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October Page IV

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


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Post-Judgment Restraining Order Served On a New York Branch of a Foreign Bank, Pursuant to the Separate Entity Rule, Cannot Extend to Assets Held in Branches of the Bank Which Are Outside of New York


The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissenting opinion, answering a certified question from the Second Circuit, determined the "separate entity" rule prohibited a restraining order served on a New York branch of a bank from extending to assets in other branches of the bank which are outside New York.  Here a restraining order was served on a New York Branch of a foreign bank headquarted in the United Kingdom and the plaintiff sought to apply the restraining order to $30 million held in a branch of that bank in the United Arab Emirates:


The separate entity rule, as it has been employed by lower New York courts and federal courts applying New York law, provides that even when a bank garnishee with a New York branch is subject to personal jurisdiction, its other branches are to be treated as separate entities for certain purposes, particularly with respect to CPLR article 62 prejudgment attachments and article 52 postjudgment restraining notices and turnover orders. In other words, a restraining notice or turnover order served on a New York branch will be effective for assets held in accounts at that branch but will have no impact on assets in other branches... . * * *


In large measure, the underlying reasons that led to the adoption of the separate entity rule still ring true today. The risk of competing claims and the possibility of double liability in separate jurisdictions remain significant concerns, as does the reality that foreign branches are subject to a multitude of legal and regulatory regimes. By limiting the reach of a CPLR 5222 restraining notice in the foreign banking context, the separate entity rule promotes international comity and serves to avoid conflicts among competing legal systems ... . And although Motorola suggests that technological advancements and centralized banking have ameliorated the need for the doctrine, courts have continued to recognize the practical constraints and costs associated with conducting a worldwide search for a judgment debtor's assets ... . Motorola Credit Corp v Standard Chartered Bank, 2014 NY Slip Op 07199, Ct.App. 10-23-14





After a Mistrial in a Criminal Matter, a Prohibition Action Seeking to Bar Retrial on Double Jeopardy Grounds Must Be Brought Within Four Months of a Definitive Demonstration of the People's Intent to Re-Prosecute


The Court of Appeals, over a concurring opinion which disagreed with the majority's grounds, determined that the four-month statute of limitations was not tolled under a "continuing harm" theory and the prohibition action was time-barred.  The trial court had declared a mistrial because, during deliberations, one of the 12 jurors was removed for misconduct.  It was clear shortly after the mistrial that the prosecution was preparing for a second trial. Two years after the mistrial was declared, the defendant brought a prohibition action seeking to prohibit the second trial on Double Jeopardy grounds:


A four-month limitations period applies to CPLR article 78 prohibition proceedings (see CPLR 217 [1]...) and the petition here was filed more than two years after the mistrial was declared. Although a tolling period for continuing harm has been recognized ... and would be adopted by our concurring colleague, we reject its application in this situation. Once the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial, Smith was obligated to initiate his Double Jeopardy-based article 78 challenge within the statutorily prescribed time frame. On the facts of this case, that period expired well before prohibition was sought, and therefore, the proceeding was barred by the statute of limitations. Matter of Smith v Brown, 2014 NY Slip OP 07090, Ct.App. 10-21-14





1961 Royalties-Agreement Between Duke Ellington and Music Publishers Was Not Ambiguous and Could Not Be Interpreted to Refer to Parties ("Affiliates" of the Music Publishers) Which Did Not Exist In 1961---Therefore the Ellington Estate Was Not Entitled to a 50% Share of the Revenues Earned by Foreign Subpublishers With Which the Original Music Publishers Have Affiliated Since 1961


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over two dissenting opinions, determined that the terms of a 1961 royalties-agreement between Duke Ellington and music publishers were not ambiguous and must be applied as intended in 1961, even though the globalization of the music publishing business had a drastic effect on the royalty-revenues which could not have been anticipated in 1961.  The defendant music publishers which were parties to the 1961 agreement, in recent years, had become affiliated with a number of foreign subpublishers which did not exist in 1961.  The Ellington estate argued that the term "any other affiliate" (of the music publishers) in the agreement should be read to include all the recent foreign subpublishers so that the revenues earned by the foreign subpublishers would be shared by the estate. The Court of Appeals disagreed and held that only the "affiliates" contemplated by the agreement in 1961 were bound by the agreement:


Absent explicit language demonstrating the parties' intent to bind future affiliates of the contracting parties, the term "affiliate" includes only those affiliates in existence at the time that the contract was executed ... . Furthermore, the parties did not include any forward looking language. If the parties intended to bind future affiliates they would have included language expressing that intent. Absent such language, the named entities and other affiliated companies of EMI's predecessor which existed at the time are bound by the provision, not entities that affiliated with EMI after execution of the Agreement. As it is undisputed that the affiliated foreign subpublishers at issue here were not affiliates at the time the Agreement was executed, they are not [parties to the agreement]. Ellington v EMI Music Inc, 2014 NY Slip Op 07197, Ct.App. 10-23-14




Although the Police Could Have Done More to Make Sure Defendant Was Not Represented by Counsel Before Questioning Him, Defendant's Prior Attorney's Statement to the Police that He Was No Longer Representing the Defendant Was Enough


The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the police properly questioned the defendant without an attorney present after they were told by defendant's prior attorney that the he no longer represented the defendant. Defendant was represented on a robbery charge. After defendant indicated he had knowledge of the commission of an unrelated murder, he entered a plea bargain which promised a reduced sentence if he provided useful information about the murder.  The police who interviewed the defendant about the murder did not believe his story and the defendant did not receive a reduced sentence for the robbery.  Subsequently, the police suspected defendant was himself involved in the murder.  Before questioning the defendant, the police met with the attorney who had represented the defendant on the robbery charge.  The police did not tell the attorney why they wanted to question the defendant. The police then elicited statements from the defendant without any further inquiry about whether he was represented by counsel.  The dissent argued that there was ambiguity about the defendant's representational status, the burden was on the police to make sure the defendant was no longer represented before questioning him, and that burden was not met here:


Here, the police did have a reason — an excellent one — to believe that the attorney-client relationship had ceased: the attorney had told them so. By asking the question and getting an unequivocal answer, the police discharged their burden. It is no doubt true that they could have done more. They could have explained to [defendant's attorney] exactly why they were eager to talk to defendant, or they could have asked defendant himself whether the relationship had reached an end. Perhaps had they done so, they would have received a different answer. But the police are not required to take all imaginable steps to protect a defendant's right to counsel. Where they follow the rules laid down in our cases — rules that are, in general, highly protective of the attorney-client relationship — they need do no more ... .  People v McLean, 2014 NY Slip Op 07085, Ct.App. 10-21-14




County Court Was Not Required to Inquire Whether Defendant Wished to Seek New Counsel---Defendant's Counsel of Choice Was Ill and County Court Ordered the Trial to Go Forward with Substitute Counsel (Selected by Defendant's Counsel of Choice) After Denying Defendant's Request for an Adjournment


The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined defendant was not denied the right to his counsel of choice when County Court ordered the trial to go ahead with substitute counsel (selected by defendant's counsel of choice) because defendant's counsel of choice was ill.  The case turned on its facts.  Defendant did not request an adjournment to seek new counsel.  County Court was not required to ask the defendant whether he wished to seek new counsel:


A defendant who does not require appointed counsel has a right under both Federal and State constitutions to choose who will represent him ... . "The constitutional guarantee to be represented by counsel of one's own choosing is a fundamental right" ... . Nevertheless, "the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system" ... .


In particular, we have held that a defendant may not use the right to counsel of choice "as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defendants to a speedy trial, and inconvenience witnesses, jurors and opposing counsel" ... . In short, appellate courts must recognize "a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar" ... .


Significantly, in the present case, defendant does not contend that he expressly requested new counsel ... and that the request was wrongly denied. Rather, defendant's principal argument is that when he moved, through counsel, for adjournment, County Court was obliged to inquire of him whether he was in fact seeking new counsel. We disagree.


...[I]n this case, County Court did not violate any of defendant's constitutional rights by denying the adjournment motions without that inquiry. On the record before us on direct appeal ...  no communication was made to County Court from which it would appear that defendant was asking for the opportunity to retain new counsel, or for an adjournment in the hope that [his counsel of choice] would recover quickly enough to become his trial counsel. Rather, defendant simply sought an adjournment to give [substitute counsel] more time to prepare. Under these circumstances, there was no obligation on the part of County Court to inquire as to whether defendant was seeking new counsel. People v O'Daniel, 2014 NY Slip Op 07087, Ct.App. 10-21-14




"Outing" Confidential Informant Online Constituted Witness Tampering


The Court of Appeals affirmed defendant's conviction for fourth-degree witness tampering.  Defendant was present when a confidential informant purchased drugs from defendant's companion.  The transaction was videotaped.  Defendant put the surveillance tape online and identified the confidential informant on his Facebook page.  Statements on the Facebook page by the defendant and others included warnings such as "Snitches get stiches:" 


The evidence, seen in the light most favorable to the People, is sufficient to establish that defendant knew that the confidential informant might testify in a proceeding, and that he wrongfully sought to stop her from doing so. After learning about Jackson's arrest and the confidential informant's role as a witness against Jackson and, potentially, himself, defendant immediately posted communications on the internet that the jury might have reasonably inferred were coded threats that were intended to induce the confidential informant not to testify. And in addition to the public postings on Facebook and YouTube, defendant was in contact via Facebook messages (which essentially act as email on the website) with the confidential informant and her mother. People v Horton, 2014 NY Slip Op 07088, Ct.App. 07088, Ct.App. 10-21-14




"Drug Factory" Presumption re: Possession of Drugs to Which the Defendant Is In "Close Proximity" Does Not Apply to A Defendant Who Is Arrested Outside the Building Where the Drugs Are Located and Who Was Not Trying to Escape/Where a Jury Is Instructed It Can Consider Two Different Theories of Possession, and One of Those Theories Should Not Have Been Available for the Jury's Consideration, the Relevant Convictions Must Be Reversed---the Jury Could Have Based Its Verdict on the Erroneously-Charged Theory


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trial judge should not have allowed the jury to consider whether the defendant, who was arrested outside the apartment, was in "close proxity" to the cocaine in the apartment.  Penal Law 220.25(2) creates a presumption that persons in "close proximity" to drugs that are being mixed or packaged possesses those drugs (the so-called "drug factory" presumption). The trial judge also instructed the jury they could consider whether the defendant constructively possessed the drugs by virtue of his control over the area where the drugs were found.  Because it can not be determined whether the jury based its verdict on the erroneous "drug factory" charge or the correct "constructive possession" charge, the relevant convictions were reversed and a new trial ordered.  The Court of Appeals went through all the scenarios which have been held to constitute "close proximity" to drugs and concluded that where a defendant is outside the structure where the drugs are located and is not in the process of fleeing, the "drug factory" presumption does not apply:


...[T]he presumption may apply even in cases where a defendant has exited the premises, when the defendant is caught in immediate flight, or apprehended fleeing the premises "upon the sudden appearance of the police" ... . We need not determine on this appeal how far from the premises defendant may be apprehended and still be subject to the presumption. We note, however, that the boundary in these cases is not limitless. Suffice it to say, that each incremental enlargement of the distance between the defendant and the premises where the drugs are found tests the underlying justification of the presumption, and makes it susceptible to challenge. ...


Applying these principles to the record before us, we conclude that defendant was not in close proximity to the drugs when they were found within the meaning of section 220.25(2). He was not in the room where the drugs were found, in an adjacent room within the same apartment, or in a "closet, bathroom or other convenient recess[]." Nor was he found immediately outside the premises while trying to escape.  People v Kims, 2014 NY Slip Op 07196, Ct.App. 10-23-14




Failure to Inform Defendant of Period of Post-Release Supervision Before Sentencing (Based On a Guilty Plea) Required Vacation of the Sentence, Even in the Absence of Preservation of the Error


The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined the defendant's sentence must be vacated because defendant wasn't informed of the period of post-release supervision (PRS) until sentencing (in the absence of preservation of the error):


The primary issue presented by this appeal is whether defendant was required to preserve her claim that her plea was not knowingly and voluntarily entered where she first received notice of the imposition of a term of postrelease supervision (PRS) at sentencing, and submitted to sentencing with the PRS addition. We reverse, vacate the plea, and remit for further proceedings, holding that the court must notify defendant of a term of PRS sufficiently in advance of its imposition that defendant has the opportunity to object to the deficiency in the plea proceeding. In the absence of such an opportunity, preservation is unnecessary. * * *


We held in People v Catu that "[a] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences" (4 NY3d 242, 244-245 [2005]). To meet due process requirements, a defendant "must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action" (id. at 245). Without such procedures, vacatur of the plea is required (id.). People v Turner, 2014 NY Slip Op 07200, Ct.App. 10-23-14 





Failure to Request Adverse Inference Jury Instruction Re: Missing Material Evidence, Under the Facts, Did Not Constitute Ineffective Assistance of Counsel


The Court of Appeals, in a full-fledged opinion by Jude Lippman, determined defense counsel's failure to request an adverse inference jury instruction did not constitute ineffective assistance of counsel.  The defendant shot four men.  He claimed the men were about to attack him with razors. A videotape which apparently would have shown the altercation had been destroyed.  The trial took place in 2009, before the ruling in People v Handy, 20 NY3d 663 (2013), which established the adverse interest charge is mandatory upon request where evidence likely to be of material importance has been destroyed by the state. The Court of Appeals found that defense counsel's failure to request the adverse inference charge, if it was a mistake, was not enough to support a claim of ineffective assistance.  Proof presented at trial was at odds with defendant's assertion he acted in self-defense:


It is well-established that the effectiveness of a representational effort is ordinarily assessed on the basis of the representation as a whole ... . One error — and only one is identified here — in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not "meaningful" ... or fell below the objective standard of reasonableness required by the Federal Constitution ... . There are, of course, exceptional cases in which an error is so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation ..., but this is not that rare sort of case. Allowing for argument's sake that counsel erred in omitting to request the charge, that lone error was not in the context of this prosecution sufficiently egregious and prejudicial to constitute a predicate for the relief now sought. The entitlement to an adverse inference charge, such as the one defendant's attorney allegedly neglected to seek, was not conclusively established until 2013 when we decided People v Handy (20 NY3d 663 [2013]). It was in Handy that we first held such a charge to be mandatory upon request "when a defendant in a criminal case, acting with due diligence, demand[ed] evidence . . . reasonably likely to be of material importance, and that evidence ha[d] been destroyed by the State" (id. at 665). Before Handy, the availability of the charge was discretionary. At the time of defendant's trial, in 2009, competent counsel would naturally have seized upon the government's unexplained failure to preserve probably material evidence to encourage an inference adverse to the prosecution and favorable to her client, precisely as defendant's trial counsel did, but there was then no legal authority absolutely entitling her client to the judicial instruction she is now faulted for not having sought (see Handy, 20 NY3d at 669-670). Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representational effort as singly to support a claim for ineffective assistance. * * *


We do not exclude the possibility that, post-Handy, the failure to request a Handy charge could support an ineffective assistance claim. But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel's inadequacy ..., would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible. The present facts do not meet that condition. On this record, it cannot be said that there was even a reasonable possibility, much less a reasonable probability ...that the jury, if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown. People v Blake, 2014 NY Slip Op 07086, Ct.App. 10-21-14




Prior Consistent Statements by the Complainant in a Sexual Abuse Case Were Not Admitted for the Truth of the Matter Asserted, But Rather Were Properly Admitted to Explain How the Investigative Process Began


The Court of Appeals, in a full-fledged opinion by Judge Read, over a concurrence disagreeing with majority's reasoning and a two-judge dissent, determined that prior consistent statements by the complainant in a sexual-abuse case were properly admitted.  The Court of Appeals concluded the statements did not constitute bolstering, were not introduced for the truth of the matter asserted, and were admissible to show how the investigative process into complainant's allegations began:


In the challenged testimony, complainant's half-brother and mother did not recite any details of the sexual abuse to which complainant later testified in court — indeed, they could not have done so because she supplied them with no information beyond a bare allegation. They did, however, describe complainant's appearance: according to her half-brother, complainant "hesitated" and, after telling him that she had performed oral sex, was reluctant to speak further; according to complainant's mother, when pushed by her half-brother to "tell mom what you just told me," complainant stood mute with her fist in her mouth, causing her mother to think at first that she had injured her hand. Finally, the witnesses explained what actions complainant's disclosure prompted them to take: the half-brother pressed complainant to repeat the allegation to their mother, and, when she was unwilling, told their mother himself; complainant's mother immediately shared the allegation with a trusted sister of defendant's and a friend, which led to the investigation resulting in the charge against defendant.


New York courts have routinely recognized that "nonspecific testimony about [a] child-victim's reports of sexual abuse [do] not constitute improper bolstering [because] offered for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant's arrest" ... . Here, the objected-to testimony fulfilled these legitimate nonhearsay purposes.  People v Ludwig, 2014 NY Slip Op 07201, Ct.App. 10-23-14



The Court of Appeals addressed the same issue and came to the same result in another case. People v Cullen, 2014 NY Slip Op 07202, Ct.App. 10-23-14






Complaint Stated a "Mixed Opinion" Defamation Cause of Action---A "Mixed Opinion" Statement Implies It Is Based Upon Facts Unknown to the Reader---Pre-Answer Motion to Dismiss Should Not Have Been Granted



The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the Fourth Department and reinstated a defamation complaint against Syracuse University and James Boeheim, the head coach of the Syracuse University men's basketball team. The complaint had been dismissed pursuant to CPLR 3211(a)(7) on the ground that the statements were pure opinion and were therefore not actionable as a matter of law. The Court of Appeals determined that the allegations in the complaint (accepted as true for purposes of the pre-answer motion to dismiss) included statements by Coach Boehein which implied the existence of facts within his knowledge but unknown to the reader.  Such statements are actionable as "mixed opinion."  The plaintiffs alleged that the team's associate coach had sexually molested them more than twenty years before.  Coach Boeheim described the plaintiffs as liars who were making the allegations for financial gain.  The court explained its role in determining a pre-answer motion to dismiss and the relevant law of defamation:


This appeal comes to us on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which requires that "we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff's claim" ... . Unlike on a motion for summary judgment where the court "searches the record and assesses the sufficiency of the parties' evidence," on a motion to dismiss the court "merely examines the adequacy of the pleadings" ... . In determining the sufficiency of a defamation pleading, we consider "whether the contested statements are reasonably susceptible of a defamatory connotation" ... . As we have previously stated, "[i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action" ... . We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, "we recognize as well a plaintiff's right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets the minimal standard necessary to resist dismissal of the complaint" ... . * * *


In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement "that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation" ... . "Since falsity is a necessary element of a defamation cause of action and only 'facts' are capable of being proven false, 'only statements alleging facts can properly be the subject of a defamation action'" ... .


A defamatory statement of fact is in contrast to "pure opinion" which under our laws is not actionable because "[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" .... For, "[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas" ... . A pure opinion may take one of two forms. It may be "a statement of opinion which is accompanied by a recitation of the facts upon which it is based," or it may be "an opinion not accompanied by such a factual recitation" so long as "it does not imply that it is based upon undisclosed facts" ... .


While a pure opinion cannot be the subject of a defamation claim, an opinion that "implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, [] is a 'mixed opinion' and is actionable" ... . This requirement that the facts upon which the opinion is based are known "ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader's] own conclusions concerning its validity" ... . What differentiates an actionable mixed opinion from a privileged, pure opinion is "the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker's] opinion and are detrimental to the person" being discussed ,,, .


Distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean" ... . "The dispositive inquiry ... is 'whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff" ... . Davis v Boeheim, 2014 NY Slip Op 07083, Ct.App. 10-21-14





The Prevailing Wage Statute Applies To All Work Reasonably Interpreted to Be Covered by the Statute---The Fact that the Application of the Statute Is Unsettled At the Time the Public Works Contract Is Entered Does Not Allow the Employer to Escape Its Reach Once the Law Is Settled


The Court of Appeals, in an opinion by Judge Smith, answered two certified questions posed by the Second Circuit about the application of the prevailing wage statute to workers engaged in the testing and inspection of fire protection equipment.  The statute requires employees doing construction, maintenance or repair on public works be paid not less than the prevailing rate of wages. The Second Circuit was asked to review the Labor Department Commissioner's ruling that the statute applied to the testing and inspection of fire protection equipment, but only prospectively.  The Second Circuit asked the Court of Appeals whether deference to the Labor Department's prospective application should be accorded, and further asked whether an employer who agrees to be bound to pay prevailing wages pursuant to section 220 has agreed to pay such wages for all work covered by the statute as the statute is reasonably interpreted, as opposed to only the types of work about which the law is settled at the time of the agreement.  The Court of Appeals determined the law should apply as it is correctly understood, not as the parties may have misunderstood it.  Ramos v SimplexGrinnell LP, 2014 NY Slip Op 07198, Ct.App. 10-23-14





Client May Pursue a Legal Malpractice Action Without Appealing the Ruling Upon Which the Malpractice Allegation Is Based Where It Has Not Been Demonstrated the Appeal Is Likely to Succeed


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the plaintiff's failure to appeal a ruling that plaintiff's action was time-barred did not preclude plaintiff from bringing a legal malpractice action against the attorneys who represented the plaintiff in the time-barred action.  The failure to appeal would only act as a bar to the legal malpractice action if the defendants demonstrated the appeal was likely to have succeeded:


Here, the Appellate Division adopted the likely to succeed standard employed by our sister states with a proximate cause element . We agree that this is the proper standard, and that prior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.


On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients' unfavorable result. Contrary to defendants' assertion that this standard will require courts to speculate on the success of an appeal, courts engage in this type of analysis when deciding legal malpractice actions generally ... . Grace v Law, 2014 NY Slip Op 07089, Ct.App. 10-21-14




Questions of Fact Raised About Whether Access to a Flat Roof through a Window and a Fall from the Roof Into an Unprotected Air Shaft Were Foreseeable


The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined there were questions of fact about whether the applicable regulations and codes required that there be a railing around an air shaft, and whether it was foreseeable that plaintiff would gain access to the flat roof through a window and fall into the shaft.  The opinion includes a detailed description of the relevant building regulations.  With respect to foreseeability, the court wrote:


It is well settled that, as landowners, defendants have "a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances" ... . The existence and scope of this duty is, in the first instance, a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks ... .


The focus of our inquiry, therefore, is whether it was foreseeable that defendants' tenants and their guests would access the setback roof and be exposed to a dangerous condition from the absence of a railing or guard around the air shaft. * * *


...[H]ere, the setback roof was flat and of sufficient size and length to comfortably permit several individuals to stand or walk on it. Access to the roof was easily obtained through the hallway window, and neither plaintiff nor his friends had any difficulty exiting. ... Here, the tenant of the apartment that plaintiff was visiting testified that he had stepped onto the roof through the window approximately 15 times in the two months preceding the accident to smoke cigarettes and that the previous tenant had often done the same. According to the resident, evidence of this use was visible because cigarette butts and garbage littered the roof. On this record ...reasonable minds could differ as to whether plaintiff's use of the roof and his resulting fall were foreseeable, thereby precluding the grant of summary judgment to defendants on that ground. Powers v 32 E 31 LLC, 2014 NY Slip Op 07084, Ct.App. 10-21-14








Denial of Property Tax Refunds by Director of Tax Commission Was Not Final---Article 78 Claims Not Ripe for Judicial Review


The Second Department determined the Article 78 proceedings seeking property tax refunds were not ripe for judicial review because the denial of the refunds by the Director of the county Tax Commission was not final:


...[T]he Supreme Court properly determined that his claims seeking CPLR article 78 relief relating to his tax refund applications were not ripe for judicial review. Administrative determinations may only be challenged via CPLR article 78 review after the determination is final (see CPLR 7801[1]). "For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate" ... . Moreover, a matter is not ripe where the claimed harm may be prevented or significantly ameliorated by further administrative action ... . Here, the issuance of written recommendations by the Executive Director of the Westchester County Tax Commission was not a final approval or denial of the appellant's tax refund applications (see RPTL 5565])... . Matter of Greenberg v Assessor of Town of Scarsdale, 2014 NY Slip Op 07160, 2nd Dept 10-22-14




Injury Caused by Dog's Rambunctious Behavior Not Actionable


Plaintiff was injured when a dog, Heidi, jumped off a hammock causing plaintiff to fall from the hammock.  In affirming the grant of summary judgment to the defendant, the Third Department explained the relevant strict liability criteria (no negligence cause of action lies for injuries caused by a dog):


There is no cause of action in negligence as against the owner of a dog who causes injury, but one may assert a claim in strict liability against a dog owner for harm caused by the dog's vicious propensities when the owner knew or should have known of those propensities ... . A vicious propensity in this context need not involve any ferocious or aggressive behavior, but has instead been defined as "a proclivity to act in a way that puts others at risk of harm, so long as such proclivity results in the injury giving rise to the lawsuit" ... . However, "normal canine behavior" does not establish vicious propensities, and "rambunctious behavior will show awareness of a vicious propensity only if it is the very behavior that resulted in [a] plaintiff's injury" ... . Clark v Heaps, 2014 NY Slip Op 07239, 3rd Dept 10-23-14





In the Absence of a Showing of Possible Fraud, Income Tax Returns Not Discoverable


In an action alleging a breach of an insurance policy, defendant sought discovery of plaintiff's income tax returns.  In affirming Supreme Court's refusal to compel production of the returns, the Second Department explained:


Tax returns generally are not discoverable in the absence of a strong showing that the information is indispensable to a claim or defense and cannot be obtained from other sources .... Here, the defendants failed to make such a showing. Contrary to their contention, the defendants did not make a sufficiently strong showing to warrant disclosure of the plaintiff's tax returns, such as indicia of fraud ... . Katz v Castlepoint Ins Co, 2014 NY Slip Op 07128, 2nd Dept 10-22-14




Unexcused Failure to Comply with Discovery Orders Warranted Striking of the Pleadings


The Second Department determined plaintiff's failure to facilitate an independent medical examination was willful and contumacious warranting the striking of the pleadings:


"The determination whether to strike a pleading for failure to comply with [*2]court-ordered disclosure lies within the sound discretion of the trial court" ... . "However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time" ... . Specifically, contrary to the plaintiff's contention, dismissal of the complaint is warranted where a party repeatedly fails to appear at scheduled IMEs without adequate excuse .... It is undisputed that the plaintiff not only missed the scheduled IMEs without any excuse, but also missed the rescheduled IMEs without offering any reasonable excuse. In addition, the plaintiff failed to provide documents reflecting her prior accidents, despite being obligated to do so pursuant to a so-ordered stipulation. Mangione v Jacobs, 2014 NY Slip Op 07133, 2nd Dept 10-22-14




Court Should Have Allowed Service of an Order to Show Cause by Means Other than Personal Delivery after Plaintiff Failed to Effect Personal Delivery Despite Due Diligence


The Second Department determined plaintiff's motion for leave to serve an order to show cause by means other than personal delivery should have been granted.  The plaintiff had been unable to effect personal delivery despite due diligence:


As a general matter, an order to show cause must be served at a time and in the manner specified therein (see CPLR 403[d]; 2214[d]...). However, under the particular circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was, in effect, for leave to serve ... by a method of personal service pursuant to CPLR 308 other than personal delivery. The plaintiff demonstrated that personal delivery ... pursuant to CPLR 308(1), as required by the order to show cause, could not be effected despite the exercise of due diligence. Moreover, service pursuant to the other means set forth in CPLR 308 constitutes personal service, and is sufficient here for notice of an application to punish for contempt ... . Koyachman v Paige Mgt & Consulting LLC, 2014 NY Slip Op -7130, 2nd Dept 10-22-14




Organizations Representing Lakeshore Residents Should Have Been Allowed to Intervene in an Action Concerning Regulation of Lake Water Levels (Dictated by an 80-Year-Old Injunction)---Neither the Doctrine of Collateral Estoppel Nor Laches Was a Bar to the Relief Sought by the Lakeshore Residents


The Third Department determined Supreme Court should have allowed organizations representing hundreds of lakeshore residents (PLA and Sandy Knolls) to intervene in an Article 78/declaratory judgment proceeding concerning an 80-year-old injunction re: the operation of a dam to control water levels in the lake.  The court held that the neither the doctrine of collateral estoppel nor laches was a bar to the relief sought by the lakeshore residents:


"Pursuant to CPLR 7802 (d), a court may allow other interested persons to intervene" in proceedings brought against public agencies ... . Further, intervention is to be granted as of right in any action or proceeding where a nonparty demonstrates that its interest in the matter is not being duly represented and the nonparty may be "bound by the judgment" (CPLR 1012 [a] [2]) or, alternatively, may be permitted by the court "when the person's claim or defense and the main action [or proceeding] have a common question of law or fact" (CPLR 1013...). * * *


Although requests for leave to intervene invoke a court's discretionary authority ..., the thorough and well-reasoned submissions of the PLA and Sandy Knolls have shown that they have a "'direct and substantial interest' in the outcome of this litigation" and, therefore, Supreme Court erred in denying their motions to intervene ... . Further, inasmuch as the motions to intervene were filed in the months after Supreme Court issued its order in proceeding No. 1, but before the final judgment was rendered in that proceeding more than a year and one half later, and approximately two years before judgment was entered in proceeding No. 2, we do not agree that denial of the motions on untimeliness grounds was necessitated ... . Nor are there any indicia of undue prejudice to petitioners that would warrant the exclusion of the proposed intervenors from the matters . In light of this determination, the argument that the PLA and Sandy Knolls should have been joined as necessary parties has become academic.


Next, we consider Supreme Court's finding ...that collateral estoppel principles precluded respondents from challenging the [injunction]. As a "narrower species of res judicata," the equitable doctrine of collateral estoppel precludes a party from retrying "an issue clearly raised in a prior action or proceeding and decided against that party or those in privity" ... . In this regard, privity is an amorphous term not "susceptible to ease of application" ..., and a court's finding that differing parties are in privity requires consideration of "the character, right and extent of a party's role in one proceeding as it bears on the intervention of the collateral estoppel doctrine in another" ... . * * *[R]espondents were never given "a full and fair opportunity to contest the decision now said to be controlling" ..., nor were their interests properly represented by [the defendant in the original injunction action], so as to warrant the application of collateral estoppel ... . Borst v International Paper Co., 2014 NY Slip Op 07224, 3rd Dept 10-23-14





If a Contractual Representation or Warranty is False When Made, a Claim for Breach of Contract Accrues Upon Execution


The First Department noted that if a contractual representation or warranty is false when made, a claim for breach accrues at the time of the execution of the contract, even if the contract states that the "effective date" is earlier.  US Bank NA v DLJ Mtge Capital Inc, 2014 NY Slip Op 07093, 1st Dept 10-21-14





Unambiguous Terms of a Release Must Be Enforced---Extrinsic Evidence of Intent Not Permitted


In affirming the dismissal of a complaint which was deemed barred by the terms of a release, the Second Department explained the criteria for the analysis of a release:


Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release ... . A release is "governed by principles of contract law" ..., and one "that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms" ... .


The plain language of a release is controlling, "regardless of one party's claim that he [or she] intended something else" ... . Where the scope of the release is unambiguous, "the court may not look to extrinsic evidence to determine the parties' intent" ... . "Whether or not a writing is ambiguous is a question of law to be resolved by the courts" .... Sicuranza v Philip Howard Apts Tenants Corp, 2014 NY Slip Op 07143, 2nd Dept 10-22-14





Defendant Was Apparently Erroneously Sentenced to Five Years When the Correct Sentence Was 15 Years---Pursuant to a Resettlement of the Sentencing Transcript Two Months After Defendant's Release, He Was Resentenced to 15 Years---Because Defendant Had a Legitimate Expectation of Finality Re: the Five-Year Sentence, the Resentence Violated the Double Jeopardy Clause


The Second Department determined defendant's resentencing violated the Double Jeopardy clause.  Defendant had been erroneously sentenced to five years for criminal possession of a weapon when the sentence apparently should have been 15 years.  After defendant's successful habeas corpus action, his assault conviction was vacated and he was released from prison, having served 8 years.  Two months after his release, pursuant to a resettlement proceeding to correct an error in the sentencing transcript, the defendant was resentenced to 15 years and reincarcerated:


Courts possess "the inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth" ... . This inherent authority extends to circumstances "where it clearly appears that a mistake or error occurred at the time a sentence was imposed" ... . However, as with resentencing, an order correcting an error in a transcript of a sentencing proceeding is subject to a temporal limitation imposed by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution ... .


The Double Jeopardy Clause prevents a sentence from being increased once a defendant has a legitimate expectation of finality of the sentence ... . "[A] legitimate expectation of finality turns on the completion of a sentence" ... . Here, the resettlement of the sentencing transcript almost three years after the sentence was purportedly satisfied, and more than two months after the defendant's release from prison in purported full satisfaction of that sentence, violated the constitutional prohibition on subjecting a criminal defendant to double jeopardy. For more than seven years after the sentence was imposed, the People represented to the defendant, and to State and federal courts, that the transcript accurately reflected a five-year sentence. Accordingly, upon his release from prison, the defendant had served out his sentence "as reasonably understood by all the parties" ... . He thus acquired a legitimate expectation of finality with respect to the sentence, and the later resettlement of the transcript of the sentencing proceeding violated his rights under the Double Jeopardy Clause ... . People v Langston, 2014 NY Slip Op 07182, 2nd Dept 10-22-14




Defendant's Request for New Assigned Counsel Was Not Supported by Sufficient Facts to Warrant Inquiry by the Court


In finding defendant's request for new assigned counsel was properly denied, the Second Department explained the relevant analytical criteria:


A defendant may be entitled to new assigned counsel upon a showing of good cause, such as a conflict of interest or other irreconcilable conflict with counsel ... . "Whether counsel is substituted is within the discretion and responsibility' of the trial judge, and a court's duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[ ]'" ... . Where a seemingly serious request is made, the trial court is obligated to conduct at least a "minimal inquiry" to determine the nature of the conflict and a possible resolution ... .


In People v Porto, the Court of Appeals delineated the threshold necessary to require a court to make further inquiry, to wit, a defendant's request to substitute counsel must contain "specific factual allegations of serious complaints about counsel'" ... . Here, no serious complaint about counsel was raised by the defendant ... . Instead, the defendant, who already had at least one prior change of counsel, stated that he wanted new counsel because he didn't "want [his current counsel] anymore. First and foremost [he is] not helping me at all. I don't see myself even surviving the jungle right here with him even representing me." The defendant further stated, "I don't want to proceed with him. And I'm going to tell you, I'm not a lawyer or nothing like that. But I think I can do better than him." The defendant's bare assertions did not suggest the serious possibility of a genuine conflict of interest or other impediment to the defendant's representation by assigned counsel, and did not create a duty of inquiry on the part of the trial court ... . Under these circumstances, the trial court providently exercised its discretion in denying the defendant's request ... . People v Ward, 2014 NY Slip Op 07193, 2nd Dept 10-22-14




Heroin Upon Which Defendant Overdosed in His Cell Constituted "Dangerous Contraband"---Conviction for Promoting Prison Contraband in the First Degree Was Not Against the Weight of the Evidence


The Third Department determined defendant's conviction for promoting prison contraband in the first degree was supported by the evidence.  The contraband, heroin, was "dangerous" with the meaning of the statute because it endangered the safety of the defendant, who overdosed on the drug in his cell:


As noted by County Court, contraband will be considered dangerous under the statutory definition as long as it endangers the safety of "any person" (Penal Law § 205.00 [4]). Inasmuch as the heroin possessed by defendant clearly endangered his own safety, and he freely admitted that he used it to harm himself, there was legally sufficient evidence from which the jury could reasonably conclude that it constituted dangerous contraband and we do not find that the verdict was against the weight of the evidence... . People v Verley, 2014 NY Slip Op 07208, 3rd Dept 10-23-14




Nail and Mail Service Not Valid---Not Calculated to Give Timely Notice of Order to Show Cause Challenging an Independent Nominating Petition


The Third Department determined that the method of service used for petitioner's order to show cause challenging an independent nominating petition (naming a Libertarian Independent Party candidate for state senator) was not valid and reversed the granting of the application:


The manner of service provided in the order to show cause was not "'reasonably calculated to give notice to the necessary parties so that receipt of such notice would normally be expected within the statutory 14-day period for commencing a proceeding concerning the validity of a designating petition'" ... . To institute a proceeding "under Election Law § 16-102," a petitioner "must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)" ... . In order to complete service, actual delivery must occur ... . The Court of Appeals has held that the method of service employed here — affixing the order to show cause and papers to Bowman's residence and mailing the same on the last day permitted for commencing a proceeding — is not a method of service reasonably calculated to give timely notice ... . Contrary to petitioners' assertions, our decision in Matter of Grimaldi v Board of Elections of the State of N.Y. (95 AD3d 1644 [2012]) is distinguishable. In that case, we concluded that service by affixing the papers to the respondent's residence and either faxing or leaving a copy at the office of the respondent's counsel on the last day to commence a proceeding was permissible; we did not permit affixing the papers to a residence and mailing the same on the last day to commence (id. at 1645-1646). Inasmuch as service was not completed within the time limit set forth in Election Law § 16-102 (2), the proceeding must be dismissed ... . Matter of Wilson v Bowman, 2014 NY Slip Op 07289, 3rd Dept 10-24-14





Permit Allowing the Killing of 62 Deer Properly Issued/Exception to the Mootness Doctrine Applied


The Second Department determined an Article 78 proceeding contesting a permit issued by the Department of Environmental Conservation (DEC) allowing Vassar College to kill 62 deer was properly dismissed.  At the time of the appeal, the permit had already expired and the deer had been killed.  The court determined the appeal as an exception to the mootness doctrine because the issue is likely to reappear:


 ...[A]n exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable ... .


Here, although the subject deer cull has been completed and the challenged permit has expired, the appellants raise a substantial and novel issue as to whether the DEC is fulfilling its statutory responsibilities under SEQRA [State Environmental Quality Review Act] related to the issuance of nuisance deer permits. The issue is likely to recur and to evade appellate review, given the extremely short period of time during which such permits are valid ... . * * *


Judicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and "whether the agency identified the relevant areas of environmental concern, took a hard look' at them, and made a reasoned elaboration' of the basis for its determination" ... . "In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" ... . The agency decision should be annulled only if it is arbitrary and capricious, or unsupported by the evidence ... . Further, an agency's interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational ... .


Here, the Supreme Court properly determined that the DEC's issuance of a nuisance deer permit to Vassar pursuant to Environmental Conservation Law § 11-0521 complied with the requirements of SEQRA and its implementing regulations. The DEC's use of a generic EIS, updated with a supplemental findings statement, to assess the impacts of the issuance of nuisance deer permits as a part of its wildlife game species management program was proper... . Matter of In Defense of Animals v Vassar College, 2014 NY Slip Op 07162, 2nd Dept 10-22-14





Where Jail Time Is Contemplated as Punishment for Disobeying an Order of Protection, the Standard of Proof for Willful Contempt is "Beyond a Reasonable Doubt"


The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the "beyond a reasonable doubt" standard applied in a contempt proceeding where jail time was imposed as a punishment for disobeying an order of protection.  The court held the proof met the standard, but sentenced the respondent to time-served (11 days):


Case law has not been consistent regarding the level of proof when considering an alleged willful violation of a protective order ... . This inconsistency may be due in part to the statutory silence as to the quantum of proof (see Family Ct Act § 846-a [stating that the court must be satisfied by "competent proof"]), as well as the fact that, like other statutes implicating contempt, a Family Ct Act article 8 proceeding can involve civil contempt, criminal contempt or both. Criminal and civil contempt have different levels of proof as "criminal contempt must be proven beyond a reasonable doubt," whereas "civil contempt . . . must be proven by clear and convincing evidence" ... .


Where, as here, a person who has violated an order of protection is incarcerated as a punitive remedy for a definite period — with no avenue to shorten the term by acts that extinguish the contempt — then that aspect of the Family Ct Act article 8 proceeding "is one involving criminal contempt [and] [t]he standard of proof that must be met to establish that the individual willfully violated the court's order is beyond a reasonable doubt" ... . Matter of Stuart LL v Aimee KL, 2014 NY Slip Op 07222, 3rd Dept 10-23-14





Fugitive Disentitlement Doctrine Applied to Dismiss Appeal of Wife Whose Child Support Payments Were In Arrears and Who Had Moved to Nigeria


The Second Department, in a full-fledged opinion by Justice Roman, applied the fugitive disentitlement doctrine where the wife, whose child support payments were in arrears, had left the jurisdiction and was living in Nigeria.  The Second Department determined the criteria for fugitive disentitlement had been met and dismissed the wife's appeal on that ground:


"It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his [or her] appeal" ... . The "fugitive disentitlement doctrine," which has its origin in criminal law, is based upon the inherent power of the courts to enforce their judgments, and has long been applied to those who evade the law while simultaneously seeking its protection ... . * * *


To apply the fugitive disentitlement doctrine, there must be a "connection between a defendant's fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response" ... . The doctrine has been extended to the dismissal of appeals in civil cases provided there is likewise a nexus between the appellant's fugitive status and the appellate proceedings ... . The nexus requirement is satisfied in civil cases "where the appellant's absence frustrates enforcement of the civil judgment" ... . * * *


Applying these principles here, we find that dismissal of the appeal is warranted pursuant to the fugitive disentitlement doctrine. The record reveals that the mother deliberately removed herself from the jurisdiction of the New York courts concomitant with the filing of the October 2011 violation petition, which alleged that she had willfully failed to obey the December 2009 child support order. She thereafter failed to personally appear before the Family Court, and a bench warrant was issued to secure her return. However, the mother continued to evade the court, rendering her a fugitive ... .


Additionally, there is a nexus between the mother's fugitive status and the appellate proceedings, since her fugitive status related to her failure to comply with the Family Court's prior orders and her refusal to personally appear before that court. Indeed, "by her default and absence," the mother is "evading the very orders from which she seeks appellate relief" ... . Further, the mother's absence from New York has frustrated the father's efforts to enforce the prior child support orders ... . Matter of Allain v Oriola-Allain, 2014 NY Slip Op 07151, 2nd Dept 10-22-14





A Retired Police Officer's Personnel Records, Including Records of Misconduct, Are Exempt from the Freedom of Information Law


The Third Department noted that records of personnel records of a police officer, including records of misconduct, are exempt from the Freedom of Information Law pursuant to the Civil Rights Law, and the exemption extends to retired police officers:


An agency may properly deny access to records that are specifically exempted from disclosure by state statute (see Public Officers Law § 87 [2] [a]). As is relevant here, Civil Rights Law § 50-a (1) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . .[,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order." Personnel records include documents relating to misconduct or rule violations by police officers ... . Thus, if a document relating to an officer's public employment may be used "in litigation to harass, embarrass, degrade or impeach [that] officer's integrity," then it is protected by Civil Rights Law § 50-a ... .


Inasmuch as this Court has expressly ruled that a police officer's personnel records continue to be exempt from disclosure after he or she departs from public service, we disagree with petitioner's contention that Supreme Court erred by concluding that Civil Rights Law § 50-a applies to the records of [the officer] as a retired police officer ... . Whether an officer "is no longer employed by [an agency] has no bearing upon the question of whether the requested records were or were not used by [that agency] to evaluate his [or her] performance" ... . Matter of Columbia-Greene Beauty School Inc v City of Albany, 2014 NY Slip Op 07233, 3rd Dept 10-23-14





Request for Redacted Signatures on Sheriff's Department Overtime Records Properly Granted----Attorney's Fees Properly Awarded



The Second Department determined the sheriff's department did not sufficiently justify the redaction of signatures on the requested documents (overtime records) and the petitioners were entitled to attorney's fees:


In a proceeding pursuant to CPLR article 78 challenging denial of a Freedom of Information Law (hereinafter FOIL) request, the agency denying access has the burden of demonstrating that the information requested falls within a statutory exemption, which exemptions are to be narrowly construed (see Public Officers Law § 89[5][e], [f]...). This showing requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" ... . "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed" ... . Because FOIL is "based on a presumption of access to the records" ..., "FOIL compels disclosure, not concealment'" wherever the agency fails to demonstrate that a statutory exemption applies ... . * * *


The agency claimed that redaction was proper pursuant to the "unwarranted invasion of personal privacy" statutory exemption (Public Officers Law § 87[2][b]) since disclosing the captains' signatures "would result in economic or personal hardship to the subject party" and the signatures were "not relevant to the work of the agency" (Public Officers Law § 89[2][b][iv]). However, because the agency failed to proffer more than conclusory assertions supporting these claims, the Supreme Court correctly determined that the agency failed to meet its burden of demonstrating that the information requested fell within this statutory exemption (see Public Officers Law § 89[5][e], [f]...), and thus, properly directed disclosure of the records without these redactions.  Matter of Jaronczyk v Mangano, 2014 NY Slip Op 070164, 2nd Dept 10-22-14





Release Given By Injured Party to a Tortfeasor Relieves that Tortfeasor of Any Liability for Contribution


The Second Department noted that a release given in good faith by the injured person to a tortfeasor relieves that tortfeasor from liability for contribution:


"A release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules" (General Obligations Law § 15-108[b]).  United States Fire Ins Co v Raia, 2014 NY Slip Op 07146, 2nd Dept 10-22-14





"But For" Causation Element of Tortious Interference with Contract and Prospective Business Relationship Not Present---Notwithstanding the Actions of the Defendants, there Was Evidence the Contract Was Cancelled for Financial Reasons


The Third Department, in finding the causes of action should have been dismissed, explained the "but for" element of tortious interference with contractual relations and prospective business relationships.  The complaint alleged that defendants made disparaging and false remarks about the plaintiff which caused plaintiff to lose a consulting contract.  However the evidence demonstrated the contract was cancelled for financial reasons.  Therefore the "but for" element was not present:


Causation is an essential element of a claim for tortious interference with contractual relations. Such a cause of action requires proof that, "but for" the defendants' conduct, the plaintiff would not have breached its contract with a third party ... .


In opposition to defendants' motion for summary judgment, plaintiffs submitted a letter — not previously disclosed during discovery —... . * * * This letter established that, regardless of whether defendants acted in such a manner as to interfere with the consulting contract, the contract ... was terminated for financial reasons ... . Thus, it cannot be shown that "but for" defendants' alleged interference, plaintiffs' contractual relationship ... would have continued ... . Ullmanglass v Oneida Ltd, 2014 NY Slip Op 07234, 3rd Dept 10-23-14




Elements of Malicious Prosecution and Abuse of Process Explained


In reversing the pre-answer dismissal of a malicious prosecution cause of action and affirming the dismissal on an abuse of process cause of action, the Third Department explained the elements of both:


...[W]e conclude that Supreme Court erred in dismissing plaintiff's malicious prosecution cause of action. The elements of such a claim are "(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" ... . As is particularly relevant here, "[i]n order for a civilian complainant to be considered to have initiated a criminal proceeding, 'it must be shown that [the complainant] played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'" ... .  * * *


With respect to the abuse of process claim, the three essential elements are "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" ... . In general, such a claim "will only lie for improperly using process after it is issued" ..., and a malicious motive alone is insufficient to give rise to a cause of action to recover for abuse of process ... . Here, plaintiff's allegations in the complaint pertaining to this cause of action, even construed liberally, fail to allege that defendant actually used process improperly — either the order of protection or the arrest warrant — "in a manner inconsistent with the purpose for which it was designed" ... . Place v Ciccotelli, 2014 NY Slip Op 07237, 3rd Dept 10-23-14




Injury While Trying to Prevent a Ladder (Used by a Co-worker) from Falling Is Covered Under Labor Law 240 (1)


The Second Department determined plaintiff's accident was covered under Labor Law 240(1).  Plaintiff (Passantino) was steadying an unsecured ladder used by a co-worker.  When he let go of the ladder to pick up some cable, the ladder started to slip.  Plaintiff was injured while trying to prevent the ladder from falling:


Contrary to the defendant's contention, the hazard presented here is one contemplated by Labor Law § 240(1) ... . Indeed, the harm to Passantino was "the direct consequence of the application of the force of gravity" to the ladder ... . The plaintiffs met their prima facie burden of establishing their entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1) by demonstrating that the defendant failed to provide Passantino with a safety device, and that this violation was a proximate cause of his injuries... . Passantino v Made Realty Corp, 2014 NY Slip Op 07136, 2nd Dept 10-22-14




Criteria for Causes of Action Under Labor Law 200 and Common Law Negligence (Where the Methods or Materials of the Work Are Alleged to Be the Cause of the Injury) Explained 


In finding that the Labor Law 200 and common law negligence causes of action should have been dismissed, the Second Department explained the criteria for those causes of action when they are based on the manner in which work is performed, as opposed to dangerous or defective conditions on the premises:


A cause of action alleging a violation of Labor Law § 200 or common-law negligence may arise from either dangerous or defective premises conditions at a work site or the manner in which the work is performed ... . Where, as here, a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work ... . A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed ... . Rodriguez v Trades Constr Servs Corp, 2014 NY Slip Op 07141, 2nd Dept 10-22-14





Landlord May Not Withhold Consent for Continued Operation of a Sidewalk Cafe Where the Lease Contemplated the Operation of the Cafe (Which Had Been in Operation for 50 Years) and Where the Implied Covenant of Good Faith and Fair Dealing Restricted the Landlord's Ability to Withhold Consent/Erroneous Stipulated Fact Does Not Bind the Appellate Court


The First Department, in a full-fledged opinion by Justice Acosta, determined that a landlord could not terminate the tenant's operation of a sidewalk cafe because the lease contemplated that use and the implied covenant of good faith and fair dealing restricted the landlord's ability to deny consent to the continued operation of the cafe.  [The underlying ruling was made on stipulated facts which included the erroneous "fact" that the lease did not include the cafe as part of the leased premises.  The First Department noted that it is not bound on appeal by an incorrect stipulation of fact]:


The question presented on appeal is whether a landlord has an unfettered right to withhold or terminate its consent to a tenant's operation of a sidewalk café, where the café has existed for at least 50 years and the lease contemplates the use of the sidewalk for that purpose. We hold that defendants may not withhold or terminate their consent, irrespective of whether they have a good-faith basis for doing so, because the lease expressly and unequivocally requires them to consent to plaintiff's operation of the sidewalk café. In any event, we find that the implied covenant of good faith and fair dealing would otherwise restrict defendants' ability to deny consent, and that they have failed to make a satisfactory showing of good faith in this case. * * *


Having determined that the lease allows plaintiff to use and occupy the sidewalk for the operation of a sidewalk café, it necessarily follows that defendants cannot withhold or revoke their consent to that use absent a good-faith basis. As the Court of Appeals has explained, "In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. While the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship, they do encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included" (511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 153 [2002] [internal citations and quotation marks omitted]).


Because the stipulated facts demonstrate that the sidewalk café existed at the time of the lease's execution, plaintiff (through its assignor) was justified in understanding that the landlord promised to refrain from unreasonably withholding its consent to operate the sidewalk café. DMF Gramercy Enters Inc v Lillian Troy 1999 Trust, 2014 NY Slip Op 07110, 1st Dept 10-21-14













Criteria for Common Law Negligence Re: Injury Caused by an Intoxicated Guest Explained


The Second Department determined plaintiff's common law negligence cause of action was properly dismissed.  Plaintiff, upon leaving a party hosted by the defendants, was assaulted by three unidentified persons. The court explained the relevant common law criteria for finding a host negligent based upon the actions of an intoxicated guest:


Under a theory of common-law negligence, a landowner may have responsibility for injuries caused by an intoxicated guest ..., although liability may be imposed only for injuries that occurred on a defendant's property, or in an area under the defendant's control, where the defendant had the opportunity to supervise the intoxicated guest and was reasonably aware of the need for such control .... "Without the requisite awareness [of the risk or threat] there is no duty" ... . Colon v Pohl, 2014 NY Slip Op 07117, 2nd Dept 10-22-14




In a Slip and Fall Case, Plaintiff Was Unable to Raise a Question of Fact About Whether a Defect in a Concrete Slab Was More than "Trivial"---Criteria Explained


The Third Department determined a slip and fall complaint was properly dismissed because plaintiff failed to raise a question of fact about whether the chip in a concrete slab was more than a trivial, nonactionable, defect:


Generally, whether a condition is dangerous or merely a nonactionable, trivial defect is a factual question for a jury to resolve ... . An owner will not be liable, however, for "'negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance,'" which may cause "'a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection'" ... . Accordingly, it is sometimes appropriate, after "consideration of such relevant factors as the dimensions of the alleged defect . . ., including [its] width, depth, elevation, irregularity, and appearance . . .[,] as well as the time, place, and circumstances of the injury" ... to conclude as a matter of law that a defect is too trivial to be actionable ... . * * *


Under these circumstances, and upon review of the color photographs of the defect, we conclude that defendants met their initial burden of establishing that the chip in the edge of the curb was a trivial defect ... . In response to defendants' prima facie showing, plaintiffs were obligated to submit "evidence to establish that the alleged defect has the characteristics of a trap, snare or nuisance" ... . Given the undisputed circumstances of plaintiff's fall, her attorney's affirmation, which was of no probative value, was an insufficient response to defendants' prima facie showing ... . Gillis v Herzog Supply Co Inc, 2014 NY Slip Op 07220, 3rd Dept 10-23-14





Attack on Plaintiff Upon Leaving Defendant-Lodge's Premises Not Foreseeable---Landowner Had No Duty to Take Measures to Protect Against the Attack---Evidence Lodge Is Located in a "High Crime" Area Insufficient to Render Such an Attack Foreseeable


The Third Department determined the landowner did not have a duty to take measures to protect plaintiff who was assaulted and stabbed after leaving defendant's fraternal lodge, even though there was evidence the lodge was located in a "high crime" area.  The evidence of prior crimes at the premises was not sufficient to render the attack on plaintiff foreseeable:


Landowners have a duty of reasonable care to maintain their property in a safe condition; although they "have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor's safety" ... . Notably, "even where there is an extensive history of criminal conduct on the premises, the landowner cannot be held to a duty to take protective measures unless it is shown that he or she either knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor" ... . "The scope of the duty varies with the foreseeability of the potential harm" ... . Stated another way, "no duty is imposed to protect . . . against unforeseeable and unexpected assaults" ..., and "landowners have a duty to control third persons only when they have the opportunity to control such persons and are reasonably aware of the need for such control" ... . Prior crimes need not be identical to a present crime in order to put a landowner on notice; "the inquiry of foreseeability depends upon the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question" ... . Finally, although foreseeability is generally an issue to be resolved by the factfinder, it may be determined as a matter of law where the facts are undisputed and permit only one inference to be drawn therefrom ... . Milton v IBPOE The World Forest city Lodge, #180, 2014 NY Slip Op 07242, 3rd Dept 10-23-14





Review Criteria Re: Nonjury Trials Explained/Violation of Vehicle and Traffic Law, Including the Provision Requiring the Exercise of Care to Avoid Colliding with Bicyclists, Constituted Negligence Per Se


The Third Department affirmed a verdict in a nonjury trial finding a state trooper 70% responsible for injuries caused when the trooper's car collided with plaintiff bicyclist.  The court explained its review powers re: a nonjury trial and noted that the trooper's violations of Vehicle and Traffic Law, including the provision requiring the exercise of care to avoid colliding with a bicyclist, constituted negligence per se:


When reviewing a determination after a nonjury trial, this Court independently considers the weight of the evidence and may grant whatever judgment is warranted by the record, all while deferring to the trial judge's factual findings, especially where those findings are based on credibility determinations ... . * * *


After weighing the eyewitness and expert testimony and considering it along with the physical evidence, the court determined that the collision occurred in claimant's lane of travel, meaning that the trooper crossed at least somewhat into claimant's lane in violation of Vehicle and Traffic Law § 1120 (a). "[A]n unexcused violation of the Vehicle and Traffic Law constitutes negligence per se" ... . The court also reasonably determined that the trooper was negligent in cutting the corner while making his left turn, in violation of Vehicle and Traffic Law § 1160 (b)... . Considering the trooper's testimony that he never saw claimant until the moment of impact, along with evidence regarding the ample sight distance at the intersection and the legal concept that every driver has a duty to see what is there to be seen through the proper use of his or her senses ...., the court properly found that the trooper was additionally negligent for violating Vehicle and Traffic Law § 1146 (a), which requires drivers to "exercise due care to avoid colliding with any bicyclist" ... . Smith v State of New York, 2014 NY Slip Op 07229, 3rd Dept 10-23-14





Plaintiff's Proof Was Insufficient to Show an Interconnected Attorney-Client Relationship---Continuing Representation Doctrine Did Not Apply to Toll Statute of Limitations



The Third Department determined the "continuing representation doctrine" did not toll the statute of limitations in a legal malpractice action.  Plaintiff could not show an "interconnected" attorney-client relationship:


At all times, it was plaintiff's burden to prove that the continuous representation doctrine applied here ... . During the trial, even plaintiff conceded that while it was his hope that he would receive legal advice and guidance, neither [defendant] ever formally agreed to represent him ... . * * * Plaintiff did not provide any written work product, nor was he able to recall the substantive content of any of the conversations he claims he had with [defendant]. In our view, Supreme Court was within its authority to credit the testimony of [defendants] that there was no legal relationship between them. Rather, because it was plaintiff alone who believed that he was being represented by [defendants], Supreme Court properly found that he did not establish the existence of an "interconnected" attorney-client relationship ... . Accordingly, Supreme Court properly dismissed the complaint as barred by the statute of limitations. Deep v Boies, 2014 NY Slip Op 07215, 3rd Dept 10-23-14





City Provided Adequate Supervision at Beach---Drowning Action Dismissed


The Second Department determined an action against the city stemming from the drowning of plaintiff's decedent at a protected beach was properly dismissed.  The court explained the relevant law:


Although the City is not an insurer of the safety of the users of its parks, including its beaches, it has the duty to maintain them in a "reasonably safe condition" ... . This duty includes the City's exercise of ordinary care by providing an "adequate degree of general supervision" ... . In support of its motion for summary judgment, the City established its prima facie entitlement to judgment as a matter of law by submitting evidence that it had furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent ..., that they were adequately trained and properly certified ..., and that they reacted to the situation in accordance with proper procedure ... . Johnson v City of New York, 2014 NY Slip Op 07126, 2nd Dept 10-22-14












Order Re: an Easement Allowing Plaintiffs Access to a Lake Was Specific Enough to Support Finding the Defendants in Civil Contempt (for Violation of the Order)---Willfulness Is Not an Element of Civil Contempt---Mere Act of Disobedience Is Enough


The Third Department determined the defendants were properly found to be in contempt of an order concerning plaintiffs' easement for access to a lake.  The court explained that the order was specific enough to justify the contempt finding and further explained that willfulness is not an element of civil contempt:


...[D]efendants thus contend that they were not prohibited from partially fencing the passageway or placing other property on it, provided that plaintiffs' reasonable right of passage was not impaired ... . However, the rule relied upon by defendants applies to rights-of-way that are not specifically defined or bounded by the language of the grant ... . Here, the 2010 order determined that the deeds granted plaintiffs a defined 60-foot-wide easement and right-of-way consisting of the passageway, and that plaintiffs further possessed rights to construct, maintain and use a dock ... . The 2010 order also expressly directed defendants to keep the passageway "free of all brush and tall grasses, junk boats, debris, and other personal property" that interfered or could interfere with plaintiffs' rights, and to maintain the passageway in an unobstructed fashion. Defendants raised no factual challenge to plaintiffs' claim that the fencing was partially obstructing the passageway, that they had permitted tall grass and brush to grow, and that they had allowed the accumulation of personal property and debris upon the passageway. Accordingly, Supreme Court correctly found that they violated a clear and unequivocal mandate in these respects ... .


Although the 2010 order did not specify the precise location where plaintiffs were to construct their dock, it did direct defendants not to interfere with plaintiffs' right to construct and use a dock "within the northerly extensions" of the passageway. Plaintiffs submitted a survey map and other evidence demonstrating that defendants had placed their dock in the center of the passageway in such a manner that insufficient space was left in the northerly end for plaintiffs to position or use a dock without infringing on the rights of a neighboring landowner. * * *


We reject defendants' claim that the contempt finding was improper in that they allegedly believed their actions were justified and, thus, were not willfully disobedient. No finding of willfulness or deliberate disregard is required to sustain a civil contempt determination; "the mere act of disobedience, regardless of motive, is sufficient . . . if such disobedience defeats, impairs, impedes or prejudices the rights of a party"... . Hush v Taylor, 2014 NY Slip Op 07231, 3rd Dept 10-23-14





Failure to Strictly Comply with Notice Rules of the Real Property Tax Law Required Dismissal of the Challenge to the Tax Assessment/Criteria for Review of Competing Expert Evidence of Valuation Explained


The Third Department determined that proceedings challenging three yearly tax assessments were properly dismissed. Failure to comply with the notice requirements of the Real Property Tax Law (RPTL) was the basis for the dismissal one of the actions and the court explained the relevant law.  The court also explained its review powers re: competing expert evidence of valuation:


Supreme Court properly dismissed the 2010 proceeding for failure to comply with RPTL 708 (3). It is undisputed that petitioner failed to serve a copy of the 2010 notice of petition and petition upon the superintendent of SCCSD [South Colonie Central School District], the school district within which the subject property is located, within 10 days of service of the petition upon the Assessor, as required by RPTL 708 (3). Failure to strictly comply with the statute's notice requirements "shall result in the dismissal of the petition, unless excused for good cause shown" (RPTL 708 [3]). No such showing has been made here. Petitioner was aware that SCCSD was the proper school district, having previously served SCCSD with the 2008 petition and engaged in litigation with it in connection with that proceeding, and "[t]he mistake or omission of . . . petitioner's attorney does not constitute 'good cause shown' within the meaning of RPTL 708 (3) to excuse . . . petitioner's failure to comply" ... . Nor may noncompliance with the statute be excused on the ground that SCCSD has not been prejudiced thereby ... . * * *


At trial [re: the 2008 and 2009 tax assessments], petitioner offered the expert appraisal reports and testimony of a certified real estate appraiser, who utilized the sales comparison methodology to value the property at $1.3 million for the 2008 tax year and $1.4 million for the 2009 tax year. This evidence was sufficient to rebut the presumption of validity and establish a credible dispute between the parties regarding valuation ... . Supreme Court was then required to "weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued" ... . "Our review of such a determination must necessarily defer to Supreme Court in its resolution of any credibility issues that have been generated by the conflicting expert opinions[,] and is limited to whether the court's determination of the fair market value of the subject property is supported by or against the weight of the evidence" ... . Highbridge Dec BR LLC v Assessor of the Town of Niskayuna, 2014 NY Slip Op 07216, 3rd Dept 10-23-14





Title Insurance Company Insures Only Whether a Property Has Legal Access to a Street, Not Whether Physical Access to the Street Is Possible


The Second Department determined that the action against a title insurance company was properly dismissed.  The insured property abutted a street.  However, a retaining wall on the property blocked access to the street.  When a problem developed with respect to removing the retaining wall, the property owners sued the title insurance company.  The Second Department held that the title insurance company was only obligated to determine whether the property had  "legal access" to a street, not "physical access:"


The title insurance policies ... insure against "[l]ack of a right of access to and from the land." "[S]uch a provision refers to the absence of a legal right to access and does not cover claims concerning lack of an existing means of physical access" ... . On its motion for summary judgment, Stewart established that [plaintiffs] have a legal right of access because the subject property abuts a public street ... . 43 Park Owners Group LLC v Commonwealth Land Tit Ins Co, 2014 NY Slip Op 07120, 2nd Dept 10-22-14





City Estopped from Denying Property Owner the Opportunity to Seek Discretionary Relief Re: the Payment and Acceptance of Tax Arrears---City's Actions Misled Property Owner


The Second Department determined the equitable estoppel doctrine could properly be applied to a municipality in this case. A city employee had allowed the petitioner (Emporium) to enter an installment agreement to pay back real property taxes at a time when the property had already been foreclosed and transferred.  The Second Department determined Emporium was entitled to a hearing to determine whether the city is equitably estopped from denying Emporium the opportunity to seek discretionary relief re: the payment and acceptance of tax arrears:


With respect to Emporium's equitable estoppel claim, "[a]lthough estoppel should not be invoked against governmental entities in the absence of exceptional circumstances, we have not hesitated to do so where a municipality's misleading nonfeasance would otherwise result in a manifest injustice" ... . "To establish estoppel, the misconduct of the public agency must have induced justifiable reliance by a party who then changed his position to his detriment" ... . * * *


The City respondents' failure to contact Emporium once it determined that the installment agreements would not be honored constitutes misleading conduct ... . Moreover, the City respondents maintained their silence during a period of time when action could have made a difference to Emporium ... . Matter of Emporium Mgt Corp v City of New York, 2014 NY Slip Op 07157, 2nd Dept 10-22-14





Conflict Between Federal and State Law Required Application of Federal Law---Carrier of "Household Goods" Not Entitled to Tax Exemptions Allowed by State Law but Not Allowed by Federal Law


The Third Department, in a full-fledged opinion by Justice Egan, determined the narrower definition of "household goods" in federal law preempted the broader definition in state law (Transportation Law; Tax Law).  Petitioner, a moving company, was therefore not entitled to exemptions from the state tax law for carriers of "household goods" based on the state definition:


...[T]his matter presents an instance of conflict preemption, which occurs when "compliance with both federal and state [law] is a physical impossibility," or where the state law at issue — here, Transportation Law § 2 (15) and its corresponding impact upon the availability of the exemption set forth in Tax Law § 504 (5) — "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" ... .


Simply put, the federal and state definitions of household goods stand in direct conflict with one another and, consistent with the doctrine of conflict preemption, the more expansive definition of household goods set forth in Transportation Law § 2 (15) (b) and (c) must yield to its more restrictive federal counterpart. To hold otherwise would frustrate Congress' long-standing regulation of this particular aspect of interstate commerce. Accordingly, in order to avail itself of the exemption embodied in Tax Law § 504 (5), petitioner — as a federally registered motor carrier engaged in the interstate transport of household goods — must demonstrate that its shipments qualify as household goods within the meaning of 49 USC § 13102 (10) (A) and (B). Matter of Atlas Van Lines Inc v Tax Appeals Trib of the State of New York, 2014 NY Slip Op 07219, 3rd Dept 10-23-14






Surrogate's Court Abused Its Discretion In Awarding Attorney's Fees Greater than Those Called for by the Retainer Agreement---Evidence in Support of "Exceptional Circumstances" Justifying the Higher Fees Not Sufficient---Retainer Agreement Construed in Light Most Favorable to the Client


The Third Department determined Surrogate's Court erred in awarding attorney's fees in excess of those agreed to in the retainer agreement between the executors of an estate and the attorney hired to handle the estate.  Although the retainer agreement allowed for increased fees for "extenuating circumstances," the Third Department found the proof of consultation and approval re: increased fees, required by the retainer agreement, lacking.  The court noted that a retainer agreement is construed in the light most favorable to the client:


Surrogate's Court abused its discretion in fixing [the estate attorney's] fee at $50,000. Surrogate's Court is vested with broad discretion to fix the reasonable compensation of an attorney who renders legal services to a fiduciary of an estate, subject to modification only where that discretion has been abused (see SCPA 2110...). While the court is not bound by a retainer agreement when determining whether an unreasonable fee must be restricted ..., a court "cannot award legal fees in excess of what has been agreed to by the parties in a retainer agreement" ... . The attorney seeking fees bears the burden of establishing the reasonable value of the services rendered ... . * * *


"The general rule that 'equivocal contracts will be construed against the drafters' is subject to particularly rigorous enforcement in the context of attorney-client retainer agreements," such that we must construe the agreement in the light most favorable to the clients ... . Matter of Benware, 2014 NY Slip Op 07218, 3rd Dept 10-23-14



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