter of Kravitz v DiNapoli, 2014 NY Slip Op 08284, 3rd Dept 11-26-14





Motion to Intervene Should Have Been Granted---Criteria Explained


The Third Department determined that the church elders' motion to intervene should have been granted.  The church at issue had been funded by the man after whom the church was named more than one hundred years ago. The petitioner sought to have the restrictions on the fund removed so that it could be used to support any local Presbyterian church, rather than just the church founded with the fund. The elders of the church founded with the fund sought to intervene:


"Intervention is liberally allowed by courts, permitting persons to intervene in actions where they have a bona fide interest in an issue involved in that action" ... . "Whether intervention is sought as a matter of right under CPLR 1012 (a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings" ... .


Here, decedent was a wealthy philanthropist who funded the construction of a church building, and he provided trust funds that have benefitted that church for over 100 years. The congregation provided some proof reflecting that decedent may have intended assistance to the church bearing his name to have precedence over any particular denominational affiliation. Although it is premature to determine whether the congregation will prevail, nonetheless the congregation will be impacted by this proceeding and should be afforded the opportunity to present its position. Matter of Jermain, 2014 NY Slip Op 08274, 3rd Dept 11-26-14





If the Action Challenging Governmental Action Could Have Been Brought in an Article 78 Proceeding, No Matter How the Action Is Labelled, the Four-Month Statute of Limitations Applies


The collection of assessments by the defendant from hydroelectric power plants was deemed illegal in a federal lawsuit brought by a hydroelectric power plant.  Plaintiff, a different hydroelectric power plant, thereafter sought return of the assessments it had paid for six years (between 2002 and 2008) in an action for unjust enrichment.  The Third Department determined that action could have been brought as an Article 78 proceeding challenging the assessments as they were imposed.  Therefore the four-month Article 78 statute of limitations applied, rendering the action untimely:


...Supreme Court erred in applying a six-year statute of limitations because, even though plaintiffs have now labeled their cause of action as one for unjust enrichment, they could have raised their claim for refunds in a CPLR article 78 proceeding challenging each annual assessment, for which the applicable statute of limitations is four months (see CPLR 217 [1]).


"Where, as here, governmental activity is being challenged, the immediate inquiry is whether the challenge could have been advanced in a CPLR article 78 proceeding" ... . Thus, whether plaintiffs' "claims are subject to the four-month statute of limitations period under CPLR article 78 . . . turns on whether the parties' rights could have been resolved in an article 78 proceeding" ... . Indeed, the analysis does not depend upon how plaintiffs label their claims but, rather, we "must look to the underlying claim and the nature of the relief sought and determine whether such claim could have been properly made in another form" ... . The purpose of this rule, which results in the imposition of a short statute of limitations to governmental action, is to ensure "that the operation of government [will] not be trammeled by stale litigation and stale determinations" ... . Northern Elec Power Co LP v Hudson River-Black Riv Regulating District, 2014 NY Slip Op 08280, 3rd Dept 11-26-14





Procedure for Determining a Motion to Dismiss Pursuant to CPLR 3211 (a)(7) Where the Defendant Submits Evidence Explained/Elements of Gross Negligence Explained


The Second Department, in finding the complaint adequately pled gross negligence (re: packing and transporting an art collection), explained the analytical criteria for dealing with a motion to dismiss pursuant to CPLR 3211 (a)(7) where evidence is submitted by the defendant:


"On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences" ... . The court is limited to "an examination of the pleadings to determine whether they state a cause of action," and the "plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face" ... . "The test of the sufficiency of a pleading is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments'" ... .


"A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" ..., and, if it does so, "the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'" ... . "Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" ... .


Gross negligence "differs in kind, not only degree, from claims of ordinary negligence" ... . "To constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others" ... . "Stated differently, a party is grossly negligent when it fails to exercise even slight care or slight diligence" ... . Ordinarily, the question of gross negligence is a matter to be determined by the trier of fact ... . Dolphin Holdings Ltd v Gander & White Shipping Inc, 2014 NY Slip Op 08316, 2nd Dept 11-26-14




Photo Array Unduly Suggestive---Proof Burdens Explained


The Third Department determined a photo array was unduly suggestive because the nature of defendant's picture was significantly different from the other photos:


Initially, a pretrial identification that is unduly suggestive violates due process and is therefore inadmissible against the defendant ... . In this regard, a photo array is unduly suggestive if it "depicts a unique characteristic which draws the viewer's attention so as to indicate that the police have selected a particular individual" ... . "While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" ... . Where suggestiveness is shown, it is the People's burden to demonstrate the existence of an independent source by clear and convincing evidence ... .


Finding that the People met their initial burden to establish that the police conduct was reasonable and their procedure was not unduly suggestive, we turn to defendant's ultimate burden. ... The array depicts six individuals of equivalent age and ethnicity who are reasonably similar in appearance. However, we nonetheless find the array to be unduly suggestive to the extent that defendant's photo draws the viewer's immediate attention. Specifically, while the other five photos depict individuals from the shoulders up with the upper portion of their photos consisting of nothing more than a blank, gray background, defendant is shown from the chest up with the top of his head reaching to the very top of the photo. Thus, defendant's face occupies the space that, in all of the other photos, is bare. In our view, this difference cannot be deemed minor and impermissibly "create[d] a substantial likelihood that the defendant would be singled out for identification" ... . Thus, County Court improperly held that the photo array was not unduly suggestive. People v Smith, 2014 NY Slip Op 08268, 3rd Dept 11-26-14



Defendant's Fourth Amendment Rights Violated When Officer Opened an Envelope Containing Defendant's Personal Belongings at the Hospital Where Defendant Was Being Treated---The Fact that the Officer Thought Defendant Was a Crime Victim at the Time Does Not Matter---The Personal Belongings, Which Included Evidence of a Robbery, Should Have Been Suppressed


The Second Department determined the contents of an envelope containing defendant's personal belongings, which included evidence of a robbery of which defendant was convicted, should have been suppressed.  The defendant was in the hospital when the police officer asked for identification.  The defendant indicated his belongings had been taken by the hospital.  The officer then retrieved the envelope from the hospital security office and opened it.  The Second Department determined that the fact that the officer thought the defendant was a crime victim (he had been stabbed) at the time he opened the envelope did not change the fact that the defendant's fourth amendment rights were thereby violated:


"On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show the legality of the police conduct in the first instance" ... . The People failed to meet their burden in this instance.


Initially, we note that the defendant had a legitimate expectation of privacy in his personal belongings, notwithstanding the fact that he was a hospital patient and his belongings were being temporarily stored in the hospital's security office ... . In addition, the fact that the officer perceived the defendant to be a victim rather than a suspect did not strip the defendant of Fourth Amendment protection ... . People v Alston, 2014 NY Slip Op 08344, 2nd Dept 11-26-14




Proof Requirements for Constructive Possession of Contraband Explained


The Third Department explained the criteria for constructive possession.  The fact that others might have access to the contraband does not disprove constructive possession, contraband can be possessed jointly with others:


"Where, as here, the People proceed upon the theory of constructive possession, they bear the burden of establishing that defendant exercised dominion and control over the contraband or the area where the contraband was found"... . Such possession may be shown through direct or circumstantial evidence, and does not require proof that no one else had access to the contraband or the premises ... . While mere presence in the same location where contraband is found does not prove constructive possession ..., the evidence here established that defendant--who was wearing only boxer shorts when he was found and identified one of the bedrooms where contraband was found as the one where he kept his clothes and belongings--was not merely present in the residence by happenstance at the time of the search, but lived there. When found, he was lying in close proximity to the laundry basket that contained the disassembled weapon, as though he had just placed it there. Further, shortly before the search, he had been seen in physical possession of a weapon by witnesses who identified him as the individual who fired a black handgun in the direction of a vehicle, and, later on the day of the shooting, another witness saw him holding a black semiautomatic pistol. Accordingly, the evidence went beyond defendant's mere presence in the residence at the time of the search and established "a particular set of circumstances from which a jury could infer possession" of the contraband ... . The fact that some of the contraband was found in defendant's brother's bedroom and other parts of the house to which family members also had access does not preclude a finding of constructive possession, as such possession may be joint, and all of the items were "readily accessible and available" to defendant... . People v McGough, 2014 NY Slip Op 08269, 3rd Dept 11-26-14




Verdict May Not Be Set Aside Pursuant to Criminal Procedure Law 330.30 On a (Waivable) Ground Not Preserved by Objection at Trial


The Second Department determined Supreme Court should not have set aside the verdict pursuant to a CPL 330.30 motion on a ground which was not preserved by an objection.  Supreme Court set aside the assault second conviction on the ground that the indictment, which charged assault first, was improperly amended during trial to assault second.  Because the defendant did not object to the amendment, the issue could not be the basis for setting aside the verdict pursuant to CPL 330.30:


In considering a motion to set aside or modify a verdict pursuant to CPL 330.30(1), a trial court may only consider questions of law, not fact ... . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are properly preserved for appellate review ... .


Contrary to the Supreme Court's determination, the alleged amendment of the indictment was not a nonwaivable defect, and the defendant was required to make a timely objection at trial to preserve, for the Supreme Court's consideration, a claim pursuant to CPL 330.30(1) that the indictment was impermissibly amended ... . As the defendant failed to object at trial, he "waived" any challenge to the reduction of the count alleging assault in the first degree ..., and the Supreme Court was without authority to set aside the verdict on that ground ... . People v Davidson, 2014 NY Slip Op 08346, 2nd Dept 11-26-14





Retroactive Application of New Regulations Affecting the Revocation of Driver's Licenses for Alcohol- and Drug-Related Convictions or Incidents Okay---No Vested Right Re: License to Drive


The Third Department determined the new regulations concerning the effect of alcohol- or drug-related convictions or incidents can be applied retroactively because they do not affect a vested right:


"Retroactive statutes are those which impair vested rights or alter past transactions or considerations" ... . Here, however, petitioner's driver's license is not generally viewed as a vested right, but merely a personal privilege subject to reasonable restrictions and revocation by respondent under her discretionary powers (see Vehicle and Traffic Law §§ 510 [c]; 1192 [2]...). Thus, respondent remained free to apply her most recent regulations when exercising her discretion in deciding whether to grant or deny petitioner's application for relicensing. This is especially so in light of the rational, seven-month moratorium placed on all similarly-situated applicants for relicensing — i.e., persons with three or more alcohol-related driving convictions (see NY Reg, Mar. 13, 2013 at 46...). Furthermore, inasmuch as the revised regulations operated only to nominally change the effect of petitioner's past acts on his future eligibility to obtain a driver's license and was not imposed as punishment but, rather, to promote public safety, respondent's application of 15 NYCRR 136.5 (b) (2) was proper under these circumstances (see ... State Administrative Procedure Act § 202 [6]). Matter of Scism v Fiala, 2014 NY Slip Op 08283, 3rd Dept 11-26-14




Officer Did Not Have Reasonable Suspicion Defendant Posed a Danger---Pat-Down Search Triggered by a Bulge In Defendant's Waistband Was Not Justified Under the DeBour Test


The Second Department determined the arresting officer did not have reasonable suspicion that defendant posed a threat to his safety when he patted defendant down and retrieved a weapon from defendant's waistband.  Defendant, who was first observed merely standing and smoking a cigarette, had walked away from the police, turned his back to them and made a motion as if shoving something into his front waistband.  The officer, seeing the bulge in defendant's waistband, immediately patted the defendant down:


In People v De Bour (40 NY2d 210), the Court of Appeals established a "graduated four-level test for evaluating street encounters initiated by the police" ... . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality ... . The second level, known as the "common-law right of inquiry," requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure ... . The third level permits a seizure, meaning that a police officer may forcibly stop and detain an individual, based upon a reasonable suspicion that an individual is committing, has committed, or is about to commit, a crime ... . Finally, the fourth level authorizes an arrest based on probable cause to believe that a person has committed a felony or misdemeanor ... .


Here, those branches of the defendant's omnibus motion which were to suppress the gun and his statements should have been granted. Assuming that Officer Castillo was justified in conducting a common-law inquiry, he lacked reasonable suspicion to believe that the defendant posed a threat to his safety when he conducted a pat-down search of the bulge in his waistband ... . The police were not responding to a report of a crime involving a weapon and, at most, suspected the defendant of being involved in the burglary of an abandoned house ... . In addition, "[a]n unidentifiable bulge which is readily susceptible of an innocent as well as a guilty explanation' is not sufficient to justify a pat-down search" ... . The waistband bulge as described by Officer Castillo only permitted him to ask the defendant if he was carrying a weapon based on a founded suspicion that criminality was afoot ... . Moreover, Officer Castillo did not testify that the defendant, upon turning to face the officers, reached for or had his hand on the bulge, or made any threatening or menacing gesture ... . Under the totality of the circumstances, Officer Castillo was not justified in searching the defendant's waistband bulge as a minimally intrusive self-protective measure. Accordingly, the hearing court should have granted those branches of the defendant's omnibus motion which were to suppress the physical evidence and his subsequent statements to law enforcement officials. Since, in the absence of the suppressed evidence, there is insufficient evidence to prove the defendant's guilt, the indictment must be dismissed ... . People v Harris, 2014 NY Slip Op 08351, 2nd Dept 11-26-14





Criteria for Presentation of Defense Expert Re: the Accuracy of Eyewitness Testimony Explained (Criteria Not Met Here)


In finding that the defendant's request to present expert evidence on the accuracy of eyewitness testimony was properly denied, the Second Department explained the relevant criteria:


Where a case "turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror" ... . Here, however, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony * * *.  People v Granger, 2014 NY Slip Op 08349, 2nd Dept 11-26-14





Mistrial Declaration Over Defendant's Objection Was "Manifestly Necessary"---Double Jeopardy Prohibition Not Triggered


The Second Department determined the trial judge had no choice but to declare a mistrial when defense counsel could not proceed because of a conflict and new counsel needed a two-month adjournment.  Because the mistrial, granted over defendant's objection, was "manifestly necessary" the double jeopardy prohibition of a second trial was not triggered:


The double jeopardy clauses of the New York State and United States Constitutions protect an accused from multiple prosecutions for the same offense . "In a jury trial, once the jury is empaneled and sworn, jeopardy attaches, and the defendant has a valued right to have his trial completed by a particular tribunal'" ... .


When a mistrial is granted over the defendant's objection or without the defendant's consent, a retrial is precluded unless " there was manifest necessity for the mistrial or the ends of public justice would be defeated'" ... . "Manifest necessity" means a " high degree of necessity'" based on reasons that are " actual and substantial'" ... . Moreover, before declaring a mistrial, a court must explore all appropriate alternatives and must provide a sufficient basis in the record for resorting to this "drastic measure" ...  . Matter of Roey v Lopresto, 2014 NY Slip Op 08340, 2nd Dept 11-26-14





SORA Court Must Designate a "Sexually Violent Offender" a Level One Sex Offender


The First Department, in a full-fledged opinion by Justice Andrias, over a dissent, determined that the SORA court does not have the discretion to designate a "sexually violent offender" as anything other than a Level One sex offender.  Here the defendant was convicted of sexual battery in North Carolina.  The North Carolina offense was found to be the equivalent of New York's Sexual Abuse in the First Degree, a "sexually violent offense" under Correction Law 168-a (3) (a):


"While [the] Court is directed to apply SORA's Risk Assessment Guidelines . . ., the statutory definition of sexually violent offender, namely, a sex offender convicted of one of several enumerated sexually violent offenses, does not allow for a discretionary determination" ... . Thus, although the "level suggested by the RAI [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation" ..., the Court of Appeals has observed that "since 2002, SORA has compelled a defendant convicted of a sexually violent offense' to register at least annually for life (Correction Law § 168-h [2]; see Correction Law § 168-a [3][a][7]; [b]; L 2002, ch 11, § 13). People v Bullock, 2014 NY Slip Op 08265, 1st Dept 11-25-14






Failure to Provide Meaningful Employee Assistance in Preparing for the Hearing Was a Constitutional, Not Merely Regulatory, Violation Requiring Expungement---Criteria Discussed in Some Depth


The Third Department determined the failure to provide the inmate with meaningful assistance leading up to his hearing required the annulment of the determination.  The court further determination that the failure was of constitutional, not merely regulatory, dimensions requiring expungement.  The issues were discussed in unusual depth:


...[P]etitioner was not provided meaningful employee assistance and that he was prejudiced thereby. Departmental regulations require that an inmate who is confined pending a superintendent's hearing is to be provided an assistant (see 7 NYCRR 251-4.1 [d]; 254.4). The assistant's role is to, among other things, "interview witnesses and to report the results of his [or her] efforts to the inmate" (7 NYCRR 251-4.2). The record reflects that petitioner's girlfriend and the other individual involved provided signed written statements to correction officials and State Police investigators implicating petitioner. Although petitioner requested that his assistant interview the two women to ascertain whether their statements were truthful and voluntary and provided his assistant with a list of questions to ask them, the record reveals that no interview took place and the Hearing Officer made no attempt to remedy the deficiency when petitioner raised the issue at the disciplinary hearing. Thus, the determination must be annulled.


Petitioner further asserts that the determination should be expunged, while respondent argues that the matter should be remitted for a new hearing because this was a regulatory, not constitutional, violation. Notably, the "right to assistance is a right of constitutional dimension" ... and the failure to provide assistance is a violation of 7 NYCRR 251-4.2. In this regard, our precedent is not entirely consistent, nor have we clearly articulated the appropriate factors relevant to whether expungement, rather than remittal, is warranted when a petitioner has been denied meaningful employee assistance ... . We have, however, held that constitutional violations related to a Hearing Officer's failure to investigate a witness's refusal to testify or the outright denial of the right to call a witness results in expungement ..., while regulatory violations of such right do not ... .


In the case before us, petitioner's employee assistant took no steps whatsoever to interview the requested witnesses and ask the questions posed by petitioner, and this failure clearly prejudiced petitioner by impeding his ability to assert a defense to the charges. In our view, where, as here, the denial of meaningful employee assistance is absolute and without reasonable explanation, and the Hearing Officer does not attempt to remedy the deficiencies, such denial is comparable to those instances in which we have found a constitutional violation relative to the outright denial of a witness or the failure to ascertain the basis of a witness's refusal to testify. Thus, under these circumstances, we find the denial of meaningful employee assistance to be a constitutional violation requiring expungement of all references to the matter from petitioner's record. Matter of Rivera v Prack, 2014 NY Slip Op 08297, 3rd Dept 11-26-14





Issuance of a Positive Declaration that the Requested Rezoning May Have a Significant Impact on the Environment and the Requirement that a Draft Environmental Impact Statement Be Drawn Up, Under the Facts, Did Not Constitute an "Injury" Sufficient to Make the Matter Ripe for Court Review---All the Relevant Factors Discussed in Depth


The Second Department, in a full-fledged opinion by Justice Dickerson, determined that the town board's issuance of a positive declaration pursuant to the State Environmental Quality Review Act (SEQRA) (finding the proposed rezoning to heavy industrial may have a significant effect on the environment) and the requirement that the petitioner (landowner) prepare and circulate a draft environmental impact statement (DEIS), under all the facts, did not constitute an "injury" sufficient to make the matter ripe for judicial review.  Much of the opinion was devoted to distinguishing Matter of Gordon v Rush, 100 NY2d 236, where the Court of Appeals determined, under the facts, the positive SEQRA declaration and the DEIS requirement constituted an "injury" sufficient to make the case ripe for court review without further proceedings.  The Second Department determined that facts here did not warrant the relief granted in the Rush case:


"Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties'" ... . "To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied" ... .


A court considering review of an agency determination "must determine whether an agency has arrived at a definitive position on the issue that inflicts an actual concrete injury and whether the resolution of the dispute requires any fact-finding, for [e]ven if an administrative action is final, however, it will still be "inappropriate" for judicial review and, hence, unripe, if the determination of the legal controversy involves the resolution of factual issues'" ... . "The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party" ... . * * *


"An action taken by an agency pursuant to SEQRA may be challenged only when such action is final" ... . Traditionally, a "SEQRA determination [has] usually [been] considered to be a preliminary step in the decision-making process and, therefore, . . . not ripe for judicial review until the decision-making process has been completed" ... . Matter of Ranco Sand & Stone Corp v Vecchio, 2014 NY Slip Op 08338, 2nd Dept 11-26-14





Type II Actions (Here Replacement of a Wooden Boardwalk With Synthetic Materials) Presumptively Do Not Have a Significant Impact on the Environment and Do Not Require an Environmental Impact Statement


Petitioners brought an Article 78 proceeding against the NYC Department of Parks and Recreation (DPR) alleging that the plan to replace wooden planks in a boardwalk with a concrete/plastic surface violated the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review Rules (CEQR).  The Second Department noted the action was timely and the DPR's determination the replacement of the boardwalk was a Type II action under SEQR and CEQR that presumptively did not have a significant environmental impact and did not require an environmental impact statement:


The DPR failed to meet its burden of demonstrating that it made a final and binding determination to implement the plan, and that the petitioners were provided notice of such a determination more than four months before the proceeding was commenced (see CPLR 217[1]...).


... The DPR determined that the proposed boardwalk project was for a "replacement, rehabilitation or reconstruction of a structure or facility, in kind" (6 NYCRR 617.5[c][2]) and, thus, was a Type II action under SEQRA and CEQR that presumptively did not have a significant impact upon the environment, and did not require the preparation and circulation of an environmental impact statement. The fact that different materials were used in the replacement construction did not alter the propriety of classifying the project as a Type II action, and that determination was, thus, not arbitrary and capricious, made in violation of lawful procedure, affected by an error of law, an abuse of discretion, or irrational ... . Once an action is properly classified as a Type II action under the enumerated provisions of 6 NYCRR 617.5(c), which the New York State Department of Environmental Conservation has already determined to have no significant impact on the environment... . Matter of Coney-Brighton Boardwalk Alliance v New York City Dept of Parks & Recreation, 2014 NY Slip Op 08334, 2nd Dept 11-26-14





Criteria for Termination of Parental Rights on the Ground of Mental Illness Explained


In affirming the termination of petitioner's parental rights upon the ground of mental illness, the Third Department explained the criteria:


To terminate parental rights upon the ground of mental illness, the petitioning agency must demonstrate, by clear and convincing evidence, that the parent is — and for the foreseeable future will continue to be — unable to provide proper and adequate care for his or her [child] by reason of that parent's mental illness. Such a showing, in turn, must include testimony from appropriate medical witnesses particularizing how the parent's mental illness affects his or her present and future ability to care for the [child]" ... . Matter of Kaitlyn X ..., 2014 NY Slip Op 08272, 3rd Dept 11-26-14




Separation and Modification Agreements Did Not Comply with the Child Support Standards Act


The Third Department determined the parties' separation and modification agreements did not comply with the Child Support Standards Act (CSSA).  The court explained the flaws:


If an agreement or stipulation entered into between the parties "deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel" (Domestic Relations Law § 240 [1-b] [h]...).


Here, the original separation and settlement agreement indicated that the parties had been advised of the provisions of the CSSA and that the amount of child support calculated in compliance therewith would be presumptively valid; the agreement further set forth the applicable statutory percentage for three children (29%) and the parties' respective incomes and indicated that the husband's child support obligation would be adjusted upon the cessation of the agreed-upon maintenance payments (see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). The agreement did not, however, indicate what the presumptive amount of child support would be, nor did it set forth the reasons for deviating therefrom. Similar deficiencies exist with respect to the provisions governing the parties' pro rata share of childcare and medical expenses and, to our analysis, none of the foregoing deficiencies was cured by the subsequent modification agreement. Although the modification agreement acknowledged a departure from the presumptive pro rata share of each party's childcare expenses and purported to explain the basis for the deviation therefrom, the agreement was silent as to what the presumptive pro rata percentages would be under the CSSA and failed to set forth the income and other financial data supporting the basis for such deviation. Malone v Malone, 2014 NY Slip Op 08281, 3rd Dept 11-26-14





Proper Jury Instructions in False Imprisonment Case Based Upon Detention During the Execution of a Search Warrant Explained


The Second Department set aside the verdict and ordered a new trial on liability and damages because the jury was not properly instructed.  The plaintiff was detained at gunpoint while the police executed a search warrant based upon (apparently wrong) information provided by a confidential informant. The issues which should have been presented to the jury were whether the presumption of probable cause for the search warrant was rebutted and whether the "limited authority" to detain during a search was exceeded:


The Supreme Court erred when it instructed the jury to, in effect, apply the Aguilar-Spinelli test to determine the validity of the search warrant. Under the Aguilar-Spinelli rule, as applied in a criminal prosecution, where probable cause is predicated in whole or in part upon the hearsay statements of an informant, it must be demonstrated that the informant is reliable and had a sufficient basis for his or her knowledge ... . By contrast, in a trial on the issue of liability for false imprisonment, there is a presumption of probable cause for the detention which the plaintiff must rebut with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer ... .* * *


The Supreme Court should have instructed the jury to determine whether the plaintiffs rebutted the presumption of probable cause by establishing that the NYPD presented "false or unsubstantiated statements" to the Criminal Court Judge to procure the issuance of the warrant ... . * * *


We further note that police officers executing a search warrant have "limited authority to detain the occupants of the premises while a proper search is conducted" ..., and are "privileged to use reasonable force to effectuate the detention of the occupants of the place to be searched" ... . Accordingly, if warranted by the evidence presented at the new trial, the Supreme Court should direct the jury to determine, in the context of evaluating whether [plaintiff's] confinement was privileged, whether the police officers, even if they possessed probable cause to enter the apartment initially, exceeded the scope of their limited authority to detain the occupants of the apartment... . Ali v City of New York, 2014 NY Slip Op 08310, 2nd Dept 11-26-14




Homeowner Not Liable for Construction-Related Death---Criteria for Homeowner's Exemption and Supervisory Control by Homeowner Described in Some Depth


The Third Department determined the homeowner was not liable to plaintiff's decedent (under Labor Law 200, 240, 241 (6) or common law negligence) based on the homeowners' exemption and absence of supervision (by the homeowner) of plaintiff's decedent's work.  The homeowner had provided architectural plans to a contractor for an addition to the home.  Plaintiff's decedent was digging a trench for the basement and was buried and killed when the walls of the trench collapsed.  The court explained the applicable law in unusual detail:


Although Labor Law §§ 240 (1) and 241 "impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities" ..., the Legislature carved out an exception for "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law §§ 240 [1]; 241 [6]...). "In this context, the phrase direct or control is to be strictly construed and, in ascertaining whether a particular homeowner's actions amount to direction or control of a project, the relevant inquiry is the degree to which the homeowner supervised the method and manner of the actual work being performed by the [injured] party" ... . That is, "the owner must significantly participate in the project before he or she will be deemed to have crossed the line from being a legitimately concerned homeowner to a de facto supervisor" who is not entitled to the exemption ... . * * *


...[U]nder established case law, "neither providing site plans, obtaining a building permit, hiring contractors, purchasing materials, offering suggestions/input, inspecting the site, retaining general supervisory authority, performing certain work, nor physical presence at the site, operates to deprive a homeowner of the statutory exemption — so long as the homeowner did not exercise direction or control over the injury-producing work" ... . ...


We reach a similar conclusion with respect to plaintiff's Labor Law § 200 claim, which codifies the common-law duty of owners and general contractors "to maintain a safe construction site" ... . As a precondition to the imposition of liability upon defendant as a homeowner, "it must be shown that [defendant] exercised supervisory control over [decedent's] work and had actual or constructive knowledge of the unsafe manner in which the work was being performed" ... . "When an alleged defect or dangerous condition arises from [a] contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" ... . Even "[t]he retention of general supervisory control, presence at a work site, or authority to enforce safety standards is insufficient to establish the control necessary to impose liability" ... . Peck v Szwarcberg, 2014 NY Slip Op 08290, 3rd Dept 11-26-14








Because Defendant Was Negligent As a Matter of Law (Violation of Vehicle and Traffic Law), the Verdict In Favor of the Defendant Was Properly Set Aside


The Second Department determined Supreme Court properly set aside the defendant's verdict in a vehicle collision case:


A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence ... . "It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses" ... .


Here, a fair interpretation of the evidence does not support the jury's finding that the defendant was not negligent. The defendant testified that, when she was stopped at the intersection, her view to her left, the direction from which the injured plaintiff was coming, was obstructed, yet she proceeded anyway. The fact that the defendant proceeded into the intersection without having a clear view of the traffic on Wilson Avenue and without yielding the right-of-way after a stop sign demonstrated that she violated Vehicle and Traffic Law §§ 1142(a) and 1172(a) ... . Such violations constitute negligence as a matter of law, and could not properly be disregarded by the jury ... . Consequently, on these facts, the jury could not have reached its verdict that the defendant was not negligent on any fair interpretation of the evidence ... . Zhubrak v Petro, 2014 NY Slip Op 08332, 2nd Dept 11-26-14





Criteria for Abutting Property Owner's Liability for Accumulated Snow and Ice on a Sidewalk (In the Absence of a Statute or Ordinance) Explained


The Second Department explained the liability of an abutting property owner for accumulated ice and snow on a sidewalk.  The slip and fall in this case occurred before NYC Administrative Code 7-210 imposed liability on abutting property owners:


"In the absence of a statute or ordinance, an owner or lessee of property abutting a public sidewalk may be held liable where it undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous'" ... . Here, [defendant]  made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him on the ground that neither he nor anyone acting in his behalf performed snow removal at the premises, and that he was not liable for any actions his tenants may have taken with respect to the sidewalk ... . Harris v City of New York, 2014 NY Slip Op 08319, 2nd Dept 11-26-14





Release Did Not Exclude Liability for Personal Trainer's Negligence


The First Department determined that the wording of a release for a personal training program did not express an unequivocal intent to limit liability for negligence.  The plaintiff alleged that the trainer negligently instructed him to lift an excessive amount of weight:


Prior to beginning training at defendant's facility, plaintiff executed a release wherein he acknowledged that there were "inherent risks in participating in a program of strenuous exercise" and released defendant from "all claims . . . which

I . . . . may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program." It is undisputed that General Obligations Law § 5-326 does not bar enforcement of this release as defendant's facility is an instructional, and not a recreational, one. However, the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence ... . While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not "express[] any intention to exempt . . . defendant from liability for injury . . . which may result from [its] failure to use due care . . . in [its] training methods" ... . ...[T]he release does not purport to release defendant from all personal injury claims, "whether or not based on the acts or omissions of [defendant]," or contain other language conveying a similar import ... .  Kim v Harry Hanson Inc, 2014 NY Slip Op 08229, 1st Dept 11-25-14





Declaratory Judgment Action Was Actually Seeking to Open a Default Judgment in a Tax Foreclosure Proceeding---30-Day Statute of Limitations in the Tax Law Applied


The Third Department determined that a proceeding seeking a declaratory judgment was actually seeking to open a default judgment in a tax foreclosure proceeding, subject to a 30-day statute of limitations.  The action was dismissed as untimely:


A tax debtor's motion to reopen a default judgment of tax foreclosure 'may not be brought more than one month after entry of the judgment'" ... . Although the complaint seeks a judgment declaring that the foreclosure is a nullity and does not expressly seek an order vacating the default judgment, it is apparent that the relief that plaintiff now seeks is analogous to that which is demanded in an application to reopen a judgment entered on default and it is, therefore, subject to the timing requirements of RPTL 1131. As the action was commenced more than one month after the default judgment of foreclosure was entered and plaintiff has not demonstrated "either a reasonable excuse for his default or a meritorious defense," dismissal of the complaint was warranted ... . Goodfriend v Village of Jeffersonville, 2014 NY Slip Op 08279, 3rd Dept 11-26-14




Incidents of Ownership Awarded Hospital-Services-Tenant in Lease Entitled Tenant to Exemption from Real Property Tax


The Third Department determined that the tenant of a building used for hospital services was entitled to an exemption from real property tax because the tenant assumed many incidents of ownership.  The town argued that the tenant was not entitled to any exemption because it was not the true owner of the building:


As relevant here, RPTL 420-a mandates that "[r]eal property owned by a corporation or association organized or conducted exclusively for . . . hospital . . . purposes, and used exclusively for carrying out thereupon one or more of such purposes . . . shall be exempt from taxation" (RPTL 420-a [1] [a] [emphasis added]). Land and buildings are separately defined as taxable forms of real property (see RPTL 102 [12] [a], [b]), and a landlord and tenant may agree to their separate ownership ... . The mere labeling of a tenant as "owner," however, is not conclusive for real property taxation purposes ... . Rather, the question of ownership turns on whether the lease agreement confers incidents of ownership upon the tenant or whether the landlord retains such dominion and control over the property that it must be deemed the beneficial owner for tax purposes ... .


Here, the lease expressly vests title to all improvements on the property in petitioner as owner and grants petitioner significant incidents of ownership. For example, petitioner is entitled to claim depreciation on the improvements and is insured to the full extent of its interest in the building. In the event of substantial destruction of the improvements, petitioner has the right to determine whether to rebuild and, in the event of condemnation proceedings, petitioner is to receive the value of its present interest in the improvements. Petitioner also has the sole right to contest any tax assessment of the property, obtain a mortgage on the improvements, which it has done, and remove the improvements at the end of the lease term. Title to the improvements and the right to remove them vest in the landlord only in the event that petitioner abandons them at the termination of the lease. Finally, it is undisputed that the landlord does not retain any control over petitioner's operation of its improvements as a health care facility. Matter of United Health Servs Hosps Inc v Assessor of the Town of Vestal, 2014 NY Slip Op 08275, 3rd Dept 11-26-14






The Third Department Upheld the Statutory Amendment Cutting Off Reimbursement of Medicaid Overburden Expenses Incurred Prior to 2006---However the Court Imposed a Six-Month Grace Period Before the Amendment Kicks In [The Fourth Department Dealt with the Same Question in a Decision Dated 11-14-14---Although the Fourth Department Also Upheld the Amendment, It Did Not Impose a Grace Period and Did Not Use the Same Reasoning]


The Third Department, in a full-fledged opinion by Justice McCarthy, determined that a 2012 amendment to the Social Services Law (section 61) eliminated the requirement that counties be reimbursed by the state for certain medicaid expenses (so-called "Overburden expenses") incurred prior to 2006, when the medicaid "Cap Statute" was enacted.  The Fourth Department dealt with the same issues in Matter of County of Niagara v Shah, 2014 NY Slip Op 07781, 4th Dept 11-14-14.  Although the two courts came to similar, but not identical, conclusions, it is interesting to see the substantial differences in reasoning and result.  Unlike the Fourth Department, the Third Department imposed a six-month grace period, starting from the date of the decision, before the prohibition against reimbursement for pre-2006 expenses kicks in. The Third Department dealt with several issues, including:  (1) whether a political subdivision of a state can make a due process claim against the state (the court deemed the issue waived); (2) the amendment of the statute essentially imposed a statute of limitations and therefore did not extinguish a vested right to reimbursement; (3) the amendment is not unconstitutional because the new statute of limitations does not retroactively affect any substantive rights; (4) the special facts exception did not apply; (5) petitioner was entitled to a writ of mandamus requiring payment of the pre-2006 expenses (because of the grace period):


Social Services Law § 368-a and the 2012 amendment can be read together and "interpreted to achieve legislative objectives that are not inherently inconsistent with each other" ... . This Court has already held that, under Social Services Law § 368-a (1) (h), petitioner's right to reimbursement of overburden expenditures accrued when petitioner made payment to the state for those expenses for which no local share was owed, i.e., prior to January 1, 2006 ... . The 2012 amendment did not specifically repeal any part of Social Services Law § 368-a or affect the counties' inherent right to reimbursement. Rather, the amendment simply imposed a statute of limitations for the payment of claims for such reimbursement. A statute of limitations does not impair an underlying substantive right, but may deprive a litigant of any remedy ... . In April 2012, the Legislature could have reasonably decided that, to promote finality of claims and effectuate accurate budgeting, reimbursements from more than six years earlier could be barred. Although petitioner contends that DOH was required by statute to reimburse all counties for overburden expenditures incurred prior to 2006, and that DOH did not comply with its statutory obligations, "[a] statute of limitations may apply even when conduct inconsistent with a statute or the state constitution is alleged" ... . Matter of County of St. Lawrence v Shah, 2014 NY Slip Op 08278, 3rd Dept 11-26-14

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