JUST RELEASED

September Page IV

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

 

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LEGAL MALPRACTICE/ATTORNEYS/CIVIL PROCEDURE

 

Continuing Representation Doctrine (Tolling the Statute of Limitations) Explained

 

The Fourth Department reversed Supreme Court finding that the legal malpractice actions should not have been dismissed as time-barred because there were questions of fact whether the continuing representation doctrine tolled the statute of limitations.  The plaintiff Town alleged that defendant lawyers did not advise the Town of the proper procedure for appointing a hearing officer, which resulted in the annulment of a proceeding terminating a Town employee.  The question was whether the attorneys' subsequent involvement in attempting to rectify the mistake constituted continuing representation such that the three-year statute was tolled:

 

Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, "ongoing and developing phases of the [same] litigation" ... . We cannot say as a matter of law that all of defendants' acts "were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation" to perform the specific task of terminating a Town employee ... . Inasmuch as "[a] question of fact exists on this issue, . . . summary judgment is inappropriate" ... .

 

We further conclude that there are triable issues of fact whether the gaps in the legal services that defendants performed for the Town were "merely . . . period[s] absent expectations, rather than . . . period[s] when representation formally ended" ... . Here ... the Town "immediately return[ed] to [defendants] . . . once an issue arising from [the alleged] malpractice [was] detected" ... .

 

Although defendants correctly contend that the continuous representation doctrine requires that there be " continuing trust and confidence in the relationship between the parties' " ... , there are triable issues of fact whether the Town ever lost such trust and confidence in defendants. Town of Amherst v Weiss, 2014 NY Slip Op 06411, 4th Dept 9-26-14

 

 

CIVIL PROCEDURE/EVIDENCE

 

Discovery of Trade Secrets Should Have Been Allowed Upon Execution of Confidentiality Agreement, Documents Indispensable to Defense and Not Otherwise Available

 

The Fourth Department determined Supreme Court should have allowed discovery of documents from MREC which included trade secrets because the documents were indispensable to the defense and were otherwise unavailable:

 

We agree ... that Supreme Court abused its discretion in denying the cross motion insofar as it sought to condition disclosure of the documents on plaintiff's execution of a confidentiality agreement ... . We therefore modify the order accordingly. "Discoverability of such documents involves a two-fold analysis: the moving party must show that the discovery demand would require it to reveal a trade secret, which then shifts the burden of the responding party to show that the information was indispensable to proving its [case]"... . Here, MREC met its burden of establishing that the documents sought by plaintiff contained information "not known by those outside the business, [and that the documents] were kept under lock and key, were the product of substantial effort and expense, and could not be easily acquired or duplicated" ... . We nevertheless conclude that plaintiff established that the documents sought "were indispensable to [its] case and were otherwise unavailable if they could not be obtained from [MREC]"  ... . Conley & Son Excavating Co Ltd v Delta Alliance LLC, 2014 NY Slip Op 06468, 4th Dept 9-26-14

 

CIVIL PROCEDURE/EVIDENCE

 

 Criteria for Judgment as a Matter of Law and Finding a Verdict to be Against the Weight of the Evidence Explained

 

In the context of a personal injury action, where the issue was whether plaintiff's injury was "serious" within the meaning of Insurance Law 5102 (d), the Second Department explained the criteria for a judgment as a matter of law pursuant to CPLR 4401 and finding a verdict to be against the weight of the evidence.  The Second Department affirmed the denial of defendant's post-verdict motions but found the damages awarded by the jury to be excessive:

 

" To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant'" ... . In considering the motion for judgment as a matter of law, "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" ... .  * * *

 

A jury verdict is contrary to the weight of the evidence when the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence ... . Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion, and reject that of another expert ... . "Issues of credibility are for the jury, which had the opportunity to observe the witnesses and the evidence. Its resolution is entitled to deference" ... . "[A] successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence" ... .  Cicola v County of Suffolk, 2014 NY Slip Op 06293, 2nd Dept 9-24-14

 

 

CIVIL PROCEDURE/EVIDENCE

Dismissal of Complaint Pursuant to CPLR 3211 Appropriate Where Documentary Evidence Flatly Contradicts Allegations in the Complaint

 

In finding that the defendants were entitled to a dismissal of the complaint for failure to state a cause of action pursuant to CPLR 3211, the Second Department explained the effect of documentary evidence which refutes allegations in the complaint:

 

"A motion pursuant to CPLR 3211 (a) (1) . . . may appropriately be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law'" ... . On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must "afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ... . "However, factual allegations which are flatly contradicted by the record are not presumed to be true and, [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action'" ... .  Coastal Purch Group LLC v JPMCC 2005-CIBC Collins Lodging LLC, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

 

CRIMINAL LAW/CONSTITUTIONAL LAW/EVIDENCE

 

Pulling Defendant from Inside His Home for Warrantless Arrest Violated the Fourth Amendment

 

The Second Department determined that a new trial was required because defendant's statement should have been suppressed.  The police pulled the defendant from inside his home to arrest him without a warrant, a violation of the Fourth Amendment.  The Second Department noted, however, that the trial court did not err in refusing the suppress evidence of a post-arrest lineup identification:

 

Here, the police knocked on the defendant's door at approximately 6:50 a.m. When the defendant answered the door he appeared to be "half asleep," and was naked from the waist down. He only partially opened the door, was never in full view of the police, and never crossed the threshold of his apartment. When the police directed the defendant to step fully into view, the defendant instead attempted to shut the door, trapping a detective's arm as the detective tried to keep the door from closing. After law enforcement officials successfully pushed the door open, they pulled the defendant from the area behind the door into the public hallway, where he was then arrested.

 

Under the discrete circumstances of this case, where the police officers crossed the threshold into the defendant's apartment, pulled him into the hallway, and arrested him without a warrant, the defendant's Fourth Amendment rights were violated ... . People v Riffas, 2014 NY Slip Op 06333, 2nd Dept 9-24-14

CRIMINAL LAW/EVIDENCE

Police Had "Reasonable Suspicion" Justifying Only Forcible Detention of the Defendant to Conduct a Brief Investigation---Arrest of the Defendant in the Absence of Probable Cause Required Suppression of Defendant's Statement

 

The Second Department, over a dissent, determined that defendant's statement should have been suppressed because the police arrested him in the absence of probable cause.  Two persons for whom the police had probable cause to arrest were in the backseat of a legally parked vehicle.  Defendant was in the driver's seat, fumbling with the ignition keys when the police first saw him.  The police pulled him from the vehicle and arrested him.  The Second Department found the arrest premature. Because of the presence of the two persons for whom the police had probable cause to arrest, there was only a reasonable suspicion of the defendant's involvement which justified only forcible detention for a brief investigation:

 

The hearing testimony established that at approximately 8:00 a.m. on June 10, 2009, the police received a radio transmission regarding a robbery in progress, perpetrated by two black males, at a Queens residence. The police activated their sirens and lights and went to the specified house, arriving within two minutes of receiving the transmission. When the police arrived, two of the complainants, still gagged and partially bound, were on the porch of the house. The complainants used gestures to direct the officers' attention to two men, Myers and Santos, who were walking on the sidewalk, about four houses away. Myers and Santos, who were the only civilians on the block, started running, and the officers chased them. During the chase, Santos discarded an object, which the police later recovered and found to be a gun. When Myers and Santos turned a corner several blocks from the complainants' house, the officers lost sight of them briefly. When one of the officers turned the corner, he did not see any people, but saw the rear passenger door on a sport utility vehicle being closed. The vehicle was legally parked and the engine was off. The officer ran to the vehicle and peered inside through the tinted windows. After spotting Myers and Santos in the rear passenger seat, the officer "punched" the driver's side window to alert the driver not to drive away. The officer pulled the driver's door open and saw the defendant in the driver's seat, "fumbling" with the keys and trying to put them in the ignition. The officer pulled the defendant out of the car, placed him face-down on the ground, and handcuffed him. Eventually, the defendant was placed in a police car. People v Delvillartron, 2014 NY Slip Op 06327, 2nd Dept 9-24-14

 

CRIMINAL LAW/APPEALS

 

Court's Failure to Inquire to Ensure Guilty Plea Was Knowing and Voluntary Required Vacation of the Plea (In the Absence of Preservation)

 

The Fourth Department determined Supreme Court's failure make an inquiry to determine whether defendant's guilty plea was knowing and voluntary required reversal (in absence of preservation).  The defendant stated during the plea colloquy that the weapon he used was a BB gun, not a handgun.  Defense counsel explicitly waived any related affirmative defense:

 

At the outset of the plea colloquy, defense counsel stated that, although defendant told the police that he used a .45 caliber handgun in the robbery, the weapon he had used was actually a BB gun. Defense counsel further stated, however, that defendant would waive the affirmative defense set forth in Penal Law § 160.15 (4), which applies where the weapon used in the robbery "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." During the ensuing plea colloquy, defendant stated that the gun he had used was a BB gun that looked like a revolver, not a .45 caliber handgun as he had told the police. At the end of the plea colloquy, defense counsel, in response to concerns expressed by the prosecutor, again stated that defendant was waiving the affirmative defense set forth in section 160.15 (4). The court then accepted defendant's plea.

 

Although "no catechism is required in connection with the acceptance of a plea" ..., it is well established that, "where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea, . . . the trial court has a duty to inquire further to ensure that [the] defendant's guilty plea is knowing and voluntary" ... . "Where the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal," despite having failed to make that challenge in a "postallocution motion" directed to the plea court ... . People v Dukes, 2014 NY Slip Op 06454, 4th Dept 9-26-14

 

CRIMINAL LAW/CONSTITUTIONAL LAW/CIVIL PROCEDURE

 

No Manifest Necessity for Declaring a Mistrial Over Defendant's Objection--Double Jeopardy Barred Retrial

 

The Second Department determined there was no "manifest necessity" for the trial court's declaring a mistrial (over defendant's objection) and therefore retrial was precluded.  The jury informed the court it had reached a verdict one count but could not reach a verdict on the remaining two counts. The defendant asked the court to accept a partial verdict and the court refused.  Subsequently a juror asked to be excused due to an emergency.  The defendant, at the court's urging, agreed to excuse the juror and renewed his request for a partial verdict.  The request was again refused and the defendant did not agree to the substitution of an alternate juror.  The court, on its own motion, declared a mistrial. When the court ruled defendant could be retried on the two counts on which the jury could not agree, defendant brought an application for prohibition:

 

Prohibition is the traditional remedy where a defendant seeks protection against double jeopardy ... and the writ lies in this case. * * *

 

When a mistrial is granted over the defendant's objection or without the defendant's consent, double jeopardy will, as a general rule, bar retrial ... . However, the right to have one's case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial ... . " Manifest necessity' means a high degree of necessity'; the reasons underlying the grant of a mistrial must be necessitous, actual and substantial'" ... . Even if the reasons for declaring a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to declaring a mistrial ... .

 

Here, the trial court failed to explore all appropriate alternatives before declaring, on its own motion, a mistrial ... . Accordingly, there was no manifest necessity for the declaration of a mistrial and, thus, retrial on counts two and three of the indictment is precluded.  Matter of Gentil v Margulis, 2014 NY Slip Op 06314, 2nd Dept 9-24-14

 

CRIMINAL LAW/EVIDENCE

 

Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

 

The Fourth Department dismissed an attempted murder charge because "the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges"... . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

 

Contrary to defendant's ... contention, Supreme Court did not err in refusing to suppress identification evidence. " Multiple photo identification procedures are not inherently suggestive' " ... . "While the inclusion of a single suspect's photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures' " ... . Here, although there was not a significant lapse of time between the presentation of the arrays ..., the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array ... .

 

We ... conclude that the court did not err in determining that defendant's statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes ... . Here, the People met their initial "burden at the Huntley hearing of establishing that defendant's . . . statements were not the product of improper police conduct' " ... , and "[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced".... .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

 

CRIMINAL LAW/EVIDENCE

Explicit Verbal Waiver of Miranda Rights Not Required

 

The Fourth Department determined that the absence of an express waiver of defendant's Miranda rights did not require suppression of his statement:

 

...[D]efendant contends that the evidence at the Huntley hearing demonstrates that he did not waive his Miranda rights, but that he asked the arresting officer "[w]hat's going on" after the arresting officer read him the Miranda warnings. Contrary to defendant's contention, the court properly refused to suppress those statements. It is well settled that "an explicit verbal waiver is not required; an implicit waiver may suffice and may be inferred from the circumstances" ... . Thus, "[w]here, as here, a defendant has been advised of his Miranda rights and within minutes thereafter willingly answers questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights' " ... . People v Jones, 2014 NY Slip Op 06452, 4th Dept 9-26-14

 

 

CRIMINAL LAW/EVIDENCE/ATTORNEYS

Plea Colloquy of Co-Defendant Was Inadmissible Hearsay---Court's Granting of Defendant's Request to Have the Colloquy Read to the Jury Over Defense Counsel's Objection Deprived Defendant of His Right To Counsel

 

The First Department reversed defendant's conviction because the court granted the defendant's request to read co-defendant's plea colloquy to the jury over defense counsel's objection.  The colloquy was inadmissible hearsay.  Defense counsel alone can determine what evidence is introduced on defendant's behalf:

 

Defendant's constitutional right of confrontation was violated when the court read the transcript of the codefendant's guilty plea allocution to the jury. The codefendant's statements by which she inculpated defendant, were testimonial hearsay by a nontestifying declarant, whom defendant did not have a prior opportunity to cross-examine (see Crawford v Washington, 541 US 36 [2004]).

 

The People's argument that the Confrontation Clause was inapplicable because defendant himself introduced the evidence is unavailing. Although defendant personally requested the introduction of the evidence, he was not appearing pro se. Defendant was represented by counsel throughout the case, and there was no form of hybrid representation. The decision to introduce evidence was not a fundamental decision reserved to defendant, but a strategic or tactical decision for his attorney ... . Thus, defendant was deprived of his right to counsel when the court admitted the evidence solely based on his own request, over his attorney's vigorous and consistent opposition ... . People v Lee, 2014 NY Slip Op 06374, 1st Dept 9-25-14

 

 

EDUCATION-SCHOOL LAW/EVIDENCE/EMPLOYMENT LAW

 

Teacher's Subpoena for School Records of a Student Who Testified at the Teacher's Education Law 3020-a Proceeding Should Have Been Quashed

 

The Fourth Department determined a subpoena for a student's school records should have been quashed. The subpoena was served on the school district on behalf of the respondent, a tenured teacher who was the subject of an Education Law 3020-a proceeding.  The alleged misconduct of the student (who testified at the proceeding) occurred outside the classroom and the teacher did not demonstrate the relevance of the requested records:

 

The record establishes that, following an initial prehearing conference in the section 3020-a proceeding, the Hearing Officer granted respondent's request for production of the testifying high school students' records, notwithstanding protections under the Family Educational Rights and Privacy Act of 1974 (FERPA), and thereafter limited production of students' records to those from seventh grade forward. In connection with that request, the Hearing Officer issued a subpoena duces tecum ordering the production of those student records. Although the Hearing Officer had the authority to order the production of student records that were material and relevant to respondent's defense (see § 3020-a [3] [c] [iii] [A], [C]), it is well established that, "[g]enerally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence" ... . Where, as here, "the relevance of the subpoena is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing the relevance of the documents sought to the investigation," to show "that the material sought bears a reasonable relation to the matter under investigation" ... . Here, the allegations of misconduct against respondent involved activities outside of the classroom, and respondent stated only generally that the students' records were "highly relevant" in asserting a defense and that the records are "necessary and relevant to the preparation of a defense to the charges on its face." Thus, in light of respondent's failure to indicate how the records are reasonably related to respondent's defense and a factual basis establishing their relevance ..., we conclude that the court abused its discretion in refusing to quash the subpoena duces tecum ... . Matter of Watertown City Sch Dist v Anonymous, a Tenured Teacher, 2014 NY Slip Op 06444, 4th Dept 9-26-14

 

EVIDENCE/NEGLIGENCE/FRAUD

 

In a Personal Injury Trial, Defense Counsel Should Have Been Permitted to Question Plaintiff About Possible Fraud in Income Tax Returns

 

The Fourth Department determined defense counsel in a personal injury trial should have been allowed to cross-examine plaintiff about possible fraud in plaintiff's income tax returns.  A new trial was ordered.  The Fourth Department noted that defense counsel would have been bound by plaintiff's answers and could not have introduced extrinsic evidence:

 

Here, based on his reading of IRS Publication 51 and plaintiff's federal tax returns, defendant's attorney had a good faith basis to ask plaintiff about the propriety of her filing status. Moreover, if plaintiff had improperly filed federal tax returns as head of household in order to receive a tax credit to which she was not entitled, it raises the possibility that she may have committed tax fraud. We conclude that evidence that plaintiff may have committed tax fraud has "some tendency to show moral turpitude to be relevant on the credibility issue" .... Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant's attorney would have been bound by plaintiff's answers concerning her federal tax returns without "refuting [those] answers by calling other witnesses or by producing extrinsic evidence" (Prince, Richardson on Evidence § 6-305 [Farrell 11th ed]...), we nevertheless conclude that defendant's attorney should have been allowed to ask the questions ... . Young v Lacy, 2014 NY Slip Op 06417, 4th Dept 9-26-14

 

 

FAMILY LAW

 

Supreme Court Properly Imputed Income to Husband (Higher than that Reported by Husband) in Awarding Pendente Lite Maintenance and Child Support

 

The Second Department determined Supreme Court properly imputed income to the defendant-husband to determine pendente lite awards of maintenance and child support:

 

...Supreme Court providently exercised its discretion in imputing income of $200,000 per year to the defendant for the purposes of computing pendente lite awards of maintenance and child support. In determining a party's maintenance or child support obligation, a court need not rely upon the party's own account of his or her finances ... . A court is justified in imputing income to a spouse when it is shown that the marital lifestyle was such that, under the circumstances, there was a basis for the court to conclude that the spouse's actual income and financial resources were greater than what he or she reported on his or her tax returns ... . The court may impute income to establish the party's support obligation (see Domestic Relations Law §§ 240 [1-b][b][5][iv]; 236[B][5-a][b][4][a]...). Here, the Supreme Court, in effect, found the defendant's account of his own finances was not believable, and was justified in imputing income to him that was far higher than he reported... . Weitzner v Weitzner, 2014 NY Slip Op 06303, 2nd Dept 9-24-14

 

FAMILY LAW/APPEALS

 

Annuity Purchased as Part of Settlement After Husband's On-the-Job Accident Is Marital Property---Husband's Pension Is Marital Property to the Extent It Represents Deferred Compensation---Wife Did Not Demonstrate Entitlement to Appreciation of Marital Residence (Which Was Husband's Separate Property)

 

After noting that the appellate court has the same powers as the trial court in rendering a judgment in a matrimonial action, the Second Department determined that an annuity purchased pursuant to a settlement agreement stemming from the on-the-job injury to the plaintiff-husband should have been deemed marital, not separate, property.  The Second Department further determined that plaintiff's pension was marital property subject to equitable distribution, and defendant did not demonstrate she was entitled to any portion of the appreciation of the marital residence (which was plaintiff's separate property):

 

Although a settlement award emanating from a personal injury action commenced by the parties is partially the separate property of each party named in such action (...Domestic Relations Law § 236[B][1][d][2]), here, the parties' conduct converted the separate property of the settlement into marital property. Specifically, the parties' agreement to a settlement term that allowed the obligor or its successors to purchase an annuity, which provided for a right of survivorship to each party, to effectuate the terms of the settlement, manifests the parties' intent to transfer the character of the property of each arising out of that settlement from separate to marital. * * *

 

With respect to the equitable distribution of this marital asset, "it is important to note that there is no requirement that the distribution of each item of marital property be on an equal basis" ... . Here, equity dictates that the plaintiff should receive most of the annuity, as he is permanently disabled and unable to earn an income now or in the future, whereas the plaintiff is employed and has future income earning capacity. * * *

 

The Supreme Court also erred in finding that the plaintiff's pension payments constituted separate property not subject to equitable distribution (cf. Domestic Relations Law § 236[B][5][b]). In New York, "pension benefits or vested rights to those benefits, except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property" ... . To the extent that a disability pension constitutes compensation for personal injuries, it is considered separate property not subject to equitable distribution ... . However, to the extent that a disability pension represents deferred compensation, it is subject to equitable distribution ... . Thus, here, the defendant is entitled to an equitable share of the marital portion of so much of the plaintiff's pension as represents deferred compensation ... . * * *

 

...[T]he defendant failed to provide any evidence tending to show an appreciation in the value of the marital residence due to her contributions that would entitle her to an equitable share of the increase in value of the marital property (see Domestic Relations Law § 236[B][1][d][3]...). The only evidence of the value of the marital residence was the plaintiff's net worth statement, which indicated that he purchased it for $35,000. The defendant offered no evidence to establish the value of the home at the time of the commencement of the divorce action or whether it had appreciated in value during the marriage. Rizzo v Rizzo, 2014 NY Slip Op 06305, 2nd Dept 9-24-14

 

FAMILY LAW/CONTRACT LAW/EMPLOYMENT LAW

 

Provision in Separation Agreement Which Called for Employment of the Wife by the Husband Deemed an Employment Contract Breached When Wife Opened a Competing Business

 

The Fourth Department reversed Supreme Court and determined that a provision in a separation agreement which was incorporated but not merged into the divorce decree constituted an employment contract breached when the plaintiff wife opened a competing business.  The reason for the agreement was to allow plaintiff wife to be paid maintenance by defendant husband's business during the time when the husband was obligated to pay child support.  The wife was a consultant to defendant's business:

 

It is well established that a separation agreement that is incorporated but not merged into a judgment of divorce "is a contract subject to the principles of contract construction and interpretation" ... , and "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" ... . By entering into the Agreement, defendant agreed to employ plaintiff in the event his maintenance obligation terminated during the period of time in which he was still obligated to pay child support. Inasmuch as the language of the Agreement is clear and unambiguous on its face, "the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" ... .

 

While we agree with plaintiff and the court that the clear and unambiguous intent of the Agreement was to provide a substitute source of monetary support for plaintiff after defendant's maintenance obligation terminated, we conclude that the reason defendant agreed to employ plaintiff does not change the fact that the Agreement established an employment relationship with corresponding rights and obligations for both parties.

 

As we have previously stated, "[a]n employee may not compete with his [or her] employer's business during the time of his [or her] employment" ... . When plaintiff opened a business in direct competition with defendant's business, plaintiff breached her duty of loyalty to her employer ... , thereby permitting defendant to terminate the consultation fees and the employment relationship. Anderson v Anderson, 2014 NY Slip Op 06415, 4th Dept 9-26-14

 

 

 

 

MENTAL HYGIENE LAW/FAMILY LAW

 

Marriage of an Incapacitated Person Properly Annulled

 

The Second Department determined there was sufficient evidence to justify the annulment of the marriage of an incapacitated person (Aldo D.). for whom a temporary guardian had been appointed, to the appellant:

 

...[C]lear and convincing evidence was presented at the hearing that Aldo D. was incapacitated ... . Among other things, testimony was adduced that Aldo D. suffered from Parkinson's disease, and the temporary guardian testified that he observed symptoms of dementia in Aldo D. For example, the temporary guardian related that Aldo D. did not seem to understand that he was being evicted from his apartment, and that he had married without intending to do so. The temporary guardian further testified that Aldo D. was very limited in his ability to walk and dress himself, and he could not cook for himself. He did not recognize his need for help. When questioned by the court, Aldo D. repeatedly denied marrying the appellant, said that he did not remember marrying the appellant, and did not want to be married to her. The appellant acknowledged during her testimony that they had, "to a degree," two marriage ceremonies, because, at the time of the first ceremony, Aldo D. "wasn't feeling well." The evidence before the Supreme Court was legally sufficient to establish that Aldo D. was incapacitated. Because there was legally sufficient evidence presented to the Supreme Court establishing that Aldo D. was incapacitated, it was proper to annul the marriage between him and the appellant pursuant to Mental Hygiene Law § 81.29(d) ... . Matter of Dandridge, 2014 NY Slip Op 06311, 2nd Dept 9-24-14

 

 

INSURANCE LAW/LEGAL MALPRACTICE/ATTORNEYS

 

Five-Month Delay In Disclaiming Coverage---Insurer Estopped

 

The Second Department determined the insurer's delay in disclaiming coverage in a legal malpractice action prejudiced the attorney.  The insurer was therefore estopped from disclaiming coverage:

 

Where, as here, the matter does not involve death or bodily injury, the untimely disclaimer by an insurer does not automatically estop the insurer from disclaiming on the basis of late notice unless there has been a showing of prejudice to the insured due to the delay ... . Although the court did not make a determination that [the attorney] was prejudiced by the defendants' approximate five-month delay in disclaiming coverage, based upon this record, [the party injured by the alleged malpractice] made a sufficient showing of prejudice to [the attorney]due to the [insurer's] late disclaimer such that the defendants are estopped from disclaiming coverage ... .Moreover, the purported reason for the disclaimer of coverage was evident on the face of the original complaint, and did not require any additional investigation by the insurer ... . The [insurer] failed to rebut this showing. B & R Consol LLC v Zurich Am Ins Co, 2014 NY Slip Op 06287, 2nd Dept 9-24-14

 

 

 

LABOR LAW/EMPLOYMENT LAW/MUNICIPAL LAW

 

Election of Remedies Provision in Labor Law 740 Precluded Retaliation Action Based Upon an Alleged Violation of NYC Administrative Code

 

The Second Department determined plaintiffs' action for retaliation in employment in violation ov the NYC Administrative Code was barred by the election of remedies provision of Labor Law 740 (7):

 

[The Administrative Code-based] claim is barred by the election of remedies provision contained in Labor Law § 740(7). Labor Law § 740(7) provides that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law." The waiver applies to causes of action arising out of or relating to the same underlying claim of retaliation ... .

 

The plaintiffs in this action alleged retaliation pursuant to Labor Law § 740 in a prior action ... . The claim asserted here pursuant to Administrative Code of the City of New York § 8-107 arises out of and relates to the same underlying claim of retaliation as asserted in the prior action. It is, therefore, barred by the Labor Law § 740(7) election of remedies provision ... . The waiver may not be avoided by amending the complaint to withdraw the section 740 claim, as the plaintiffs did in the prior action ... . Charite v Duane Reade Inc, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

 

LABOR LAW/EMPLOYMENT LAW

Election of Remedies Provision of Labor Law 740 (Retaliation in Employment) Does Not Bar a Separate Claim Pursuant to Labor Law 203-c (Placement of Cameras in Employee Restrooms)

 

The Second Department determined the election of remedies provision of Labor Law 740 (retaliation in employment) did not bar a separate and independent claim pursuant to Labor Law 203-c (placement of video cameras in employee restrooms):

 

Labor Law § 740(7) provides that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law." However, the waiver only applies to causes of action arising out of or relating to the same underlying claim of retaliation ... . The Labor Law § 203-c cause of action here asserts the separate and independent claim of illegal placement of video cameras in employee restrooms. Thus, it is not barred by the Labor Law § 740(7) election of remedies provision ... . Davis v Duane Reade Inc, 2014 NY Slip Op 06295 2nd Dept 9-24-14

 

 

NEGLIGENCE/MUNICIPAL LAW

 

Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips

 

The Second Department determined Supreme Court should not have granted defendant's motion for summary judgment in a slip and fall case.  Although the assumption of risk doctrine could apply to a slip and fall on a diving board, here the plaintiff alleged the traction strips on the board were unreasonably worn:

 

Under the doctrine of primary assumption of risk, "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" ... . One "obvious" risk inherent in the recreational activity of diving is the risk of being injured from slipping on the diving board's surface and falling off the diving board ... . In moving for summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of primary assumption of risk, the defendant failed to establish, prima facie, that the allegedly dangerous condition, consisting of the depleted traction strips, did not unreasonably increase the abovementioned risk ... . The defendant's submissions, which included the transcripts of a General Municipal Law § 50-h hearing and the plaintiff's deposition, demonstrated the existence of a triable issue of fact as to whether the allegedly dangerous condition unreasonably increased that risk ... . Freeman v Village of Hempstead, 2014 NY Slip Op 06298, 2nd Dept 9-24-14

 

 

NEGLIGENCE/MUNICIPAL LAW

 

Question of Fact Whether Three-Family Residence Was Owner-Occupied--Administrative Code's Exemption from Liability for Failure to Remove Ice and Snow May Not Apply

 

The Second Department determined Supreme Court should not have granted the property owner's motion for summary judgment in a slip and fall case.  Although the NYC Administrative Code exempts owner-occupied one- two- and three-family residential properties from liability for the failure to remove snow and ice from an abutting sidewalk, the property owner failed to demonstrate the property was owner-occupied:

 

"Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner" ... . However, this liability shifting provision does not apply to the failure to remove snow and ice from the sidewalk of "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (Administrative Code of City of NY § 7-210[b]). The purpose of the exception is to recognize " the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair'" ... .

 

Here, the defendant property owner ... failed to make a prima facie showing that he is entitled to judgment as a matter of law on the theory that he is exempt from liability pursuant to Administrative Code of City of NY § 7-210(b). Although there was evidence that the subject property was a three-family residence, [the owner's] deposition testimony raises issues of fact as to whether the premises were "owner occupied" within the meaning of Administrative Code § 7-210(b)... . Medina v City of New York, 2014 NY Slip Op 06302, 2nd Dept 9-24-14

 

 

NEGLIGENCE/MEDICAL MALPRACTICE/CIVIL PROCEDURE

 

The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

 

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

 

To establish that the continuous treatment doctrine applies, a plaintiff is " required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'" . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice ... . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

TRUSTS AND ESTATES

 

Fiduciary's Conflict of Interest Renders Transactions Voidable

 

The First Department noted the effect of a fiduciary's conflict of interest upon transactions entered into by the fiduciary:

 

When a fiduciary has a conflict of interest in entering a transaction and does not disclose that conflict to his/her principal, the transaction is "voidable at the option of" the principal ... . Moreover, "an agent cannot bind his principal . . . where he is known to be acting for himself, or to have an adverse interest" ... .  Genger v Genger, 2014 NY Slip Op 06248, 1st Dept 9-23-14

 

 

UNEMPLOYMENT INSURANCE

 

Substantial Evidence Supported Finding Claimant Was an Employee, Not an Independent Contractor

 

The Third Department determined the board's finding that claimant was an employee of ASISS was supported by substantial evidence, despite evidence suggesting an independent contractor relationship:

 

Whether there exists an employment relationship is a factual issue for resolution by the Board and its decision will not be disturbed when supported by substantial evidence ... . In making such a determination, the Board considers whether the putative employer exercised control over the results produced or the means used to achieve those results, with the means being the more important consideration ... . Here, the testimony of both claimant and Anthony Stone, the principal of ASISS, established that claimant completed an application for employment and was hired at a rate of pay established exclusively by Stone. ASISS assigned claimant to a specific location, established his hours of work and covered him under its workers' compensation insurance. Furthermore, it provided him with an employee code of conduct and required him to call in to an automated system at the beginning and end of each shift, to sign a time sheet and to submit incident reports. The client was not informed that claimant was an independent contractor, claimant was required to request time off two weeks in advance and ASISS would find a replacement if claimant was unavailable for his shift. Claimant was required to adhere to the company dress code by wearing a dark suit and tie, as well as a company lapel pin, while on duty. Furthermore, any complaints about claimant's performance would be handled by ASISS and claimant would receive his pay even if the client did not pay ASISS. Accordingly, while there was other evidence in the record suggestive of an independent contractor relationship, we find that substantial evidence supports the Board's determination that claimant was an employee ... . Matter of Thomas J Dunno..., 2014 NY Slip Op 06348, 3rd Dept 9-25-14

 

 

UNEMPLOYMENT INSURANCE

Under the Circumstances, Caring for Husband While Awaiting a Kidney Transplant in Florida Did Not Constitute "Good Cause" for Claimant's Leaving her Employment--Employer Had Offered to Accommodate Claimant with Leaves of Absence

 

The Third Department determined claimant voluntarily left her employment without good cause.  Claimant moved to Florida to care for her husband while they awaited a kidney transplant.  Claimant's employer had offered to accommodate claimant's needs for leaves of absence:

 

"Relocating to retire with and care for one's spouse does not constitute good cause for leaving employment absent proof of a compelling medical necessity for the move" ... . Claimant provided no medical documentation indicating that she had received medical advice to join her husband in Florida ..., nor did she explain the five-month delay in relocating to Florida after she resigned. In any event, claimant's husband received a kidney transplant six months after she resigned, and the employer indicated both that it would have granted her an additional leave of absence and that continuing work was available to her. Under these circumstances, substantial evidence supports the Board's determination that claimant voluntarily left her employment without good cause. Matter of Marie C Lahens..., 2014 NY Slip Op 06349, 3rd Dept 9-25-14

 

 

UNEMPLOYMENT INSURANCE

Claimant Did Not Receive a Bona Fide Offer of Suitable Employment that She Was Compelled to Accept After Her Lay Off---Details of Project Not Finally Established---Terms Less Favorable than Those of Prior Job

 

The Third Department determined claimant was entitled to unemployment benefits because she did not receive a bona fide offer of employment and, even she had been given a bona fide offer of employment she was not compelled to accept it because the terms were substantially less favorable than the terms of her employment prior to her layoff:

 

Initially, it is for the Board to decide whether a claimant has refused an offer of suitable employment for which he or she is reasonably fitted by training and experience (see Labor Law § 593 [2]), and its decision in this regard will be upheld if supported by substantial evidence ... . Here, evidence was presented that the details of the project were not finally established at the time the employer made its inquiry, and the time frame and required hours were also not definitive ... . In view of this, substantial evidence supports the Board's finding that claimant was not given a bona fide offer of suitable employment which she refused. Moreover, even if we were to conclude that she was given a bona fide offer of employment, the terms were substantially less favorable than the terms of her employment prior to her lay off and, consequently, she was not compelled to accept it ... . Matter of Gibbons ..., 2014 NY Slip Op 06351, 2nd Dept 9-25-14

 

 

UNEMPLOYMENT INSURANCE

Quitting in Anticipation of Discharge Is Not "Good Cause" for Leaving Employment

 

The Third Department noted that quitting a job in anticipation of discharge does not constitute good cause for resignation.  Matter of Gijacalone..., 2014 NY Slip Op 06355, 3rd Dept 9-25-14