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September Page IV

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



Business Not Liable for Slip and Fall on Abutting Icy Sidewalk/”Special Use” Doctrine Explained


The Fourth Department determined the defendant funeral home could not be held liable for the plaintiff’s fall on an icy sidewalk in front of the home.  There was no statute or ordinance imposing liability on the abutting landowner (as opposed to the municipality), the funeral home did not derive a special use from the sidewalk, and the funeral home did not create or exacerbate the dangerous condition. In explaining the “special use” doctrine, the court wrote:


Under the special use doctrine, a landowner whose property abuts a public sidewalk may be liable for injuries that are caused by a defect in the sidewalk when the municipality has given the landowner permission to “interfere with a street solely for private use and convenience in no way connected with the public use” and the landowner fails to maintain the sidewalk in a reasonably safe condition … .  “A special use is typically characterized by the installation of some object in the sidewalk or street or some variance in the construction thereof” … . Here, defendants established that the sidewalk was unencumbered by the installation of any objects or by other variances in construction, and plaintiff submitted no evidence that “the sidewalk was constructed in a special manner for the benefit of the abutting owner or occupier”… . Panzica v Fantauzzi…, 863, 4th Dept 9-27-13



Storm in Progress Doctrine Warranted Summary Judgment to Defendant in Slip and Fall Case


In reversing Supreme Court, the Fourth Department determined the “storm in progress” doctrine warranted summary judgment to the defendant in a slip and fall case.  In addition, the Fourth Department determined the plaintiff failed to raise a question of fact about whether the defendant created the dangerous condition, noting that the failure to remove all the ice and snow and the failure to sand or salt a sidewalk does not constitute exacerbation of a dangerous condition.  With respect to the “storm in progress” doctrine, the Court wrote:


We conclude that the evidence submitted by defendant in support of his motion, including an affidavit from his expert meteorologist and the weather reports upon which that expert relied, established as a matter of law that there was a storm in progress at the time of the accident … and, thus, that defendant had no duty to remove the snow and ice “until a reasonable time ha[d] elapsed after cessation of the storm” ….  The accident occurred at approximately 8:45 a.m. on December 31, 2008, when plaintiff exited defendant’s store in the City of Rochester.  According to defendant’s expert meteorologist, a snowstorm began in the Rochester area late in the evening on December 30, 2008, and continued into the next day.  At 4:15 a.m. on December 31, the National Weather Service issued a “winter weather advisory” for the Rochester area and, two hours later, the advisory was upgraded to a “winter storm warning.”  More than 11 inches of snow accumulated in Rochester on December 31, which was a record for that date, and most of that snow fell during the early morning hours.  Indeed, plaintiff acknowledged during her deposition that it was snowing on the morning in question as she drove to the store, and that testimony was consistent with the testimony of defendant’s wife, among other witnesses. Glover v Botsford…, 959, 4th Dept 9-27-13






In Spite of Settlement of Underlying Action/Legal Malpractice Case Alleging Failure to Adequately Investigate Can Go Forward


Plaintiff was attacked and injured in the lobby of his building.  He hired an attorney to bring a premises liability action.  The action was ultimately settled, but plaintiff brought a legal malpractice action against the defendant attorney alleging the attorney did not adequately investigate the security of the building.  The First Department determined that plaintiff, who was described as unsophisticated in legal matters, had stated a cause of action because the defendant attorney admitted he had relied entirely on a brief conversation with the plaintiff about the security situation at the building before recommending settlement.  The First Department explained the relevant principles as follows:


For a claim for legal malpractice to be successful, "a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for' the attorney's negligence" … . A client is not barred from a legal malpractice action where there is a signed "settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel" … . * * *


In this specific case, given plaintiff's lack of sophistication and his limited education, defendant's statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer. Furthermore, defendant says he told plaintiff, when he conveyed the settlement offer, that it was a "difficult liability case." It is difficult to understand, on the record before us, how he made that assessment without going to the building, or speaking to the superintendent. Angeles v Aronsky, 2013 NY Slip Op 05955, 1st Dept 9-24-13






Question of Fact Raised by Competing Expert Affidavits


The Fourth Department determined competing experts raised a question of fact about whether the post-discharge arrangements for psychiatric treatment of plaintiff’s decedent were adequate.  Plaintiff’s decedent committed suicide 16 days after he was released from defendant psychiatrist’s in-patient care:


…[P]laintiff submitted the affidavit of her unidentified expert, wherein the expert stated that the proper standard of care required that decedent, who had been prescribed multiple medications that had significant side effects, such as suicidal ideation, “be monitored closely by a psychiatrist from the point of his discharge.” It is undisputed that defendant approved the discharge without ensuring that decedent had a psychiatrist who could treat him. Additionally, defendant acknowledged at her deposition that decedent required psychiatric care upon discharge, but testified that it was not her responsibility to arrange for decedent’s post-discharge care and that this responsibility was “customarily [within] the purview of the social worker.”  Similarly, defendant’s expert stated in his affidavit that it was within the standard of care to delegate to a licensed social worker the task of arranging for post-discharge care. Plaintiff’s expert, however, disagreed, stating that “delegating the task to a social worker without insuring that the task was completed is a . . . deviation from the standard of care.”  We conclude that the conflicting opinions of the experts raise an issue of fact for trial… .  Mazella… v Beals…and Mashinik, 931, 4th Dept 9-27-13






Fraud and Breach of Fiduciary Causes of Action

Dismissed as Duplicative


The Fourth Department dismissed as duplicative causes of action sounding in fraud and breach of fiduciary duty in complaints against dentists also alleging malpractice, negligence, breach of General Business Law section 349 and 350, and failure to obtain informed consent, all based on dental treatment provided to children:


We agree with defendants that the court erred in denying those parts of their respective motions seeking dismissal of the fraud and breach of fiduciary duty causes of action, and we therefore modify the order by dismissing the first and third causes of action of the amended complaints against defendants.  “Dismissal of a fraud cause of action is required ‘[w]here [it] gives rise to damages which are not separate and distinct from those flowing from an alleged [dental] malpractice cause of action’ ” … .  Inasmuch as the damages sought by plaintiffs, including punitive damages, are the same for the fraud and dental malpractice causes of action, we conclude that the fraud cause of action must be dismissed.  We further conclude that the breach of fiduciary duty cause of action must be dismissed because it is duplicative of the malpractice cause of action … .  Both the breach of fiduciary duty cause of action and dental malpractice cause of action are based on the same facts and seek identical relief… . Matter of Small Smiles Litigation … v Forba Holdings LLC…, 996, 4th Dept 9-27-13






Emergency Doctrine Explained/Admissibility of Deposition

Excerpts Re: Summary Judgment Motion Explained/Bicyclist Injured When Path Allegedly Blocked to Protect Child


The Second Department reversed Supreme Court’s grant of summary judgment to the defendants. The plaintiff-bicyclist was injured when, it is alleged, one of the defendants stepped into the bicyclist’s path to protect children who were crossing the street. The court explained the admissibility requirements for excerpts of deposition testimony and an unsworn police report, as well as the emergency doctrine:


The unsigned excerpts of …defendants' deposition testimony, which the defendants submitted in support of their motion, were admissible under CPLR 3116(a) since they were submitted by the party deponents themselves and, accordingly, those transcripts were adopted as accurate by those deponents … . Additionally, although the defendants initially failed to submit the certification page of the depositions of nonparties …, as well as those for the depositions of …defendants, they submitted those certifications in reply papers in response to the plaintiffs' arguments in opposition … . Under the circumstances of this case, the late submission did not prejudice the plaintiffs, and the Supreme Court properly considered these certifications …. Furthermore, although unsigned, as noted above, the transcripts … were certified, and the plaintiffs did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the defendants' motion for summary judgment … . However, the unsigned, uncertified excerpt of the injured plaintiff's deposition was not in admissible form, nor was the uncertified, unsworn police report submitted by the defendants. Accordingly, neither of these items should have been considered in determining whether the defendants satisfied their prima facie burden … . * * *


"Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" … . " This is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains that of a reasonable [person] under the given circumstances, except that the circumstances have changed'" … . " Both the existence of an emergency and the reasonableness of a party's response thereto will ordinarily present questions of fact'" … . Pavane v Marte, 2013 NY Slip Op 05991, 2nd Dept 9-25-13






Criteria for Suspension of Judgment in Neglect Proceeding


In reversing Family Court, the Second Department explained the criteria for a suspension of judgment in a permanent neglect proceeding:


A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords “a brief grace period designed to prepare the parent to be reunited with the child” … . In essence, an order suspending judgment provides the parent with a second chance, but it may be utilized only when the court determines that a second chance is in the child’s best interests (see Family Ct Act §§ 631, 633…). Moreover, the maximum duration of a suspended judgment is one year, unless the court finds at the conclusion of that period that “exceptional circumstances” require an extension of that period for one additional period of up to one year (Family Ct Act § 633[b]…). * * *


Family Court Act § 633© provides that an order suspending judgment “must set forth the . . . terms and conditions of the suspended judgment” (see also 22 NYCRR 205.50[b]) so that the Family Court may determine whether the parent has violated it … . Matter of Jesse D…, 2013 NY slip Op 06001, 2nd Dept 9-25-13



Neglect Finding Based on Children’s Exposure to

Bloody Domestic Violence Affirmed/Requirements for Admission of Police Reports Explained


In affirming Family Court’s finding of neglect based upon the children’s exposure to bloody violence involving the mother and her boyfriend, the Fourth Department noted that police reports should not have been admitted in evidence because they were not properly certified:


The mother correctly contends that Family Court erred in admitting police records in evidence inasmuch as the certification attached to those records failed to comply with Family Court Act § 1046 (a) (iv).  That statute provides that where, as here, a certification is completed by a “responsible employee” rather than the head of an agency, the certification “shall be accompanied by a photocopy of a delegation of authority signed by both the head of the . . . agency and by such other employee” (emphasis added).  The language of the statute is mandatory, and it is undisputed that “the requisite delegation of authority to [the employee] was lacking” … .  We must therefore “find the admission of these records to have been in error if we are to give effect to the clear and unambiguous intention of the [l]egislature”… . Matter of Kadyn J…, 929, 4th Dept 9-27-13



Cognizable Counterclaim for

Breach of Domestic Partnership Stated


In finding defendant had stated a legally cognizable counterclaim for breach of a domestic partnership agreement, the Fourth Department explained:


With respect to domestic partnership agreements, “New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together . . . , provided only that illicit sexual relations were not ‘part of the consideration of the contract’ ” … .  Additionally, there is no statutory requirement that such a contract be in writing … .  We conclude that here defendant sufficiently pleaded counterclaims for breach of a domestic partnership agreement and that the court therefore erred in dismissing the fourth and fifth counterclaims … . Ramos v Hughes, 866, 4th Dept 9-27-13



Doctrine of Equitable Estoppel Does Not Apply When

Biological Mother Opposes Paternity Petition


In affirming Family Court’s dismissal of a paternity petition, the Fourth Department explained that the doctrine of equitable estoppel, urged to bar the mother from denying petitioner is the father of the child, did not apply:


“[T]he Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some control over the child with the parent’s consent” … .  It is well settled “that parentage under New York law derives from biology or adoption” …, and that “Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in [custody situations] otherwise fraught with the risk of ‘disruptive . . . battles’ . . . over parentage as a prelude to further potential combat over custody and visitation” … .  As the Court of Appeals has stated, “any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent” … .  Matter of White v Wilcox, 903, 4th Dept 9-27-13



Proof Requirements Re: Whether An Account Is

Entirely Marital Property Explained


The Fourth Department explained the proof requirements where the defendant claimed the entire amount in a deferred compensation account should not have been deemed marital property:


According to defendant, the court improperly presumed that all of the funds in that account accumulated during the marriage, and he therefore contends that we should remit the matter to Supreme Court to determine the “marital share” of that account as distinguished from his “separate property share.”  There is no merit to that contention. Pursuant to a statutory presumption, “all property, unless clearly separate, is deemed marital property,” and the burden rests with the titled spouse to rebut that presumption … . Domestic Relations Law § 236 [B] [1] [c]; [d]).  “The party seeking to rebut that presumption must adequately trace the source of the funds” …; otherwise, the court may properly treat the funds as marital property … .  Here, it does not appear from the record that defendant offered any evidence establishing the amounts he contributed to his deferred compensation account before or during the marriage. Thus, he failed to meet his burden of establishing that any of the funds in that account are separate property, and we therefore conclude that the court properly presumed that the entire account constitutes marital property subject to equitable distribution. Zufall v Zufall, 887, 4th Dept 9-27-13






Failure to Serve Complaint Upon Demand

Required Dismissal of the Action


The Fourth Department determined defendant’s motion to dismiss the action based upon plaintiff’s failure to serve a complaint after a demand should have been granted:


“To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” … . Here, plaintiff failed to meet her burden with respect to either prong of that test.  Concerning the first part of the test, plaintiff asserted that she delayed in filing the complaint because she did not receive defendant’s demand for the complaint.  In our view, that excuse is not reasonable… .  Service of the demand for the complaint was complete upon - mailing (see CPLR 2103 [b] [2]), and defendant’s submission in support of its motion of a proper affidavit of service of the demand entitled it to the presumption that a proper mailing occurred … .  We agree with defendant that plaintiff’s mere denial of receipt of the demand was insufficient to rebut that presumption … .  Even assuming, arguendo, that nonreceipt of the demand was a reasonable excuse, we conclude that plaintiff failed to establish a meritorious cause of action with a verified complaint or an affidavit of merit, and thus dismissal of the action is required… . Dunlop v Saint Leo the Great, RC Church, 865, 4th Dept 9-27-13




Timeliness Requirements for Motion for

Summary Judgment Explained


In affirming the trial court’s determination defendants’ motion for summary judgment was untimely, the Fourth Department explained the applicable law:


“Where . . . a court does not set a date by which summary judgment motions must be made pursuant to CPLR 3212 (a), such a motion must be made no later than 120 days after the filing of the note of issue ‘except with leave of court on good cause shown’ ” … .  Good cause in the context of CPLR 3212 (a) “requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy”… .  O’Brien v Bainbridge…, 990, 4th Dept 9-27-13



Failure to Serve Claim by Certified Mail Deprived

Court of Claims of Subject Matter Jurisdiction


The Fourth Department affirmed the Court of Claims’ dismissal of an action for failure to comply with the statutory service-of-claim-by-certified-mail requirement.  The court noted that the court never gained subject matter jurisdiction and, therefore, the CPLR 3211 (e) waiver provision, which addressed personal, not subject matter, jurisdiction, did not apply:


…[C]laimants served their claim on the Attorney General by regular mail instead of by certified mail, return receipt requested, as required by Court of Claims Act § 11. Defendant’s answer raised the defense that the court lacked, inter alia, subject matter jurisdiction based on claimants’ improper service, and defendant later moved to dismiss the claim on that ground.  Claimants opposed the motion and cross-moved for an order deeming the service corrected or disregarded pursuant to CPLR 2001. The court granted defendant’s motion and denied claimants’ cross motion, and we now affirm.


Court of Claims Act § 11 (a) (i) provides that a party seeking to file a claim against the State of New York must serve a copy of the claim upon the Attorney General by certified mail, return receipt requested.  It is well settled that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” … .  Inasmuch as the claim herein was served by regular mail, the court was deprived of subject matter jurisdiction and thus properly dismissed the claim … . Contrary to claimants’ contention, defendant’s motion to dismiss on the ground of improper service, made approximately 20 months after service of its answer, was not precluded by the 60-day waiver provision of CPLR 3211 (e).  The failure to comply with the service requirements in the Court of Claims Act “result[s] not in a failure of personal jurisdiction, . . . but in a failure of subject matter jurisdiction[,] which may not be waived”… . Zoeckler…, v State of New York, 883, 4th Dept 9-27-13






Criteria for County’s Immunity from Village Ordinances Explained


In remitting the matter to create a more complete record, the Fourth Department explained the criteria for determining whether the county is immune from the requirements of village ordinances prohibiting the use of the village sanitary system for a county jail within the village limits:


We agree with the Village that the record is inadequate to make a determination, based upon a “balancing of public interests,” whether the County is immune from the requirements of those amendments with respect to its siting of the proposed Facility … .  The factors to be weighed in making that determination are “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests[,] . . . the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, . . . alternative methods of providing the needed improvement[,] . . . intergovernmental participation in the project development process and an opportunity to be heard” … .  Here, inasmuch as the record is inadequate to permit the appropriate balancing of those factors, we remit the matter to Supreme Court for a determination, based upon a more complete record, whether the County is immune from the requirements of the Village zoning ordinance… . Matter of County of Herkimer v Village of Herkimer, 937, 4th Dept 9-27-13.



City Code and Charter Not Unconstitutionally

Applied Re: Searches Related to Certificates of Occupancy


The Fourth Department reversed Supreme Court’s grant of an Article 78 petition. In granting the petition, Supreme Court found that the relevant provisions of the city code and charter were unconstitutional as applied with respect to searches of petitioner’s property in connection with the issuance of certificates of occupancy.  In reversing that determination, the Fourth Department wrote:


We have previously upheld as constitutional the City’s CO requirement as well as its procedure for issuing judicial warrants for inspections of premises in cases where the City has failed to obtain the consent of the homeowners or tenants … .  Petitioner concedes that the laws at issue are valid on - their face, but contends that the determination that he violated City Code § 90-16 (A) (2) (d) is unconstitutional because, as a result of the determination, he will be required to consent to a warrantless inspection of his property or risk prosecution and fines.  That contention, however, was specifically considered and rejected by this Court in Matter of Burns v Carballada (101 AD3d 1610, 1611-1612), which involved facts nearly identical to those herein.  The petitioners in Burns commenced a CPLR article 78 proceeding seeking to annul two determinations of the Municipal Code Violations Bureau finding that they violated City Code § 90-16 (A) (2) (d), the same provision at issue here, by owning rental property that was occupied without a valid CO (id. at 1610).  In the Burns petition, like the petition in this case, petitioners asserted, inter alia, that the determinations that they failed to comply with the City Code CO provision violated the Fourth Amendment and article I, § 12 of the New York State Constitution (id.).  Specifically, petitioners contended that the City’s CO inspection and warrant system was unconstitutional as applied to them because it prevented them from obtaining a CO without first consenting to a warrantless search of their properties (id. at 1611-1612).  We rejected that contention and stated that, “[u]nder the City’s ordinance, . . . an inspection can take place either upon consent or upon the issuance of a warrant (see City Charter § 1-11).  On the record before us, petitioners have not shown that they were actually penalized for refusing to allow an inspection inasmuch as there is no evidence that they ever applied for a CO and thereafter refused to consent to the required inspection of their properties” (id. at 1612).  Matter of Capon v Carballada…, 858, 4th Dept 9-27-13







Ten Year Adverse Possession Period Began After Ten Year Permissive Use Period Expired


The Second Department determined that plaintiffs acquired property by adverse possession, even though the initial use of the property was by permission. The permission ceased by statute after ten years, and another ten years of hostile use passed:


A party seeking to obtain title by adverse possession must prove, by clear and convincing evidence, the following common-law requirements of adverse possession: that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years … . Here, only the first element is in dispute. According to the defendants, the plaintiffs' use of the properties was by permission. * * *


…[A] landlord/tenant relationship existed between the parties and their predecessors and, therefore, RPAPL 531 applies. Since no written lease existed and the admissible evidence established that neither the plaintiffs nor their predecessor paid rent for their use of the properties since July 21, 1981, any permission that may have been granted to the plaintiffs or their predecessor to use the properties effectively ceased after 10 years (see RPAPL 531…). Thus, by operation of RPAPL 531, the plaintiffs' adverse possession of the properties commenced on July 21, 1991. Under the circumstances of this case, we agree with the Supreme Court that the plaintiffs established their hostile use of the properties for a period of 10 years after the permissive period expired …, and that the plaintiffs were, therefore, entitled to a judgment declaring them to be the owners in fee simple absolute of the subject properties. Auto Gobbler Parts, Inc v Serpico, 2013 NY Slip Op 05977, 2nd Dept, 9-25-13



Question of Fact Whether Initial Broker Entitled to Commission


The Second Department, over a dissent, determined there was a question of fact about whether a real estate broker was entitled to a commission because it generated a chain of circumstances that proximately led to the sale:


To prevail on its cause of action to recover a commission, the plaintiff is required to prove, inter alia, that it was "the procuring cause of the sale" … . "To establish that a broker was the procuring cause of a transaction, the broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation" … . However, "a broker . . . does not automatically and without more make out a case for commissions simply because he [or she] initially called the property to the attention of the ultimate purchaser" … . "Where, as here, the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that [it] created an amicable atmosphere in which negotiations proceeded or that it generated a chain of circumstances that proximately led to the sale" … . Talk of the Town Realty v Geneve, 2013 NY Slip Op 05997, 2nd Dept 9-25-13





Criteria for Denial of Trustee Commission for

Misconduct Explained (Commission Was Not Denied Here)


The First Department explained the criteria for determining whether a trustee can be denied an annual commission for misconduct.  The court ultimately concluded the commission should not be denied in this case:


We conclude that courts have the discretion to take into consideration all of a trustee's misconduct in determining the grant of annual commission, even conduct that occurred after the period applicable to the commission. Although there are no appellate cases on point, no New York case holds otherwise. As a basic principle, the Surrogate has broad discretion to deny commission to a trustee if the trustee has engaged in misconduct … . In determining if a commission should be denied, misconduct that is not directly related to the commission being sought may be taken into consideration … . The Restatement (Second) of Trusts § 243 supports this conclusion with a multi-factor analysis (Comment c). Among the factors to be considered under the Restatement in determining if a commission should be denied are whether the trustee acted in good faith, if the misconduct related to management of the whole trust and if the trustee completed services of value to the trust (id.). We conclude, therefore, it is within the court's discretion to determine whether the trustee's later misconduct bars her from receiving commission.


Trustees can be denied commission "where their acts involve bad faith, a complete indifference to their fiduciary obligations or some other act that constitutes malfeasance or significant misfeasance" …. The denial of a commission, however, should not be "in the nature of an additional penalty" (Restatement 243, Comment a). Rather, it should be based on the trustee's failure to properly serve the trust, not designed as an additional punishment … . Indeed, even the beneficiaries in this case state that it will be rare that a trustee's later misconduct will serve as the basis for a denial of commission. Matter of Gregory Stewart Trust, 2013 NY Slip Op 06079, 1st Dept 9-26-13






Four-Year Rent-Overcharge Statute of Limitations

Does Not Apply Where There Is Fraud


The First Department noted that the four-year statute of limitations for rent-overcharge actions does not apply where fraud in involved, because the fraud renders the underlying lease void:


We are not persuaded that plaintiffs' overcharge claim is barred by the four-year statute of limitations. As we noted in Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin. (68 AD3d 29, 32, affd 15 NY3d 358, 366 [2010] [citations ommitted]), "while the applicable four-year statute of limitations reflects a legislative policy to alleviate the burden on honest landlords to retain rent records indefinitely,' and thus precludes us from using any rental history prior to the base date, where there is fraud . . . the lease is rendered void[,]" and the legal rent is to be determined by the default formula … . We went on to note that "[s]anctioning the owner's behavior on a statute of limitations ground can result in a future tenant having to pay more than the legal stabilized rent for a unit, a prospect which militates in favor of voiding agreements such as this in order to prevent abuse and promote enforcement of lawful regulated rents'" … . We thus hold that the four year statute of limitations is not a bar in a rent overcharge claim where there is significant evidence of fraud on the record… . Conason v Megan Holding LLC, 2013 NY Slip Op 05956, 1st Dept 9-24-13





Question of Fact About Whether Horse Owner

Liable for Injuries to Novice Rider


The Fourth Department affirmed the denial of summary judgment to the owners of a horse which allegedly brushed up against a tree, injuring the novice rider.  The court explained that the “knowledge of vicious propensities” doctrine applied here because there was evidence the defendants knew the horse had a propensity to ride too close to trees, the general release signed by plaintiff was void as against public policy, and the defendants did not establish as a matter of law that plaintiff had assumed the increased risk of horseback riding alleged here:


It is well settled that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … .  “[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” (id. at 447).  In support of their motion, defendants submitted the deposition testimony of plaintiff, wherein she testified that defendant and a guide employed by the Ranch instructed plaintiff to push off of the trees if the horse walked too closely to the trees on the single-file woodland trail.  * * *


Even assuming, arguendo, that defendants conclusively demonstrated that plaintiff executed the release, we conclude that, under these circumstances, where the riding lesson was ancillary to the recreational activity of horseback riding, General Obligations Law § 5-326 renders the release void as against public policy… .* * *


Finally, defendants failed to establish as a matter of law that plaintiff assumed the risk of horseback riding.  Horseback riding “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  Here, defendants submitted evidence that raised a question of fact whether they unreasonably increased the risks of horseback riding by using a bitless bridle on their horses, which did not provide plaintiff with the ability to control the horse, and by failing to give plaintiff, who was a novice rider, adequate instructions on how to control the horse … .  Vandeerbrook v Emerald Springs Ranch…, 855, 4th Dept 9-27-13





“Criminal Enterprise” Does Not Require

Continuity of Criminal Participants


In a full-fledged opinion by Justice Tom, the First Department determined that, with respect to “enterprise corruption,” the term “criminal enterprise” (Penal Law 460.10[3]) requires “a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents”…, not criminal “participants[.]”  The case involved fraudulent billing of insurers by the defendants who were hired to provide medical and chiropractic services by one Vinarsky:


Both defendants * * * argue that because Vinarsky was essential to the operation of the [clinic], it lacked the structure to maintain the necessary continuity of existence in his absence. Thus, they conclude, the clinic did not meet the statutory requirements of a criminal enterprise essential to sustain conviction for their participation in its operation. * * *


The evidence before the jury amply demonstrates that defendants were engaged in a criminal enterprise overseen by Vinarsky. It embraced more than one clinic, extended over a period of years, and involved a succession of patients whose medical history was used to procure income by an organization structured to facilitate the fraudulent billing of insurers, which paid some $6 million for services allegedly provided by the … clinic. Thus, the jury was warranted in concluding that the criminal enterprise had a continuity that extended beyond any individual patient or transaction. People v Keschner, 2013 NY Slip Op 05975, 1st Dept 9-24-13



Failure to Inform Defendant of the Specific Period of Postrelease Supervision Applicable to the Offense Defendant Pled To Required Vacation of Sentence


Over a dissent, the Second Department determined the failure to advise the defendant of the specific postrelease-supervision aspect of his sentence at the time of the entry of the plea pursuant to a plea agreement required that the sentence be vacated, even though defendant was informed his maximum sentencing exposure included a period of postrelease supervision:


…[A]fter informing the defendant that his maximum sentencing exposure included a period of postrelease supervision, the court extended a specific sentence offer, specifying the range of the terms of imprisonment involved …, and this offer omitted any reference to postrelease supervision. The court has a duty to ensure, at the time a plea of guilty is entered, that the defendant is aware of the terms of the plea …. The County Court's failure to inform the defendant, at the time he entered his plea of guilty, that his sentence would, in fact, include a period of postrelease supervision, prevented his plea from being entered knowingly, voluntarily, and intelligently. People v Divalentino, 2013 NY Slip Op 06013, 9-25-13



Sentencing Court Can Correct Illegal Sentence If Within Initially-Stated Range


The Second Department explained that the trial court can properly resentence a defendant to correct an illegal sentence as long as the new sentence is within the initially-stated range.  Here, after sentencing defendant to an indeterminate term of imprisonment, the court realized it was required to sentence defendant to a determinate term and postrelease supervision:


Under the circumstances of this case, the County Court properly resentenced the defendant. A trial court has the inherent power to correct an illegal sentence, over a defendant's objection, where the corrected sentence falls within the range initially stated by the court …. Here, after the County Court learned that the indeterminate sentence imposed on the defendant for the conviction of criminal sale of a firearm in the third degree was illegal, it exercised its inherent power to correct the sentence by imposing a determinate term of imprisonment of two years followed by two years of postrelease supervision. This sentence was within the range initially stated by the County Court … . People v Kaufman, 2013 NY slip Op 06020, 2nd Dept 9-25-13



Jury Should Have Accepted Extreme Emotional

Disturbance Affirmative Defense


In a full-fledged opinion by Justice Cohen, over a dissent, the Second Department determined the jury’s failure to reduce the defendant’s conviction to manslaughter because he was under the influence of extreme emotional disturbance when he killed his girlfriend was against the weight of the evidence.  The opinion describes the nature and causes of the defendant’s emotional state in great detail. The court explained the “extreme emotional disturbance” affirmative defense as follows:


We begin our analysis by examining the nature and scope of the affirmative defense of extreme emotional disturbance. Penal Law §§ 125.25(1)(a) and 125.20(2), "[r]ead in tandem," together "provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse' is guilty of manslaughter and not murder" … . The defense of extreme emotional disturbance does not negate intent (see Penal Law § 125.20[2]…). Instead, the "defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although [ ] not free from responsibility for [the] crime, [defendant] ought to be punished less severely" … . Although the defense of extreme emotional disturbance is "an outgrowth of the heat of passion' doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder," the defense is broader than the "heat of passion" doctrine, and was intended to apply to a "wider range of circumstances" … . 


The defense of extreme emotional disturbance comprises two elements. The first element is "wholly subjective" and"involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham" … . The subjective element "focuses on the defendant's state of mind at the time of the crime and requires sufficient evidence that the defendant's conduct was actually influenced by an extreme emotional disturbance" … . The subjective element is generally associated with a loss of self-control … . The second element, which the Court of Appeals has acknowledged to be "more difficult to describe," requires that an objective determination be made as to whether there was a reasonable explanation or excuse for the emotional disturbance … . "Whether such a reasonable explanation or excuse exists must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been'" … . People v Sepe, 2013 NY Slip Op 06030, 2nd Dept 9-25-13



Concurrent, Not Consecutive, Sentences Should Have Been Imposed Where “Actus Reus” Was a Single, Inseparable Act


The Second Department corrected a sentence which illegally imposed consecutive, as opposed to concurrent, terms of imprisonment.  The defendant lured a 16 year-old girl to his apartment where they had consensual sex.  Then defendant then allowed the co-defendants to go into the bedroom where they had sex with her.  The court explained:


The imposition of consecutive sentences on the convictions of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree, was illegal, except with respect to the sentence imposed on the conviction of criminal sexual act in the first degree under count 11. "Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand" … . Moreover, "a defendant may not waive the right to challenge the legality of a sentence" … . 


Section 70.25 of the Penal Law provides that "[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently" (Penal Law § 70.25[2]). "Under either of those circumstances, the court has no discretion; concurrent sentences are mandated" … . In determining whether two crimes were separate and distinct for the purposes of imposing consecutive or concurrent sentences, "it is the acts of the defendant that control" … . When the actus reus, or the " wrongful deed that comprises the physical components of a crime'" …, is a "single inseparable act" that violates more than one statute, single punishment must be imposed …. 


Here, the actus reus committed by the defendant in concert with each codefendant was "a single, inseparable act" …. With respect to each codefendant, the defendant's actus reus violated more than one statute due solely to the acts committed by the codefendant after the defendant had already completed his role. Each actus reus of the defendant "warrants [only] a single punishment" ….  People v Singh, 2013 NY Slip Op 06033, 2nd Dept 9-25-13



Sentencing Court Could Amend Restitution Amount But First Must Give Defendant Opportunity to Withdraw Guilty Plea


The Third Department determined County Court had the authority to amend the amount of restitution initially ordered at sentencing.  However, the change required giving the defendant the right to withdraw the guilty plea:


Notably, "in the normal course of events, the People must 'advise the court at or before the time of sentencing that the victim seeks restitution . . . and the amount of restitution . . . sought' (Penal Law § 60.27 [1]), and the trial court must determine the amount of restitution at the time of sentencing" … .  Nevertheless, "the court's continuing jurisdiction to impose restitution has been recognized where the claim for restitution is raised at or prior to sentencing and the modification or correction of the sentence occurs within a reasonable time thereafter" … .


Here, we do not find the delay between defendant's September 2009 sentencing and the modification of the restitution order in September 2010 following a hearing unreasonable given the various factors presented by this case … .  "Nonetheless, [a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea" … .  Thus, in light of the fact that the amended restitution amount unquestionably exceeds the total amount to which defendant agreed at the time of her plea and she seeks, among other things, vacatur of that plea herein, we deem it appropriate to remit the matter for the purpose of allowing defendant the opportunity to either accept the enhanced restitution amount or withdraw her plea… . People v Mahar, 103960, 3rd Dept 9-26-13



Imposition of Harsher Sentence After Appeal Was Vindictive


The Fourth Department determined the resentencing of defendant after appeal to a more severe sentence than was first imposed was vindictive and imposed the original sentence. The court wrote:


“In order to ensure that defendants are not being penalized for exercising their right to appeal, ‘a presumption of [institutional] vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences . . . than were imposed after their initial convictions’ ” … .  “The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed” … .  In order to justify an increased sentence, a court must set forth its reasons, and “ ‘[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ ” … . * * * In our view, “[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court’s imposition of a sentence greater than that imposed after the initial conviction”… . People v Rhodes, 847, 4th Dept 9-27-13



No Requirement that Defendant Submit Affidavit in Support of Suppression Motion/No Requirement Defendant Deny Commission of Charged Offense to Warrant a Hearing on a Suppression Motion


Although the denial of defendant’s suppression motion was affirmed, the Fourth Department noted the trial court erred when it stated the suppression motion must be supported by an affidavit from the defendant and the defendant must deny participation in the alleged crime to warrant a hearing:


We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, “suppression motions must be in writing, state the legal ground of the motion and ‘contain sworn allegations of fact,’ made by defendant or ‘another person’ ” … . .  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney’s information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60 [1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must either “deny participating in the transaction or suggest some other grounds for suppression” in order to warrant a suppression hearing… . People v Battle, 926, 4th Dept 9-27-13



Okay to Resentence to Determinate Sentence With No Postrelease Supervision Where Initial Sentence Omitted Reference to Postrelease Supervision


The Fourth Department determined defendant was properly resentenced to a determinate sentence without a period of post-release supervision as a remedy for the failure to inform the defendant of the post-release supervision the first time around:


…[T]he court properly resentenced defendant pursuant to Penal Law § 70.85 to the original sentence without imposing a period of PRS.  The statute permits the sentencing judge, with the consent of the People, to “re-impose the originally imposed determinate sentences of imprisonment without any term of post-release supervision.”  The statute was enacted to “avoid the need to vacate guilty pleas under … when defendants are not properly advised of mandatory terms of postrelease supervision” … .  Here, the People requested that the court resentence defendant pursuant to section 70.85, and the court granted that request.  The fact that defendant did not ask for resentencing is of no moment … People v Bennefield, 920, 4th Dept 9-27-13



Criteria for Allowing Defendant to Proceed Pro Se Explained


In upholding the trial judge’s allowing defendant to proceed pro se, the Fourth Department explained the relevant criteria:


“A defendant in a criminal case may invoke the right to defend [pro se] provided:  (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … .  “If a timely and unequivocal request has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the defendant’s waiver is knowing, intelligent, and voluntary”… . * * *


Before granting defendant’s request to proceed pro se, the court conducted the requisite searching inquiry, during which defendant stated, inter alia, that he had successfully represented himself at trial in a prior case.  From his initial appearance to his mid-trial request to proceed pro se, defendant expressed dissatisfaction with his assigned attorneys, against whom he had filed multiple complaints with the Attorney Grievance Committee, and he engaged in concerted efforts to assist in his defense.  The court “had numerous opportunities to see and hear . . . defendant firsthand, and, thus, had general knowledge of defendant’s age, literacy and familiarity with the criminal justice system” … .  In addition, the court fulfilled its obligation to ensure that defendant was “aware of the dangers and disadvantages of self-representation” … .  People v Chandler, 985, 4th Dept 9-27-13




Defendant Should Have Been Allowed to Testify

Before the Grand Jury


The Fourth Department reversed the trial court and dismissed the indictment (without prejudice) because the defendant was deprived of his right to testify before the grand jury. The defendant gave notice of his intent to testify and appeared at the right time and place. The defendant signed a waiver of immunity but deleted three paragraphs from the document.  The Fourth Department determined the waiver was sufficient even with the deletions:


CPL 190.50 (5) provides that, if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the defendant “must be permitted to testify before the grand jury” (CPL 190.50 [5] [b]; see CPL 190.50 [5] [a]).  In the event that the defendant complies with those procedures and is thereafter not permitted to testify, the appropriate remedy is dismissal of the indictment (see CPL 190.50 [5] [c]).  The parties do not dispute that defendant complied with the first two requirements of the statute. The only dispute is whether defendant signed “a waiver of immunity pursuant to section 190.45” (CPL 190.50 [5] [b]).  CPL 190.45 (1) provides that a waiver of immunity “is a written instrument” in which a person who is to testify before the grand jury stipulates that he or she “waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding.”  Here, the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40.  Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45 (1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50 [5] [b]).  It is well settled that a defendant’s statutory right to testify before the grand jury “ ‘must be scrupulously protected’ ” … . People v Brumfield, 851, 4th Dept 9-27-13



Furtive Behavior Justified Pat Down Search


The Fourth Department determined the police properly searched (frisked) the defendant after a valid vehicle-stop based on his “furtive” behavior:


As defendant correctly concedes, the police officer lawfully stopped defendant’s vehicle because it had a broken taillight …, and defendant voluntarily exited the vehicle.  Given defendant’s furtive behavior before and after exiting his vehicle, including being “fidgety” and “evasive” when answering the police officer’s questions, turning the right side of his body away from the police officer, and placing his right hand in his jacket pocket, the police officer “reasonably suspected that defendant was armed and posed a threat to [his] safety” … .  “Based upon [his] reasonable belief that defendant was armed, the officer[] lawfully conducted [the] pat frisk” that resulted in the seizure of the gun … . People v Carter, 965, 4th Dept 9-27-13



Judge Properly Relied on Presentence Report to Refuse to

Adjudicate Defendant a Youthful Offender


The Fourth Department determined that the trial judge’s refusal to adjudicate defendant a youthful offender, after a promise to do so, based upon information in the presentence report, constituted an adequate reason and explanation for the refusal:


“As a matter of law and strong public policy, a sentencing promise made in conjunction with a plea is conditioned upon ‘its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources’ ” … .  Contrary to defendant’s contention, “the court’s reliance on the presentence report for its determination that defendant would not be afforded youthful offender status ‘constitutes an adequate explanation for the denial of defendant’s request for such status’ ” … . The presentence report “included mitigating and aggravating factors, [and therefore] adequately explained the court’s reasons for denying youthful offender status on the instant indictment” … .  People v Jamal H, 831, 4th Dept 9-27-13




Persistent Felony Offender Statute Does Not Require Prior Felonies to be Equivalent to New York Felonies


The Fourth Department determined that the persistent felony offender statute did not require that the prior felonies taken into consideration for persistent felon status be equivalent to New York felonies:


The persistent felony offender statute … contains no language requiring that the underlying out-of-state conviction be for a crime that would constitute a felony in New York, i.e., “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law § 10.00 [5]), or that the elements of the foreign crime be equivalent to the elements of a New York crime (see § 70.10 [1] [b] [i]).  Rather, as noted by the Second Circuit in upholding the constitutionality of the persistent felony offender statute, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law.  Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law.  By contrast, under [s]ection 70.06 [the second felony offender statute], the underlying acts of a federal or out-of-state felony must be recognized as a felony in New York to qualify as a predicate felony” … .  People v Jones, 853, 4th Dept 9-27-13



Court, Not Prosecutor, Must Determine Whether Defendant Is Eligible for Youthful Offender Adjudication


In remitting the matter to determine whether defendant should be sentenced as a youthful offender, the Fourth Department explained that is was unclear whether the court, as opposed to the prosecutor, made the determination not to afford defendant youthful offender status:


“After receipt of a written report of the [preplea or presentence] investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  In People v Rudolph (___ NY3d ___ [June 27, 2013]), the Court of Appeals held that section 720.20 mandates that, when the sentence is imposed, the sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it.  The Court of Appeals stated that “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … . People v Brownell, 946, 4th Dept 9-27-13






Resentencing After Original Sentence Expired Violates Double Jeopardy Clause


The Fourth Department explained that a resentencing which takes place after the original sentence has been completed violates the double jeopardy clause.  People v Alvarado, 961, 4th Dept 9-27-13






Ambiguity of Contract Is a Question of Fact Where Credibility of Extrinsic Evidence Must Be Assessed


The First Department determined there was question of fact whether defendant signed a note in his personal as well as corporate capacity. The court explained the relevant analysis where a contract is ambiguous:


A contract is ambiguous if "on its face [it] is reasonably susceptible of more than one interpretation" … . The determination whether a contract is ambiguous is a question of law for the court … . If the court deems a contract ambiguous, it may consult extrinsic evidence to resolve the ambiguity … . However, where "the determination of the parties' intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact" … .  Chen v Yan, 2013 NY Slip Op 05957, 1st Dept 9-24-13






No Appeal Lies from an Order Entered Upon a Default


The Fourth Department noted that no appeal lies from an order entered upon a default. The only remedy is a motion to vacate the default order:



Plaintiff appeals from an order granting the respective motion and cross motions of defendants seeking summary judgment dismissing the second amended complaint against them.  It is undisputed that plaintiff failed to oppose the motion and cross motions or to appear on the return date thereof, and thus we deem the order to be entered upon plaintiff’s default… . We therefore dismiss the appeal from the order inasmuch as no appeal lies from an order entered on default … .  The fact that Supreme Court, upon plaintiff’s default, granted the motion and cross motions on the merits … is of no moment inasmuch as no appeal lies from an order entered on default.  “[I]t is not inconsistent to determine both that plaintiff[ is] in default and that defendants are entitled to summary judgment on the merits.  Plaintiff[’s] remedy is to move to vacate the default [order]”… .  Britt…v Buffalo Municipal Housing Authority…, 977, 4th Dept 9-27-13






14-Day Election Law Statute of Limitations, Not Article 78

Statute of Limitations, Applied

The Second Department determined that a putative Article 78 proceeding seeking to exclude candidates from the ballot based upon alleged violations of the Election Law was governed by the Election Law, not the Article 78, statute of limitations:

Notwithstanding the characterization of this proceeding as one pursuant to CPLR article 78, the petitioners seek to exclude candidates from the ballot based on their alleged failure to comply with the nomination and designation procedures of Election Law article 6, as supplemented by the general provisions of Election Law § 1-106. Accordingly, this proceeding is governed by the statute of limitations set forth in Election Law § 16-102(2) … . Since it is undisputed that this proceeding was not commenced within 14 days after the last day to file the designating and opportunity-to-ballot petitions at issue, as required by Election Law § 16-102(2), the Supreme Court properly dismissed the proceeding as untimely.  Matter of Ciotti v Westchester County Bd of Elections, 2013 NY Slip Op 06000, 2nd Dept 9-25-13






Tour Musicians Were Employees of Columbia Artists Management/Workers Who Loaded and Unloaded

Equipment Were Not Employees


The Third Department determined that, for purposes of assessing unemployment insurance contributions, musicians on tour were employees of, not independent contractors for, Columbia Artists Management, but the workers who loaded and unloaded the equipment used by the musicians were independent contractors, not employees:


… [T]here are a number of factors that establish that Columbia retained control over important aspects of the musicians' work.  Specifically, Columbia paid the musicians a flat fee per week for the duration of the tour as well as the costs of transportation, lodging and miscellaneous expenses, supplied them with sheet music on occasion and prohibited them from taking on engagements that conflicted with the tour.  Most significantly, under the written contracts, Columbia retained the right to ensure the artistic quality of the show by insisting that a performance be changed if it found it to be inappropriate. In addition to retaining broad overall control over the musicians' performances, Columbia retained the right to dismiss any musician for drug or alcohol abuse.  In view of this, we conclude that substantial evidence supports the Board's finding of an employer-employee relationship between Columbia and the musicians … .


We reach a different conclusion, however, with respect to the loaders.  There is nothing in the record to indicate that Columbia exerted any type of control over either the means or the results of the work of these individuals.  All communications involved in retaining the loaders occurred through the union representative at the venue, who dictated the terms of payment as well as the number of loaders needed.  The Columbia representative present at the time the trucks were unloaded was there solely for the purpose of paying the loaders and provided no equipment or instruction to assist them in performing their work.  Matter of Columbia Artists Management LLC…, 515768, 3rd Dept 9-26-13




Claimant Who Sold Educational Materials Was an Employee


The College Network (TCN) sells educational materials for personal study from home to obtain college credits through testing. Claimant was retained by TCN to promote and selling the materials. After claimant stopped working for TCN he filed a claim for unemployment insurance. The Unemployment Insurance Appeal Board upheld the decision that claimant was an employee entitled to unemployment insurance.  The Third Department affirmed:


It is well settled that "the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence" … .  "The predominant consideration in making this inquiry is evidence of the alleged employer's control over the results produced or the means used to achieve those results, with the latter being more important" … .  Here, there is ample evidence that TCN exercised control over many aspects of the program advisors' work.  


Notably, TCN established the program advisors' sales territory and provided them with sales leads as well as product knowledge training.  Although the program advisors could pursue these leads or develop their own, they were paid commissions based upon percentages set by TCN depending on the manner in which the sale was generated.  The program advisors were required to report to TCN the results of company-generated leads and were only allowed to use advertisements and promotional materials approved by TCN.  TCN provided program advisors with company email addresses and business cards, and reimbursed them for the expenses of attending some training.  Notably, at times, regional sales managers accompanied the program advisors on sales calls to ensure they were providing customers with accurate information. In addition, TCN maintained a corporate calendar by which it would schedule appointments for the program advisors depending upon their availability.  Significantly, the program advisors were expected to contact nine customers within a 90-day period, and TCN retained the right to terminate them if they were underperforming.  TCN also prohibited the program advisors from working for competitors for a two-year period.  Matter of Smith…, 515773, 3rd Dept 9-26-13




Math Tutor Was an Independent Contractor, Not an Employee


The Third Department affirmed the decision of the Unemployment Insurance Appeal Board finding that claimant, a math tutor, was an independent contractor, not an employee:


Although claimant maintains that he was erroneously considered an independent contractor in connection with earnings received from tutoring services through TestQuest, Inc. and that such funds should be utilized as covered employment to establish his claim, we cannot agree.  As noted earlier, TestQuest, Inc. tutors such as claimant were deemed by this Court to be independent contractors (Matter of Leazard [TestQuest, Inc.–Commissioner of Labor], 74 AD3d at 1415-1416), which decision is conclusive and binding upon all such persons employed by TestQuest, Inc. (see Labor Law § 620 [1] [b]).  As such, those earnings cannot qualify for inclusion as remuneration in the base periods… . Matter of Tkachyshyn…, 516210. 3rd Dept 9-26-13


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