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November Page I

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



In Court Stipulation Was Valid Postnuptial Agreement/DRL 236(B)(3) Did Not Apply


In affirming Supreme Court’s determination that a stipulation/postnuptial agreement, which was not signed in open court, was not invalidated by Domestic Relations Law 236, the Second Department explained:


…[T]he Supreme Court properly determined that the postnuptial agreement was valid and that Domestic Relations Law § 236(B)(3) does not compel a different result. "An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law § 236[B][3]). A written agreement between parties made before or during a marriage which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable … . However, Domestic Relations Law § 236(B)(3) "applies only to agreements entered into outside the context of a pending judicial proceeding"… . Moreover, "[s]tipulations of settlement are favored by the courts and are not lightly cast aside" … . Thus, "[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered" (CPLR 2104…). 


Here, the record established that the parties relied on the duly executed stipulation of settlement, which was denominated as the postnuptial agreement, as a means of resolving the respondent's prior divorce action. It is undisputed that the postnuptial agreement was executed while the respondent's action was pending before the Supreme Court … . … Accordingly, the postnuptial agreement was valid, as it "was executed in the context of a pending divorce proceeding, and was subject to judicial oversight, even though it was not signed in open court" … . Rio v Rio, 1013 NY Slip Op 07023, 2nd Dept 10-30-13



Abuse Not Demonstrated/Conflicting Expert Testimony


In upholding Family Court’s determination that petitioner had not demonstrated the child (Sincerity) was abused when the child was in the custody of the mother, in the face of expert testimony the child suffered forceful blunt trauma within 24 hours of death, the Second Department explained:


The Family Court Act defines an "[a]bused child," inter alia, as "a child less than eighteen years of age whose parent or other person legally responsible for his [or her] care (i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death [or] (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death" (Family Ct Act § 1012[e][i], [ii]). The petitioner may establish a prima facie case of abuse through a method of proof "closely analogous to the negligence rule of res ipsa loquitur" (…see Family Ct Act § 1046[a][ii]…). If the petitioner establishes a prima facie case of abuse, "the burden of going forward shifts to respondents to rebut the evidence of parental culpability," although the burden of proof always remains with the petitioner … . 


The Family Court's assessment of witnesses' credibility is accorded deference and will not be disturbed unless clearly unsupported by the record … . Where there is conflicting testimony and the matter primarily turns on an assessment of witnesses' credibility, we accord great weight to the Family Court's factual findings … . * * *


The mother's expert witness, the forensic pathologist who conducted the autopsy on Sincerity's body, testified that based upon a microscopic examination of the brain injury, Sincerity sustained the brain injury a few days to one week prior to her death. Notably, the petitioner did not present evidence establishing that Sincerity was exclusively in the mother's care for a period of time greater than 24 hours before her death. Moreover, the forensic pathologist testified that she could not determine whether Sincerity died from blunt force trauma to the head or by accidental asphyxiation caused by being placed to sleep on her side and wrapped in a blanket on the mother's futon. Matter of David T…, 2013 NY Slip Op 07049, 2nd Dept 10-30-13





Abuse Was Not Demonstrated/Non-Testifying Child’s Out-Court-Statements Not Corroborated by Witnesses Who Testified About What the Child Told Them


The Third Department affirmed Family Court’s determination that the petitioner had not met its burden of proof that respondent had abused a child (Kaelynn).  The child did not testify and petitioner relied entirely on the testimony of four people to whom the child had disclosed abuse, and the observations of the child’s demeanor during the disclosures. No medical proof was submitted.  In finding the out-of-court allegations made by the child had not been corroborated, the court explained:


…[T]he record contains insufficient evidence to corroborate Kaelynn's allegations.  Significantly here, a child's uncorroborated unsworn allegations of abuse alone are insufficient to sustain a finding of abuse (see Family Ct Act § 1046 [a] [vi]) and, although "a child's out-of-court statement 'may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings'" …, there is "a threshold of reliability that the evidence must meet" … .  "Whether this corroboration requirement has been satisfied is a 'fine judgment' entrusted in the first instance to Family Court, which has the advantage of having heard and seen the various witnesses" … .


Under established law, Kaelynn's repetition of the allegations of abuse to the testifying witnesses, however consistent and believable, is not sufficient to corroborate these prior out-of-court statements … .  Petitioner presented no expert testimony to "objectively validate [Kaelynn's] account" or to "relate[] any of her past or present conduct or characteristics to the alleged sexual abuse" … .  While a police investigator who interviewed Kaelynn testified that he conducted a "truth versus lie" inquiry of her and concluded that she understood the consequences of lying, he did not explain his methodology for reaching this conclusion nor did he relate whether her account fit any profile for truthful testimony from abused children … .  Moreover, there was no physical evidence of sexual abuse …, and Kaelynn – in light of her young age — did not give sworn testimony nor was she questioned in camera … . Matter of Dezarea T …, 514693, 3rd Dept 10-31-13



Neglect Allegations Not Proven by Hearsay Testimony Based On Statements Made by Mother


The Third Department affirmed the dismissal of a neglect petition after a hearing where the only evidence was the hearsay testimony of the caseworker based on what the caseworker was told by the mother:


"To establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child's physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care"… . At a fact-finding hearing, only "competent, material and relevant evidence" may be admitted (Family Ct Act § 1046 [b] [iii]…).Here, the only proof offered by petitioner was the testimony of its caseworker, who had no personal knowledge of the events that led to the filing of the petition.  Rather, the caseworker's testimony concerning the alleged acts constituting neglect consisted entirely of what he was purportedly told by the mother.  Upon our review of the record and notwithstanding the absence of any contrary testimony, we discern no error in Family Court's determination that the testimony of the caseworker was insufficient to sustain petitioner's burden of proof… .  Matter of Lydia DD…, 515237, 3rd Dept 10-31-13





Affirmative Defense Waived by Absence from Initial Complaint May Be Included in Amended Complaint


The Second Department determined a “lack of standing” defense to a mortgage foreclosure action, although initially waived by its absence from the pleadings, could be added in an amended complaint:


Leave to amend a pleading "shall be freely given" (CPLR 3025[b]), provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit … . The decision of whether to allow an amendment is committed "almost entirely to the [motion] court's discretion" … . "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" … . 


Although …the homeowner defendants…waived the defense of lack of standing by failing to assert it as an affirmative defense in their initial answer (see CPLR 3211[e]), this defense can nevertheless be interposed by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay… .  HSBC Bank v Picarello, 2013 NY Slip Op 07011, 2nd Dept 10-30-13



Vacation of a Note of Issue Does Not Constitute Marking Off the Calendar/One Year Automatic Dismissal Did Not Apply


In affirming Supreme Court’s granting of plaintiff’s motion to restore a Labor Law action, the Second Department explained that vacating a note of issue does not constitute “marking off” or “striking” from the calendar under CPLR 3404:


CPLR 3404 states, in relevant part: 


"[a] case . . . marked off' or struck from the calendar or unanswered [*2]on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order."


The vacatur of a note of issue, as was done in this case on September 11, 2008, returns the case to pre-note of issue status. It does not constitute a marking "off" or striking the case from the court's calendar within the meaning of CPLR 3404 … . Thus, contrary to the defendant's contention, the one-year period under CPLR 3404 for automatic dismissal did not start to run on September 11, 2008, when the note of issue was vacated, and the case was not properly dismissed on that date under CPLR 3404. Accordingly, the plaintiff was not required to establish his entitlement to restoration of the action under that statute… . Montalvo v Mumpus Restorations, Inc, 2013 NY Slip Op 07017, 2nd Dept 10-3-13



Affirmative Defense of Arbitration Waived by Participation in Judicial Process


The Third Department determined that defendant waived a contractual provision requiring arbitration by participating in the judicial process:


…[W]hile defendant asserted the contractual arbitration provision as an affirmative defense in its answer, it did not move to stay the action and compel arbitration (see CPLR 7503 [a]).  Instead, it aggressively participated in the discovery process and received the benefit of extensive discovery from plaintiff, which would not otherwise have been available in arbitration … . In doing so, defendant's acceptance of the judicial forum "manifested a preference 'clearly inconsistent with . . . [a] claim that the parties were obligated to settle their differences by arbitration'" … .  Thus, we agree with Supreme Court's determination that defendant's actions resulted in a waiver of its right to compel arbitration … . Masson v Wiggins & Masson LLP…, 515340, 515427, 3rd Dept 10-31-13






Failure to File Retainer Agreement In Medical Malpractice Action Remedied Nunc Pro Tunc


The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc.  The attorney (Siegel) was the second attorney retained in the matter (to handle the trial).  After the case settled, the second attorney sued the first (Glassman) over the amount of the fee.  The second attorney (Siegel) , however, had not filed a retainer agreement and made a motion to file late: 


Every attorney practicing law in the Second Judicial Department who is retained with respect to, inter alia, a medical malpractice action must file a retainer statement with the OCA within 30 days after being retained … . Additionally, every "attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with the [OCA] a written statement of such retainer" (22 NYCRR 691.20[a][3]). Filing a retainer statement with the OCA is a condition precedent to the receipt of a fee for any case to which 22 NYCRR 691.20 applies … . Attorneys failing to correctly file a retainer statement with the OCA pursuant to 22 NYCRR 691.20 are precluded from asserting breach of contract causes of action for outstanding fees, and are limited to suit in quantum meruit … . However, a late filing of a retainer statement is sufficient to preserve an attorney's right to recover fees where that attorney first obtains leave of court to file the statement nunc pro tunc … . 


In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion … . Here, the reason for the delay, in effect, Siegel's law office failure, was an isolated, inadvertent mistake … and there is no prejudice to Glassman… . Siracusa v Fitterman, 2013 NY slip Op 07025, 2nd Dept 10-3-13






No Ambiguity in Contract/No Resort to Extrinsic Evidence


In affirming the grant of defendant’s motion for summary judgment in a contract action, the Second Department explained the analytical criteria concerning whether extrinsic evidence should be considered:


"[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" … . Thus, "before looking to evidence of what was in the parties' minds, a court must give due weight to what was in their contract" … . "A contract should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases" … . "Whether a contract is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous" … . "Moreover, courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing" … . 


Here, the plaintiff failed to show any ambiguity in the subject contract that would permit consideration of the proffered extrinsic evidence of an alleged oral agreement to clarify the meaning of [a] term … .  Outstanding Transp Inc v Interagency Council of Mental Retardation & Dev Disabilities, Inc, 2013 NY Slip Op 07020, 10-30-13






Punitive Damages Not Available in Contract Action Absent Independent Tort


The Third Department determined plaintiff had not pled a tort cause of action independent of the breach of contract cause of action and therefore was not entitled to punitive damages.  The plaintiff had alleged defendant insurance company engaged in bad faith by failing to promptly investigate his no-fault claim and failing to renew his insurance policy:


Although "damages arising from the breach of a contract will ordinarily be limited to the contract damages necessary to redress the private wrong, . . . punitive damages may be recoverable if necessary to vindicate a public right" …, but only where a defendant's conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public … .  Thus, "[w]here a lawsuit has its genesis in the contractual relationship between the parties, the threshold task for a court considering [a] defendant's motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract" … .  In this regard, a "defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations" … .  Nonetheless, "where a party is merely seeking to enforce its bargain, a tort claim will not lie" … . 


Here, plaintiff seeks an award of punitive damages based upon his allegation that defendant engaged in "bad faith tactics" by failing to promptly investigate his no-fault claim and failing to renew his insurance policy.  Such claim does not allege a breach of duty distinct from defendant's contractual obligations. Further, while plaintiff alleged a violation of Insurance Law § 2601 based upon defendant's purported failure to timely investigate his no-fault claim, New York does not recognize a private cause of action under that statute… . Dinstber v Allstate Insurance Company, 515653, 3rd Dept 10-31-13






Remedies Re: Purchase and Sale of Furniture Controlled by UCC


In affirming the grant of summary judgment on a breach of contract cause of action  regarding the purchase of furniture accepted by the defendant, the Third Department explained the relevant law under the UCC:


Because the transaction predominantly involved the sale of goods, the parties' rights and remedies are governed by UCC article 2 … .  The parties' oral contract is enforceable because both parties acknowledge the existence of that contract (see UCC 2-201 [3] [b]).  The UCC provides that acceptance of goods takes place, among other ways, when the buyer fails to reject them after having a reasonable opportunity to inspect them (see UCC 2-606


[1] [b]…).  A buyer must pay for accepted goods at the contract rate (see UCC 2-607 [1]), but may eliminate or diminish the amount claimed by a seller by asserting a valid counterclaim for breach of the sales agreement … .  Where a seller has allegedly breached the contract, a buyer who has accepted the goods "must within a reasonable time after he [or she] discovers or should have discovered any breach notify the seller of breach or be barred from any remedy" (UCC 2-607 [3] [a]…).  


Plaintiff met its burden on the summary judgment motion by submitting proof that it delivered and installed the furniture, defendant accepted the furniture by retaining it without attempting to return it, and defendant only paid the $13,250 down payment on the $44,330.21 contract… .  Accent Commercial Furniture Inc v P. Schneider & Associates, PLLC, 515940, 3rd Dept 10-31-13






Effect of Ambiguity in Easement Explained


In finding there were triable issues of fact, the Second Department explained the effect of ambiguity in the wording of easements:


The extent of an easement claimed under a grant is generally determined by the language used in the grant … . However, where the language of the grant is ambiguous or unclear, the court will consider surrounding circumstances tending to show the grantor's intent in creating the easement … . Here, the language of the grant creating an easement in favor of the Clemensens' property for "ingress and egress over the continuation of [the] private roadway as now or hereinafter located to the Hudson River" is ambiguous.  Menucha of Nyack, LLC v Fisher, 2013 NY Slip Op 07015, 2nd Dept 10-30-13






Administrative Review of a Rent Overcharge Petition Should Have Been Granted; Allegations of Fraud Overcame Four-Year Statute of Limitations


The First Department, over a dissent, reversed Supreme Court’s dismissal of an Article 78 petition for administrative review of the denial of petitioner’s rent overcharge complaint by the NYS Division of Housing and Community Renewal (DHCR).  Petitioner’s rent was increased from $572 to $1750 a month.  To justify that adjustment, the landlord was required to have spent $39,000 improving the apartment.  Petitioner submitted evidence that supported her position the landlord spent very little on the improvements.  The landlord, however, produced no evidence of what was actually spent and, therefore, there was no basis in the record for the DHCR’s determination that the $1750 rental amount was justified.  The First Department noted that the four-year statute of limitations did not apply because there was substantial evidence of fraud:


Under the standard set forth in Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin. (15 NY3d 358 [2010]), petitioner made a sufficient showing of fraud to require DHCR to investigate the legality of the base date rent … . Although the "look-back" for an apartment's rental history is ordinarily limited to the four-year period preceding the date that the petitioner files the complaint …, where fraud is alleged and there is "substantial indicia of fraud on the record," DHCR is obliged to investigate whether the base date rate was legal and "act[s] arbitrarily and capriciously in failing to meet that obligation"… . 


Thus, we find that DHCR's disparate treatment of the parties' claims was arbitrary. While the agency made no attempt to evaluate the legitimacy of petitioner's claims despite their consistency and degree of detail, DHCR credited the owner's implicit claim that it spent $39,000 to renovate the apartment simply because "it would not be difficult for anyone with any experience in this industry to believe it could have taken $39,000 … to update the appearance and equipment in an apartment which had not changed hands for thirty-two years." This justification for the agency's determination is irrational. Finding that the owner "could have" spent $39,000 …, where the owner never submitted any evidence controverting petitioner's claims is not equivalent to finding that the owner actually made improvements costing that much. Accordingly, this matter should be remanded to DHCR to give the parties the opportunity to present evidence in connection with the legality of the base rate rent. Matter of Boyd v NYS Division of Housing and Community Renewal…, 2013 NY Slip Op 06966, 1st Dept 10-29-13






Decedent’s Acknowledgment of Paternity of Nonmarital Child Precluded Objections to Distribution by Sibling


In finding that the decedent’s brother did not have standing to raise objections to the distribution of an estate because the decedent had sufficiently acknowledged paternity of at least one nonmarital child, the Second Department wrote:


…[T]he appellant, in his capacity as a sibling of the decedent, had no standing to raise objections unless he could be considered a istribute of the decedent’s estate. Siblings, who are defined as issue of the decedent’s parents, are only istributes if the decedent dies without issue (see EPTL 4-1.1[a][3]). If the decedent here was survived by any issue, the appellant, in his capacity as a sibling of the decedent, does not have standing as a person interested in the estate (see SCPA 103[39]). 


Since the decedent died after April 28, 2010, EPTL 4-1.2, as amended in 2010, is applicable (see L 2010, ch 64). That provision states, among other things, that a nonmarital child may inherit from his or her father and paternal kindred, if paternity was established during the decedent’s lifetime or “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own” (emphasis added). The affidavits in this case demonstrated that the decedent had at least one nonmarital child whom he openly and notoriously acknowledged as his own. As this Court noted …, “[t]o establish an open and notorious acknowledgment of paternity, there is no requirement that the putative father disclose paternity to all his friends and relatives. An acknowledgment of paternity in the community in which the child lives is sufficient.” Matter of Reape, 2013 NY Slip Op 07048, 2nd Dept 10-30-13




(Harmless) Error for Prosecutor to Ask If Other Witnesses’ Testimony Was Untrue and to Ask About Defendant’s Silence Upon Apprehension


The Second Department noted that it was error for the prosecutor to ask defendant on cross-examination whether testimony which contradicted defendant’s was untrue, and to ask about his silence after he was apprehended. The errors were deemed harmless, however:


The defendant correctly contends that the prosecutor improperly asked him on cross-examination whether a prosecution witness's testimony was "not true" because it contradicted the defendant's recollection of events… . We also agree with the defendant that the prosecutor improperly cross-examined him about his silence when he was apprehended by the police …. However, under the facts of this case, the errors were harmless and did not deprive the defendant of a fair trial … . Indeed, with respect to the questions concerning the defendant's silence after being apprehended, the trial court alleviated any prejudice by sustaining defense counsel's objections to the two offending questions, striking the second question and answer from the record, and directing the jury to disregard the second question and answer. People v Cosme, 2013 NY Slip Op 07057, 2nd Dept 10-30-13



Judge’s Failure to Comply with CPL Re: Response to Jury Note Required Reversal


The Second Department held that the trial court’s failure to comply with Criminal Procedure Law 310.10 with respect to responding to a note from the jury concerning accomplice liability required reversal (despite the absence of an objection):


A new trial is required due to the trial court's failure to meaningfully comply with CPL 310.10. During deliberations, the jury sent four notes to the trial court. The record reflects that, on the fourth occasion, the court did not disclose the contents of the note to the prosecutor and defense counsel until serially reading, and immediately responding to, the questions contained therein in the presence of the jury. All three of the questions in this note concerned the subject of accomplice liability. 


The jury's requests for further explanation of the meaning of accomplice liability within the context of this case required a "substantive response”, rather than a merely "ministerial" one … . As such, the trial court's failure to afford defense counsel "the opportunity to provide suggestions" … regarding the court's responses to the jury's questions constituted "a mode of proceedings error . . . requiring reversal" …, despite defense counsel's failure to object to the trial court's handling of the jury's fourth note … .  People v Gadson, 2013 NY Slip Op 07059, 2nd Dept 10-30-13



Admission of Cell-Phone-Location Data Did Not Required Frye Hearing/Prior Crime Evidence Properly Admitted to Prove Defendant’s Identity as Perpetrator of Charged Crime


In a full-fledged opinion by Justice Mastro, the Second Department affirmed the defendant’s murder conviction.  One piece of evidence against the defendant was location-data based on the use of defendant’s cell phone.  The Second Department determined there was no need for a Frye hearing before expert testimony about cell-phone location was presented because no novel scientific theory was involved. The Second Department also determined prior crimes demonstrating a similar unique pattern to that of the charged offense were admissible to prove identity.  With respect to some of the prior crime evidence, which did not sufficiently match the pattern of the charged crime to be admissible on the issue of identity, the erroneous admission of that evidence was deemed harmless. In discussing the prior-crime evidence, the court wrote:


In this case, the evidence of other crimes was offered to establish the defendant's identity as [the victim’s] killer. Such evidence may be admitted if, as a threshold matter, the defendant's identity is in issue and is not "conclusively established" by other evidence …, and it is demonstrated by clear and convincing evidence that the defendant is the same person who committed the other crimes …. Here, it cannot be said that the defendant's identity as the killer was conclusively established so as to warrant the preclusion of other crimes evidence to prove identity. Indeed, while the evidence that the defendant was the person who killed [the victim] was compelling, it was also entirely circumstantial. Moreover, the defendant vigorously contested the identification issue and presented as a defense the assertion that his employer… had been the actual killer. Thus, the identity of the murderer was a disputed issue in the case, and any admissible evidence tending to establish identification was relevant… . People v Littlejohn, 2013 NY Slip Op 07063, 2nd Dept 10-30-13



Defense Counsel’s Statement Defendant “Most Likely” Would Not Be Deported Based on a Guilty Plea Did Not Amount to Ineffective Assistance


The Third Department determined that defense counsel’s statement that the defendant “most likely” would not be deported based on his guilty plea to a misdemeanor did not constitute ineffective assistance. Defendant had subsequently been detained by immigration officials for deportation:


…[D]efendant was required to establish both 'that counsel's performance was deficient' and 'that the deficient performance prejudiced the defense'" … .  Here, the record indeed makes clear that defendant was concerned about the possibility of being deported.  The record does not, however, establish that defendant was given erroneous advice regarding the potential immigration consequences associated with his guilty plea. People v Obeya, 105313, 3rd Dept 10-31-13



Upward Departure in SORA Proceeding Affirmed


The Third Department affirmed County Court’s upward adjustment of defendant’s sex offender status from a presumptive level I to a level III.  Defendant had pled guilty to a course of sexual conduct with a young girl entrusted to his care spanning five years:


"An upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence" … .  The circumstances underlying these charges as well as defendant's past misconduct may be considered within the context of this proceeding … .  Here, additional factors established by the record, not adequately taken into account by the guidelines, included defendant's disregard and abuse of other children even younger than the victim who were also entrusted to his care, his mental instabilities, and the repeated and lengthy nature of his conduct toward the victim.  Accordingly, we find that the record sufficiently supports County Court's upward departure from the presumptive risk level… .  People v Muirhead, 511847, 3rd Dept 10-31-13







Curtailing of Defense Counsel’s Summation Argument Re: Lack of Motive Was (Harmless) Error


Although the Second Department found the error harmless, the court noted that the trial court improperly curtailed defense counsel’s summation argument concerning the lack of a motive.  People v Papas, 2013 NY Slip Op 07065, 2nd Dept 10-30-13






Anders Brief Rejected


In finding an “Anders” brief insufficient, the Second Department wrote:


The brief submitted by the appellant's assigned counsel pursuant to Anders v California (386 US 738) is deficient because it fails to adequately recite the underlying facts in the case and analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted "as an active advocate on behalf of his . . . client" …, we must assign new counsel to represent the appellant… . People v Francis, 2013 NY Slip Op 07058, 2nd Dept 10-30-13




People Could Not Appeal Judge’s Vacation of Defendant’s Conviction and Sentencing as a Youthful Offender---No Statute Allows Such an Appeal


In dismissing the People’s appeal, the Second Department explained that there was no statutory right for an appeal of the judge’s vacating defendant’s conviction and sentencing defendant as a youthful offender.  The only vehicle for the People was an article 78 prohibition proceeding”


The Criminal Procedure Law expressly enumerates and describes the orders appealable by the People to the Appellate Division in a criminal case (see CPL 450.20…), and "[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute" … . As no statute authorizes an appeal by the People to the Appellate Division from an order, in effect, vacating a conviction and adjudicating a defendant a youthful offender (see CPL 450.20), the People's appeal must be dismissed …. The proper vehicle for challenging the Supreme Court's determination is a CPLR article 78 proceeding in the nature of prohibition… . People v Tony C, 2013 NY Slip Op 07055, 2nd Dept 10-30-13






Plaintiff’s Failure to Replace Manhole Cover Was Sole Proximate Cause of Injury


Over a dissent, the Second Department determined plaintiff’s failure to replace a manhole cover was the sole proximate cause of his injury:


As to Labor Law § 240(1), which imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, liability would attach where a violation of that duty proximately caused injuries … . Conversely, where a plaintiff's own actions are the sole proximate cause of the accident or injury, no liability attaches under the statute … . Where a plaintiff has an adequate safety device readily available that would have prevented the accident, and for no good reason chooses not to use it, Labor Law § 240(1) does not apply … . 


Here, plaintiff was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available. He disregarded his supervisor's explicit instruction given that day to replace the cover before dismantling the enclosure. Plaintiff has not afforded any good reason why he started taking apart the enclosure before ascertaining whether the cover was in place. Having just emerged from it, plaintiff should have known that the manhole was still open, and covering it at that time would have avoided the accident. Barreto v Metropolitan Transp Auth, 2013 NY Slip Op 07118, 10-30-13




Evidence of Availability of Ladders Insufficient to Defeat Summary Judgment in Favor of Plaintiff/Plaintiff Fell While Working Standing on Milk Crates


Defendant’s claim that ladders were available did defeat summary judgment in favor of plaintiff who fell while standing on milk crates to work:


Plaintiff alleged that prior to performing his work he unsuccessfully looked for a ladder to use and was directed by the acting foreman to use the milk crates. 


Under the circumstances, plaintiff established his entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim. The record shows that plaintiff's accident involved an elevation-related risk and his injuries were proximately caused by the failure to provide him with proper protection as required by section 240(1) … . Defendants' claim that ladders were available on the site is conclusory and fails to raise an issue of fact … . The sole evidentiary support for defendants' argument was an affidavit from an individual who claimed …that there more than enough ladders available for plaintiff's work. Even if admissible, the affidavit failed to raise a triable issue as to whether plaintiff was the sole proximate cause of his injuries since it does not indicate that plaintiff knew that there were ladders available at the site and that he was expected to use them… . Mutadir v 80-90 Maiden Lane Del LLC, 2013 NY Slip Op 07127, 2nd Dept 10-30-13





False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice


In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:


Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has "a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others" (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff's claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because "[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice"… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13






No Fiduciary Duty Re: Purchase of One Shareholder’s Stock by Another in a Close Corporation


In affirming Supreme Court’s dismissal of a cause of action for breach of fiduciary duty based on one shareholder’s purchase of another shareholder’s stock in a close corporation, the Second Department noted that the status of an officer, director or shareholder of a close corporation does not, without more, create a fiduciary relationship:


"The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct" … . "A fiduciary relationship exists between two persons when one of them is under a duty to act for . . . the benefit of another upon matters within the scope of the relation" … 


Contrary to the plaintiff's contention, [the purchaser’s] status as an officer, director, or shareholder of a close corporation "does not, by itself, create a fiduciary relationship as to his individual purchase of [another shareholder's] stock" … .  Varveris v Zacharakos, 2013 NY Slip Op 07028, 2nd Dept 10-30-13






No Justification for Vacation of Arbitration Award---Strict Standard Applies


The Second Department determined Supreme Court erred in vacating an arbitration award in a case involving an uninsured motorist endorsement. Petitioner had won a $25,000 (default) civil judgment against the driver, but in the arbitration under the uninsured motorist endorsement, the arbitrator awarded $10,000:


The Supreme Court erred in vacating the arbitration award. "[J]udicial review of arbitration awards is extremely limited" … . " An arbitration award must be upheld when the arbitrator "offer[s] even a barely colorable justification for the outcome reached"'" … . In addition, an "arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice" … . "An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be" … . Insofar as is relevant to the instant proceeding, pursuant to CPLR 7511(b)(1)(iii), a court may only vacate an arbitration award if the rights of the party moving to vacate the award were prejudiced by the arbitrator "exceed[ing] his [or her] power or so imperfectly execut[ing] it that a final and definite award upon the subject matter submitted was not made." "Such an excess of power occurs only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" … . 


Here, the terms of the SUM endorsement clearly provide that any sum [the insurer] was obligated to pay the petitioner, which the petitioner was legally entitled to recover, was subject to arbitration, and that the parties agreed to be bound by the arbitrator's award.  Matter of Aftor v Geico Ins Co, 2013 NY Slip Op 07032, 2nd Dept 10-30-13






Failure to Serve Superintendent of Schools in Accordance with RPTL Required Dismissal of Property Tax Certiorari Proceeding


The Second Department determined Supreme Court properly vacated an order which directed the school district to repay back taxes for 2006 through 2010 on the ground that the superintendent of schools was not properly served in the tax certiorari proceeding:


It is undisputed that the petitioner failed to comply with the requirements of RPTL 708(3) which provide, in pertinent part, that in a tax certiorari proceeding, within 10 days after service upon the Assessor, "one copy of the petition and notice shall be mailed . . . to the superintendent of schools of any school district within which any of part of the real property on which the assessment to be reviewed is located." RPTL 708(3) further provides that "[f]ailure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown." RPTL 708(3) requires a petitioner to show good cause to excuse its failure to notify the appropriate school district, and not merely to demonstrate the absence of prejudice to that school district … . Contrary to the petitioner's contention, it failed to establish good cause for its failure to serve the petitions on the School District … . Accordingly, the Supreme Court providently exercised its discretion in denying the petitioner's cross motion [for leave to make late service] (see CPLR 2004, 2005; RPTL 708[3]…).



Petitioner Was Domiciled in New York at Time of Stock Sale/Taxes Owed to New York


In affirming the Tax Appeals Tribunal’s determination that petitioner was domiciled in New York when she sold shares of stock resulting in $2 million in capital gains, the Third Department explained the relevant principles:



…[A]n individual is a resident of this state for income tax purposes when that individual is domiciled in New York (see Tax Law § 605 [b] [1] [A]).   A domicile "is the place which an individual intends to be such individual's permanent home" (20 NYCRR 105.20 [d] [1]) and, "once established[, a domicile] continues until the individual in question moves to a new location with the bona fide intention of making such individual's fixed and permanent home there" (20 NYCRR 105.20 [d] [2]; see Matter of Newcomb, 192 NY 238, 250 [1980]).  "Domicile is established by physical presence and intent"… .  "No single factor is controlling and the unique facts and circumstances of each case must be closely considered" … .  "The fact that a person registers and votes in one place is important but not necessarily conclusive, especially if the facts indicate that such individual did this merely to escape taxation" (20 NYCRR 105.20 [d] [2]). The party seeking to establish a change in domicile must carry the burden of doing so by clear and convincing evidence … .  Upon review, this Court will defer to the Tribunal's determinations regarding witness credibility and the weight to be accorded the evidence …, and the Tribunal's determination will be confirmed if it is "rationally based upon and supported by substantial evidence" … . Matter of Ingle v Tax Tribunal of the Department of Taxation…, 514245 3rd Dept 10-31-13






Seizure of Property for Construction of Firehouse Okay


The Second Department affirmed the eminent-domain seizure of petitioner’s property (under EDPL article 2) for construction of a firehouse:


"The principal purpose of EDPL article 2 is to insure that an agency does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose" … . Judicial review of a condemnation determination is limited to whether the proceeding was constitutional, whether the proposed acquisition is within the condemnor's statutory jurisdiction or authority, whether the determination and findings were made in accordance with the procedures set forth in EDPL article 2 and the State Environmental Quality Review Act, and whether a public use, benefit, or purpose will be served by the proposed acquisition (see EDPL 207[C]…). Here, the petitioner has failed to demonstrate any basis for setting aside the Common Council's determination. 


Contrary to the petitioner's contention, the record shows that the determination to condemn a portion of its property is rationally related to the stated public purpose and that such public purpose is dominant … . " [T]he fact that an intended public use confers incidental benefit to private persons or entities will not invalidate the condemnation'" … . Matter of Peekskill Hgts Inc v City of Peekskill Common Council, 2013 NY Slip Op 07046, 2nd Dept 10-30-13







Town Could Not Be Liable for Discretionary Judgment Made by 


The Third Department determined that an EMT employed by the town made a discretionary judgment that plaintiff’s decedent did not need life support during transport to the hospital.  Plaintiff’s decedent’s condition worsened during the trip and he died a week later.  Because the EMT’s judgment was discretionary, the town could not be held liable:


The Court of Appeals recently held that when a municipality provides emergency first responder services in response to a 911 call for assistance, as the Town did here by dispatching its paramedic, "it performs a governmental function[, rather than a proprietary one,] and cannot be held liable unless it owed a 'special duty' to the injured party" … .  A plaintiff generally must first establish the existence of a special duty before it becomes necessary for the court to address whether the governmental function immunity defense applies …, but the special relationship issue is irrelevant where the government action in question is discretionary … .  "Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" … .  Discretionary authority involves "the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" … .


Although the record here at least arguably contains factual issues concerning whether the Town voluntarily assumed a duty to decedent or plaintiff, thereby creating a special duty …, we need not address that question because the Town's actions were discretionary.  The Town's paramedic exercised his discretion in making medical determinations concerning decedent's condition … . DiMeo… v Rotterdam Emergency Medical Services, Inc, 516264, 3rd Dept 10-31-13





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