top of page


Updated November 2, 2014

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


Click on the Case Name to View Full Decision






Revised Retainer Agreement, Which Changed the Fee Arrangement from Hourly to a 40% Contingency, Was Not Unconscionable/the Continuing Representation Doctrine Will Not Extend the Statute of Limitations for an Action Seeking the Return of Gifts Made by a Client to Her Attorneys Where the Sole Basis for the "Continuing Representation" Is a Fee Dispute


The Court of Appeals, in a full-fledged opinion by Judge Read, determined that, under the facts, a 40% contingent-fee retainer-agreement was not unconscionable.  The court further determined the six-year statute of limitations for an action seeking the return of gifts given to attorneys by their client was not tolled by the continuing representation doctrine because the doctrine is not applicable if the "continuing representation" is a fee dispute between the attorneys and client.  The underlying action was a suit by the beneficiaries of an estate worth $1 billion against the executor of the estate.  The estate litigation went on for more than 20 years.  The wife of the decedent, Alice Lawrence, after paying some $18 million in attorneys' fees under a retainer agreement, sought and negotiated a new contingent-fee agreement (40% of the amount recovered).  Lawrence was actively involved in the litigation and was apparently very savvy concerning financial affairs.  After the contingent-fee agreement was entered, the case took a sudden turn when the executor agreed to settle for more than $100 million, entitling Lawrence's attorneys to a fee of more than $40 million. Reversing the appellate division, the Court of Appeals determined the contingent-fee retainer agreement must be enforced:


Courts "give particular scrutiny to fee arrangements between attorneys and clients," placing the burden on attorneys to show the retainer agreement is "fair, reasonable, and fully known and understood by their clients" ... . A revised fee agreement entered into after the attorney has already begun to provide legal services is reviewed with even heightened scrutiny, because a confidential relationship has been established and the opportunity for exploitation of the client is enhanced ... . ...[A]n unconscionable contract is generally defined as "one which is so grossly unreasonable as to be unenforceable according to its literal terms because of an absence of meaningful choice on the part of one of the parties [procedural unconscionability] together with contract terms which are unreasonably favorable to the other party [substantive unconscionability]" ... . * * *


Absent incompetence, deception or overreaching, contingent fee agreements that are not void at the time of inception should be enforced as written ... . ..."[T]he power to invalidate fee agreements with hindsight should be exercised only with great caution" because it is not "unconscionable for an attorney to recover much more than he or she could possibly have earned at an hourly rate" ... . * * *


We have never endorsed continuous representation tolling for disputes between professionals and their clients over fees and the like, as opposed to claims of deficient performance where the professional continues to render services to the client with respect to the objected-to matter or transaction. Nor do the rationales underlying continuous representation tolling support its extension beyond current limits. Matter of Lawrence, 2014 NY Slip Op 07291, Ct.App. 10-28-14





Where a Witness Is Incarcerated Pursuant to the Judiciary Law, After A Finding the Witness is In Contempt, and the Incarceration Is Not Specifically Imposed for a Definite Period As Punishment, But Rather Is Imposed to Induce the Witness to Obey the Court's Order, the Contempt Finding is Civil in Nature---Double Jeopardy Will Not Bar Prosecution of the Witness for Criminal Contempt Under the Penal Law


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the contempt finding and incarceration of the defendant (under the Judiciary Law) following the defendant's refusal to testify at his brother's trial was civil, not criminal, in nature.  Therefore, the prohibition against double jeopardy did not bar the prosecution from charging the defendant with criminal contempt (under the Penal Law),  The Judiciary Law allows a finding of civil or criminal contempt.  Where, as here, a defendant is incarcerated in the hope that the incarceration will induce the defendant to follow the court's order (in this case the order to testify under immunity), but no period of incarceration is specifically designated and imposed as a punishment for failure to obey the court's order, the proceedings are civil in nature.  


..."'[I]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish civil from criminal contempt" (... . Where a defendant is held in contempt for the remedial purpose of compelling compliance, imprisonment continues until such time as the contemnor acquiesces or is no longer able to do so ... . Once the contemnor agrees, there is no remedial purpose to be served by continued confinement. The contemnor, therefore, holds "the keys of their prison in their own pockets" ... .


In contrast, where a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended —by the contemnor's compliance with the law, then the contempt is not remedial but punitive. As the Supreme Court has stated, "[i]f the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and [the defendant] cannot shorten the term by promising not to repeat the offense" ... . * * *


For a court to summarily punish contempt, our Judiciary Law requires issuance of an order "stating the facts which constitute the offense" and "plainly and specifically prescribing the punishment to be inflicted" (Judiciary Law § 755 [emphasis added]). Notably absent from County Court's order of contempt here is a plain and specific statement of the punishment to be imposed upon defendant. The record reveals that the court issued a mandate of commitment and that defendant was confined pursuant to that mandate; no where does the record indicate the precise term of commitment. * * *


In cases where a court invokes its contempt power to coerce a defendant's obedience, the best practice would be for the court to state on the record that defendant may purge the contempt through compliance with the law. However, based on the record before us, it is clear that County Court did not summarily adjudicate defendant in criminal contempt or impose a definite sentence of punishment in accordance with the Judiciary Law. Therefore, defendant's conditional imprisonment was for the remedial purpose of compelling defendant's testimony, and as a consequence defendant's subsequent prosecution for contempt was not barred by double jeopardy. People v Sweat, 2014 NY Slip Op 07292, Ct.App. 10-28-14




"Preamble" to Miranda Warnings Used In Queens County Undermined the Effectiveness of the Miranda Warnings---Defendants' Statements Should Have Been Suppressed


The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that the "preamble" to the Miranda warnings used by the police and the District Attorney's staff in Queens County undermined the effectiveness of the warnings to the extent that the defendants (Dunbar and Lloyd-Douglass)  were not adequately and effectively advised of their Fifth Amendment right to avoid self-incrimination:


[The "preamble" was as follows:]


"If you have an alibi, give me as much information as you can, including the names of any people you were with.

"If your version of what happened is different from what we've been told, this is your opportunity to tell us your story.

"If there is something you need us to investigate about this case you have to tell us now so we can look into it.

"Even if you have already spoken to someone else you do not have to talk to us.

"This will be your only opportunity to speak with us before you go to court on these charges." * * *


Before they were read their Miranda rights, Dunbar and Lloyd-Douglas were warned, for all intents and purposes, that remaining silent or invoking the right to counsel would come at a price ---they would be giving up a valuable opportunity to speak with an assistant district attorney, to have their cases investigated or to assert alibi defenses. The statements to "give me as much information as you can," that "this is your opportunity to tell us your story" and that you "have to tell us now" directly contradicted the later warning that they had the right to remain silent. By advising them that speaking would facilitate an investigation, the interrogators implied that these defendants' words would be used to help them, thus undoing the heart of the warning that anything they said could and would be used against them. And the statement that the prearraignment interrogation was their "only opportunity" to speak falsely suggested that requesting counsel would cause them to lose the chance to talk to an assistant district attorney.


In sum, the issue in these cases is not whether, under the totality of the circumstances, these defendants' waivers were valid, but rather whether or not they were ever "clearly informed" of their Miranda rights in the first place, as is constitutionally required. We agree with the Appellate Division that they were not: the preamble undercut the meaning of all four Miranda warnings, depriving Dunbar and Lloyd-Douglas of an effective explanation of their rights. People v Dunbar, 2014 NY Slip Op 07293, Ct.App. 10-28-14





Marriage Between a Half-Uncle and Half-Niece Is Not Prohibited by Domestic Relations Law 5 (3)


The Court of Appeals, in answering a certified question from the Second Circuit, determined that a marriage between a half-uncle and half-niece is not incestuous under Domestic Relations Law 5 (3).  The husband is the half-brother of the petitioner-wife's mother.  Petitioner is a citizen of Vietnam and the husband is a naturalized American citizen.  An immigration judge had declared the marriage void and ordered petitioner removed from the country. Judge Smith, in one of two concurring opinions, wrote:

Section 5 of the Domestic Relations Law reads in full:


"A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:

"1. An ancestor and a descendant;

"2. A brother and sister of either the whole or the half blood;

"3. An uncle and niece or an aunt or nephew.

"If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner."


We must decide whether subdivision 3 of this statute should be read to include a half-uncle and half-niece (or half-aunt and half-nephew). There is something to be said on both sides of this question.  * * *


Domestic Relations Law § 5 is in part a criminal statute: it says that the participants in a prohibited marriage may be fined, and may be imprisoned for up to six months. Penal Law § 255.25, using language very similar to that of Domestic Relations Law § 5 ("ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece"), makes entry into a prohibited marriage a class E felony. Where a criminal statute is ambiguous, courts will normally prefer the more lenient interpretation, and the courts of several other states have followed that rule in interpreting their criminal laws not to prohibit relationships between uncles and nieces, or aunts and nephews, of the half blood ... .  * * *


We are not geneticists, and the record and the briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively correct-seeming conclusion that the genetic risk in a half-uncle, half-niece relationship is half what it would be if the parties were related by the full blood. Indeed, both parties acknowledged at oral argument that the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage of first cousins. First cousins are allowed to marry in New York, and I conclude that it was not the Legislature's purpose to avert the similar, relatively small, genetic risk inherent in relationships like this one.  Nguyen v Holder, 2014 NY Slip Op 07290, Ct.App. 10-28-14





Civil Commitment of Two Sex Offenders Reversed---In One Case the Proof the Offender Had "Serious Difficulty In Controlling" His Sexual Conduct Within the Meaning of Article 10 of the Mental Hygiene Law Was Legally Insufficient---In the Other Case, Proof the Offender Suffered from Anti-Social Personality Disorder (ASPC) Alone Did Not Meet the Definition of "Mental Abnormality" in Article 10 of the Mental Hygiene Law


The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, reversed the civil commitment of two sex offenders, finding the proof required by Article 10 of the Mental Hygiene Law lacking. In the case of Kenneth T, the state claimed Kenneth suffered from "paraphilia not otherwise specified" (paraphilia NOS) and "antisocial personality disorder" (ASPD).  In the case of Donald DD, the state claimed Donald suffered from ASPD alone.  The Court of Appeals, with respect to Kenneth T, seriously questioned, but did not decide, whether the proof of paraphilia NOS and ASPD sufficiently demonstrated a "mental abnormality" under Article 10 of the Mental Hygiene Law.  The court suggested that a Frye hearing to test the scientific soundness of the opinion evidence in this regard would be a good idea. Sidestepping that issue on stare decisis grounds, the court reversed Kenneth's civil commitment because the proof Kenneth had "serious difficulty in controlling" his sexual conduct within the meaning of section 10.03 (i) was not clear and convincing.  With respect to Donald DD, the court unambiguously ruled that proof of ASPD alone is never sufficient proof of a mental abnormality within the meaning of section 10.03 (i):


We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and reincarceration. A detailed psychological portrait of a sex offender would doubtless allow an expert to determine the level of control the offender has over his sexual conduct. However, ... testimony that Kenneth T. lacked "internal controls such as a conscience that might curb his impulses" is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. * * *


Donald DD.'s appeal presents us with an opportunity to decide a question left open in Matter of State of New York v John S. (23 NY3d 326 [2014]), namely whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes ... . We hold that it cannot. Matter of State of New York v Donald DD, 2014 NY Slip Op 07295, Ct.App. 10-28-14







Criteria for Court Review of Agency Action Explained


In affirming the town's approval of a subdivision plan, the Third Department explained its review powers:


..."[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence" ... . Moreover, "[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives" ... . Matter of Dugan v Liggan, 2014 NY Slip Op 07404, 3rd Dept 10-30-14





Court's Role In Reviewing a Motion to Dismiss Pursuant to CPLR 3211 Explained


In reversing Supreme Court's dismissal of a complaint alleging breach of the terms of an employment contract, the First Department explained the court's role in determining a motion to dismiss under CPLR 3211 (a)(1) [documentary evidence] and (a)(7) [failure to state a claim]:


Under CPLR 3211(a)(1) and (a)(7) the court is limited to examining the complaint (and, under [a][1], the proffered documentary evidence) to determine whether the complaint states a cause of action ... . The law is also settled that "in assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts as alleged in the complaint to be true and afford the plaintiff the benefit of every possible inference" ... . "Whether the plaintiff will ultimately be successful in establishing [its] allegations is not part of the calculus" ... . Greystone Funding Corp v Kutner, 2014 NY Slip Op 07296, 1st Dept 10-28-14




Language In Bill of Particulars Was Necessary to Support Claim for Punitive Damages---Language Should Not Have Been Struck as "Scandalous or Prejudicial"


The Second Department reversed Supreme Court's order that plaintiff remove language from the bill of particulars which Supreme Court deemed "scandalous or prejudicial:"


... Counsel ... made an oral application, in effect, pursuant to CPLR 3024, to strike certain language from the plaintiff's bill of particulars. ... The court ... directed the plaintiff to remove allegations that the respondents engaged in "recklessness/reckless, intentional and malicious conduct, gross negligence, blatantly illegal conduct/illegal conduct" (hereinafter the subject language) from her bill of particulars ... .  * * *


CPLR 3024(b) provides that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." This rule is applicable to bills of particulars as well ... . In reviewing a motion pursuant to CPLR 3024(b), "the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action" ... . Matters that are unnecessary to the viability of the cause of action and would cause undue prejudice to the defendants should be stricken from the pleading or bill of particulars ... .


The causes of action asserted by the plaintiff in the complaint demonstrate that the subject language was relevant to this matter, and necessary to support the pleading based on the punitive damages sought. Irving v Four Seasons Nursing & Rehabilitation Ctr, 2014 NY Slip Op 07330, 2nd Dept 10-29-14





Criteria for Dismissal of a Complaint Pursuant to CPLR 3211(a)(1) [Defense Based Upon Irrefutable Documentary Evidence] and CPLR 3211(a)(7) [Failure to State a Cause of Action] Explained


In the context of a legal  malpractice action, in affirming the denial of motions to dismiss, the Second Department explained the criteria for motions to dismiss pursuant to CPLR 3211(a)(1) [defense founded on documentary evidence] and CPLR 3211(a)(7) [failure to state a claim]:


A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that his or her defense is founded upon documentary evidence " has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" ... . In the instant matter, the documentary evidence submitted by the defendants, consisting of the orders issued by the Supreme Court in the underlying action, failed to utterly refute the plaintiff's allegations of malpractice or conclusively establish a defense as a matter of law in the instant action ... . * * *


On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory ... . "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ... . Here, the plaintiff alleged that, but for the defendants' negligence, including their failure to assert "appropriate claims against the proper parties, . . . the Plaintiff's medical malpractice claim would have succeeded and resulted in a different, better and/or more positive outcome." Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as required, the plaintiff stated a cause of action to recover damages for legal malpractice ... . Tooma v Grossbarth, 2014 NY Slip Op 07347, 2nd Dept 10-29-14





How to Handle a Motion to Dismiss for Failure to State a Claim When Documentary Evidence Is Considered Explained/Dismissal of Foreclosure Action Based on Lack of Standing Is Not a Dismissal on the Merits/Striking of a Foreclosure Complaint for Failure to Comply with a Discovery Order Is Not a Dismissal on the Merits


The Second Department determined plaintiff did not have a cause of action to discharge his mortgage.  The court explained how a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim is handled when documentary evidence is submitted and considered on the motion.  [With respect to the plaintiff's allegations that the defendant could not institute new foreclosure proceedings against him, the court noted that the dismissal of a foreclosure complaint premised on a lack of standing is not a dismissal on the merits for res judicata purposes, and the striking of a complaint for noncompliance with a discovery order is also not a dismissal on the merits:]


On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ... . Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate ... . Caliguri v JPMorgan Chase Bank NA, 2014 NY Slip Op 07319, 2nd Dept 10-29-14





Failure to Allege "Demand Futility" as Required Under Delaware Law Required Dismissal of the Derivative Causes of Action


The First Department determined the derivative claims in the complaint against a Delaware corporation were properly dismissed for failure to allege demand futility, as required under Delaware law:


Under Delaware law, where, as here, no demand has been made on corporate directors to bring a lawsuit, a derivative action may be brought on the corporation's behalf only where the complaint alleged particularized facts that such a demand would have been futile ... . To allege demand futility, the complaint must set forth particularized facts sufficient to raise a reasonable doubt that either (1) the directors are disinterested and independent, or (2) the challenged transaction was the result of a protected business judgment ... . Whitecap (US) Fund I, LP v Siemens First Capital Commercial Fin LLC, 2014 NY Slip Op 07297, 1st Dept 10-28-14





To Maintain Standing to Bring a Derivative Action Against a Not-for-Profit Corporation At Least Five Percent of the Members Must Be Plaintiffs at All Times As the Suit Progresses


The Third Department determined that in order to maintain standing for a derivative action against a not-for-profit corporation the plaintiffs must constitute five percent of the members at all times. In this case, the five percent requirement was met when lawsuit began but subsequently a member left and the five percent requirement was thereby no longer met:


N-PCL 623 is derived from the Business Corporation Law, but it is different in that it does not require ownership at the time of the transaction and does not allow plaintiffs to post security for expenses if they do not meet the five percent requirement (compare N-PCL 623, with Business Corporation Law §§ 626, 627). The requirement that plaintiffs in a derivative action against a not-for-profit corporation consist of at least five percent of any class of members was "necessitated by the elimination from the new law of the 'security for expenses' provision embodied in [Business Corporation Law § 627]" (Mem of Joint Legislative Committee to Study Revision of Corporation Laws, 1969 McKinney's Session Laws of NY at 2485; see L 1969, ch 1066; see also E. Lisk Wyckoff, Jr., Practice Commentaries, McKinney's Cons Laws of NY, Book 37, N-PCL 623). Because the N-PCL specifically eliminated the ability of less than five percent of shareholders to continue an action by posting security for expenses, we conclude that the ownership requirement of N-PCL 623 (a) must continue throughout the action in order to maintain standing ... . Pall v McKenzie Homeowners' Assn Inc, 2014 NY Slip Op 07392, 3rd Dept 10-3014





Odor of Burnt Marijuana Provided Probable Cause to Search Defendant and Vehicle


The Third Department determined that, upon a valid traffic stop, the odor of burnt marijuana detected by officers Denise and Knoetgen provided probable cause for the search of the vehicle and its occupants:


As for the propriety of the ... pat down and/or search of defendant, "it is well established that [t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants" ... . Here, both Denise and Knoetgen testified that they smelled burnt marihuana emanating from defendant's clothing and the vehicle in which he was riding. Even accepting that Denise's experience in detecting this distinctive odor was not sufficiently developed at the suppression hearing, we are satisfied that Knoetgen, as a drug recognition expert and a K-9 drug detection officer, possessed the requisite training and experience to do so. Further, and as noted previously, Knoetgen testified that the driver of the vehicle admitted that he and defendant had smoked marihuana prior to being pulled over for the underlying traffic violation ... . As the circumstances presented and the observations made by the troopers provided probable cause for Knoetgen's pat down/search of defendant, we discern no basis upon which to suppress the drugs subsequently seized from defendant's pant leg. People v Rasul, 2014 NY Slip Op 07378, 3rd Dept 10-30-14





Guilty Plea Based on a Sentence Promise that Neither the Court Nor the Parties Realized Was Illegal Requires Vacation of the Conviction in the Absence of Preservation---Notwithstanding the Fact the Sentence Was Ultimately Rendered Legal by an Enhancement Imposed Because the Defendant Violated the Terms of His Release Pending Sentencing


The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that a guilty plea cannot stand where neither the court nor the parties was aware that the agreed upon sentence was illegal, even though the sentence was rendered "legal" by an enhancement.  The sentence promise was three years, but, given the defendant's prior record, the minimum sentence he could legally receive was six years. Because the defendant was found to have violated the terms of his release pending sentencing, he was ultimately sentenced to six years as an enhanced sentence. The court summarized the facts and its ruling as follows:


The principal question presented here is whether a judgment of conviction, entered upon a guilty plea to a particular crime, may stand when the record discloses that neither the court nor the parties realized that the agreed upon sentence, to be imposed if defendant complied with the conditions of the plea, was illegal. Although defendant violated the conditions of his plea, and the enhanced sentence was legal, defendant is entitled to a plea vacatur for two fundamental reasons. First, defendant's constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved. Second, to accept a guilty plea induced by an illegal promise affects the fairness, integrity and public reputation of judicial proceedings as the defendant could not have had a full understanding of what the plea connotes and its consequences ... or "exercised a voluntary and intelligent choice among the alternative courses of action open to the defendant" ... . People v Williams, 2014 NY Slip Op 07458, 1st Dept 10-30-14




Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required


The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14




Sole Eyewitness' Testimony at Trial Indicating She Could Not Identify the Shooter (Because of the Passage of Time and the Effects of Alcoholism and Depression) Did Not Allow the Prosecutor to Impeach Her with Her Grand Jury Testimony and Prior Identification of the Shooter


In reversing defendant's conviction, the Second Department explained that the prosecution should not have been allowed to impeach its own witness when the witness failed to identify the shooter in her trial testimony.  In addition, it was error to allow a detective to testify that the witness previously identified the defendant:


...[T]he Supreme Court erred in permitting the prosecutor to impeach the sole eyewitness with her grand jury testimony and photo array identification of the shooter. A party may impeach its own witness with prior inconsistent statements only when the testimony of that witness on a material issue tends to disprove the party's position or affirmatively damages the party's case (see CPL 60.35...). "Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People's case" ... . Here, the testimony of the eyewitness that she did not remember the face of the shooter and could not identify the shooter because of the passage of time between the shooting and the trial, and because of her struggles with alcohol and depression, did not tend to disprove or affirmatively damage the People's case ... . Accordingly, it was error to permit the prosecutor to impeach the testimony of the eyewitness with her grand jury testimony and photo array identification. People v Ayala, 2014 NY Slip Op 07362, 2nd Dept 10-29-14





Warrantless Search of Backpack After Juvenile Was Handcuffed and Placed in a Police Car Justified by "Close Spatial and Temporal Proximity" and "Exigent Circumstances"


The First Department affirmed a juvenile delinquency adjudication based upon the juvenile's possession of an air pistol, which was discovered in a warrantless search of the juvenile's backpack after the juvenile was handcuffed.  In explaining why the suppression motion was properly denied, the court wrote:


The police lawfully detained appellant as a suspected truant ... . In the course of this detention, the police lawfully patted down appellant's book bag, particularly since as appellant approached the police car, the bag hit the car, making a distinctive metallic sound that the officer recognized as the sound of a firearm. In patting down the bag, an officer felt the distinctive shape of a pistol, including its grip and trigger guard. The warrantless search of the bag, after appellant had been handcuffed and placed in the police car, was justified by close spatial and temporal proximity, as well as by exigent circumstances ... . These circumstances included the fact that defendant resisted arrest, the officers' knowledge that appellant was on probation in connection with a past robbery and that he had resisted arrest before, the officers' high level of certainty that the bag actually contained a weapon, and the danger of appellant reaching the bag, despite being handcuffed, while seated in the police car next to the officer who had the bag. Matter of Kenneth S, 2014 NY Slip Op 07299, 1st Dept 10-28-14





An "Administrative Evaluation," As Opposed to a Formal Disciplinary Reprimand, Can Remain in a Teacher's File Even though the Evaluation Was Issued In the Absence of the Formal Notice and Hearing Requirements of Education Law 3020-a


The Second Department determined an "administrative evaluation," opposed to a formal disciplinary reprimand, could remain in a teacher's file, even though the evaluation was issued in the absence of the formal notice and hearing procedures mandated by Education Law 3020-a:


In New York, a tenured teacher may not be "disciplined" without being afforded the procedures set forth in Education Law § 3020-a, which requires that formal charges first be referred to the board of education for a determination of probable cause, after which the teacher is given written notice of the charges and an opportunity for a hearing (Education Law § 3020; see Education Law § 3020-a). However, section 3020-a does not "insulat[e] tenured teachers from all written critical comment from their supervisors" ... . While a formal disciplinary reprimand may not be issued without compliance with section 3020-a, a critical "administrative evaluation" may properly be included in a teacher's personnel file without resort to such procedures ... .


Here, the letter the petitioner sought to have removed from his personnel file "[fell] within [the] permissible range of administrative evaluation," and the respondent Elmsford Union Free School District did not act unlawfully in making it part of the petitioner's personnel file without complying with Education Law § 3020-a... . Matter of Weinberger v Elmsford Union Free School District, 2014 NY Slip Op -7360, 2nd Dept 10-29-14





Service Requirements of Education Law 3813(1) Do Not Apply to Disputes Involving the Public Interest As Opposed to Private Rights/Criteria for Granting an Extension (Nunc Pro Tunc) to Effect Service Pursuant to CPLR 306-b Explained


The Second Department determined an action challenging the award of a contract to a bus company by a school district should not have been dismissed for failure to comply with the service requirements of the Education Law and the CPLR.  The service requirements of Education Law 3813(1) do not apply to disputes involving the public interest as opposed to private rights.  The complaint was not served in accordance with CPLR 311(a)(7) because it was served upon a security guard and not one of the persons designated in the statute.  However, the matter was sent back for a ruling whether an extension of the time for service should be granted pursuant to CPLR 306-b:


In general, the service of a timely notice of claim pursuant to Education Law § 3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect ... . However, "not all actions and special proceedings have been held to be subject to the prerequisites of subdivision 1 of section 3813. The pertinent distinction is between actions and proceedings which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter" ... .


Because "[t]he central purposes of New York's competitive bidding statutes are the (1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts" ..., a proceeding challenging the award of a contract pursuant to the competitive bidding statutes is a matter in the public interest ... . Since the petitioners here do not seek only to enforce their private rights, Education Law § 3813(1) does not apply ... . ...


Pursuant to CPLR 306-b, where service is not made within 120 days of the commencement of the action or proceeding, the matter is subject to dismissal, but the court may, "upon good cause shown or in the interest of justice, extend the time for service." The Court of Appeals has made clear that these are two distinct standards and that, while "good cause" requires a showing of reasonable diligence, "the interest of justice" has a broader scope, which can encompass late service due to "mistake, confusion or oversight, so long as there is no prejudice to the defendant" ... . In determining whether an extension of time is warranted in the interest of justice, a court may consider, inter alia, "diligence, or lack thereof, . . . expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" ... . Matter of Baumann & Sons Buses Inc v Ossining Union Free Sch Dist, 2014 NY Slip Op 07353, 2nd Dept 10-29-14





Land Owner Entitled to "Rental-Value" Compensation for Area Encompassed by Temporary Easement for Roadway Widening Project, Not "Rental-Value" Compensation for the Entire Parcel



The Second Department affirmed the Court of Claims ruling that a temporary easement along the roadway taken by the state during a road-widening project did not affect the entire parcel.  Therefore the proper measure of compensation was the rental value of the area encompassed by the easement, not the rental value of the whole:


Generally speaking, a claimant is entitled to compensation for any loss suffered as a result of the taking of a temporary easement ... . There is, however, no recovery where there is no loss ... . Indeed, " compensation need not be paid for the State's taking of a temporary easement when there is no actual interference with the property owner's use of his [or her] property'" ... .


Where a taking of a temporary easement encumbers a parcel's entire highway frontage, as in the instant case, the measure of damages is "the rental value of the land encompassed within the temporary easement for so long as the easement is in effect plus, as consequential damages, the rental value of the parcel's unencumbered interior acreage for any period of time when highway access was not possible by virtue of the easement's use" ... . A condemnee is entitled to consequential damages comprising the rental value of the parcel's unencumbered interior acreage for the easement's duration only if the condemnor does not meet its burden of proving the duration of the "interval of actual obstruction," or if the condemnee establishes that the "mere existence" of the temporary easement interfered with highest and best use of the property "in more than a conjectural sense" ... . Ronmar Realty Inc v State of New York, 2014 NY Slip Op 07343, 2nd Dept 10-29-15





Choice of Law Analysis Re: Liability Insurance Contracts [Extraordinarily Complex Lawsuit Stemming from Mold Rendering a Newly-Constructed Apartment Complex Uninhabitable]


The Second Department sorted out an extraordinary number of coverage, defense and indemnification issues in declaratory judgment actions stemming from mold which made an apartment complex uninhabitable.  The decision deals with too many specific questions to allow summarization.  With respect to a choice of law issue, the court wrote:


Under Pennsylvania law, not only are damages to the work product itself not considered an occurrence, but "damages that are a reasonably foreseeable result of the faulty workmanship are also not covered under a commercial general liability policy" ... . The Pennsylvania courts have emphasized fortuity in determining whether a claim constitutes an occurrence ... . Mold growth and resulting sickness and property damage would likely be considered by the Pennsylvania courts not to be fortuitous, but, rather, to be, from an objective standpoint, a reasonably foreseeable, natural consequence of faulty workmanship which allowed water to infiltrate the buildings ... . Accordingly, because a conflict exists between Pennsylvania and New York law, New York's choice-of-law rules must be applied to determine which state's law governs ... .


"In the context of liability insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties' will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk'" ... . However, " where it is necessary to determine the law governing a liability insurance policy covering risks in multiple states, the state of the insured's domicile should be regarded as a proxy for the principal location of the insured risk'" ... . Because the subject policy covered risks in multiple states, and because Erie's and Penn National's named insured was domiciled in Pennsylvania, it is appropriate to apply that state's law. QBE Ins Corp v Adjo Contr Corp, 2014 NY Slip Op 07342, 2nd Dept 10-29-14




No Privity Between Insured and Reinsurers Which Contracted Solely with the Insurer---Counterclaims by Insured Against Reinsurers Should Have Been Dismissed


The First Department, in a full-fledged opinion by Justice Freedman, reversed Supreme Court and dismissed counterclaims against reinsurers (NICO and Resolute) by the insured (Colgate) because no contract existed between the reinsurers and the insured. The contractual relationship was solely between the insurer (OneBeacon) and the reinsurers.  Colgate alleged that the actions of NICO and Resolute prevented Colgate from exercising control over lawsuits, including whether to settle or litigate. The underlying lawsuits alleged that talc produced by Colgate contained asbestos:


Colgate's claims raise the issue of whether an insurance policyholder has rights against its carrier's reinsurer, if the reinsurer administers the insured's claims under the policy. In a typical reinsurance arrangement, where the carrier administers claims and the reinsurer merely indemnifies it in accordance with the "follow the fortunes" doctrine (see United States Fid. & Guar. Co. v American Re-Ins. Co., 93 AD3d 14, 23 [1st Dept 2012], mod 20 NY3d 407 [2013]), the insured can only state viable claims against the reinsurer in specific circumstances that do not pertain here. In this case, Colgate only holds the Policies with OneBeacon. The carrier's reinsurer, NICO, and its affiliate, Resolute, both adjust Colgate's Policy claims and indemnify OneBeacon for claim payouts. NICO's and Resolute's dual role does not, however, give rise to any liability to Colgate because Colgate lacks contractual privity with NICO and Resolute. In the absence of privity, Colgate's breach of contract claims against NICO and Resolute fail. OneBeacon Am Ins Co v Colgate-Palmolive Co, 2014 NY Slip Op 07315, 1st Dept 10-28-14






Although Not the Case Here, the Court Explained How a Collision Between a Vehicle Entering the Roadway and a Vehicle Which Is In the Roadway (and Has the Right-of-Way) Can Possibly Have Two Proximate Causes


The Second Department determined the defendant, who apparently struck plaintiff's car as plaintiff pulled into traffic from a parking lot, was entitled to summary judgment.  Plaintiff was negligent as a matter of law based on a violation of Vehicle and Traffic law 1143, which requires a driver entering a roadway to yield to drivers within the right-of-way.  And there was no showing defendant was negligent.  The decision has a good explanation of how there can be two proximate causes of an accident under such facts (not the case here):


There can be more than one proximate cause of an accident ..., because each driver has a duty to exercise reasonable care under the circumstances to avoid an accident ... . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, "the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law" ... . Thus, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident ... . However, "[a] driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision" ... . Desio v Cerebral Palsy Transp Inc, 2014 NY Slip Op 07322, 2nd Dept 10-29-14




Re: a Slip and Fall in a McDonald's Restaurant, the McDonald's Defendants Were Not Liable as an Out-of-Possession Landlord, a Franchisor, or a Property Owner---Summary Judgment Properly Granted


In dismissing a slip and fall complaint against the McDonald's (restaurant) defendants, the Second Department explained that the defendants could not be held liable as an out-of-possession landlord, a franchisor, or as an entity responsible for a dangerous condition on the property:


The McDonald's defendants established, prima facie, that McDonald's Corporation was an out-of-possession landlord on the date of the subject accident, and that it had no duty to maintain or repair the leased premises where the accident occurred. Therefore, the McDonald's defendants met their initial burden of establishing that McDonald's Corporation owed no duty to the plaintiff ... . In opposition, the plaintiff failed to raise a triable issue of fact.


Further, McDonald's Corporation was not liable based upon its status as a franchisor. In determining whether a defendant, as a franchisor, may be held vicariously liable for the acts of its franchisee, the most significant factor is the degree of control that the franchisor maintains over the daily operations of the franchisee or, more specifically, the manner of performing the very work in the course of which the accident occurred ... . Here, the McDonald's defendants tendered sufficient evidence in support of their motion to establish, prima facie, that McDonald's Corporation lacked the requisite control over the alleged causes of the plaintiff's injuries. The plaintiff failed to raise a triable issue of fact in opposition.


In addition, the Supreme Court correctly granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant McDonald's Restaurants of New York, Inc. Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property ... . The McDonald's defendants established, prima facie, that McDonald's Restaurants of New York, Inc., did not own, occupy, control, or have a special use of the subject property at the time of the accident and, thus, could not be held liable for injuries caused by the allegedly dangerous conditions ... . Khanimov v McDonald's Corp, 2014 NY Slip Op 07332, 2nd Dept 10-29-14




Rear-End Collision Liability Explained


The Second Department determined the plaintiffs' motion for summary judgment in a rear-end collision case should have been granted.  The court explained the relevant analysis:


The driver of an automobile is required to maintain a safe distance between his or her own vehicle and the vehicle in front of him or her (see Vehicle and Traffic Law § 1129[a]...). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision ... . Once the movant has established his or her entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault ... . A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference of negligence on the part of the driver of the following vehicle ... . Cheow v Cheng Lin Jin, 2014 NY Slip Op 07337, 2nd Dept 10-214




Proof of Janitorial Schedule Demonstrated Absence of Constructive Notice of Liquid on Stairs


The First Department determined that proof of the maintenance schedule was sufficient to demonstrate defendant did not have constructive notice of a spill on a staircase:


Defendant ... demonstrated that it lacked constructive notice of the liquid on the staircase through the affidavit of the caretaker assigned to the building on the day before the accident, who averred that she would have followed the weekend janitorial schedule, which required inspecting the building by 11:00 a.m. on the day before the accident and removal of anything found on the staircase, and that, pursuant to the schedule, she would inspect the staircase at around 8:00 a.m. the next morning ... . Her statement concerning the janitorial schedule was corroborated by her supervisor's testimony. Plaintiff testified that the wet condition was not present on the stairs the prior evening, when she returned home at 9 p.m. Such evidence established that the wet liquid was deposited on the stairs only after the caretaker left work and that the accident occurred before the caretaker came to work the next morning. This time frame, occurring out of regular work hours, would not have provided the caretaker with a sufficient period of time to discover and remedy the problem ... . Defendant is not required to patrol the staircases 24 hours a day ... . Pagan v New York City Hous Auth, 2014 NY Slip Op 07441, 1st Dept 10-30-14





Hospital Not Vicariously Liable for Acts of Non-Employee Midwife/Hospital May Be Liable for Staff's Failure to Summon Obstetrician When Problems with the Birth Developed/Midwife's Assistant, Who Worked Under the Supervision of the Midwife and Did Not Exercise Independent Judgment, Not Liable


The Second Department determined: (1) the hospital (Phelps) defendants were not vicariously liable for the actions of a midwife who was not an employee; (2) there was a question of fact whether the hospital staff was negligent in failing to summon an obstetrician when problems with the birth developed; and (3) the action against the midwife's assistant (Milligan) was properly dismissed because the assistant worked under the supervision of the midwife and did not exercise independent judgment:


In general, "a hospital may not be held [liable] for the acts of [a physician] who was not an employee of the hospital, but one of a group of independent contractors" ... . However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice ... . "When supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene"  * * *


The Supreme Court erred in granting that branch of the Phelps defendants' motion which was for summary judgment dismissing so much of the complaint as alleged they were concurrently liable with Mahoney for the alleged independent negligence of their nursing staff. In opposition to the Phelps defendants' prima facie showing of their entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether the Phelps defendants' nursing staff departed from good and acceptable medical practice by failing to summon an obstetrician when the infant plaintiff's fetal heart rate dropped below normal... . ...


Milligan met her prima facie burden of demonstrating that, during the infant plaintiff's birth, she did not exercise any independent medical judgment, but was under the direct supervision of Mahoney, the attending nurse-midwife, whose directions did not so greatly deviate from normal medical practice that she should be held liable for failing to intervene. Zhuzhingo v Milligan, 2014 NY Slip Op 07350, 2nd Dept 10-29-14 





Damages in Medical Malpractice Case Paid by Insurer and Hospital---Therefore Doctor, a Defendant in the Medical Malpractice Case, Could Show No Pecuniary Loss---Legal Malpractice Suit by Doctor Must Therefore Be Dismissed


The Third Department determined that because the damages assessed against a doctor in a medical malpractice action were paid entirely by the insurer and the hospital, she suffered no pecuniary loss.  In the absence of pecuniary loss, she could not maintain a legal malpractice action against her attorneys:


Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits "but for" her attorney's negligence and she sustained actual and ascertainable damages ... . * * *

Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff's contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the ... verdict, is unavailing since "the established rule limit[s] recovery in legal malpractice actions to pecuniary damages" ... . Plaintiff continued working at the hospital after the ... verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. ... Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the ... verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital's other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the ... verdict are speculative and unsupported in this record ... . Kaufman v Medical Liab Mut Ins Co, 2014 NY Slip Op 07398, 3rd Dept 10-30-14





City Was "United in Interest" with Non-Profit Corporation Which Maintained Central Park Pursuant to a Contract with the City---Therefore Plaintiff, Who Was Allegedly Injured by a Truck Owned by the Non-Profit Corporation, Could Amend His Complaint to Include the Non-Profit Corporation After the Statute of Limitations Had Run---However the Extent to Which the City Was "United in Interest" Was Dictated by the Terms of the Contract


The First Department determined that the Conservancy, a non-profit corporation which maintains Central Park under a contract with the City of New York, was "united in interest" with the City.  Therefore, plaintiff, who allegedly had been injured by a maintenance truck owned by the Conservancy, could amend his complaint to include the Conservancy, even though the statute of limitations had run.  The 'unity of interest" was defined by the terms of the contract.  Because the contract did not call for the City to indemnify the Conservancy for gross negligence, the complaint against the Conservancy could not include the gross negligence claim:


... [P]laintiff relied on the 2006 Central Park Agreement, a contract between the City and the Conservancy, a nonprofit organization, in which they acknowledged that they had formed an effective "public/private partnership." Under the Agreement, the Conservancy is required to provide specified maintenance services in Central Park to the "reasonable satisfaction" of the City, and the City is broadly required to indemnify the Conservancy "from and against any and all liabilities . . . arising from all services performed and activities conducted by [the Conservancy] pursuant to this agreement in Central Park." The City's indemnification obligation, among other things, expressly excludes claims arising from gross negligence or intentional acts of the Conservancy or its agents or volunteers. As a result of the Agreement, the Conservancy acts, in effect, as an independent contractor fulfilling the City's nondelegable obligation to maintain the City parks in reasonably safe condition ... .


The City is vicariously liable for the Conservancy's negligence in the course of providing maintenance in Central Park by virtue of the contractual indemnification provision, and the parties are thus united in interest ... . Further, since the City has a nondelegable duty to maintain Central Park, it is vicariously liable for negligence committed by the contractor in the course of fulfilling that duty ... . However, the City is correct that its interests are not united with those of the Conservancy with respect to the proposed gross negligence claim, and leave to assert that claim against the Conservancy is therefore denied. Brunero v City of New York Dept of Parks & Recreation, 2014 NY Slip Op 07444, 1st Dept 10-30-14




Personal Injury Suit by Student Against School District Alleging Negligent Supervision Properly Survived Summary Judgment


The Second Department determined a personal injury suit by a student alleging negligent supervision properly survived summary judgment.  The student was injured when she was pushed by those behind her into a door which should not have been locked:


"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ... . While schools are not insurers of student safety, they have a duty to exercise the same degree of care toward their students as would a reasonably prudent parent under comparable circumstances ... . Here, the evidence submitted by the defendants, which included the deposition testimony of the infant plaintiff and Breen, was insufficient to establish, prima facie, that they properly supervised the infant plaintiff and her physical education class or that their alleged negligent supervision was not a proximate cause of the infant plaintiff's injuries ... . In addition, the defendants' evidence was insufficient to establish that the locked door of the girls' locker room was open and obvious and not inherently dangerous under the circumstances ... . "Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances," as the condition may be rendered a trap where it is obscured or the plaintiff is distracted ... . Maneri v Patchogue-Medford Union Free Sch Dist, 2014 NY Slip Op 07336, 2nd Dept 10-29-14





Encroaching Structure Built to Prevent Excavation-Related Damage to Adjoining Property Is a Trespass


The First Department determined the fact that a property owner [Madison] is strictly liable for damage to an adjoining property [17 East] caused by excavation did not allow the construction of encroaching structures to prevent excavation-related damage to the adjoining property:


The imposition of absolute liability on parties whose excavation work damages an adjoining property places the burden of protecting adjoining property onto those undertaking the excavation work, and the risks thereof, rather than those whose interest in adjoining property is harmed by the work ... . It should not be inferred, however, that the transfer of risk to the owner/excavator carries with it a corresponding unfettered right to excavate more than 10 feet below curb level, or that the adjoining property owner must allow underpinning of its property simply because the neighboring property owner undertaking such excavation bears absolute liability for any damage it may cause to the adjoining property ... . * * *


Madison did not have the right, in the absence of an agreement with 17 East Owners, to erect permanent structures extending beyond the property line, either above or below the surface, and thus encroaching on 17 East Owners' property.  Madison 96th Assoc LLC v 17 E 96th Owners Corp, 2014 NY Slip Op 07422, 1st Dept 10-30-14








Summary Judgment Admitting Will to Probate Appropriate Where Objections to the Will ("Testamentary Capacity" and "Undue Influence") Not Supported


The Third Department determined summary judgment admitting the will to probate was appropriately granted where the "testamentary capacity" and "undue influence" objections were not supported by evidence:


"Whether to dismiss a party's objections and admit the challenged will to probate is a matter committed to the sound discretion of Surrogate's Court and, absent an abuse of that discretion, the court's decision will not be disturbed" ... . While rare, summary judgment in a contested probate proceeding is appropriate where a petitioner establishes a prima facie case for probate and the objectant does not raise any factual issues regarding testamentary capacity, execution of the will, undue influence or fraud ... . Upon our review of the record, we find that respondent has raised no such issues and we, therefore, conclude that Surrogate's Court properly awarded summary judgment to petitioner.


As to testamentary capacity, petitioner bore the initial burden of establishing that decedent understood the nature and consequences of making the will, the nature and extent of her property, and the natural objects of her bounty ... . Notably, it was only necessary to demonstrate that decedent had "a general, rather than a precise, knowledge of the assets in . . . her estate" ... .  * * *


...[T]he fact that a decedent was subject to undue influence is established when he or she "'was actually constrained to act against [his or her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred'" ... . Here, notwithstanding the confidential relationship between decedent and petitioner ..., the record is bereft of any direct or circumstantial evidence indicating that petitioner exercised undue influence over decedent ... . "On the contrary, [the evidence] indicate[s] that the will was the product of the free and unfettered act of [decedent]" ... . Matter of Vosilla, 2014 NY Slip Op 07417, 3rd Dept 10-30-14




Jury Instruction Re: Presumption Will Was Duly Executed Proper Even In Absence of Self-Attesting Affidavits by the Witnesses


The Third Department determined the absence of self-attesting witness affidavits did not preclude instructing the jury that it could presume the will was duly executed if it found that the witnesses signed their names after the attestation clause:


..."[I]f the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution of what took place at the time" ... . The attestation clause here states that decedent signed the will in the presence of the attesting witness, declared the document to be her last will and testament, and the witnesses signed the clause at decedent's request and in her presence, in accord with the statutory criteria (see EPTL 3-2.1). Moreover, both attesting witnesses confirmed that they were present during the ceremony, that they signed the attestation clause and that decedent appeared of sound mind. One witness testified that he observed decedent sign the will, while the other witness, who was a notary public, testified that she would not have served as a witness unless decedent signed the will in her presence. In this context, Surrogate's Court properly charged the jury regarding the presumption of due execution of the will ... . Matter of Shapiro, 2014 NY Slip Op 07395, 3rd Dept 10-30-14





Appeal Board Was Bound by Arbitrator's Findings of Fact Re: Employee's Serious Safety-Rule Violations


The Third Department reversed the Unemployment Insurance Appeal Board after the Board determined petitioner should not have been terminated for rule violations.  Pursuant to arbitration under a collective bargaining agreement, the arbitrator had made factual findings re: serious rule violations.  The Third Department explained that the Board was bound by those factual findings:


["While the Board was free to make 'independent additional factual findings' and draw its own independent conclusion as to whether claimant's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the [arbitrator's] 'factual findings regarding claimant's conduct and [her] conclusion' that claimant had" committed serious violations of safety rules ... . The arbitrator here found that claimant had committed grave violations of the employer's policies that had endangered the safety of his passengers, violations that were rendered even more egregious by the fact that he had previously been disciplined for similar conduct. The Board, in contrast, inexplicably found that claimant had "substantially complied with" the employer's policies and made no effort to consider claimant's behavior within the context of his prior disciplinary history. Thus, as the Board improperly contradicted factual findings of the arbitrator, remittal is necessary for it to "reconsider[] upon appropriate findings" ... . Matter of Boretsky ..., 2014 NY Slip Op 07414, 3rd Dept 10-30-14





Insufficient Proof Plaintiff Was Defendant's Special Employee


The Second Department determined the defendant did not demonstrate plaintiff was its special employee.  Therefore summary judgment dismissing plaintiff's personal injury suit based upon plaintiff's receiving Workers' Compensation benefits from his general employer should not have been granted:


"The receipt of Workers' Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer" ... . In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee's work, the method of payment, the furnishing of equipment, and the right to discharge ... . "A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee's work'" ... .


Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff's work ... . Nolan v Irwin Contr Inc, 2014 NY Slip Op 07339, 2nd Dept 10-29-14


bottom of page