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October Page IV

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



Standard of Care Required of Train Operator


In affirming the grant of summary judgment to the defendant, the Second Department explained the standard of care applicable to a train operator.  Plaintiff’s decedent was struck by the train:


The complaint in this case alleged that the defendants acted negligently and thereby caused the death of the plaintiff's decedent, who was struck by a train owned and operated by the defendants. "[A] train operator may be found negligent if he or she sees a person on the tracks from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person" … . In support of their motion for summary judgment dismissing the complaint, the defendants submitted evidence, including the deposition testimony of the operator of the train involved in the subject accident, that he was operating the train at a lawful speed and was approximately one car length away when he first observed the decedent, who was intoxicated, trespassing on the tracks. The train operator immediately applied the emergency brakes and sounded the horn, but at that point, it was impossible to avoid the collision. The evidence submitted by the defendants established, prima facie, that they were not negligent in the happening of the accident as a matter of law … .  Neenan v Quinton, 2013 NY Slip Op 06843, 2nd Dept 10-23-13



Question of Fact about Implied Physician-Patient

Relationship In Malpractice Action


In a medical malpractice action, the Second Department determined there was a question of fact about whether an implied physician-patient relationship existed:


Liability for medical malpractice may not be imposed in the absence of a physician-patient relationship … . A physician-patient relationship is created when professional services are rendered and accepted for purposes of medical or surgical treatment … . An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional … . Whether a physician's proffer of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship has arisen is ordinarily a question of fact for a jury … .  Thomas v Hermoso, 2013 NY Slip Op 06852, 2nd Dept 10-23-13




Abutting Landowner Not Responsible for Condition of Sidewalk Tree Well/Open and Obvious Condition Relates Only to Comparative Negligence


In affirming the denial of the summary judgment motion brought by the defendant abutting landowner in a sidewalk slip and fall case, the Second Department noted that an abutting landowner is not responsible for defects in a tree well, and the allegation that a condition is open and obvious only raises a question of fact about plaintiff’s possible contributory negligence. Vigil v City of New York, 2013 NY Slip Op 06852, 2nd Dept 10-23-13






Question of Fact About Whether Rider Assumed Risk of Being Kicked by Horse—Allegations Defendant Heightened Risk


The Third Department there was a question of fact whether plaintiff assumed the risk of being kicked by defendant’s horse.  Plaintiff alleged the risk was heightened by defendant’s actions:


While it has been recognized that participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, "[p]articipants will not be deemed to have assumed unreasonably increased risks" … .  "'[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant's skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant's conduct'" … .  


Here, plaintiffs have raised triable issues of fact by offering evidence that defendant's attendant assisted plaintiff in mounting her assigned horse, and the attendant then positioned the head of her horse within six inches of the tail of the horse in the line in front of her.  The attendant then was called away and, in leaving, he ducked under the head of plaintiff's horse, causing it to nudge the horse in front of it.  The horse in front then kicked back, striking plaintiff in the leg and injuring her. Defendant's co-owner acknowledged that the positioning of horses is an important safety concern and that horses should be spaced approximately one horse length apart.  Thus, while being kicked by a horse is an obvious risk of horseback riding, and plaintiff, although an inexperienced rider, was aware of the risk, issues of fact exist as to whether defendant's alleged actions in positioning the horses and then ducking under the head of plaintiff's horse heightened the risk of injury to an inexperienced rider… . Valencia … v Diamond F Livestock, Inc…, 516434, 3rd Dept 10-24-13






Malpractice Action for  Depression-Treatment Prior to Suicide Is Actionable


The Second Department determined a cause of action for malpractice in treating plaintiff’s decedent for depression prior to her committing suicide should not have been dismissed:


Here, the complaint sought damages for conscious pain and suffering arising from Family Services' alleged negligence in treating the decedent's depression during the period between October 19, 2005, and the time of her death about 10 days later. That cause of action states a cognizable legal theory sounding in professional malpractice … . 


Further, EPTL 11-3.2(b), referred to as the "survival statute" …, provides that "[n]o cause of action for injury to person . . . is lost because of the death of the person in whose favor the cause of action existed." A cause of action based on personal injuries which survives the death of the decedent is distinct from a cause of action to recover damages for wrongful death … . Accordingly, the cause of action to recover damages for conscious pain and suffering predicated on alleged acts of professional malpractice committed between October 19, 2005, and October 28, 2005, survived the decedent's death, and damages for such pain and suffering may be recoverable by her estate … .  Stolarski v Family Servs of Westchester Inc, 2013 NY Slip Op 06850, 2nd Dept 10-23-13






Sex Offender Status Not Enough to Support Neglect Finding


The Third Department reversed Supreme Court’s finding of neglect against respondent mother for leaving the children with the father unsupervised.  The father was a sex offender who failed to complete sex offender treatment and was previously found to have neglected the children by Supreme Court on that and other grounds.  In the prior appeal of the father’s neglect finding, the Third Department reversed Supreme Court and determined the father’s status as a sex offender was insufficient to support a finding he neglected the children and the other factors relied upon by the court lacked a sound and substantial basis in the record.  Because of those prior rulings, a finding of neglect against the mother based on leaving the children unsupervised with the father had to be reversed.


Inasmuch as the finding of neglect against respondent was premised on her permitting the father to have unsupervised contact with the children, it would be completely illogical to conclude that the subject children's "physical, mental or emotional condition [had] been impaired or [was] in imminent danger of becoming impaired as a result of the failure of [respondent] . . . to exercise a minimum degree of care . . . in providing the child[ren] with proper supervision or guardianship" (Family Ct Act § 1012 [f] [i] [B]), when we previously determined that petitioner failed to prove that the father posed a risk of imminent danger to them (Matter of Hannah U. [Dennis U.], 97 AD3d at 909).  Thus, for the same reasons that led us to reverse the finding of neglect as to the father, we similarly conclude that petitioner failed to prove by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]) that respondent neglected the subject children as alleged in the petition … .  Matter of Hannah U …, 514024, 3rd Dept 10-14-13



Relocation Criteria Explained


In affirming the grant of father’s petition to relocate with the child, the Third Department explained the criteria:


The party seeking to relocate with a child – here, the father – bears the burden of establishing by a preponderance of the credible evidence that the relocation is in the child's best interests … .  Family Court must consider a number of relevant factors in making this determination, including "'each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the [nonmoving] parent, the degree to which the [moving] parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [non-moving] parent and child through suitable visitation arrangements'" … .  Notably, as "Family Court is in the best position to make factual findings and credibility determinations, its decision will not be disturbed if it is supported by a sound and substantial basis in the record" … .  Matter of Cole v Reynolds, 514712, 3rd Dept 10-24-13






Special Immigrant Juvenile Law Triggered by Abuse, Neglect or Abandonment by One Parent (Not Both)


In a full-fledged opinion by Justice Roman, the Second Department determined that in order to qualify for the special immigrant juvenile provision of the Immigration and Nationality Act (8 USC 1101), which provides a gateway to permanent residency for undocumented children who have been abused, neglected or abandoned, the juvenile need only demonstrate that reunification with one (not both) of his or her parents “is not viable due to abuse, neglect, abandonment, or a similar basis found under State law…”:


…Susy established that reunification with her father was not viable due to abandonment (see 8 USC § 1101[a][27][J][i]…). The Family Court, as evidenced by its comments at the hearing, denied Susy's application for a special findings order on the ground that the viability of reunification with Susy's mother rendered Susy ineligible for SIJS. However, we disagree with the Family Court's interpretation of the reunification component of the statute. 


"To interpret a statute, we first look to its plain language, as that represents the most compelling evidence of the Legislature's intent" … . Under the plain language of the statute, to be eligible for SIJS, a court must find that "reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law" (8 USC § 1101[a][27][J][i] [emphasis added]). We interpret the "1 or both" language to provide SIJS eligibility where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar State law basis… .  Matter of Marcelina M-Gv Israel S, 2013 NY Slip Op 06868, 2nd Dept 10-23-13






Letters Between Attorney and City Re: Fees Did Not Create Unilateral Contract


The Third Department affirmed the dismissal of a complaint seeking attorneys fees from the City for the defense of a police officer who allegedly pointed a loaded weapon at a coworker.  At one point the City and the defense attorney exchanged letters concerning the lawyer’s fees and the City offered to pay the defense attorney $150.00 an hour.  The breach of contract cause of action was based on those letters.  In addition to determining there was no contract, the Third Department explained the flaws in the promissory estoppel, unjust enrichment, quantum meruit and fraud causes of action. In finding that the letters did not constitute a contract, the Third Department wrote:


"For a contract to be created, regardless of whether it is bilateral or unilateral, 'there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms'" … . Price is a material term of a contract … ..  


The complaint here alleges that [the City’s] letters constituted a unilateral contract whereby [the City] agreed to pay [defense counsel] at the rate of $150 per hour, and that the contract became binding when [defense counsel] performed under the contract by representing [the officer].  Plaintiffs cannot prevail because their allegations are flatly contradicted by documentary evidence.  [Defense counsel’s] invoice billed defendant at the rate of $350 per hour for his time and at other rates – all higher than listed in his ….estimate – for his staff.  This invoice contradicts plaintiffs' assertion that the parties had agreed on all material terms of a contract, namely a price of $150 per hour … .   As documentary evidence refutes the allegations and establishes that no valid contract had been formed, Supreme Court properly dismissed the cause of action for breach of contract… . DerOhannesian v City of Albany, 515875, 3rd Dept 10-24-13



Effect of “Notwithstanding” Clause/Criteria for

Reformation of Contract


In a full-fledged opinion by Justice Acosta, the First Department affirmed Supreme Court’s denial of defendant’s motion to dismiss a breach of contract complaint.  Plaintiffs contended the floor share price in the “notwithstanding” clause of the contract was an error, and submitted a supporting email referring to a different price in opposition to the motion to dismiss. The court agreed that the email was sufficient to overcome the dismissal motion and explained the powerful legal effect of a “notwithstanding” clause and the criteria for reformation of a contract:


It is well settled that trumping language such as a "notwithstanding" provision "controls over any contrary language" in a contract … . This Court has likewise noted that "inconsistency provisions" -- i.e. those that dictate which of two contract provisions should prevail in the event of an inconsistency -- "are frequently enforced by courts" … . 


In construing statutes and contracts, the U.S. Supreme Court has remarked that "the use of . . . a notwithstanding' clause clearly signals the drafter's intention that the provisions of the notwithstanding' section override conflicting provisions of any other section" … . Thus, the effect of a "notwithstanding" clause will prevail "even if other provisions of the contract[] might seem to require . . . a [conflicting] result" … . * * *


Before a court will grant reformation of a contract, the party demanding this equitable remedy " must establish his right to such relief by clear, positive and convincing evidence'" … . The purpose of reformation is not to "alleviat[e] a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties" … . In order to "overcome the heavy presumption" that the contract embodies the parties' true intent, the party seeking reformation must "show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties" … . Warberg Opportunistic Trading Fund LP v GeoResources, Inc, 2013 NY Slip Op 06826, 1st Dept 10-22-13






Equipment Leases Are Not “Securities” for Purposes of Tax Law


In a detailed decision going into depth on many of the related issues, the Third Department determined that (1) leases of equipment which the customer has the option to buy at the end of the term and (2) installment sales of equipment in which title is conferred to the customer at the outset, both referred to as “financial agreements,” were not “securities” and therefore the related interest was not “investment income” within the meaning of Tax Law 208:


Business income is defined as "entire net income minus investment income" (Tax Law § 208 [8]); investment income, as relevant here, is defined as "income . . . [derived] from investment capital" less allowable deductions (Tax Law § 208 [6]), which is "investments in stocks, bonds and other securities, corporate and governmental, not held for sale to customers in the regular course of business" (see Tax Law § 208 [5] [emphasis added]).  The corporate franchise tax statutes do not offer a definition of the term security or the phrase "other securities."  The [Tax] Department's regulations provide that the phrase "stocks, bonds and other securities," among other things, means "debt instruments issued by . . . government[s]" (20 NYCRR 3-3.2 [c] [2]).  Petitioner's main argument is that the finance agreements in issue constitute such debt instruments and, thus, the income derived therefrom is investment income under Tax Law § 208 (5) and (6).  The [Tax Appeals] Tribunal rejected this interpretation, and we confirm.  Xerox Corp v NYS Tax Appeals Tribunal, 514464, 3rd Dept 10-24-13






Construction of Dock Could Not Be Regulated by Town---Land Under Navigable Waters Owned by State


The Third Department determined that the Lake George Town Planning Board did not have jurisdiction to grant or deny petitioner’s application to build a dock in Lake George because the state, not the town, owned the land under navigable waters:


When the state owns land under navigable waters in its sovereign capacity, its exclusive authority preempts local land use laws and extends beyond the regulation of navigation "to every form of regulation in the public interest.”… .  The state holds title to the lands under Lake George in its sovereign capacity  and, thus, has sole jurisdiction over construction in the lake's navigable waters provided it has not delegated this authority to a local government … . 


"[A]bsent the delegations in Navigation Law § 46-a allowing local municipalities to regulate the manner of construction and location of structures in waters owned by the [s]tate in its sovereign capacity, municipalities bordering or encompassing such waters . . . have no authority to issue such regulations"… . The Hart Family v Town of Lake George, 515142, 3rd Dept 10-24-13






Physician Can Be Removed from Medicaid Program Irrespective of Action Taken by Bureau of Professional Medical Conduct


In a full-fledged opinion by Judge Read, with two concurring judges, the Court of Appeals determined that the Office of Medicaid Inspector General (OMIG) is authorized to remove a physician from New York’s Medicaid program based on a consent order between the physician and the Bureau of Professional Medical Conduct (BPMC) regardless of whether BPMC chooses to suspend the physician:


In this litigation, Supreme Court annulled OMIG's determination to terminate petitioner-physician's participation in the Medicaid program on the basis of a BPMC consent order, and directed his reinstatement.  In the consent order, petitionerphysician pleaded no contest to charges of professional misconduct and agreed to 36 months' probation.  Upon OMIG's appeal, the Appellate Division affirmed, holding that it was arbitrary and capricious for the agency to bar petitionerphysician from treating Medicaid patients when BPMC permitted him to continue to practice; and that OMIG was required to conduct an independent investigation before excluding a physician from Medicaid on the basis of a BPMC consent order … .  We subsequently granted OMIG permission to appeal (19 NY3d 813 [2012]).


We disagree with the Appellate Division's rationale, but affirm because OMIG's determination was arbitrary and capricious for another reason.  Specifically, OMIG did not explain why the BPMC consent order in this case caused it to exercise its discretion pursuant to 18 NYCRR 515.7 (e) to exclude petitioner-physician from the Medicaid program. * * *


When resolving charges of professional misconduct with BPMC, physicians and their attorneys should be mindful that a settlement with BPMC does not bind OMIG, as petitioner-physician discovered in this case.  Matter of Koch, DO v Sheehan…, 153, Ct App 10-22-13






Cleaning Gutters Not Covered


The Second Department determined that cleaning out gutters is not work covered under Labor Law 240(1):


Although Labor Law § 240(1) applies to commercial "cleaning" which is not part of construction, demolition, or repair …, such as commercial window washing and sandblasting …, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris … . Hull v Fieldpoint Community Assn Inc, 2013 NY Slip Op 06837, 2nd Dept 10-23-13



Homeowner’s Exemption Applied/Homeowner Not General Contractor


In dismissing the action against defendant homeowner, the Third Department determined the homeowner’s exemption applied, the homeowner did not direct or supervise plaintiff’s work, and the homeowner could not be characterized as a general contractor:


Although Labor Law §§ 240 (1) and 241 each "impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities . . .[,] the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work" … .  In this context, "the phrase 'direct or control' is to be strictly construed and, in ascertaining whether a particular homeowner's actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured [party]" * * *


The case law makes clear …that neither providing site plans …., obtaining a building permit …, hiring contractors, purchasing materials…, offering suggestions/input …, inspecting the site … , retaining general supervisory authority … , performing certain work …nor physical presence at the site operates to deprive a homeowner of the statutory exemption – so long as the homeowner did not exercise direction or control over the injury-producing work… . * * *


We reach a similar conclusion with respect to plaintiff's Labor Law § 200 and common-law negligence claims.  In order to prevail on such claims, plaintiff was required to establish that defendant both "exercised supervisory control over plaintiff's work and had actual or constructive knowledge of the unsafe manner in which the work was being performed"… . Bombard v Pruiksma, 516213, 3rd Dept 10-24-13






Music Teachers Are Employees Not Independent Contractors


In finding that music teachers were employees [of Musika, LLC], not independent contractors, the Third Department wrote:


Claimant offered guitar lessons for Musika LLC, a business that matches music teachers it deems qualified with students. Musika required its teachers to execute a contract that set the fee for lessons, prohibited them from competing with Musika or soliciting its students, and obliged teachers to perform any services "reasonably requested" by it.  The teachers were required to report their work activities to Musika which, in turn, billed the students and paid the teachers by check. Moreover, teachers were expected to notify Musika if they were unavailable to work and could not use a substitute teacher without prior approval.  Notwithstanding the proof in the record that could support a contrary result, the above constitutes substantial evidence for the determination of the Unemployment Insurance Appeal Board that claimant and those similarly situated were Musika's employees and not independent contractors… . Matter of Tekmitchov…, 516112, 3rd Dept 10-24-13



Ineffective Assistance On Suppression Issues---Case Sent Back


The Court of Appeals, over two dissenters, determined defendant had not been provided with effective assistance counsel with respect to the motion to suppress and suppression hearing.  The court sent the matter back to properly consider the suppression issues, stating that if defendant prevailed on suppression the conviction should be vacated and the indictment dismissed:


In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police.  At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a posthearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony.   


And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant.  Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects -- both before, during and after the proceeding -- that defendant was not afforded meaningful representation at a critical stage of this prosecution.  People v Clermont, 166, Ct App 10-22-13



Recklessness Demonstrated In Operation of Vehicle


In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s convictions for reckless manslaughter and reckless assault after defendant’s car struck another car head on.  There was evidence defendant was deliberately speeding (134 mph) in an area he knew to include a sharp turn.  The court explained the difference between recklessness and criminal negligence in this context:


The mental states of recklessness and criminal negligence share many similarities.  Both require that there be a "substantial and unjustifiable risk" that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant's conduct amount to a "gross deviation" from how a reasonable person would act (compare Penal Law § 15.05 [3] [Recklessly] with Penal Law  § 15.05 [4] [Criminal Negligence]).  The only distinction between the two mental states is that recklessness requires that the defendant be "aware of" and "consciously disregard" the risk while criminal negligence is met when the defendant negligently fails to perceive the risk … .


In the context of automobile accidents involving speeding, we have held that the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires "some additional affirmative act" aside from "driving faster than the posted speed limit" … .  Here, there was ample proof that defendant did more than merely drive faster than the legal limit -- indeed, there was eyewitness testimony that he was traveling at more than double the posted speed limit of 55 miles per hour.  Moreover, before the collision, defendant stopped his vehicle in the middle of the unlit road and revved the engine. He then hit the gas pedal and accelerated to an extremely high rate of speed before crossing the double line into oncoming traffic.  Viewed in the light most favorable to the People, the evidence showed that defendant used a public road as his personal drag strip to showcase the capabilities of his modified sports car.  Although the jury acquitted defendant of driving while ability impaired (by alcohol), there was evidence that he had been drinking and smoking marijuana that evening … .  The evidence therefore demonstrated that defendant engaged in conduct exhibiting "the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community's general sense of right and wrong" … .


Furthermore, the proof was sufficient to support the jury's conclusion that defendant acted recklessly -- by consciously disregarding the risk he created -- as opposed to negligently failing to perceive that risk.  Defendant was familiar with the curve in the road …, having driven by there on a number of prior occasions, and he had been warned twice about speeding into that very section of the road. People v Asaro, 158, Ct App 10-22-13



Effect of Witness’ Invocation of Fifth Amendment Privilege on Fairness Explained


The Second Department explained when a witness’ asserting the privilege against self-incrimination constitutes reversible error and noted that the introduction of a photograph of the murder victim when he was alive was (harmless) error:


"[A] witness's invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness's assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight' to the prosecution's case in a form not subject to cross-examination" … . "Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted" … . Under the circumstances presented here, invocation of the Fifth Amendment privilege against self-incrimination by a prosecution witness did not add critical weight to the prosecution's case, and the defendant was not deprived of his right to a fair trial by that testimony… .  People v Berry, 2013 NY Slip Op 06872, 2nd Dept 10-23-13



Partial Closure of Courtroom During Testimony

of Undercover Police Okay


The Second Department determined partial closure of the courtroom during the testimony of undercover police detectives was proper:


…[T]he court providently adopted a reasonable alternative to full closure of the courtroom, excluding the general public and allowing the defendant's sister and the defendant's friend to be present during the testimony of the two undercover detectives, and placing a blackboard in front of the detectives so as to shield their identities from the sister and the friend. The two undercover detectives testified at a Hinton hearing … that they had conducted a long-term undercover operation in the particular housing project where the defendant had been arrested, and that there were unapprehended or "lost" subjects from that investigation. Further, they both testified that they had been threatened by subjects in the past and their safety would be jeopardized if their identities were revealed, that they both planned to conduct future narcotics operations in the area and that one detective planned to return to the particular housing project, that they currently had pending cases in the courthouse in which they were testifying, and that they took special precautions when testifying in court so as to protect their identities. Contrary to the defendant's contention, this testimony exceeded mere "unparticularized impressions of the vicissitudes of undercover narcotics work in general" and included particularized references to their own work which established a specific link between their safety concerns and open-court testimony in this case … . People v Tate, 2013 NY Slip Op 06882, 2nd Dept 10-23-13



Loss of Teeth is “Serious Injury” Re: Assault Second


The First Department determined the loss of teeth (in an assault) was a “serious injury” within the meaning of Penal Law 10.00 (10) because the loss of teeth constituted a “serious and protracted disfigurement” notwithstanding replacement by a prostheses:


The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim's permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ … . Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious …, this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis. 


Furthermore, the victim's loss of four front teeth also constituted a "serious and protracted disfigurement," since "a reasonable observer would find her altered appearance distressing or objectionable" … . The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the disfigurement will be readily apparent.  People v Everett, 2013 NY Slip Op 06954, 3rd Dept 10-24-13






Invocation of Right to Counsel When Not in Custody Can Be Withdrawn Without Attorney Present


The Third Department determined defendant’s invocation of his right to counsel when he was not in custody (on September 4, 2004) could be withdrawn without an attorney present and did not, therefore, require the suppression of subsequent statements made three weeks later:


The right to counsel indelibly attaches in two limited situations – where formal judicial proceedings against a defendant have commenced and where an uncharged defendant, who is in custody, has retained or requested an attorney … .  However, "[a] suspect who is not in custody when he or she invokes the right to counsel can withdraw the request and be questioned by the police" … .  As defendant was not in custody at the time he invoked his right to counsel on September 4, 2009, he was free to withdraw that request or waive such right and speak with the police without having an attorney present – particularly in view of the approximately three weeks that elapsed between his initial request for an attorney and his subsequent statements to law enforcement … . People v Cade, 103443, 3rd Dept 10-24-13





Error to Preclude Witness for Sexual Offender in Article 10 Proceeding


In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”


In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying.  Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding "may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf."  This provision manifestly does not limit a respondent to expert witnesses.  The pertinent question is whether a witness -- expert or lay -- has material and relevant evidence to offer on the issues to be resolved.


Here, Naomi N.'s rejected testimony was relevant to the State expert's diagnosis of paraphilia NOS -- non-consent.  The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct.  With respect to the first prong, Naomi N.'s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.  Matter of State of New York v Enrique D, 168, Ct App 10-22-13






Case Brought by UK Citizen Re: Death in Dubai Dismissed on Forum Non Conveniens Grounds


Over a substantial dissent, the Second Department affirmed Supreme Court’s grant of a dismissal motion on forum non conveniens grounds.  Plaintiff’s decedent died of Legionnaire’s disease after staying in defendant’s hotel in Dubai.  The only connection with New York was defendant’s global headquarters in White Plains. The plaintiffs were citizens of the UK.


The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]…). A defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" … . "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" … . "No one factor is dispositive" … . "The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors" … . Boyle v Starwood Hotels & Resorts Worldwide, Inc, 2013 NY Slip Op 06830, 2nd Dept 10-23-13



Failure to Enter Money Judgment for Ten Years Not Abandonment


The Second Department determined the failure to enter a money judgment for more than ten years did not constitute abandonment under 22 NYCRR 202.48 because the judgment did not require any further action by the court:


22 NYCRR 202.48, entitled "[s]ubmission of orders, judgments and decrees for signature," states in pertinent part: 


"(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.


"(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown" (emphasis added).


However, "the 60-day rule logically applies only where further court involvement in the drafting process is contemplated before entry" … . Here, the order dated September 6, 2000, which awarded judgment to the plaintiff, contained no direction to settle or submit a judgment on notice. Thus,…the 60-day rule of 22 NYCRR 202.48 is inapplicable because no judicial action was necessary before entry of the money judgment … . Consequently, 22 NYCRR 202.48 did not serve as a basis for granting Racer's motion to vacate the judgment. Shamshovich v Shvartsman, 2013 NY Slip Op 06847, 2nd Dept 10-23-13



Grant of Writ of Prohibition Reversed---Criteria for Writ Explained


Supreme Court granted a writ of prohibition finding the state police did not have the legal authority to seize cigarettes purchased by a Nebraska Indian tribe from a manufacturer located on the St. Regis Mohawk Indian Reservation in St. Lawrence County.  The cigarettes did not have state tax stamps.  The Third Department reversed describing the relevant analysis as follows:


Pursuant to well-established law, a CPLR article 78 proceeding for a writ of prohibition is an extraordinary remedy … that "lies only where there is a clear legal right to such relief, and only when [the body or officer involved] acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (…see also CPLR 7803 [2]).  Even where such a proceeding is permissible, the court has the discretion to deny the issuance of a writ of prohibition after considering such factors as "'the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'"… .


…[P]etitioner failed to prove the absence of other avenues of relief that would adequately address the challenged seizure of the cigarettes… . * * *


…[P]etitioner failed to establish a clear entitlement to a writ of prohibition.  As relevant here, Tax Law § 471 (1) imposes "a tax on all cigarettes possessed in the state by any person for sale," except under circumstances where "this state is without power to impose such tax" (Tax Law § 471 [1]; see 20 NYCRR 74.1 [a] [1]).4  All cigarettes within the state are presumed to be subject to tax unless "the contrary is established," with the burden of proof of nontaxibility falling upon the person in possession of the cigarettes (Tax Law § 471 [1]).  In claiming that the sale here was not a taxable event, petitioner relies upon regulations which provide that no tax may be imposed on cigarettes sold to an out-of-state purchaser (see 20 NYCRR 74.1 [c] [4]; 76.1 [a] [1]). However, the same regulations that establish such exemption also require that all out-of-state sales be made by a duly licensed cigarette agent and that a certificate be obtained from the out-of-state purchaser showing that the cigarettes "will be immediately removed from the State to an identified location for such purposes and that such cigarettes shall not be returned to the State for sale or use herein" (20 NYCRR 76.3 [b] [emphasis added]).  


…[P]etitioner has produced no evidence that the cigarettes would not be reintroduced into the state.   In fact, respondents submitted evidence in the form of, among other things, petitioner's corporate shipment records and a statement by the driver of the truck, which suggest that petitioner regularly transports back into the state cigarettes purchased from the same manufacturer involved here.  HCI Distribution, Inc v NYS Police…, 516040, 3rd Dept 10-24-13






Effects of Refusal to Allow Inmate to Call Witness Explained


The Third Department, in determining that a new hearing, not expungement, was the appropriate remedy, explained the ramifications of a hearing officer’s refusal of an inmate’s request to call witnesses:


"[W]hile '[a] hearing officer's actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness's testimony, constitutes a clear constitutional violation [requiring expungement,] [m]ost other situations constitute regulatory violations [requiring a new hearing]'" … .  Here, … the denial of the witnesses constituted a regulatory violation, and the proper remedy is to remit the matter for a new hearing… . Matter of Griffin, 515749, 3rd Dept 10-24-13






Inmate’s FOIL Request for Prison Directive Should Have Been Granted


The Third Department determined the inmate’s Freedom of Information Law (FOIL) request for a Department of Corrections directive should have been granted:


…"[T]here is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt under Public Officers Law § 87 (2) by articulating a specific and particularized justification" … .  Although the basis of the denial of petitioner's request was that the disclosure may endanger the life or safety of a person (see Public Officers Law § 87 [2] [f]), we fail to see how the disclosure of DOCCS Directive No. 4004, which pertains to the specifications for creating unusual incident reports, poses a danger to lives or to anyone's safety … . Accordingly, the directive must be disclosed. Matter of Flores v Fischer, 516131, 3rd Dept 10-24-13






Note and Mortgage Void as Usurious


The Second Department determined a loan transaction and the associated note and mortgage were void because the loan was usurious:


Under the civil usury statute, the maximum interest rate on a loan is 16% per annum (see General Obligations Law § 5-501[1]; Banking Law § 14-a[1]). General Obligations Law § 5-501(6)(a) provides that the 16% maximum interest rate is not applicable "to any loan or forbearance in the amount of [$250,000] or more, other than a loan or a forbearance secured primarily by an interest in real property improved by a one or two family residence." * * *


To determine whether the interest charged exceeded the usury limit, we must apply the traditional method for calculating the effective interest rate as set forth in Band Realty Co. v North Brewster (37 NY2d 460, 462). Viewing the loan as a one-year loan, the total annual interest is $43,175 ($33,000 in annual interest at 12% on $275,000, plus $10,175 in retained interest fees). The net loan funds advanced, i.e., the loan principal ($275,000) minus the retained interest ($10,175), equals $264,825. Expressed as a percentage of the net loan funds advanced, the $43,175 in total annual interest equals 16.3% of $264,825. The effective interest rate of 16.3% exceeds the civil usury limit, and the loan was therefore usurious.  Oliveto Holdings Inc v Rattenni, 2013 NY Slip Op 06844, 2nd Dept 10-23-13






Question of Fact Whether Encroaching Hedge Was De Minimus Encroachment Re: Adverse Possession


The Second Department determined there was a question of fact about whether a hedge which encroached eight feet into plaintiff’s right of way was a “de minimus” encroachment within the meaning of the Real Property Actions and Proceedings Law (RPAPL) (re: adverse possession):


RPAPL 543(1), which was enacted in 2008, provides: "Notwithstanding any other provision of this article, the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse." The plaintiff contends that pursuant to RPAPL 543(1), the existence of all encroaching hedges and shrubbery, no matter how large, shall be deemed permissive and non-adverse. Under the plaintiff's interpretation of the statute, the list of examples contained in RPAPL 543(1) are examples of "de [minimis] non-structural encroachments." We reject this interpretation. The more reasonable interpretation of RPAPL 543(1) is that the list contains examples of "non-structural encroachments" which could still be adverse if they are not de minimis. This reading gives effect to the words "de [minimis]," while the plaintiff's interpretation would render those words superfluous. "It is a cardinal principle to be observed in construing legislation that . . . whenever practicable, effect must be given to all the language employed. Our duty is to presume that each clause . . . has a purpose" … . Wright v Sokoloff, 2013 NY Slip Op 06856, 2nd Dept 10-23-13



Question of Fact Re: Implied Easement for Pipeline to Pond


The Third Department determined there was a question of fact whether an implied easement existed for a pipeline linking defendant’s property with a pond.  The court agreed with Supreme Court that an express easement had been extinguished when the relevant parcels were owned by the same party and was not subsequently recreated de novo.  The court explained the criteria for an implied easement:


"[A]n easement by implication requires '(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land'" … .  Stated another way, "[a]n implied easement will arise 'upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate'" … . Here, there is no genuine dispute that there was unity in ownership and a subsequent separation of title of the subject parcels.  Similarly, defendants made a prima facie showing that the use of the pipeline across plaintiff's property was continued and obvious for decades.  Freeman v Walther, 516295, 3rd Dept 10-24-13


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