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September Page III

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



Defendant Did Not Consent to Entry of Police Into His Home---the Police Accompanied a Parole Officer for the Express Purpose of Investigating a Burglary---Motion to Suppress

Should Have Been Granted


The Second Department determined evidence seized from defendant’s home and statements made by the defendant should have been suppressed.  Using the authority to visit parolees, the police accompanied the parole officer to defendant’s home as part of a burglary investigation. The defendant was arrested after stolen property was noticed by the police in the home.  In determining the trial court erred when it found defendant had consented to the entry of the police into his home, the court wrote: 


When the People rely on consent to justify an otherwise unlawful police intrusion, they bear the "heavy burden" of establishing that such consent was freely and voluntarily given … . "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle" … . The People's burden of proving voluntariness "cannot be discharged by showing no more than acquiescence to a claim of lawful authority" … . 


We agree with the defendant that the People failed to prove that his consent to the entry into his home was voluntary. Consent is not voluntary where an officer falsely represents facts that normally establish the exercise of police authority to which a person would ordinarily yield … . Here, pursuant to the conditions of the defendant's release to parole supervision, he was obligated to allow his parole officer to enter his home to conduct a home visit and conduct a related search of his residence. The People showed no more than the defendant's acquiescence to this authority, which does not sustain their burden of proving that he freely and voluntarily consented to the entry by the detectives and the sergeant for the purpose of investigating the subject burglaries. People v Marcial, 2013 NY Slip Op 05920, 2nd Dept 9-18-13



Imposition of Fine After Promise No Fine Would Be

Imposed Required Vacation of Guilty Plea


The Third Department vacated defendant’s sentence because County Court promised the sentence would not include a fine, but County Court imposed a fine because a fine was required by law.  The court wrote:


Defendant pleaded guilty to an indictment charging him with two counts of aggravated unlicensed operation of a motor vehicle in the first degree.  County Court agreed, in return, to sentence him to an aggregate jail term of one year with no fines.  While County Court sentenced defendant to the contemplated jail term, it further imposed a fine of $1,000 on each count.  Defendant now appeals.


County Court promised defendant that his sentence would not include a fine, but such sentence would have been illegal (see Vehicle and Traffic Law § 511 [3] [b]…). The legal sentence that County Court imposed was inconsistent with that promise.  Although defendant failed to preserve this issue by moving to withdraw the plea or vacate the judgment of conviction, the sentence must nevertheless "be vacated, and the matter remitted . . . to afford . . . defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty"… .  People v Faulcon, 104625, 3rd Dept 9-19-13




Statements Made In Plea Allocution Negated Guilt


The Third Department vacated defendant’s plea to forgery because, during the plea allocution, the defendant indicated he signed his own name on the credit card receipts.  Signing one’s own name cannot constitute forgery:


Although defendant waived his right to appeal and did not preserve his challenge to the voluntariness of his plea by moving to withdraw his plea or vacate the judgment of conviction, the narrow exception to the preservation rule is triggered because he made a statement during the allocution that cast doubt upon his guilt … .  During the allocution, defendant admitted to purchasing several items at various stores using a credit card that did not belong to him. When asked whether he had signed the credit card receipts using the name of the person to whom the card had been issued, defendant informed County Court that he did not know whose name was on the card and that he had signed the receipts in his own name.  * * *


Here, defendant's signing of his own name to the credit card receipts would render him both the actual and ostensible maker of the instrument, and the making of the instrument would not constitute a forgery … .  Accordingly, defendant's statement that he signed his own name to the receipts implicated the voluntariness of his guilty plea to forgery in the second degree, requiring further inquiry from County Court.  As the court failed to conduct such an inquiry, defendant's plea must be vacated and the matter remitted to County Court.  People v Morehouse, 104770, 3rd Dept 9-19-13






Hearing Conducted in Absence of Inmate Okay Due to Inmate’s Assaultive and Menacing Conduct


The Third Department affirmed a guilty determination even though the hearing was conducted in the inmate’s absence.  The inmate had a history of assaults and menacing conduct:


It is well settled that an inmate has a fundamental right to be present at a disciplinary hearing, unless "he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals" (7 NYCRR 254.6 [a] [2]…). When an inmate is denied the right to be present at a hearing, there must be a factual basis in the record supporting the Hearing Officer's decision … .  Here, the Hearing Officer set forth on the record his reasons for excluding petitioner from the hearing, including petitioner's menacing conduct at a hearing earlier that same day, which he personally witnessed,  as well as petitioner's multiple assaults on staff during the past several months.  Based upon these incidents, the Hearing Officer could reasonably conclude that petitioner's presence at the hearing would jeopardize institutional safety and correctional goals.  Matter of Barnes v Prack, 514889, 3rd Dept 9-19-13



Insufficient Justification for Removing Inmate from Hearing


The Third Department reversed a determination of guilt because the petitioner was removed from the hearing without sufficient justification:


"An inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals" … .  Petitioner here was first warned that he could be removed from the hearing after he attempted to suggest questions for a witness he had requested who claimed to have been threatened and refused to testify.  The Hearing Officer then invited petitioner to explain his defense, namely, that the author of the misbehavior report had set him up after they had sexual contact.  Petitioner referred to the officer by her first name, prompting the Hearing Officer to direct him to refrain from doing so.  Petitioner then attempted to explain – despite the Hearing Officer's repeated interruptions – that the officer "told me to call her" by her first name and that such was "the only way" he could accurately describe what had occurred.  Instead of allowing petitioner to explain further or present his account of events, however, the Hearing Officer abruptly cut petitioner off and removed him from the hearing.  Even if petitioner's conduct could legitimately be viewed as indecorous or disrespectful, "our review of the record reveals no evidence that [it] rose to the level of disruption that justified his exclusion from the proceedings"… . Matter of Watson v Fischer, 515197, 3rd Dept 9-19-13






Hearsay Not Assessed for Reliability---Determination Annulled


The Third Department annulled a determination that was based upon hearsay which had not been assessed for reliability:

While hearsay evidence may constitute substantial evidence to support a determination of guilt, it must be sufficiently detailed to allow the Hearing Officer to independently assess its reliability and credibility … .   The basis for the charges here were written and oral statements by inmates implicating petitioner as the thief.  There is no indication, however, that those statements were independently reviewed by the Hearing Officer, who based his determination solely upon the misbehavior report and testimony of the correction lieutenant who authored it.  Matter of Carrasquillo…, 515970, 3rd Dept 9-19-13





Denial of Parole Supported by Evidence

In reversing Supreme Court, the Second Department determined the Parole Board’s denial of parole was not arbitrary and capricious.  After noting that the 2011 amendments to Executive Law 259-c(4) did not apply retroactively, the court wrote:

…[T]he Supreme Court erred in concluding that the Parole Board's determination was arbitrary and capricious … . Although the Parole Board's primary focus in denying parole was the nature of the crime committed, the Parole Board also looked at the petitioner's institutional record … . The Parole Board "need not expressly discuss each of [the statutory guidelines] in its determination" …, and it was not "required specifically to articulate every factor considered" … . Whether the Parole Board considered the proper factors and followed the proper guidelines are questions that should be assessed based on the "written determination . . . evaluated in the context of the parole hearing transcript" … . Here, the hearing transcript indicates that the Parole Board gave due consideration to a number of factors that reflected well on the petitioner, but that these factors did not outweigh those factors that militated against granting parole. Matter of Fraser v Evans, 2013 NY slip Op 05900, 2nd Dept 9-18-13





Summary Judgment Can Not Be Granted Based on Affidavit By Someone with No Personal Knowledge of the Facts, Even If Factual Information Not Disputed


A mortgage foreclosure action was discontinued at the plaintiff’s request because the limited signing officer who signed the affidavit in support of plaintiff’s motion for summary judgment did not have personal knowledge of the facts.  The defendant then cross-moved for summary judgment based on the plaintiff’s papers.  In explaining that Supreme Court should not have granted summary judgment to the defendant dismissing the action, the Second Department wrote:


…[W]here a motion for summary judgment is based solely upon an affidavit of someone with no personal knowledge of the facts, that circumstance generally presents only a ground for the denial of summary judgment…, not a ground to dismiss the action. [Defendant] failed to establish grounds to dismiss the action against her with prejudice, and there is no basis in this record supporting that request for relief. Accordingly, the Supreme Court improperly granted that branch of [defendant’s] cross motion which was, in effect, to dismiss the action against her with prejudice… . GMAC Mtge LLC v Bisceglie, 2013 NY Slip Op 05878, 2nd Dept 9-18-13






Opening Statement Provided Grounds for Dismissal of False Arrest/Malicious Prosecution Action


The Second Department affirmed Supreme Court’s grant of a judgment as a matter of law to the defendant in a false arrest/malicious prosecution case based upon plaintiff’s counsel’s opening statement. In the opening, counsel stated the defendant had been arrested after the eyewitness victim made an in-person identification of the plaintiff to a police officer.  Because the eyewitness identification provided probable cause for the arrest, the false arrest and malicious prosecution causes of action were not viable:


An application for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions (see CPLR 4401). The grant of such an application prior to the close of the opposing party's case is generally disfavored … . However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, "by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants"… . * * *


Here, the plaintiff, through his counsel, admitted that the eyewitness victim of the alleged crimes made an in-person identification of the plaintiff to a police officer, which led to his immediate arrest by that officer. This admission by the plaintiff, through his counsel, "so completely compromised" his position that the police lacked probable cause to arrest him, that the Supreme Court was justified in awarding judgment as a matter of law to the City…. Okunubi v City of New York, 2013 NY slip Op 05886, 2nd Dept 9-18-13






Criteria for Seizure of Equipment Explained


In reversing Supreme Court, the Second Department determined the plaintiff, in a replevin action, was not required to demonstrate irreparable harm in an action for seizure pursuant to CPLR 7102.  The defendant had defaulted on an equipment lease.  The court wrote:


Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim … . Here, the plaintiff made such a showing … . Contrary to the court's determination, the plaintiff was not required to demonstrate that it would suffer irreparable injury in order to obtain an order of seizure pursuant to CPLR 7102.  TCF Equip Fin Inc v Interdimensional Interiors, Inc, 2013 NY Slip 05893, 2nd Dept 9-18-13






New Affidavits Properly Allowed in Foreclosure

Proceedings/Accuracy of the Execution or Notarizations of the Original Affidavits Could Not Be Confirmed


In affirming Supreme Court’s granting of plaintiff’s motion to substitute new affidavits of merit in a foreclosure proceeding because the accuracy of the execution and/or notarizations of the original affidavits could not be confirmed, the Second Department explained:


CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced … . " Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party'" … . The provisions in CPLR 2001 and 5019(a) may only be employed to correct errors where the corrections do not affect a substantial right of the parties … . 


Under the facts of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's motion. No substantial right of Eaddy [the defendant] will be affected by the court's substitution of the new affidavits of merit and of the amount due … . The new proposed affidavits of merit and of the amount due list the same amounts due and owing as those stated in the original affidavits submitted with the application for the order of reference and the application for the judgment of foreclosure and sale. Further, Eaddy has remained in possession of the subject property throughout the pendency of the instant action. US Bank NA v Eaddy, 2013 NY Slip Op 05896, 2nd Dept 9-18-13






Variance Properly Granted/Review Criteria Explained


The Second Department, after noting that an application for a variance can be made by an agent for the property owner, determined the Board of Zoning Appeals had properly granted the lot-width variances.  In explaining the court’s role in reviewing variances, the court wrote:


…"[L]ocal zoning boards are vested with broad discretion in considering applications for area variances, and [c]ourts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure'" … . A variance determination of a zoning board should be sustained if it has a rational basis and is not arbitrary and capricious … . 


Here, the Board properly balanced the requisite statutory factors, and its determination that the benefit to the applicant of the requested variances outweighed the detriment to the health, safety, and welfare of the neighborhood or community had a rational basis and was not arbitrary and capricious (see Town Law § 267-b[3][b]…). Among other things, the Board found that, despite a few wide lots in the vicinity of the premises, the majority of lots in the uninterrupted two-block segment of Bayview Avenue in which the subject premises were located had a width of 50 feet or less, and, thus, that the variances would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties. Matter of Huszar v Bayview Park Props LLC, 2013 NY Slip Op 05906, 2nd Dept 9-18-13



Planning Board Should Not Have Added Conditions for

Approval of Final Plat Plan


The Second Department affirmed Supreme Court’s determination that the planning board’s denial of approval of a final plat plan was arbitrary and capricious.  The Court determined that the planning board was aware of the variance upon which the denial was based (involving the transfer of sanitary flow credits) at the time it approved the preliminary plat plan:


Although the Planning Board's approval of the preliminary plat in April 2010 did not guarantee approval of the final version (see Town Law § 276[4]), a planning board may not, in the absence of significant new information, deny final approval if a property owner implements the modifications or conditions required by a preliminary approval (…Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 276 Preliminary Review). Here, the Planning Board had long known that the SCDHS's approval of a Suffolk County Sanitary Code variance was based on the transfer of sanitary flow credits and, indeed, the Planning Board specifically referenced that transfer in its April 2010 conditional preliminary approval. Inasmuch as no significant new information came to light after the Planning Board gave its approval to the preliminary plat, its imposition of additional requirements in the conditional final approval was, as the Supreme Court correctly held, arbitrary and capricious… . Matter of Nickart Realty Corp v Southold Town Planning Bd, 2013 NY Slip Op 05909, 2nd Dept 9-18-13



Ownership Acquired by Adverse Possession Demonstrated


The Second Department reversed Supreme Court and determined plaintiffs had proved ownership of a strip of land by adverse possession:


...[W]e conclude that the plaintiffs demonstrated ownership to the subject strip through adverse possession. " A party seeking to obtain title by adverse possession must prove by clear and convincing evidence . . . that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years'" … . Additionally, since the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either "usually cultivated or improved" or "protected by a substantial inclosure" (RPAPL former 522…). 


Here, the plaintiffs demonstrated that, by building and maintaining a wall along the subject strip, which was styled to match their house and attached to a gate attached to their house, they continually possessed the subject strip, for more than 10 years, in a manner that was open and notorious, exclusive, and inimical to the rights of the [defendants’] predecessor… . Marone v Kally, 2013 NY Slip Op 05882, 2nd Dept 9-18-13






Termination of Participation in Affordable Housing Program

Is Not a Taxable Transfer


In a full-fledged opinion by Justice Cohen, the Second Department determined that when a residential housing cooperative amends its certificate of incorporation as part of a voluntary dissolution, reconstitution, and termination of participation in the Mitchell-Lama housing program (Private Housing Finance Law section 10 et seq, an affordable housing program established in 1955) there is no transfer or conveyance of real property or an interest in real property and, therefore, no taxable event occurs under Tax Law section 1201(b) (i.e., no real property transfer tax [RPTT] is due).  This opinion replaced the opinion in Trump Vil. Section 3, Inc v City of New York, 100 AD3d 170, which is recalled and vacated. Trump Vil Section 3, Inc v City of New York, 2013 NY Slip Op 05894, 2nd Dept 9-18-13







Petition Seeking Revocation of Building Permit Should Have Named the Director Who Had the Power to Revoke It


In affirming the grant of a building permit by the village board of appeals (BOA), the Second Department noted that only Director of Building, Code Enforcement and Land Use Administration had the power to revoke a building permit and therefore the Director should have been named in the Article 78 proceeding seeking revocation:


…[I]n a proceeding pursuant to CPLR article 78 which seeks to compel a body or officer to perform a duty imposed by law, the proceeding must be commenced against the body or officer whose performance is sought (see CPLR 7803). The petitioners sought to compel the BOA to revoke the building permit and any subsequently issued certificate of occupancy. However, only the Director is empowered to do so (see Village Code §§ 126-7, 126-12, 126-15). Thus, the petitioners should have named and joined the Director as a party to this proceeding … .  Matter of Lucas v Board of Appeals of Vil of Mamaroneck, 2013 NY Slip Op 05908, 2nd Dept 9-18-13






No Evidence Release Invalidated by Fraud or Duress


In upholding the validity of a release, the Second Department explained the relevant principles:


" A release is a contract, and its construction is governed by contract law'" … . "A release may be invalidated . . . for any of the traditional bases for setting aside written agreements'" … . However, "a signed release shifts the burden of going forward . . . to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release'" … . 


Here, the plaintiff failed to demonstrate that there was fraud, duress, or some other fact sufficient to void the release. Davis v Rochdale Vil, Inc, 2013 NY Slip Op 05874, 2nd Dept 9-18-13






Question of Fact Whether General Releases Encompassed Environmental Damage from Leaking Fuel Tank


The Second Department determined that there was a question whether general releases contemplated damages related to environmental contamination and the action should not have been dismissed based on the releases. The action concerned gasoline which had leaked into the ground when defendant had leased the plaintiff’s property.  The court explained:


Generally, a valid release completely bars an action on a claim that is the subject of the release … . Principles of contract law govern the interpretation of a release; "a release that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms'" … . Nonetheless, as the Court of Appeals has recognized with respect to a general release, 


"[t]here is little doubt . . . that its interpretation and limitation by the parol evidence rule are subject to special rules. These rules are based on a realistic recognition that releases contain standardized, even ritualistic, language and are given in circumstances where the parties are sometimes looking no further than the precise matter in dispute that is being settled. Thus, while it has been held that an unreformed general release will be given its full literal effect where it is directly or circumstantially evident that the purpose is to achieve a truly general settlement …, the cases are many in which the release has been avoided with respect to uncontemplated transactions despite the generality of the language in the release form" … .


Further, "[t]he meaning and extent of coverage of a release necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given'" … . A general release may not be construed to cover matters that the parties "did not desire or intend to dispose of" … . 


Here, the two releases at issue, whether construed together or separately, are ambiguous regarding whether the parties intended that they cover unknown claims for environmental contamination… .  Burnside 711 LLC v Amerada Hess Corp, 2013 NY Slip Op 05869, 2nd Dept 9-18-13






Authenticity of Document Not Demonstrated


In finding the existence of a contract had not been demonstrated, the Second Department explained the relevant evidentiary rules concerning the authenticity of a document submitted as proof of a contract:


The general rule is that "[a] writing is ordinarily not relevant at trial unless evidence had been introduced to show that it was made, signed or adopted by a particular person" (Prince, Richardson on Evidence, § 9-101 [2008]). "A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established" … . The authenticity of a document may be established by submitting the document with a certificate of acknowledgment …, which was not done here. Nor was any other evidence submitted as to the validity of the documents in issue. Fairlane Fin Corp v Greater Metro Agency, Inc, 2013 NY Slip Op 05875, 9-18-13






Evidence Supported Finding Certificate of Acknowledgment

Attached to Deed Was Forged


In affirming the trial court’s determination a power of attorney (a certificate of acknowledgment) had been forged, thereby rendering a deed and five mortgages void, the Second Department wrote:


"A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution" … . "[A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing so as to amount to a moral certainty" … . …


…[W]e find on this record that there nonetheless existed clear and convincing evidence that the power of attorney was in fact forged, particularly in light of the undisputed evidence showing that the plaintiff, as the former owner of the subject property, received no consideration from the sale of the property or from the subject mortgage loans. Neuman v Neuman, 2013 NY Slip Op 05885, 2nd Dept 9-18-13






Conflicting Evidence About Whether Attorney Discharged for Cause (Thereby Prohibiting Recovery of Attorneys Fees) Required Hearing


The Second Department determined Supreme Court should not have ruled that an attorney was not discharged for cause, thereby entitling the attorney to attorneys fees, without a hearing, because there was conflicting evidence on the issue.  The court explained when an attorney who has been discharged is entitled to attorneys fees:


A client has "an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" … . Where the discharge is without cause, the attorney may recover the reasonable value of his or her services in quantum meruit … . In contrast, "[a]n attorney who is discharged for cause . . . is not entitled to compensation or a lien" … . An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered … . 


"Where there are conflicting claims as to . . . whether an outgoing attorney was discharged with or without cause, a hearing is necessary to resolve such dispute"… . Schultz v Hughes, 2013 NY slip Op 05891, 2nd Dept 9-18-13






Failure to Check Box on Cover

Sheet Fatal to Designating Petitions


The Second Department affirmed Supreme Court’s determination that the designating petitions were properly rejected because the box on the cover sheet indicating that the required number of signatures were included was not checked:


The Supreme Court properly denied the petition and dismissed the proceeding. Although the provisions of the Election Law "shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud" (Election Law § 6-134[10]; see 9 NYCRR 6215.6[a]), this matter does not involve a mere technical defect subject to cure pursuant to Election Law § 6-134(2) … . Rather, the express terms of the cover sheet drafted and submitted by the petitioners directed the Board to disregard the designating petitions as void and not accept them for filing. To hold that the designating petitions were nonetheless filed would undermine procedural safeguards against both fraud and confusion, as election officials and interested parties could not have understood the designating petitions actually to have been filed (cf. Election Law § 6-134[10]; 9 NYCRR 6215.1, 6215.6…).  Matter of Balberg v Board of Elections in the City of NY, 2013 NY Slip Op 05897, 2nd Dept, 9-18-13






Out-Of-Possession Landlord Not Liable for Slip and Fall


In affirming the grant of summary judgment to an out-of-possession landlord in a slip and fall case, the Second Department explained:


"An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct" … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation … . Castillo v Wil-Cor Realty Co, Inc, 2013 NY Slip Op 05871, 2nd Dept 9-18-13



Plaintiff Unable to Identify Cause of Fall


In reversing Supreme Court, the Second Department determined a slip and fall action against defendant (Trump Village) should have been dismissed because the plaintiff could not identify the cause of her fall:


" [A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation'" … . Although "[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident, . . . mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action" … . Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation … . Ash v city of New York, 2013 NY slip Op 05864, 9-18-13



Primary Assumption of Risk Precluded Lawsuit


The Second Department determined Supreme Court should have granted defendant’s motion for summary judgment based on the doctrine of primary assumption of risk. Plaintiff was an experienced boxer and was injured when he stepped into a gap (about which he was aware) under the canvas surface of the boxing ring:


The doctrine of primary assumption of risk provides that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" … . This includes risks associated with any open and obvious conditions of the playing field, including risks arising from "less than optimal conditions" … . Thus, "when an experienced athlete . . . is aware of the existence of a particular condition on the premises where the activity is to be performed, and actually appreciates or should reasonably appreciate the potential danger it poses, yet participates in the activity despite this awareness, he or she must be deemed to have assumed the risk of injury which flows therefrom" … . Baccari v KCOR, Inc, 2013 NY Slip Op 05865, 2nd Dept 9-18-13



Question of Fact Whether

¾ Inch Height Differential Was “Trivial”


In a slip and fall case, the Second Department reversed Supreme Court and determined there was a question of fact whether a defect, a ¾” height differential in a walkway, was “trivial:”


"Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law" … . "In determining whether a defect is trivial, the court must examine all of the facts presented including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury'" … . There is no "minimal dimension test" or per se rule that a defect, in order to be actionable, must be a certain height or depth … . 


Here, in support of their motion, the Jamaica Seven defendants submitted evidence, including photographs, which showed that the bricks within the section of the entranceway where the plaintiff tripped were depressed below the adjacent public sidewalk, causing a height differential of at least 3/4 of an inch. This evidence, including the plaintiff's deposition testimony, was insufficient to demonstrate as a matter of law that the alleged defect was trivial and, therefore, not actionable… . Cardona-Torres v City of New York, 2013 NY Slip Op 05870, 2nd Dept 9-18-13



Question of Fact Whether City Had Notice of Pothole in Bicycle-Injury Case/Big Apple Pothole Map May Have Provided Notice


The Second Department affirmed the denial of defendant’s motion for summary judgment in a pothole bicycle-injury case.  The court determined that there was a question of fact about exactly where the pothole was and whether it was indicated on the Department of Transportation’s Big Apple Pothole map:


…”[W]here a municipality has enacted a prior written notice statute such as Administrative Code of the City of New York § 7-201(c)(2), it may not be subjected to liability for injuries arising from a defective roadway unless it has received timely prior written notice of the defective condition" … . A Big Apple map submitted to the Department of Transportation may serve as prior written notice of a defective condition … . 


Here, the defendants failed to establish, prima facie, that they did not have prior written notice of the alleged defect. Where, as here, "there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff's fall, and whether the alleged defect is designated on the map, the question should be resolved by the jury"… Chia v City of New York, 2013 NY slip Op -5873, 2nd Dept 9-18-13 



Rear-End Collision Warranted Summary Judgment on Liability


In a rear-end collision case, the Second Department determined plaintiff’s motion for summary judgment on liability should have been granted:


A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . "A claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence" … . 


Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that the defendant's vehicle struck his vehicle in the rear as the plaintiff's vehicle was slowing down for traffic in front of it … . In opposition, the defendant failed to raise a triable issue of fact. "[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" … . Robayo v Aghaabdul, 2013 NY slip Op 05889, 2nd Dept 9-18-13






No Negligence In School District’s, School’s and Attending

Nurse’s Care of Child Who Died After Suffering

an Allergic Reaction in School


In a full-fledged opinion by Justice Eng, the Second Department determined the action brought on behalf of a child who died in school after suffering an allergic reaction was correctly dismissed with respect to the Department of Education (DOE) and should have been dismissed with respect to the school and the attending nurse who was tasked with monitoring the child at school.  The lengthy opinion deals in depth with many topics including:  the DOE’s duty, the school’s duty, the nurse’s duty, the finding that the nurse was an independent contractor as opposed to an employee, and the proximate cause issue raised by the inability to determine what caused the allergic reaction.  The child was autistic and suffered from asthma and numerous severe allergies.  The DOE developed a plan (Individualized Education Program) which involved placement of the child in a private school equipped to care for children with special needs and the provision of a nurse who was with the child continuously during the school day.  The Second Department treated all the issues (including the adequacy of the medical care provided by the nurse) exhaustively and determined no questions of fact had been raised about the negligence of any of the defendants. Begley v City of New York, 2013 NY Slip Op 05867, 2nd Dept 9-18-13







Action By Israeli Citizens Against Bank Which Allegedly Funded Groups that Committed Bombings and Rocket Attacks Allowed to Go Forward in New York Applying Israeli Negligence Law


In a full-fledged opinion by Justice Feinman, the First Department determined that Israeli law should be applied in a civil action by 50 Israeli citizens who were injured or who represent persons killed in bombings and rocket attacks carried out in Israel by Palestine Islamic Jihad and Hamas.  The opinion includes very detailed explanations of American and Israeli tort law (including the different roles of foreseeability in each), the factors that determine choice of law, and forum non conveniens. The action is against the Bank of China (BOC) and alleges the bank was negligent in supplying funds to the groups which carried out the bombings and attacks.  BOC argued that no duty ran from the bank directly to those injured by the intentional torts of others.  But, under Israeli law, a duty arises when an act is foreseeable and when an act violates a statute.  The court explained:


…[T]he Israeli law of negligence "differs slightly" from New York law in that duty is divided into fact and notional duty and depends on foreseeability …. …[T]he analysis of whether a duty is owed involves an inquiry into whether a reasonable person could have foreseen the occurrence of the damage under the particular circumstances alleged; whether as a matter of policy, a reasonable person ought to have foreseen the occurrence of the particular damage; and whether the occurrence causing the damage was foreseeable … . This differs from New York law, where the foreseeability of harm does not define duty and, absent a duty running directly to the injured person, there is no liability in damages, however careless the conduct or foreseeable the harm … . 


In addition, the claim of breach of statutory duty …has no equivalent in New York law. … Israel's tort of breach of a statutory duty "acts as a civil private right of action for the violation of any enactment" issued by the Knesset, the Israeli parliament. The plaintiff must be able to show that the defendant was under a duty imposed by an enactment, the enactment was created for the benefit of the plaintiff, the defendant breached that duty, and the breach caused an injury to the plaintiff of the type that the enactment was intended to prevent …. …[T]he enactments at issue are section 4 of the Prevention of Terrorism Ordinance, sections 145 and 148 of the Penal Law, and section 85 of the Defense Regulations (Emergency Period), all of which prohibit aiding and abetting terrorism, specifically by the giving of money to any terrorist organization, the payment of any contribution to any unlawful association including terrorist groups, and the performance of any service for or holding of funds of any unlawful organization … . Elmaliach v Bank of China Ltd, 2013 NY Slip Op 05858, 1st Dept 9-17-13.






Disposition of Juvenile Delinquency Proceeding

Reversed/Purpose Is Not to Punish


Over a dissent, the First Department reversed Family Court’s juvenile delinquency disposition which was based on the findings that, had the juvenile been an adult, he would have been guilty of two counts of sexual abuse 2nd and two counts of forcible touching 3rd.  The First Department eliminated the 12-month period of probation and granted an adjournment in contemplation of dismissal.  The juvenile was 13 years old at the time of the incident.  It was alleged the juvenile grabbed the 12-year-old complainant from behind by pulling on her backpack and, as she tried to get away, touched and squeezed her breasts and the right side of her buttocks.  He then tried to kiss her, ignored her when she said she needed to go to class, and demanded a hug in order to let her go.  The First Department noted that this was the juvenile’s first contact with the justice system, that he and his mother had been cooperative throughout, and that he was a good student (among other factors).  The court wrote:


…[T]the totality of appellant's course of conduct, and his statements to the complaining witness, support the inference that he acted for the purpose of sexual gratification … . The court's findings that appellant committed an act, that, if committed by an adult, would constitute a crime, was, therefore, based on legally sufficient evidence and not against the weight of the evidence … . 


A juvenile delinquency adjudication, however, requires both a determination that the juvenile committed an act, that, if committed by an adult, would constitute a crime and a showing, by the preponderance of the evidence, that the juvenile needs supervision, treatment or confinement (Family Ct Act §§ 345.1, 350.3, 352.1). Although the seriousness of the juvenile's acts is an extremely important factor in determining an appropriate disposition …, it is not the only factor. The disposition is not supposed to punish a child as an adult, but provide effective intervention to "positively impact the lives of troubled young people while protecting the public" .. . 


While the trial court properly found that appellant committed a delinquent act, there was insufficient support for its decision that appellant needed supervision, treatment or confinement (Family Ct Act §§ 352.1, 350.3). In addition, 12 months probation was not the least restrictive available alternative that would have adequately served the needs of appellant and society (Family Ct Act § 352.2…). Matter of Narvanda S, 2013 NY Slip Op 05855, 1st Dept 9-17-13




Relationship of Prenuptial Agreement to Temporary

Maintenance and Award of Attorneys Fees


The Second Department determined that temporary maintenance was not properly granted in light of the facts (where the prenuptial agreement did not expressly deal with the topic) and legal fees in excess of the limit in the prenuptial agreement were properly granted.  The court explained the relevant analyses as follows:


"As with all contracts, prenuptial agreements are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing" …. "Where a prenuptial agreement is clear and unambiguous on its face, the intent of the parties is gleaned from the four corners of the writing as a whole with a practical interpretation of the language employed so that the parties' reasonable expectations are met" … . 


Contrary to the plaintiff's contention, the parties' prenuptial agreement did not expressly preclude an award of temporary maintenance pendente lite, nor did the defendant expressly waive such an award under the terms of the agreement… .   On the record presented, including evidence of the defendant's expenses, the defendant's reasonable needs were more than adequately met. Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in directing the plaintiff to pay temporary maintenance in the sum of $1,000 per month… . * * *


Supreme Court properly awarded the defendant interim counsel fees, notwithstanding a provision in the prenuptial agreement limiting, to the sum of $10,000, the plaintiff's obligation to pay such fees incurred by the defendant in any divorce action. Because of a strong public policy favoring the resolution of matrimonial matters on a level playing field …, the determination of whether to enforce an agreement waiving the right of either spouse to seek an award of an attorney's fee is to be made "on a case-by-case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced" … . Here, the parties are involved in extensive litigation concerning child custody, a matter not expressly addressed in their prenuptial agreement. Moreover, the plaintiff's net worth is more than $13 million and his monthly gross income exceeds $45,000, while the defendant has no income other than what she is receiving pursuant to the agreement. Abramson v Gavares, 2013 NY slip Op 05861, 2nd Dept 9-18-13



Motion to Suspend Child Support Properly Denied/Criteria Explained


In affirming Supreme Court’s denial of plaintiff’s motion to suspend child support, the Second Department explained the criteria for early suspension of the child support obligation:


Generally, parents have a statutory duty to continually support their children until they reach 21 years of age (see Family Ct Act § 413[1][a]…). " However, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended'" … .


Here, contrary to the plaintiff's contention, the Supreme Court properly denied, without a hearing, that branch of his motion which was to suspend his obligation to pay child support. The plaintiff alleges continuing conduct on the part of the defendant which, if proven, would not "rise to the level of deliberate frustration' or active interference' with the noncustodial parent's visitation rights"… . Jones v Jones, 2013 NY Slip Op 05879, 2nd Dept 9-18-13



Determination of Paternity Not in Child’s Best Interest/Mother Equitably Estopped from Seeking Paternity Determination


The Second Department determined a genetic marker test to determine appellant’s paternity was not in the best interest of the child and the mother was equitably estopped form asserting appellant’s paternity.  The appellant had not been part of the 16-year-old child’s life since the child was 18 months old and the mother had failed to appear in a paternity proceeding instituted when the child was 8 months old:


…[I]in appropriate circumstances, the doctrine of equitable estoppel may be asserted defensively by a purported biological father to prevent a child's mother from asserting biological paternity where a genetic marker test would not be in the best interests of the child … . Here, the Family Court improvidently rejected the appellant's equitable defense. An adverse inference may be taken against the mother for her failure to appear for the court-ordered genetic marker test in 1999, and her failure to pursue that proceeding … . Thereafter, the mother failed to commence a new proceeding for 13 years, during which time the subject child had no relationship with the appellant and lived with the mother, her current husband, and his half-siblings on the mother's side. Accordingly, a genetic marker test is not in the best interests of the subject child, on the ground that the mother is equitably estopped from asserting the appellant's biological paternity (see Family Ct Act § 532[a]…). Matter of Karen G v Thomas G, 2013 NY slip Op 05901, 2nd Dept 9-18-13






Husband’s Contribution to Purchase of Home by Wife’s Parents Constituted a Constructive Trust


In a divorce action, the Second Department affirmed Supreme Court’s determination that the husband’s [Henn’s] contribution toward the purchase of a house constituted a constructive trust.  The parties separated before Henn moved into the home.  The wife’s [Tyree’s] parents [the Raffas] contributed some money and purchased the home for Henn and Tyree, both of whom also contributed funds toward the purchase.  In concluding Henn’s contribution constituted a constructive trust, the court wrote:


Here, the Supreme Court correctly found that the first element relevant to imposing a constructive trust was satisfied, as Henn and the Raffas were related through marriage and they pooled their resources to purchase the subject premises … . Henn satisfied the second element by demonstrating that the Raffas implicitly promised to convey the premises to him and Tyree … . He satisfied the third element, which requires a showing that he acted in reliance on the promise, by establishing that he gave $58,500 to Samuel J. Raffa, and that Samuel J. Raffa used that money to purchase the premises … . As for the fourth element, which requires a showing of unjust enrichment flowing from the breach of the promise, the evidence adduced at trial established that Henn never moved into the premises or acquired a legal interest therein. To the contrary, he and Tyree separated the very month that the premises were acquired by the Raffas, and Tyree commenced this divorce action just a few months later. The Raffas remained the sole owners of the premises, and they did not return Henn's $58,500. In view of this evidence, there is no basis upon which to disturb the Supreme Court's determination… . Tyree v Henn, 2013 NY Slip Op 05895, 2nd Dept 9-18-13






Hearing Officer’s Factual Misconduct Findings Cannot Be Ignored


In reversing the Unemployment Insurance Appeal Board’s grant of unemployment benefits to the claimant, the Third Department explained that the hearing officer’s factual findings of disqualifying misconduct cannot be ignored:


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 Hearing Officer's "factual findings regarding claimant's conduct and his conclusion" that claimant had been insubordinate … .  Despite the fact that "the question of claimant's conduct leading to his termination necessarily had to be considered" in making that assessment, the Board here inexplicably failed to consider whether claimant's actions … constituted disqualifying misconduct… . Matter of Winters…, 515809, 3rd Dept 9-19-13



Claimant Properly Found to Be an Employee


In affirming the Unemployment Insurance Appeal Board’s conclusion that claimant was an employee of Village Wine, the Third Department wrote:


Claimant was a salesperson for Village Wine Imports Ltd., a wine importer and distributor.  Substantial evidence supports the Unemployment Insurance Appeal Board's conclusion that claimant and those similarly situated were Village Wine's employees and not independent contractors.  Village Wine set claimant's commission rate, paid him a draw on his commission for a period of time, and reimbursed his travel and telephone expenses. Claimant was also trained by Village Wine, which assisted his sales efforts by providing product samples and business cards bearing the company name.  Village Wine also set the price, terms and conditions for all sales, gave claimant sales leads, required him to obtain approval for sales, and handled all shipping and invoicing matters.  While evidence in the record could support a contrary result, the Board was free to determine from the above that Village Wine exercised sufficient control over claimant to establish an employer-employee relationship… . Matter of Miciletto…, 515852, 3rd Dept 9-19-13



Claimant Who Provided Computer-Training for Company’s Clients Properly Found to Be Employee of Company


In affirming the Unemployment Insurance Appeal Board’s determination claimant was an employee of a company (Eden Technologies) which provides computer-training personnel to clients, the Third Department wrote:


The existence of an employer-employee relationship is a factual determination for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … .  This Court has held that "'an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship'" … . In this case, there is proof that Eden sought, interviewed and selected claimant to perform services at the request of a client. On a weekly basis, claimant was required to submit time sheets provided by Eden, including information about what services were provided.  Eden then paid claimant directly on a biweekly basis at a set hourly rate and billed the client separately. Additionally, certain restrictions were placed upon claimant's provision of services to Eden's clients and other entities during her employment and for one year following separation.  Thus, although there is evidence that could support a different result, we find substantial evidence to support the Board's decision… . Matter of Lamar…, 516039, 3rd Dept 9-19-13



Inability to Find Sufficient Childcare Was “Good Cause”

for Leaving Employment


In affirming the Unemployment Insurance Appeal Board’s determination claimant had good cause for leaving her employment, the Third Department wrote:


"Whether a claimant has good cause to leave his or her employment is a factual determination to be made by the Board, and its decision will not be disturbed when supported by substantial evidence" … . Claimant offered multiple reasons that she was dissatisfied with her employment, but the record supports the Board's conclusion that the impetus for her resignation was an inability to arrange appropriate childcare despite having made sufficient efforts in that regard.  We find that substantial evidence supports the Board's determination that, under all of the circumstances presented here, claimant had good cause to leave her employment… . Matter of Cottone…, 516338, 3rd Dept 9-19-13






Criteria for Payment from Special Fund Explained


In finding there was insufficient evidence to determine if claimant was entitled to be paid workers’ compensation benefits from the Special Fund (for previously closed cases), the Third Department wrote:


"Worker's Compensation Law § 25-a provides for the transfer of liability to the Special Fund 'when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation'" … .  "Advance payments that are made voluntarily, in recognition of an employer's liability, are payments of compensation" for purposes of Workers' Compensation Law § 25-a … .  Thus, even where the requisite time periods have elapsed, if a claimant has – during the relevant time period – received advance payment of benefits in the form of full wages for the performance of light or limited duty work, liability is not appropriately shifted due to those advance payments … .  Here, the record contains numerous progress reports from claimant's chiropractor indicating that she has been working for the employer since November 2004 with restrictions. Inasmuch as the record does not contain an affidavit or testimony of claimant or any other evidence regarding whether claimant was performing light or limited duties and, if so, whether she received full wages, we find that the Board's decision is not supported by substantial evidence and the matter must be remitted for further development of the record… . Matter of Capodagli…, 516177, 3rd Dept 9-19-13






Agents of Property Owner Can Be Liable Under Labor Law 240(1)


In reversing a verdict after trial, the Second Department noted that the Labor Law imposes liability upon the agents of the property owner, as well as the owner and general contractor:


In addition to owners and general contractors, Labor Law § 240(1) imposes liability upon agents of the property owner who have the ability to control the activity which brought about the injury … . * * * In light of the trial evidence, the jury should have been instructed to determine whether the defendants were acting as the homeowner's agent, with the authority to supervise and control the injured plaintiff's work on the roof … . Accordingly, since the error was not harmless a new trial is required… . Arto v Cairo Constr Inc, 2013 NY Slip Op 05863, 9-18-13






Plaintiffs Not Entitled to Attorneys Fees in Shareholder Derivative Action Because They Did Not Go to the Board Before Going to Court


In a full-fledged opinion by Justice Friedman, the First Department determined the plaintiffs in a (putative) shareholder derivative action were not entitled to an award of legal fees pursuant to Business Corporation Law 626 because the plaintiffs went straight to court without first making a pre-suit demand upon the board for the desired action.  The plaintiffs sued the Goldman Sachs Group (GPS) to demand a reduction in employee compensation based on the prediction GPS would announce excessive employee compensation. When GPS announced a lower level of compensation, plaintiffs, claiming that the action had attained its objective, moved for a voluntary dismissal and for an award of legal fees.  In affirming Supreme Court’s denial of legal fees, the court wrote:


Plaintiffs argue that Business Corporation Law § 626(e) (quoted in pertinent part at footnote 5, supra) does not expressly require a showing that the demand requirement was complied with or excused as a prerequisite to an award of attorneys' fees for bringing an action that brought a substantial benefit to the corporation (as plaintiffs claim---and defendants deny---that this action did). Plaintiffs further argue that there is no reason to construe the statute to imply such a requirement. We disagree. * * *


The demand requirement, far from being a meaningless formality, 

"rests on basic principles of corporate control--that the management of the corporation is entrusted to its board of directors, who have primary responsibility for acting in the name of the corporation and who are often in a position to correct alleged abuses without resort to the courts. The demand requirement thus relieves the courts of unduly intruding into matters of corporate governance by first allowing the directors themselves to address the alleged abuses. The requirement also provides boards with reasonable protection from harassment on matters clearly within their discretion, and it discourages strike suits commenced by shareholders for personal rather than corporate benefit" … . Central Laborers’ Pension Fund v Blankfein, 2013 NY slip Op 05857, 1st Dept 9-17-13





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