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October Page III

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


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Search of Home for Weapon Not Justified by Exigent Circumstances


The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed the appellate division, finding that exigent circumstances did not justify the search for and seizure of weapon after the suspects and all members of the household were in one room of the home under police supervision.  The police responded to gunfire, saw one of the suspects with a firearm, and used force to gain entry to the apartment into which the suspects fled:


"[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual's home is per se unreasonable and hence unconstitutional" ... . One exception, commonly referred to as the "exigent circumstances" exception, dictates that police may act without a warrant where they possess probable cause to search but "urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction" ... . Even in such cases, however, "the scope of the conduct thus sanctioned is strictly limited by the necessities of the circumstances in which it arises" ... . The People have the burden of establishing that the exigencies of the situation justified the warrantless search ... .


In this instance, the People failed to meet that burden. There is no record support for the Appellate Division's conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police "were in complete control of the house" and "[a]ll occupants were out of commission" ... . At that point, contrary to the People's contention, there was no danger that defendant would dispose of or destroy the weapon ...nor was there any danger to the public or the police ... .  Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view ... the police were required to obtain a warrant prior to searching the box. People v Jenkins, 2014 NY Slip Op 07007, Ct.App. 10-16-14





Resentencing Under Drug Law Reform Act Is Available to a Persistent Felony Offender As Long As the Offender Has Not Been Convicted of Any of the Serious Offenses Enumerated in Correction Law 803


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, resolved a conflict among the appellate division departments about the applicability of the Drug Law Reform Act (DLRA) to persistent felony offenders.  The court determined that the resentencing allowed by the DLRA for certain drug-related offenses is available to persistent felony offenders who have not been convicted of any of the serious crimes enumerated in Correction Law 803:


The Drug Law Reform Act of 2009 (see L 2009, ch 56, § 1, hereinafter "2009 DLRA") provides remedial resentencing to low-level non-violent felony drug offenders who meet various basic eligibility requirements (see CPL 440.46 [1]). The 2009 DLRA, however, denies resentencing to any offender who is serving a sentence for an "exclusion offense," which is, among other things, an "offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]" (CPL 440.46 [5]; CPL 440.46 [5] [a] [ii]). Correction Law § 803 (1) (d) (ii), in turn, makes a merit time allowance unavailable to an offender who is serving a sentence imposed for any of the violent or sexual crimes specifically enumerated in that statute, without regard to the offender's predicate sentencing status (see Correction Law § 803 [1] [d] [ii]). That statute also prevents any offender serving a sentence "authorized for an A-I felony offense" from receiving a merit time allowance (id.), thereby denying such an allowance to anyone who has been sentenced as a persistent felony offender (see Penal Law §§ 70.02 [2] [a]; 70.02 [3] [a] [i]; 70.10 [2]).


In interpreting the language of these interlocking statutes, the Departments of the Appellate Division are divided over the proper answer to the following question: does the DLRA resentencing exclusion apply to all offenders who are ineligible to receive a merit time allowance, including those who cannot receive those allowances solely by virtue of their recidivist sentencing adjudications; or, to the contrary, does it apply only to offenders who have been convicted of certain serious crimes that are specifically listed in Correction Law § 803 (1) (d) (ii) and eliminate the possibility of a merit time allowance regardless of an offender's recidivist sentencing adjudication? We hold that the exclusion applies only to offenders who have been convicted of one or more of the serious crimes that automatically render merit time allowances unavailable under Correction Law § 803 (1) (d) (ii), and that therefore an offender who has no such conviction may be resentenced, notwithstanding his or her adjudication as a persistent felony offender. People v Coleman, 2014 NY Slip Op 07010, Ct.App. 10-16-2014




Speedy Trial Clock Starts On the Day the People's Application for Leave to Appeal to the Court of Appeals Is Denied, Notwithstanding Adjournments Granted in the Lower Court


The Court of Appeals determined that the speedy trial clock started running when the People's application for leave to appeal to the Court of Appeals was denied.  The time attributable to the lower court's adjournment while the application to the Court of Appeals was pending should not have been excluded from the speedy trial calculation:


The parties do not dispute that under CPL 30.30 (5) (a) a new criminal action commenced when a Judge of this Court denied the People leave to appeal from the Appellate Term's order. The People point to the fact that, under the Criminal Procedure Law, "[i]n computing the time within which the people must be ready for trial . . . a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . appeals; . . . and the period during which such matters are under consideration by the court" must be excluded (CPL 30.30 [4] [a] [emphasis added]).


The People contend therefore that the period from May 10, 2010 to August 23, 2010 is excludable, relying on People v Vukel (263 AD2d 416 [1st Dept 1999], lv denied 94 NY2d 830 [1999]), which held that when a trial court orders an adjournment for control purposes because of the pendency of a defendant's application for leave to appeal to this Court, the entire period of the adjournment is excludable under CPL 30.30 (4) (a), as time resulting from the appeal. In Vukel, the Appellate Division rejected the argument that the People have "an obligation to advance the case to an earlier date upon receiving the certificate denying leave" (id. at 417).


The mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30 (4) (a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of our Court has denied leave to appeal, without consequence under CPL 30.30. Such a rule would be inconsistent with "the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction" ... . To the extent Vukel holds otherwise, it should not be followed. People v Wells, 2014 NY Slip Op 07012, Ct.App. 10-16-14




Application of the Emergency Doctrine Presented a Mixed Question of Law and Fact which Could Not Be Reviewed by the Court of Appeals


The Court of Appeals determined that the application of the "emergency doctrine" to justify the warrantless search for and seizure of a weapon was a mixed question of law and fact which was not reviewable by the Court of Appeals.  The police responded to a call indicating the defendant had shot himself in the hand.  After the defendant had been frisked and while he his wound was being treated, police officers searched the backyard and found a weapon. The appellate division held that the search was justified by the officers' concern that the children in the house might come across the weapon.  The dissenting judge granted leave to appeal.  The Court of Appeals explained when a mixed question of law and fact is beyond that court's review:


Application of the "emergency doctrine" involves a mixed question of law and fact that is beyond this Court's review so long as there is record support for the findings of the courts below ... . The Appellate Division majority and dissent both applied the test set forth in People v Mitchell (39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and reached conflicting conclusions as to when the emergency ceased. Because there is record support for the majority's conclusion that the search was lawful under the emergency exception, "'any further review is beyond this Court's jurisdiction'" ... . People v Rossi, 2014 NY Slip Op 07006, Ct.App. 10-16-14






County Can Charge Towns the Amounts Paid by the County On Behalf of Community College Students Residing in the Towns, Even Though the State, by Statute, Undertook the Responsibility to Reimburse the Counties for those Expenses---One Statute Does Not Impliedly Repeal Another Unless It Is Impossible to Give Effect to Both


The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the amounts paid by a county for its residents' attendance at an out-of-county community college can be charged to the towns within the county where the students reside. The court further held that the amounts owed by the towns to the county could be taken by the county from a town's share of county sales tax revenue.  The county was authorized to charge the towns, even though the state, by statute, had taken on the responsibility for reimbursing the counties.  The state's obligation in that regard had not been funded for years. The state's failure to fund its obligation, however, did not negate the statute which allowed the county to charge the towns:


According to the financing system established by the Education Law, funding for community colleges is derived from the State, the local sponsor and the individual students (see Education Law §§ 6304 [1][a], [1][c], [1][d]). The local sponsor's portion of the financial burden depends upon where its students reside. For "resident" students — generally those who reside within the particular geographic region served by the local sponsor — the local sponsor is responsible for a portion of the community college's operating and capital costs (see Education Law §§ 6301 [5]; 6304 [1]). For nonresident students — those who live within New York State, but outside of the region where the community college is located — the local sponsor is permitted to charge back a portion of those operating costs to the students' county of residence (see Education Law § 6305 [2]). The county, in turn, is authorized to "charge back such amounts in whole or in part to the cities and towns in the county" where such nonresident students reside (Education Law § 6305 [5]). * * *


It is true that the State's reimbursement obligation is phrased in mandatory terms (see Education Law § 6305 [10]). However, there is nothing in the statute that expressly repeals the County's ability to seek chargebacks from the towns. Nor is there any indication that the legislature intended to impliedly repeal section 6305 (5). "Generally, a statute is deemed impliedly repealed by another statute only if the two are in such conflict that it is impossible to give some effect to both. If a reasonable field of operation can be found for each statute, that construction should be adopted" ... . Here, the statutes are not in irreconcilable conflict, but can be harmonized. The community college funding scheme is clearly intended to provide the counties with reimbursement. That goal can either be accomplished using funds from the State (if available) or, in the alternative, from the local municipalities. The effect of the State's failure to fund its reimbursement obligation is not the imposition of an additional expense upon the counties — especially where the statute continues to authorize chargebacks to the towns and cities for all community colleges. In other words, the State's nonperformance does not change the rights and obligations as between the County and the Town. Rather, the State's reimbursement obligation was superseded when the legislature failed, in the course of the budgeting process, to appropriate the required funding ... . The County was then free to look to the Town for reimbursement under Education Law § 6305 (5). Matter of Town of N Hempstead v County of Nassau, 2014 NY Slip Op 07009, Ct.App. 10-16-14





Less Stringent "Area Variance" Criteria, Rather than the More Stringent "Use Variance" Criteria, Properly Applied to a Restaurant's Request for a Variance Re: Off-Street Parking Requirements


The Court of Appeals, in a full-fledged opinion by Judge Read, determined when "area variance," as opposed to "use variance," criteria should be applied to off-street parking requirements.  The zoning board had allowed a variance from the off-street parking requirements for a restaurant under the less stringent "area variance" standard.  The petitioner, a neighboring property owner, sought a declaration that the more stringent "use variance" criteria should be applied.  The Court of Appeals disagreed with the petitioner and affirmed:


...[A]s of July 1, 1994, General City Law § 81-b (1) has defined a "use variance" as an authorization for the use of land for a purpose "otherwise not allowed or . . . prohibited" in the zoning district; and an "area variance" as an authorization to use land "in a manner which is not allowed by the dimensional or physical requirements" of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property's area may be developed, akin to minimum lot size or set-back restrictions. Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 267-b at 294-295).


In this case, [the restaurant] applied for an off-street parking variance in connection with a change in the storefront's use from a retail gift shop to a restaurant. Because both uses are permitted in the zoning district, the ZBA properly considered the application as a request for an area variance. Matter of Colin Realty Co LLC v Town of N Hempstead, 2014 NY Slip Op 07008, Ct.App. 10-16-14







Evidence Did Not "Utterly Refute" Plaintiff's Allegation He Had No Notice Individual Defendant Was Acting as an Agent for a Disclosed Corporate Principal---Motion to Dismiss Action Against Individual Defendant Pursuant to CPLR 3211 Should Not Have Been Granted


The Third Department determined Supreme Court should not have granted individual defendant's (Valentino's) motion to dismiss pursuant to CPLR 3211 because the evidence did not "utterly refute" plaintiff's claim he had no notice Valentino was acting as an agent of a disclosed corporate principal when a building contract was executed:


"It is well settled that an individual who signs a contract as an agent for an entity will be held personally liable on the contract if the agency relationship is not disclosed" ... . Whether or not a principal is disclosed depends upon whether, at the time of the underlying transaction, the other party to the contract had notice that the agent was acting for a principal and knew of the principal's identity ... .


Here, the contract identified J & J Enterprises as the builder, but there is no reference in the contract or in the accompanying specifications sheet to the status of J & J Enterprises as the trade name of a corporation or to Valentino's status as an officer or representative of any such corporation.  Winer v Valentino, 2014 NY Slip Op 07050, 3rd Dept 10-16-14





Verdict Finding Defendant's Negligence Was Not the Proximate Cause of the Injury Set Aside as Against the Weight of the Evidence---Criteria Explained


The Second Department affirmed the setting aside of a liability verdict as against the weight of the evidence.  The jury had found the defendant negligent but determined the negligence was not the proximate cause of the injury. The court explained the relevant criteria:


A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence ... . A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause ... .


Under the circumstances of this case, the jury's finding that the defendants were negligent but that their negligence was not a substantial factor in causing the subject accident was not supported by a fair interpretation of the evidence ... . Accordingly, the Supreme Court properly granted the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. Batista v Bogopa Serv Corp, 2014 NY Slip Op 06933, 2nd Dept 10-15-14




Dismissal Under Doctrine of Res Judicata Affirmed


The Second Department affirmed the dismissal of the complaint under the doctrine of res judicata and succinctly explained the underlying principles:


"Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" ... . "The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims" ... . Here, the plaintiff's claims ... arose out of the same series of transactions as those at issue in a prior action ..., and were, or could have been, raised in that prior action, which was disposed of on the merits in an order of the Supreme Court ... . Harris v City of New York, 2014 NY Slip Op 06945, 2nd Dept 10-15-14




Stipulation of Discontinuance With Prejudice in Federal Action Did Not Bar State Action Under the Doctrine of Res Judicata


The Second Department determined a stipulation of discontinuance (with prejudice) of a federal action did not preclude the state action under the doctrine of res judicata.  The court explained the narrow application of "with prejudice" in this context:


"A stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits" ... . "The general rule is that a stipulation of discontinuance with prejudice is afforded res judicata effect and will bar litigation of the discontinued causes of action" ... . But the language "with prejudice" is narrowly interpreted when the interests of justice or the particular equities involved warrant such an approach ... .


As the Supreme Court found, the gravamen of [plaintiff's] federal complaint was civil RICO claims. The complaint in the instant action, however, does not allege that [defendant] violated a substantive RICO statute ... . "[E]stablishing a RICO violation requires more than proof of common-law fraud or conspiracy to defraud" ... . Furthermore, the particular equities involved require that the phrase "with prejudice" in the stipulation of discontinuance be narrowly construed so as not to bar the continued litigation of the instant action ... . The record demonstrates that the instant action continued to be actively litigated contemporaneously with the voluntary discontinuance of [the] federal action. The record supports a determination that [plaintiff] never abandoned litigation of his state action and that [defendant] was aware of this fact. Accordingly, the Supreme Court properly determined that the voluntary discontinuance with prejudice by [plaintiff] of his federal action did not operate as a res judicata bar to the litigation of his instant action. Klein v Gutman, 2014 NY Slip Op 06949, 2nd Dept 10-15-14




Criteria for Setting Aside a Verdict As a Matter of Law and As Against the Weight of the Evidence Described


In affirming the denial of motions to set aside the verdict in a medical malpractice case, the Second Department explained the criteria for setting aside a verdict as a matter of law and as against the weight of the evidence:


"A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party" ... . "In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'" ... . * * *


Furthermore, "[a] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence" ... . " Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors'" ... . We accord deference to the credibility determinations of the jury as factfinder, which had the opportunity to see and hear the witnesses ... . Applying these principles to the facts of this case, the jury's determination that the defendant departed from good and accepted nursing practice and that such departure was a proximate cause of the plaintiff['s] ... injuries was supported by a fair interpretation of the evidence ... . Messina v Staten Is Univ Hosp, 2014 Slip Op 06952, 2nd Dept 10-15-14





Severance of Action Against Defendant Which Filed for Bankruptcy Proper


In a medical malpractice case, the Second Department determined Supreme Court properly severed the action against a defendant which had filed for bankruptcy from the actions against the other defendants.  Plaintiff was 86 years old and delaying the proceedings would therefore have prejudiced him:


"In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others" (CPLR 603).


Where a defendant in an action files for chapter 11 bankruptcy relief, the automatic stay provisions of 11 USC § 362(a) do not extend to the nonbankrupt defendants ... . Therefore, in such circumstances, it is within the discretion of the trial court to direct a severance of the action as against the bankrupt defendant ... . Generally, the balance of the equities lies with plaintiffs when severance is sought because the case against one defendant is stayed pursuant to 11 USC § 362(a), and that is particularly so in this personal injury action where a delay would be prejudicial to the plaintiffs ... .


Here, as the prejudice to the 86-year-old injured plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court providently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 603 to sever the action ... and directing the action to proceed against the remaining defendants ... . Katz v Mount Vernon Dialysis LLC, 2014 NY Slip Op 06947, 2nd Dept 10-15-14





Criteria for Judicial Estoppel Not Met/Conversion Action Cannot Be Based Upon a Right To Payment


The Second Department determined that, although the criteria judicial estoppel had not been met and Supreme Court should not have dismissed the conversion cause of action on that ground, the court properly dismissed the conversion cause of action. The court explained that the mere right to payment cannot be the basis of conversion:


"Under the doctrine of judicial estoppel or inconsistent positions, a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed" ... . "The doctrine rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise'" ... .


Here, the Supreme Court erred in, in effect, applying the doctrine of judicial estoppel as a ground for directing the dismissal of the second cause of action, which alleged conversion. The plaintiff's allegations in a prior action entitled Barker v Hussain, commenced in the Supreme Court, Nassau County, under Index No. 6382/11, were neither sufficiently definite nor so clearly inconsistent with her current position in this action so as to warrant the application of the doctrine of judicial estoppel against her ... . * * *


A cause of action alleging conversion should be dismissed when the plaintiff does not allege "legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff's rights" ... . "Moreover, the mere right to payment cannot be the basis for a cause of action alleging conversion since the essence of a conversion cause of action is the unauthorized dominion over the thing in question'" ... . In other words, "[t]angible personal property or specific money must be involved" ... . Barker v Amorini, 2014 NY Slip Op 06931, 2nd Dept 10-15-14





Denial of Request that Judge Recuse Himself Must Be Addressed On Direct Appeal, Not Via an Article 78 Proceeding


The Third Department explained that the denial of a request that a judge recuse himself from presiding over a particular matter could not be addressed via an Article 78 proceeding, but rather could only be addressed on direct appeal:


A CPLR article 78 proceeding is not an appropriate vehicle for seeking review of issues that could be raised upon a direct appeal ..., including the denial of a party's request that a judge recuse himself or herself from presiding over a particular matter ... . Rather, petitioners' remedy — at that point in time — was to either reduce respondent's bench decision on the recusal motion to a written order, serve a copy of that order and the corresponding notice of entry ... and timely file an appeal therefrom ... or, alternatively, await decision on the underlying summary judgment motions and, if aggrieved thereby, challenge the denial of their recusal motion upon a direct appeal from that order ... . Matter of Concord Assoc LP v LaBuda, 2014 NY Slip Op 07052, 3rd Dept 10-16-14





Petitioner, Who Was Sentenced to Death in Federal Court, Could Not Be Declared "Civilly Dead" Pursuant to the Civil Rights Law---Paternity Petition Should Not Have Been Dismissed


The Second Department reversed Family Court's dismissal of an inmate's petition for a declaration of paternity.  The petitioner had been sentenced to death in federal court.  Civil Rights Law 79-a, which declares anyone sentenced to life imprisonment in state court "civilly dead," was the basis of Family Court's ruling.  The Second Department would not extend the reach of the statute to a death sentence in federal court:


Contrary to the Family Court's determination, the civil death provision of Civil Rights Law § 79-a(1) does not apply to the petitioner since he was sentenced to death in federal court, rather than state court ... . Moreover, although Civil Rights Law § 79-a(1) declares civilly dead any person sentenced to imprisonment for life, it contains no provision pertaining to a person subject to a sentence of death, and it is not for the courts to expand terms beyond the plain language of statutes ... . Matter of Ronell W v Nancy G, 2014 NY Slip OP 06987, 2nd Dept 10-15-14





Corporations Owned by the Individual Operating the Businesses Were Not the "Alter Ego" of the Individual Owner---Criteria for Piercing the Corporate Veil Not Met---Corporation Which Leased the Property from the Corporation Which Owned the Property Was Entitled to Compensation for Fixtures


The Second Department determined there was insufficient evidence to support piercing the corporate veil with respect to corporations owned by the individual operating the relevant businesses.  The corporations were formed for legitimate purposes, including owning and leasing back the subject property, and there was no evidence of any fraud.  The relevant criteria were explained.  In addition, the Second Department determined the tenant corporation was entitled to compensation for the fixtures on the condemned property and explained the relevant criteria:


In general, "a corporation has a separate legal existence from its shareholders even where the corporation is wholly owned by a single individual" ... . Although "[o]ne of the primary legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals" ..., "the doctrine of piercing the corporate veil allows a corporation's separate legal existence to be disregarded to prevent fraud and achieve equity" ... . "A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because the owners of the corporation exercised complete domination over it in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff" ... .


Here, the petitioner points to Botur's sole ownership of Tennisport and his acknowledged day-to-day control over Nixbot, and argues that, on this basis, the Supreme Court properly determined that Tennisport and Nixbot were essentially Botur's alter egos. However, as this Court has observed, "if, standing alone, domination over corporate conduct in a particular transaction were sufficient to support the imposition of personal liability on the corporate owner, virtually every cause of action brought against a corporation either wholly or principally owned by an individual who conducts corporate affairs could also be asserted against that owner personally, rendering the principle of limited liability largely illusory. Thus, the party seeking to pierce the corporate veil must also establish that the owners, through their domination, abused the privilege of doing business in the corporate form'" ... . Thus, in determining whether an owner has "abused the privilege of doing business in the corporate form," a court may consider, inter alia, whether there was a "failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use" ... . * * *


Where the condemnor appropriates land to which a tenant has annexed fixtures, the tenant is entitled to compensation "for his [or her] interest in any annexations to the real property which but for the fact that the real property has been taken, he [or she] would have had the right to remove at the end of his [or her] lease" ... . This is true even where the condemnor has no use for the fixtures attached, because "condemnation is a forced sale that places the State and the claimant in the position of vendee and vendor" ... . As the Court of Appeals has observed, "[t]he law of fixtures was evolved by the judiciary in order to ameliorate the harsh result to those who substantially improved property but who had less than a fee interest. These rules, when applied in an eminent domain proceeding, protect the owner of this type of property from being deprived of compensation when the land upon which they are situated is condemned" ... . Thus, an award for the taking of fixtures is properly seen as "just compensation to the claimant, not a windfall" ... . Matter of Queens W Dev Corp..., 2014 NY Slip OP 06983, 2nd Dept 10-15-14




Videotaped Interview Indicated Defendant Did Not Understand His Right to Counsel---The Videotaped Statement, As Well As the Prior Oral and Written Statements, Should Have Been Suppressed


The First Department determined the People did not meet their burden of demonstrating the defendant understood his Miranda rights at the time he waived them.  After waiving his rights and making an oral and written statement, the defendant spoke with the Assistant District Attorney (ADA).  During that conversation, which was videotaped, the defendant gave responses which indicated he did not understand he had the right to talk to his own attorney before speaking with the ADA.  The court determined that the videotaped statement, as well as the prior oral and written statements, should have been suppressed:


...[I]t is not clear that this 18-year-old defendant with no prior criminal history, who could not read or write, ever understood his right to counsel nor the consequences of waiver. The evidence shows that defendant responded "yes" to questions when asked if he understood his rights. Then, immediately afterwards, defendant expressed confusion in understanding his right to counsel. As such, the People failed to present evidence that established defendant sufficiently understood the immediate import of the Miranda warnings. Moreover, ADA Elliot's explanations failed to clarify for defendant the concept of his right to counsel. Thus, given defendant's age, illiteracy, unfamiliarity with the criminal justice system, and statements expressing confusion about his Miranda rights, it is evident that the People failed to establish a knowing and intelligent waiver of Miranda rights ... . People v Adames, 2014 NY Slip Op 07063, 1st Dept 10-16-14




Conspiracy Indictment Which Does Not Charge an Overt Act is Jurisdictionally Defective


The Third Department reversed defendant's conviction and dismissed a conspiracy indictment as jurisdictionally defective because the indictment failed to charge the commission of an overt act in furtherance of the conspiracy:


In early October 2010, defendant — then serving a sentence in the Otsego County jail on a contempt conviction stemming from various violations of an order of protection in favor of his ex-girlfriend, Jeanette Hamm — allegedly told a fellow prisoner that he desired to have Hamm murdered. Defendant's block-mate discussed the matter with prison officials, and the Otsego County Sheriff's Department began an investigation. As part of the investigation, an undercover police officer posing as a potential assassin talked with defendant on the phone and met with him at the jail. Defendant was arrested shortly thereafter and charged by indictment with the crime of conspiracy in the second degree. * * *


As the People concede, the indictment is jurisdictionally defective and must be dismissed inasmuch as it failed to charge the commission of an overt act in furtherance of the conspiracy as required by Penal Law § 105.20 ... . People v Grays, 2014 NY Slip Op 07017, 3rd Dept 10-16-14




Assignment of New Counsel and Adjournment of Trial Over Defendant's Objection Was Proper---Defense Counsel Had Represented the Confidential Informant in the Past---District Attorney Objected to Preclusion of Confidential Informant's Testimony as a Solution


The Third Department determined the trial court did not abuse its discretion when it ordered, over defendant's objection, the assignment of new counsel because of a conflict of interest.  Assigned counsel had represented the confidential informant (CI).  The court was faced with either assigning new counsel or ruling that the CI could not testify:


County Court did not abuse its discretion in substituting assigned counsel against defendant's wishes ... . A criminal defendant's right to counsel of his or her choice is not absolute and may properly be circumscribed where defense counsel's continued representation of the defendant would present a conflict of interest ... . Here, upon learning of the CI's identity,[FN2] defendant's original assigned attorney informed the court that he possessed confidential information from his prior representation of the CI that would affect his ability to cross-examine that witness, thereby establishing the existence of an actual conflict of interest ... . Faced with "the dilemma of having to choose between undesirable alternatives" in addressing the conflict ..., County Court's decision to assign new counsel and adjourn the trial rather than preclude the testimony of the CI altogether constituted a proper exercise of its broad discretion under the circumstances presented ... . People v Robinson, 2014 NY Slip Op 07018, 3rd Dept 10-16-14





Waiver of Appeal Invalid---Failure to Afford Defendant His Right to Counsel Prior To and During Grand Jury Proceedings Required Dismissal of the Indictment---"Guilty-Plea" Forfeiture Rule Did Not Apply


The Third Department reversed defendant's conviction by guilty plea, finding that the defendant's waiver of appeal was invalid and the defendant had been deprived of his right to counsel with respect to whether to testify before the grand jury:


A trial court must ensure that a defendant's waiver of the right to appeal is knowing, intelligent and voluntary ... . After the People informed County Court that defendant agreed to waive his right to appeal, the court asked defendant whether that contention was accurate, to which defendant replied affirmatively. Thereafter, the court questioned defendant about his understanding of the terms of the plea bargain, but failed to confirm that he fully understood that his waiver of appeal was not automatic and that it was, in fact, "separate and distinct from those rights automatically forfeited upon a plea of guilty" ... . Defendant signed a written waiver of appeal outside of court and County Court made no inquiry about "the circumstances surrounding the document's execution" or confirm that defendant had been fully advised by counsel of the document's significance ... . As such, the appeal waiver was invalid ... .


On the merits of defendant's appeal, a criminal defendant's right to receive the assistance of counsel attaches at arraignment "and entails the presence of counsel at each subsequent critical stage of the proceedings" ... . Further, whether an accused individual facing felony charges should elect to appear before and present evidence to the grand jury or, as equally relevant here, object to the timeliness or reasonableness of the notice of grand jury proceedings, raises questions necessitating consultation with legal counsel ... . The People correctly observe that, by pleading guilty, defendant forfeited his claim that he was denied the statutory right to testify before the grand jury ... or, as defendant now argues on appeal, that he was denied the effective assistance of counsel where, as here, such assertion does not relate to the voluntariness of the plea or the integrity of the plea bargaining process ... . Here, however, it is uncontroverted that defendant was denied the right to counsel prior to and during the grand jury proceedings, a critical stage of the instant criminal prosecution and, therefore, the forfeiture rule should not be applied ... . Further, we observe that, while defendant's motion to dismiss the indictment was based solely on the denial of his right pursuant to CPL 190.50 (5) (a) to testify before the grand jury, the "claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved" before County Court ... . Inasmuch as defendant was not afforded an opportunity to consult with counsel "and make an informed decision as to whether to appear before the [g]rand [j]ury"..., the resulting deprivation of defendant's constitutional right to counsel requires the dismissal of the indictment ... . People v Chappelle, 2014 NY Slip Op 07014, 3rd Dept 10-16-14





Evidence of Prior Crimes Improperly Admitted to Prove Identity and Intent---There Was No Unique Modus Operandi Which Would Prove Identity and Intent Could Be Inferred from the Commission of the Acts Charged


The Second Department reversed defendant's convictions because the trial court allowed evidence of prior uncharged crimes to provide identity and intent.  The Second Department explained that the crimes did not have a unique modus operandi which could demonstrate the identity of the perpetrator, and the intent to commit the crime (burglary) could readily be inferred from the commission of the acts charged:


Evidence of another crime committed by the defendant, not charged in the indictment, is not admissible if it tends only to demonstrate the defendant's propensity to commit the crime charged and cannot logically be connected to some specific material issue in the case ... . However, where the proffered evidence is relevant to some material fact in the case, other than the defendant's propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes ... . Thus, evidence of other crimes may be admitted to show, among other things, motive, intent, the absence of mistake or accident, a common scheme or plan, or the identity of the guilty party ... . Here, the County Court granted the People's application to admit the subject evidence to establish the defendant's identity through a unique modus operandi and to establish the defendant's intent.


The identity exception to the Molineux rule "is used in limited circumstances, when the defendant employs some unique, unusual, or distinctive modus operandi in an uncharged crime that is relevant to proving his identity as the perpetrator of the crime charged" ... . Although identity was at issue in this case ..., the People failed to identify any distinctive modus operandi relevant to proving the defendant's identity as the perpetrator of the crimes charged. In order to identify the defendant by a distinctive modus operandi, "it is not sufficient to show that he has committed similar acts if the method used is not uncommon," as such a showing "would be of little probative value in determining whether he committed the crimes charged, and the prejudice would be obvious" ... . * * *


Nor was the subject evidence properly admitted under the intent exception to the Molineux rule. Evidence of prior misconduct to prove intent is unnecessary where intent may be easily inferred from the commission of the act itself ... . Under the circumstances here, the defendant's intent could be easily inferred from his acts alone ... . Moreover, the defendant did not contest the element of intent before the jury, but rather, denied that he was the person who attempted the burglaries ... . The evidence therefore was improperly ruled admissible. People v Wright, 2014 NY Slip Op 07003, 2nd Dept 10-15-14




Spontaneous Statements Made After Request for Counsel Properly Admitted---911 Call Properly Admitted as an Excited Utterance


The Third Department determined statements made spontaneously to the police after the defendant requested counsel were properly admitted and a 911 call made by the burglary victim was properly admitted as an excited utterance:


As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded ... . However, "[n]otwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously " ... . Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant's statements were not "the result of express questioning or its functional equivalent" ... . That is, his statements to that point were "neither induced, provoked nor encouraged by the actions of the police officers" in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure ... . * * *


Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim's 911 call as an excited utterance, because her call was made after she had time for reflection. "An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" ... . "Among the factors to be considered in determining whether . . . a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth" ..., although "the time for reflection is not measured in minutes or seconds, but rather is measured by facts" ... . 


Here, the victim testified that, although she had followed defendant's car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 "right away." In the 911 call, the obviously distressed victim exclaimed, "I was just robbed," and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is "a startling event" and the victim's call was made "under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication" ... . People v Haskins, 2014 NY Slip Op 07019, 3rd Dept 10-16-14




Elements of Florida "Theft" Statute and New York Larceny Statutes Are Different---Florida Conviction Cannot Serve as a Predicate Felony in New York


The Third Department, using its "interest of justice" review power, determined defendant's Florida conviction could not serve as a predicate felony in New York because the relevant Florida statute included an element not included in the relevant New York statute:


Here, the information contained with the second felony offender notice indicates that, in 2001, defendant was convicted in Florida of a felony "theft" in the third degree (see Fla Stat Ann § 812.014). Under the applicable Florida penal statute, it is a crime to "knowingly obtain[] or use[], or endeavor[] to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property . . . [or a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property" (Fla Stat Ann § 812.014 [1] [a], [b] [emphasis added]). In comparison, New York's larceny statutes do not contain analogous language with regard to mere temporary deprivations or appropriations (see Penal Law §§ 155.00 [3], [4]; 155.05 [1]...). Thus, the Florida crime undoubtedly contains an element that is not included in New York's larceny offenses and, as a result, the Florida conviction is not sufficiently analogous to a New York felony to serve as a predicate felony for purposes of Penal Law § 70.06 ... . People v Parker, 2014 NY Slip Op 07021, 3rd Dept 10-16-14




Court-Ordered Blood Test Results Should Have Been Suppressed Because the Application Failed to Indicate the Application Was Based Upon Hearsay/Elements of Reckless Driving Explained


The Third Department vacated defendant's conviction for aggravated driving while intoxicated because the application for a court-ordered blood test did not indicate that it was based on hearsay.  In addition, the court, in affirming the defendant's conviction for reckless driving, explained the elements of that offense. The defendant, who had stopped drinking a few hours before the accident, moved into the oncoming lane and struck the victim's car head-on (the victim died):


Although an application for a court-ordered blood test may contain hearsay and double hearsay statements that satisfy the Aguilar-Spinelli test, the application must disclose that it is supported by hearsay and identify the source or sources of the hearsay" ... . Here, the investigator based the application on information provided to him from other officers that defendant had made oral admissions at the scene to operating the vehicle and consuming alcohol, had a reading of .12% blood alcohol content on the Alco-Sensor test and refused to take a chemical test. The failure to reveal the hearsay nature of the information improperly deprived County Court of the opportunity to determine the reliability of the information for itself as a neutral, detached arbiter ... . Accordingly, the motion to suppress the blood test results should have been granted and, in the absence of those results, the conviction for aggravated driving while intoxicated must be vacated ... .


As for the charge of reckless driving, it is defined as driving "in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway" ... . "More than mere negligence is required, and the term has been held to mean 'the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences'" ... . "Determining whether conduct rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road" ... . 


Here, the investigator who reconstructed the accident testified that defendant crossed the center line and collided driver-side "headlight to [driver-side] headlight" with the oncoming vehicle. The passenger in the other vehicle testified that the victim observed defendant in their lane and, although the victim attempted to move over as far as possible to avoid the accident, defendant was almost entirely in their lane at the time of the collision. Defendant admitted that she had been drinking, and the arresting officer testified that she had glassy eyes, slurred speech and the odor of alcohol. The officer concluded, based on his experience and observations, that defendant was intoxicated. People v Earley, 2014 NY Slip Op 07022, 3rd Dept 10-16-14






People Did Not Meet Their Burden of Demonstrating Developmentally Disabled Respondent, Who Had Been In the Care and Custody of the OPWDD Since His Acquittal of a Criminal Charge By Reason of Mental Disease or Defect, Was "Mentally Ill"---Respondent's Release Was Appropriate


Respondent is mildly developmentally disabled and was committed to the care and custody of the Office for People with Developmental Disabilities (OPWDD) after acquittal of a criminal charge by reason of mental disease or defect.  The Third Department determined Supreme Court properly ruled respondent could be released to a supervised intermediate care facility subject compliance with a service plan.  The court determined the People did not meet their burden of proving respondent met the relevant statutory definition of "mentally ill," i.e., the definition which applies to the developmentally disabled:


If the court finds that a person committed pursuant to CPL 330.20 does not have a dangerous mental disorder but is mentally ill, that person must be confined in a nonsecure facility (see CPL 330.20 [12]...). If the court finds that the person is no longer mentally ill, it must release the person with an order of conditions (see CPL 330.20 [12]...). For purposes of CPL 330.20, a person with a developmental disability is considered "mentally ill" if he or she "is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the . . . developmentally disabled under the jurisdiction of [OPWDD]" (CPL 330.20 [1] [d]). The DA had the burden to prove by a preponderance of the evidence that respondent met the statutory definition of a "mentally ill" person (see CPL 330.20 [12]...]). * * *


...[T]he statute provides a different definition of "mentally ill" for individuals who have developmental disabilities in addition to one or more diagnosed mental disorders (see CPL 330.20 [1] [d]). For those individuals with developmental disabilities, the statute does not require that their judgment be so impaired by a mental illness that they are "unable to understand the need for such care and treatment" (CPL 330.20 [1] [d]); this makes sense, as such inability could be related to developmental disabilities as opposed to mental illness. Even if that additional factor applied here, however, respondent acknowledged in his testimony that he needed constant supervision, indicating that he understood the need for care and treatment. While the DA's expert disagreed that respondent had any such understanding, Supreme Court found respondent credible and did not rely on that expert's testimony. Thus, even under the definition of mentally ill that applies to individuals without developmental disabilities, the DA did not meet his burden. Matter of Arto ZZ, 2014 NY Slip Op 07053, 3rd Dept 10-16-14




Where a School District Employee's Job Is Eliminated Due to a Transfer of Function, the Procedure Mandated by Civil Service Law Section 70 Must Be Completed Before the Four-Month Statute of Limitations (for an Action Seeking Reinstatement) Starts Running


The Third Department determined the procedure mandated by Civil Service Law section 70 applied to a school district's decision to cease its own data management services and purchase the services from BOCES.  Petitioner was employed by the district in data management.  The court held that the four-month statute of limitations for the employee's action seeking reinstatement did not start until the Civil Service Law section 70 procedures had been followed:


Civil Service Law § 70 (2) applies "[u]pon the transfer of a function" from the District to BOCES (Civil Service Law § 70 [2] [first sentence][FN3]). The District's decision to cease providing its own data management services and purchase such services from BOCES constituted the "transfer of a function" within the meaning of the statute ... . The statute required the District, not less than 20 days before any such transfer, to certify to BOCES a list of the names and titles of all District employees who were "substantially engaged in the performance of the function to be transferred" and to publicly post that list along with a copy of the statute (Civil Service Law § 70 [2] [second sentence]). All District employees could then, before the effective date of such transfer, give written notice of protest to BOCES and the District of their "inclusion in or exclusion from such list" (Civil Service Law § 70 [2] [third sentence]). The head of BOCES would be required, within 10 days of receiving a protest, to review the protest, consult with the District and notify the employee of the determination regarding such protest (see Civil Service Law § 70 [2] [fourth sentence]). "Such determination shall be a final administrative determination" (Civil Service Law § 70 [2] [fifth sentence]). Respondents would then be required to determine which employees on the list were necessary to be transferred, by considering statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services (see Civil Service Law § 70 [2] [first and eighth sentences]...). Employees who were not transferred would be placed on a preferred hire list for similar positions at both the District and BOCES (see Civil Service Law § 70 [2] [eleventh sentence]).


* * * Ignoring the statutory procedure would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.


In transfer cases, the statute of limitations begins to run after the transferee agency rules against a protest to include an employee on the certified list or declines to transfer an employee who is on the list. Matter of Thornton v Saugerties Cent Sch Dist, 2014 NY Slip Op 07046, 3rd Dept 10-16-14





Civil Service Law Did Not Create a Contractual or Vested Right in Health Benefits---Statutory Provision Allowing the Reduction in Benefits Valid and Enforceable Retroactively


The Third Department, in a full-fledged opinion by Justice Peters, determined that a Civil Service Law statutory provision allowing reductions in the state's contribution to retired state employees' health benefits (Civil Service Law section 167 (8)) was valid and enforceable retroactively.  The court further determined that Civil Service Law section 167 (1)(a) did not create a contractual or vested right in health benefits which was violated by section 167 (8):


Petitioners argue that Civil Service Law § 167 is internally inconsistent to the extent that it imposes a fixed contribution rate for retiree health insurance while concomitantly authorizing modification of those statutory rates, and they urge this Court to harmonize the statute's provisions by declaring that Civil Service Law § 167 (8) applies only prospectively. We begin our analysis with the familiar maxim that the text of a statute is the best evidence of legislative intent and, "where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" ... . It is also fundamental that a statute must be considered as a whole and its various sections construed with reference to one another and in a way that renders them internally compatible ... .


Applying these principles here, we conclude that Civil Service Law § 167 (8) plainly and unambiguously permits modification of the fixed contribution rates for retiree health insurance premiums set forth in Civil Service Law § 167 (1) (a). * * * ...[W]hile Civil Service Law § 167 (1) (a) provides for a fixed percentage contribution, the explicit command of the Legislature in Civil Service Law § 167 (8) makes clear that the former provision does not apply where it would otherwise conflict with Civil Service Law § 167 (8). As the plain language renders these provisions internally compatible, "there is no room for construction and [we] have no right to add to or take away from that meaning" ... .


Petitioners next claim that they have a contractual and vested property right to the percentage contribution rate set forth in Civil Service Law § 167 (1) (a) * * *.  "[B]efore a law may be deemed to amount to a contract between the [s]tate and a third party, the statutory language must be examined and found to be 'plain and susceptible of no other reasonable construction' than that a contract was intended" ... . Indeed, "certain types of legislative acts, including those fixing salaries and compensation, . . . [give rise to the presumption that the] 'law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise'" ... .


We find nothing in the language of Civil Service Law § 167 (1) (a) to constitute "clear and irresistible evidence" that the Legislature intended to "fetter[] its power in the future" with respect to retirees' health insurance contributions ... . Matter of Retired Pub Empls Assn Inc v Cuomo, 2014 NY Slip Op 07044, 3rd Dept 10-16-14





Out-of-State Dismissal with Prejudice Barred Similar New York Action Under Doctrine of Res Judicata


The Third Department determined that an Alabama paternity proceeding brought by the mother against the respondent, which was dismissed with prejudice, barred the paternity proceeding brought by the mother in New York under the Full Faith and Credit Clause.  The court explained the "res judicata" principles:


"In New York, res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action [or proceeding], or in privity with a party who was" ... .


Here, there is no dispute that the Alabama proceeding involved the same parties and underlying issues, i.e., paternity and child support. Additionally, under both Alabama and New York law, a dismissal "with prejudice" indeed constitutes an adjudication "on the merits".... . Matter of Starla D v Jeremy E, 2014 NY Slip Op 07033, 3rd Dept 10-16-14





Questions of Fact Raised About Fairness of Facially Valid Prenuptial Agreement


The Second Department determined questions of fact had been raised by defendant-wife about the fairness of a facially valid prenuptial agreement, primarily because of the absence of financial disclosure by the husband and the limited communication (at the time the agreement was executed) between the wife and the wife's attorney (who had been hired by the husband). The court further determined that Supreme Court should not have denied the branches of the wife's motion asking for pendente lite maintenance and counsel fees, which were not mentioned in, and therefore not precluded by, the prenuptial agreement:


An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct ... . "An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" ... .


Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by submitting, inter alia, the agreement, which appeared fair on its face and set forth express representations stating that, among other things, it was not a product of fraud or duress, each party had made full disclosure to the other and was represented by independent counsel, and they had fully discussed and understood its terms ... .


In opposition, the defendant raised triable issues of fact with regard to, inter alia, the fairness of the agreement, the circumstances surrounding the negotiation and execution of the agreement, and the absence of any meaningful financial disclosure by the plaintiff ... . McKenna v McKenna, 2014 NY Slip Op 06951, 2nd Dept 10-15-14





Deliberately-Caused Collision Was Not An Accident from the Standpoint of the Insurer of the Driver Who Caused the Collision---However the Collision Was an Accident from the Standpoint of the Insurer of the Victim of the Deliberate Act---Therefore the Uninsured Motorist Endorsement In the Victim's Policy Kicked In

The Second Department determined a collision caused by the deliberate act of one driver, Demoliere, was an "accident" for purposes of uninsured motorist endorsement of the policy held by the driver killed by the Demoliere's deliberate act. The incident was not an accident from the standpoint of Demoliere, and that Demoliere's insurer was therefore off the hook.  However, from the standpoint of the victim of the deliberate act, the incident was an accident covered by the uninsured motorist endorsement in the victim's policy:


In State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349), the Court of Appeals held that, for the purposes of an uninsured motorist endorsement, when an occurrence is "unexpected, unusual and unforeseen," from the insured's perspective, it qualifies as an "accident" (id. at 355 [internal quotation marks omitted]). Here, from the decedent's perspective, her collision with Demoliere's vehicle was unexpected, unusual, and unforeseen. Therefore, the occurrence constituted an "accident" within the meaning of the uninsured motorist endorsement of the decedent's policy ... . Matter of Utica Mut Ins Co v Burrous, 2014 NY Slip Op 06986, 2nd Dept 10-15-14




Although Title Had Not Yet Formally Passed to the Driver/Owner, the Vehicle Was Covered as a "Newly Acquired" Vehicle Under the Terms of the Policy


The Third Department reversed Supreme Court and held that the insurer could not disclaim coverage of a 1987 Dodge driven by Porter under the terms of the policy.  Porter was driving the vehicle before receiving the title documents from the seller, Elmore:


We consider first whether coverage extended to the 1987 Dodge under the provision for "[a] private passenger auto newly acquired by you." [The insurer] contended, and Supreme Court held, that this provision did not apply because Porter had not yet received title or registered the Dodge under the Uniform Vehicle Certificate of Title Act (see Vehicle and Traffic Law art 46). The term "newly acquired" is not defined in the policy and, importantly, it is not limited by the policy to completed transactions that were done in full compliance with the Certificate of Title Act. Ownership of a motor vehicle generally passes "when the parties intend that it pass" ... .


Here, it is undisputed that, during the month before the accident, Porter had disposed of his 1994 Chevrolet truck and, shortly thereafter, replaced it by trading his ATV (which he had recently purchased for $1,000) to Elmore for the 1987 Dodge. Although Elmore apparently indicated to Porter after the accident that the Dodge was actually owned by his girlfriend's father, there was no indication that Elmore did not have authority from the owner to make the transaction. At the time of the transaction, Elmore took possession of the ATV and likewise Porter took absolute possession and control of the Dodge, including all of the keys. According to Porter, the trade was final and permanent. Porter testified that Elmore was about to produce documents so he could register the Dodge, but the accident occurred the day before Elmore was going to give him the documents. Nonetheless, upon taking physical possession of the Dodge, Porter had placed the plates from his junked truck on the Dodge and began using it to drive to work. Under the circumstances and considering the pertinent policy language in light of "the reasonable expectations of the average insured" ..., the 1987 Dodge fell within the meaning of replacement auto newly acquired by Porter at the time of the accident and, accordingly, was covered under plaintiff's policy. Nationwide Ins Co of Am v Porter, 2014 NY Slip Op 07029, 3rd Dept 10-16-14





Notice of Increases in Water and Sewer Charges Was Sufficient If Not Ideal/Discrepancies in Water and Sewer Charges Did Not Violate Equal Protection Clause


The Third Department determined that the hearing and notice requirements for increased water and sewer charges had been met by the village, and any discrepancies among the water and sewer charges did not violate the equal protection clause because they were not the result of conscious, intentional discrimination:


... [W]e agree with plaintiff that, inasmuch as Local Law Nos. 4 and 5 (re: modification of water and sewer charges) appear on their face to be self-executing, hearing and notice requirements nonetheless apply. This is so because the local laws at issue neither substantially adhere to state law (see Village Law § 20-2000; General Municipal Law § 452) nor specify an intent to change or supercede the requirements of said laws ... . As such, they remain subject to the notice requirements of state law.


...Supreme Court properly determined that adequate notice had been provided. In determining the adequacy of public notice required for the enactment of a local law, a court may look at whether or not such notice is "deceptive, misleading [or] framed to give a false concept of the text or intent of the local law" ... . "Although technical compliance with the [notice requirements of Municipal Home Rule Law § 20] is not essential to the validity of a municipal enactment[, where] the noncompliance . . . goes to the substance of those provisions and thwarts their legislative purpose," the resulting law may be invalid ... .


Defendant historically modifies its water and sewer rates as part of its annual budget review process ... . In this regard, each spring, defendant publishes a notice in the Gouverneur Tribune stating that a budget hearing will be held ... . While the published notice only sets forth the details of the hearing, attendees are given copies of the budget which, if applicable, indicates any increases. Moreover, copies of defendant's tentative budget are made available for public inspection in advance of the hearing. While the better practice may be for defendant to specifically include proposed water and sewer rate changes in its published notice, under these circumstances, we agree with Supreme Court that the lack of specificity does not render the notice provided insufficient. * * *


When setting sewer or water rates based on a user unit system where a municipality can only approximate customer usage, the municipality is not required to establish "'exact congruence between the cost of the services provided and the rates charged'" ... . Rather, while such rates must be rational, discrepancies and disproportionate costs to certain properties are permitted in the interest of administrative flexibility ... . YNGH LLC v Village of Gouverneur, 2014 NY Slip Op 07051, 3rd Dept 10-16-14





Defendant Failed to Demonstrate the Cause of Plaintiff's Fall (a Ramp Outside a Building) Was Open and Obvious as a Matter of Law---Summary Judgment Should Not Have Been Granted


The Second Department determined the defendant was not entitled to summary judgment in a slip and fall case. The defendant argued the cause of the fall, a ramp outside the defendant's building, was open and obvious.  The plaintiff alleged the area was not properly lit and the ramp could not be seen:


At about 5:30 p.m. on December 4, 2008, the injured plaintiff allegedly sustained personal injuries when he tripped and fell over a ramp outside a building owned by the defendant. The injured plaintiff testified at his deposition that, at the time of the accident, it was completely dark. He further testified that, as he was walking through the defendant's parking lot, he did not see the ramp because its color blended into that of the surrounding pavement and because the parking lot was inadequately lit.


A landowner has a duty to maintain his or her property in a reasonably safe manner to prevent foreseeable injuries ... . A landlord, however, has no duty to protect or warn against an open and obvious condition that is not inherently dangerous as a matter of law ... . To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it ... .


Here, the defendant failed to establish, prima facie, that the allegedly dangerous condition was open and obvious ... . The issue of whether a dangerous condition is open and obvious is fact-specific ..., and cannot be divorced from the surrounding circumstances ... . Baron v 305-323- E Shore Rd Corp, 2014 NY Slip Op 06932, 2nd Dept 10-15-14





Failure to Submit Expert Affidavit In Support of Meterological Data Precluded Summary Judgment Based Upon Defendant City's Assertion It Did Not Have Sufficient Time to Remove Snow and Ice from a Sidewalk


The First Department, over a dissent, determined summary judgment should not have been granted to the defendant city in a slip and fall case.  The city argued that it did not have sufficient time to address the snow and ice on the sidewalk, and submitted meterological data without an expert affidavit.  The First Department determined the absence of an expert affidavit precluded summary judgment:


"Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident" ... . Accordingly, because it failed to offer an expert opinion, in addition to the meteorological records, the City's motion should have been denied without regard to the sufficiency of plaintiff's papers in opposition ... . While, as the dissent notes, no expert affidavit was required by this Court in Daley v Janel Tower L.P. (89 AD3d 408 [1st Dept 2011]), it is worth noting that there it was hardly needed.  it is worth noting that there it was hardly needed. That is because in Daley "the climatological reports showed that it last snowed more than one week prior to plaintiff's fall and that during the three-day period prior to plaintiff's fall, temperatures remained well above freezing" (89 AD3d at 409). Here, by contrast, the climatological reports showed that, except for a few hours of above-freezing temperatures and non-freezing rain, temperatures generally remained below freezing for the entire period between the December 19 storm and the accident four days later. Plaintiff's expert opined that these conditions were suitable for the ice that formed as a result of the initial storm to remain, but not for the formation of new ice, which the City would have had insufficient time to clear. Without an expert to interpret the meteorological record in a way that would disprove this theory, the City failed to establish a right to judgment as a matter of law. Rodriguez v Woods, 2014 NY Slip Op 06887, 1st Dept 10-14-14




Town's Duty to Maintain Roadways in a Safe Condition Extends to the Maintenance of Trees Not Located on Town Property---Here a Tree Limb Fell Onto Plaintiffs' Moving Vehicle


The plaintiffs were injured when a limb fell from a tree onto their moving vehicle.  The defendant town moved for summary judgment, alleging that the tree was not located in the town's right of way and the town did not therefore owe a duty to the plaintiffs.  The Second Department disagreed:


The Town's duty to maintain its roadways in a reasonably safe condition extends to the maintenance of trees, adjacent to a road, that could reasonably be expected to pose a danger to travelers ... . Contrary to the Town's contention that it owed no duty to the plaintiffs by virtue of the fact that it did not own, maintain, or control the subject tree or the location of that tree, "the exact location of the tree with respect to the Town's right of way is not dispositive" of the issue of the Town's duty ... . Accordingly, the Town failed to establish its prima facie entitlement to judgment as a matter of law, and the Supreme Court correctly denied the Town's cross motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers ... . Piscitelli v County of Suffolk, 2014 NY Slip Op 06961, 2nd Dept 10-15-14





Out-of-Possession Landlord Not Liable Based Upon Right to Enter Premises to Make Repairs But May Be Liable as the Creator of the Dangerous Condition


In a case stemming from a fall from an allegedly defective ladder that was installed to gain access to a loft, the Third Department determined that an out-of-possession landlord was not liable based on a contractual reservation of the right to enter the premises to make repairs, but a question of fact had been raised about whether the out-of-possession landlord created the dangerous condition:


...[D]efendants were entitled to summary judgment as to the question of whether they were liable for plaintiff's injuries based upon the provision in the lease retaining their right to enter the premises to make repairs. While a landlord who retains the right to enter the leased property to make repairs may be liable to injuries to third parties ..., "only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord" ... . Here, plaintiff's expert opined that the condition of the ladder violated regulations found in the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1), the New York State Building Code and the Property Maintenance Code of New York. However, inasmuch as a violation of a regulation is insufficient to impose liability on an out-of-possession landlord pursuant to a reserved right to enter the premises ..., plaintiff failed to raise a triable issue of fact.


We reach a different conclusion, however, as to whether defendants created the dangerous condition. Liability to a lessee's employee for personal injuries may attach if the out-of-possession landlord affirmatively created the dangerous condition ... . Although the former tenant hired an architect to design the plans for the premises, including the loft area and access ladder, defendants contracted and paid for the construction. Further, the record reflects that defendants took an active role in the construction project. Defendants and the tenant agreed to make changes to the architectural plans in order to cut costs, including changes to the design of the loft. While the architectural plan called for the ladder to be "mechanically fasten[ed] to surface of floor slab and at top edge to wood platform," plaintiff's expert opined, based upon his inspection of the site of the alleged accident, that the right stringer of the ladder was secured by three screws to an adjacent wall, not to the wood platform, and that the left stringer was not secured to the upper landing at all. Further, there was no evidence that the ladder was secured to the floor slab. Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition ... . Boice v PCK Dev Co LLC, 2014 NY Slip Op 07042, 3rd Dept 10-16-14





Nurse Acting Under a Doctor's Supervision Generally Cannot Commit Malpractice---Judgment Dismissing Nurse's Complaint As a Matter of Law Pursuant to CPLR 4401 Was Properly Granted


The Second Department explained that a nurse acting under a doctor's supervision and not exercising independent medical judgment generally cannot be liable for medical malpractice.  Here the nurse's motion to dismiss the complaint pursuant to CPLR 4401 as a matter of law was properly granted:


"[C]ourts have recognized that a nurse who renders treatment can play a significant role [in a patient's care] and is capable of committing malpractice" ... . However, a nurse whose work is supervised by a physician and who does not exercise independent medical judgment cannot be liable for medical malpractice unless the directions from the supervising physician so greatly deviate from normal medical practice that the nurse should be held liable for failing to intervene, or the nurse commits an independent act that constitutes a departure from accepted medical practice ... .


Here, while there was evidence that the defendant Elizabeth Vilanova, a certified registered nurse anesthetist, played an active role in the decedent's operation, it was established that she was acting under the direct supervision of the attending anesthesiologist the entire time and did not exercise any independent medical judgment, nor did she commit an independent act constituting a departure ... . Yakubov v Jamil, 2014 NY Slip Op 06966, 2nd Dept 10-15-14





Doctrine of "Practical Location" (to Determine Boundary Line) Explained


In affirming Supreme Court's determination of the location of a boundary line, the Third Department explained the doctrine of "practical location" which is used when the description of the land in deeds is inadequate:


As a general proposition, "[d]eeds and surveys indicate boundary lines by various descriptive elements or 'calls' which consist mainly of monuments, courses and distances, adjacent lands and area or quantity" ... . Here, however, ... our review confirms — that the subject deeds contain no specific bearings or directional calls and set forth only the vaguest description of the intended boundary line between the land originally conveyed to plaintiff and Laight. Indeed, [a surveyor] opined that the deeds in question were "so bad" that a boundary line could not be established absent either a boundary line agreement, which the parties apparently were unable to forge, or judicial intervention ... . To that end, where a dispute exists as to the location of a boundary line, "the intent of the parties existing at the time of the original conveyance of the disputed property controls" ... . Pursuant to the doctrine of practical location, "the practical location of a boundary line and an acquiescence of the parties therein for a period of more than [the statutory period governing adverse possession] is conclusive of the location of the boundary line" ... . "[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled" ... . Gibbs v Porath, 2014 NY Slip Op 07030, 3rd Dept 10-16-14


In another case, the Third Department found the "practical location" doctrine inapplicable.  Kennedy v Nimons, 2014 NY Slip Op 07036, 3rd Dept 10-16-14






Bank's Failure to Strictly Comply With the Filing Deadline in RPAPL 1306 Required Dismissal of the Complaint Seeking Foreclosure


In this mortgage foreclosure action, the Third Department determined that the bank's failure to submit admissible proof of compliance with the service requirements of RPAPL 1304 precluded summary judgment, and the bank's unexplained failure to comply with the filing deadline in RPAPL 1306 required dismissal of the complaint seeking foreclosure:


Defendant was entitled to summary judgment dismissing the complaint based on plaintiff's failure to comply with RPAPL 1306. That statute provides that lenders "shall file with the superintendent of financial services (superintendent) within three business days of the mailing of the notice required by [RPAPL 1304]" a form containing certain information regarding the borrower and mortgage (RPAPL 1306 [1]; see RPAPL 1306 [2]). The statute further states that "[a]ny complaint served in [an action] initiated pursuant to [RPAPL article 13] shall contain, as a condition precedent to such [action], an affirmative allegation that at the time the [action] is commenced, the plaintiff has complied with the provisions of this section" (RPAPL 1306 [1]). * * *

RPAPL 1306's condition precedent to commencing a foreclosure action is strict compliance with the first sentence of the statute. In other words, a lender has only complied with the condition precedent if the lender has filed the appropriate form with the superintendent within three days of mailing the RPAPL 1304 notice to the borrower. TD Bank NA v Leroy, 2014 NY Slip Op 07047, 3rd Dept 10-16-14

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