Page 1014 – New York Appellate Digest

/ Attorneys, Criminal Law, Evidence

DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s attorney’s conflict of interest deprived defendant of effective assistance of counsel and, upon retrial, the testimony which resulted from the conflict can not be presented:

In this observation drug sale case, defendant, an alleged seller, was appointed the same attorney at his Criminal Court arraignment as Edward Jones, one of the alleged buyers. During the course of counsel’s simultaneous representation of defendant and Jones, Jones accepted a plea that required him to allocute to a description of one of the drug sellers. Jones allocuted to a description fitting defendant, and testified consistently with the allocution as a prosecution witness at trial. Since we find that counsel’s simultaneous representation of defendant at the time of Jones’s plea constituted an actual conflict, we reverse and remand for a new trial. In addition, because Jones’s testimony is interwoven with a violation of defendant’s New York State and Federal right to the effective assistance of counsel, we preclude the People from using Jones’s testimony at any retrial. * * *

During cross-examination, Jones admitted that he did tell the Assistant District Attorney, in his office, that defendant did not sell him crack cocaine. During redirect, Jones explained that he believed he did not have to tell the prosecutor the truth in his office, but that, now that he was under oath, he was “not going to perjure [him]self. . . .” * * *

Here, defendant’s right to the effective assistance of counsel was infringed by an actual conflict. At the time of their simultaneous representation and Jones’s plea, the interests of defendant and Jones were clearly opposed. Jones had an interest in avoiding a criminal conviction by allocuting to identify defendant as one of the people who had sold him drugs. Defendant had an interest in not being so identified. Counsel was thus placed in the “very awkward position of a lawyer subject to conflicting demands” … . Indeed, despite defendant’s right to representation by an attorney single-mindedly devoted to his best interests, counsel pursued a strategy in Jones’s case directly at odds with defending defendant from the drug sale charges that he faced … .. After swearing to a description of one of the sellers that fit defendant, Jones became unavailable to defendant as a trial witness and his strength as a prosecution witness was enhanced … . Counsel’s actions with respect to Jones were inconsistent with representing defendant in the best way possible, so defendant was denied the “right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone” … . People v Peters, 2017 NY Slip Op 08497, First Dept 12-5-17

CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CONFLICT OF INTEREST, CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))

December 05, 2017

/ Civil Procedure, Contract Law, Securities, Trusts and Estates

BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT).

The First Department determined this breach of contract action stemming from a mortgage-backed-securities trust, brought by a California plaintiff (trustee) ,and concerning California lenders must be timely under both California and New York law. The action, although timely in New York, was not timely under California law, which has a four-year statute of limitations. The New York choice-of-law provisions in the agreements did not expressing incorporate the NY statute of limitations:

CPLR 202 requires that an action brought by a nonresident plaintiff, “based upon a cause of action accruing without the state,” be timely under the respective statutes of limitations of both New York and “the place without the state where the cause of action accrued.” In Global Fin. Corp. v Triarc Corp. (93 NY2d 525, 529-530 [1999]), the Court of Appeals set forth the general rule that, in cases where (as here) the alleged injury is purely economic, a cause of action is deemed, for purposes of CPLR 202, to have accrued in the jurisdiction of the plaintiff’s residence. …

it is undisputed that the domiciles of the trust beneficiaries, which are in various jurisdictions, do not provide a workable basis for determining the place of accrual. As to the New York choice-of-law clauses of the relevant agreements, because these provisions do not expressly incorporate the New York statute of limitations, they “cannot be read to encompass that limitation period” … . By contrast, the subject trust in each action comprises a pool of mortgage loans, originated by California lenders and encumbering California properties, either exclusively … or predominantly ,,,, and … administered in California by plaintiff, a California-based trustee …. Further, it is undisputed that the relevant pooling and servicing agreement (PSA) for each trust contemplates the payment of state taxes, if any, in California … . To the extent the physical location of the notes memorializing the securitized mortgage loans has relevance to the analysis, each trust’s PSA contemplates that the notes may be maintained in California, but neither contemplates maintaining the notes in New York … . Deutsche Bank Natl. Trust Co. v Barclays Bank PLC, 2017 NY Slip Op 08459, First Dept 12-5-17

CIVIL PROCEDURE (BORROWING STATUTE, CONTRACT LAW, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/BORROWING STATUTE (CIVIL PROCEDURE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/CONTRACT LAW (CIVIL PROCEDURE, BORROWING STATUTE, STATUTE OF LIMITATIONS, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/SECURITIES (MORTGAGE-BACKED SECURITIES, CONTRACT LAW, CIVIL PROCEDURE, BORROWING STATUTE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/TRUSTS AND ESTATES (MORTGAGE-BACKED SECURITIES TRUST, BREACH OF CONTRACT, CIVIL PROCEDURE, BORROWING STATUTE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))

December 05, 2017

/ Education-School Law, Zoning

SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, rejected the school’s argument that it was immune from zoning restrictions. The school had erected an electronic sign which violated the zoning code and the zoning board had denied the school’s application for a variance:

… [T]he Court of Appeals noted that “… general rules . . . were interpreted by some courts to demand a full exemption from zoning rules for all educational and church uses” — an interpretation that “is mandated neither by the case law of our [s]tate nor common sense” … . The Court clarified that it never intended to “render municipalities powerless in the face of a religious or educational institution’s proposed expansion, no matter how offensive, overpowering or unsafe to a residential neighborhood the use might be,” and renewed its rejection of the existence of “any conclusive presumption of an entitlement to an exemption from zoning ordinances” for schools … . The Court thus concluded that “there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals [and, i]n those instances, the institution may be properly denied” … . Accordingly, the Court held that the presumed beneficial effects of schools and churches “may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like,” because the “inherent beneficial effects . . . must be weighed against their potential for harming the community” … . * * *

Because petitioner was not immune from and was, therefore, subject to the Town’s zoning ordinances, we must address whether the ZBA [zoning board of appeals] properly denied petitioner’s application for a variance. The Town and the ZBA did not refuse petitioner the opportunity to install any sign. Rather, the ZBA rejected an application for permission to install an electronic message center sign, which is prohibited in the Town and which also failed to comply with at least three additional size and location requirements of the signage provisions of the Town’s zoning ordinance. The ZBA provided rational reasons for its determination, including a concern for traffic safety due to the sign’s brightness and potential to be more distracting and hazardous to passing motorists than an ordinary sign … . That determination was not arbitrary or capricious. Matter of Ravena- Coeymans-Selkirk Cent. Sch. Dist. v Town of Bethlehem, 2017 NY Slip Op 08428, Third Dept 11-30-17

ZONING (SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/EDUCATION-SCHOOL LAW (ZONING, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/VARIANCES (SCHOOLS, SIGNS, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/SIGNS (ZONING, VARIANCES, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))

November 30, 2017

/ Negligence, Workers' Compensation

NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT).

The Third Department determined several motions to dismiss were properly denied in this action concerning an insolvent workers’ compensation trust. Defendant Regnier provided actuarial services and prepared certain actuarial reports on an annual basis for the trust. In addition to many other causes of action not summarized here, the Third Department held that the negligence and gross negligence causes of action properly survived:

We reject Regnier’s assertion that the negligence and gross negligence claims should have been dismissed in their entirety because plaintiff failed to allege that it owed the trust a duty of care. “[A]n actuary, possessing special knowledge, can be held liable for the negligent performance of its services” … . The second amended complaint alleged that Regnier held itself out as a skilled and competent actuary, that Regnier prepared actuarial reports to the trust, and that Regnier failed to provide competent actuarial services. More critically, the second amended complaint further alleged that Regnier knew that the trust would be relying on the accuracy of such reports and that Regnier was aware that its services were employed to represent the trust’s finances. Under these circumstances and viewing the allegations in a light most favorable to plaintiff, we conclude that there were sufficient allegations of near privity to survive a motion to dismiss with respect to the negligence and gross negligence claims … . New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 2017 NY Slip Op 08426, Third Dept 11-30-17

WORKERS’ COMPENSATION LAW (WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/WORKERS’ COMPENSATION TRUSTS (NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/NEGLIGENCE (ACTUARY, WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/ACTUARY (NEGLIGENCE, WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))

November 30, 2017

/ Tax Law

HOTEL NOT ENTITLED TO CREDIT FOR SALES TAX FOR CONTINENTAL BREAKFASTS PURCHASED FROM A THIRD PARTY, CONTINENTAL BREAKFASTS WERE INCLUDED IN THE ROOM RENTAL AND WERE NOT PURCHASED FOR RESALE (THIRD DEPT).

The Third Department determined the hotel (Washington Square) which included continental breakfast in its room rental was not entitled to a credit for sales tax paid by the hotel for the purchase of the continental breakfasts (from Cafe C-III):

Generally, sales tax must be paid upon the sale of all tangible personal property … . However, “[c]ertain purchases which are made for resale are not subject to sales tax” … . As such, a reseller may claim a tax credit for sales tax it paid upon purchases of personal property that will be resold … . “Where the question is whether certain purchases are entitled to the resale exemption, the purchaser must show, to avoid imposition of the sales tax on the entire transaction, that each of the items was purchased for one and only one purpose: resale” … . * * *

We conclude that Washington Square failed to satisfy its burden of establishing its entitlement to the benefit of the resale tax exemption … . According to the hearing testimony of Washington Square’s chief executive officer, Washington Square purchased continental breakfasts from Cafe C-III and such breakfasts were included in the hotel rental fee paid by the guests. Washington Square paid Cafe C-III regardless of whether a guest consumed the continental breakfast. More critically, the chief executive officer also stated that hotel guests would not be separately billed for the continental breakfasts … . …

Nor do we find any merit in Washington Square’s equitable estoppel argument. “[T]he doctrine of estoppel does not apply in tax cases unless unusual circumstances support a finding of manifest injustice” … . The fact that Washington Square, in a prior audit, was not imposed an additional tax assessment where it sought the same tax credit as in this case does not rise to the level of a manifest injustice especially in light of the auditor’s testimony that each audit stands on its own and does not bind a future audit … . Washington Square’s reliance on an audit of Cafe C-III is likewise unavailing. Matter of Washington Sq. Hotel LLC v Tax Appeals Trib. of The State of New York, 2017 NY Slip Op 08422, Third Dept 11-30-17

TAX LAW (SALES TAX, HOTEL NOT ENTITLED TO CREDIT FOR SALES TAX FOR CONTINENTAL BREAKFASTS PURCHASED FROM A THIRD PARTY, CONTINENTAL BREAKFASTS WERE INCLUDED IN THE ROOM RENTAL AND WERE NOT PURCHASED FOR RESALE (THIRD DEPT))/SALES TAX (SALES TAX, HOTEL NOT ENTITLED TO CREDIT FOR SALES TAX FOR CONTINENTAL BREAKFASTS PURCHASED FROM A THIRD PARTY, CONTINENTAL BREAKFASTS WERE INCLUDED IN THE ROOM RENTAL AND WERE NOT PURCHASED FOR RESALE (THIRD DEPT))

November 30, 2017

/ Landlord-Tenant, Negligence

OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT).

The First Department determined the out-of-possession landlord (AIMCO) was not liable for plaintiff’s injury from a shooting on the sidewalk outside a bar (PJ’s)i n the landlord’s building:

Dismissal of the complaint as against AIMCO was proper in this action for personal injuries sustained by plaintiff when, while standing on the sidewalk outside a bar owned and operated by codefendant [PJ’s], he was shot in the foot. The record demonstrates that AIMCO owned the commercial space and had leased it to PJ’s, and as a premises owner, AIMCO cannot be held liable in negligence for an assault that occurred on a public street over which it exercised no control … .

AIMCO also owed plaintiff no duty of care to prevent the incident since the evidence showed that AIMCO was an out-of-possession landlord when the shooting happened … and while it had the right to reenter the premises for the purpose of effecting repairs, there is no evidence that it retained control over the premises or was involved with how PJ’s operated its bar … .The 2009 stipulation of settlement between nonparty City of New York, AIMCO and PJ’s regarding a public nuisance action fails to raise a triable issue, because it expired by its own terms before the shooting and did not require AIMCO to do anything with regard to how the bar was being operated. Ballo v AIMCO 2252-2258 ACP, LLC, 2017 NY Slip Op 08443, First Dept 11-3017

NEGLIGENCE (OUT OF POSSESSION LANDLORD, THIRD PARTY ASSAULT, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))/ASSAULT, THIRD PARTY (CIVIL, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))/OUT OF POSSESSION LANDLORD (NEGLIGENCE, THIRD PARTY ASSAULT, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))

November 30, 2017

/ Negligence

QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT).

The Third Department determined a question of fact precluded summary judgment in favor of defendant in this truck-car intersection collision case. The defendant truck driver, Head, alleged the driver of the car in which plaintiff was a passenger (Sinclair) made a left turn across the truck’s path and Head did not have time to avoid the collision. However an eyewitness, Fuller, testified there was sufficient time for the truck driver to take evasive action:

In this context, Head “was bound to see what[,] by the proper use of [his] senses[,] [he] might have seen” and, if the circumstances were as described by Fuller, and if Head should have observed Sinclair’s car turning left, “then the accident would be a reasonably foreseeable risk and [Head] would have had a duty to avoid striking [Sinclair], if it were possible to do so”… . Fuller’s materially different version of the accident, if credited, could support the conclusion that Head had adequate time and opportunity to observe Sinclair’s turning car and take evasive action … . That is, Head had “a duty to use reasonable care to avoid a collision” and, unless he had “only seconds to react” to Sinclair’s failure to yield the right-of-way, an issue disputed by plaintiff’s evidence, Head may be partly at fault … . Debra F. v New Hope View Farm, 2017 NY Slip Op 08429, Third Dept 11-30-17

NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/TRAFFIC ACCIDENTS (COMPARATIVE FAULT, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/RIGHT OF WAY (TRAFFIC ACCIDENTS, COMPARATIVE FAULT, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))

November 30, 2017

/ Negligence

MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT).

The Third Department determined defendant store’s motion for summary judgment in this slip and fall case was properly granted because the manner in which Christmas decorations were stacked did not present a foreseeable risk. Plaintiff was taking down a Christmas decoration when things started to fall from the shelf:

Plaintiff testified that while taking down garland, she felt a snag on the garland and, when she turned back and saw that the garland was attached to a loop of garland above it, she saw — through her peripheral vision — “stuff” starting to fall and, when she started to move her feet, she fell. Plaintiff further testified that she did not trip over anything and was not struck by anything before she fell, nor did she strike anything on the way down as she fell. In opposition to defendant’s motion, plaintiff submitted defendant’s Holiday Sales Planner and Stocking Procedural Manual. Plaintiff also submitted an affidavit of plaintiff’s expert witness — a retail sales merchandising specialist, consultant and planner — who attested to the proper, correct and safe way to install, stock and display consumer products and merchandise for sale to the public in retail stores. However, such testimony failed to demonstrate how the location and stocking of the garland presented a foreseeable risk. Therefore, plaintiff failed to raise a triable issue of fact that plaintiff’s injury was reasonably foreseeable … . Supreme Court properly found that there was “nothing about the nature of packages of garland falling from above that would lead a reasonable person to foresee said garland knocking a person to the ground and/or breaking a person’s wrist.” Supreme Court also correctly found that the doctrine of res ipsa loquitur did not apply. “The doctrine cannot be used where, as here, the defendant against whom the doctrine is asserted owes no duty in connection with the mechanism that caused the injury” … . Parke v Dollar Tree, Inc.2017 NY Slip Op 08427, Third Dept 11-30-17

NEGLIGENCE (FORESEEABILITY, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))/FORESEEABILITY (NEGLIGENCE, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))/SLIP AND FALL (FORESEEABILITY, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))/RES IPSA LOQUITUR (SLIP AND FALL, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))

November 30, 2017

/ Insurance Law

QUESTION OF FACT ABOUT WHETHER THE FIRE DAMAGED PROPERTY WAS PLAINTIFF’S RESIDENCE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS DISCLAIMER ACTION (THIRD DEPT).

The Third Department determined plaintiff’s motion for summary judgment in this action against a homeowner’s insurance company for disclaiming coverage was properly denied. Coverage for fire damage was disclaimed based upon the allegation the property was not plaintiff’s residence. Apparently plaintiff lived elsewhere, at least part of the time, while the house was being extensively renovated:

Plaintiff testified that she slept at the premises on several occasions, an average of two to four nights per week, and that she intended for the premises to be her permanent residence once renovations were completed. During his deposition, Larrea [the insurer’s claim investigator] testified that he obtained a statement from plaintiff shortly after the fire in which she stated that she was not living at the premises. In opposition to the motion, defendant submitted an affidavit from Larrea, who averred that when he interviewed plaintiff by telephone eight days after the fire, she stated that at the time of the fire that she was in the process of relocating from her father’s home to the apartment and, notably, that she had not been to the premises during the two weeks immediately preceding the fire and had stayed overnight at the premises only once.

On this record, plaintiff’s summary judgment motion was properly denied. The Court of Appeals has held that evidence similar to the record in this case presented issues of fact regarding residency that precluded the grant of summary judgment … . Moreover, as Supreme Court correctly held, the contradictory statements that plaintiff made regarding the extent of her own physical presence at the premises are alone sufficient to create an issue of fact that may not be resolved by summary judgment. Sosenko v Allstate Ins. Co., 2017 NY Slip Op 08425, Third Dept 11-30-17

INSURANCE LAW (QUESTION OF FACT ABOUT WHETHER THE FIRE DAMAGED PROPERTY WAS PLAINTIFF’S RESIDENCE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS DISCLAIMER ACTION (THIRD DEPT))/RESIDENCE (INSURANCE LAW, QUESTION OF FACT ABOUT WHETHER THE FIRE DAMAGED PROPERTY WAS PLAINTIFF’S RESIDENCE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS DISCLAIMER ACTION (THIRD DEPT))/DISCLAIMER (INSURANCE LAW, RESIDENCE, QUESTION OF FACT ABOUT WHETHER THE FIRE DAMAGED PROPERTY WAS PLAINTIFF’S RESIDENCE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS DISCLAIMER ACTION (THIRD DEPT))

November 30, 2017

/ Evidence, Family Law

FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTORS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, modifying Family Court’s custody/relocation ruling, determined Family Court relinquished its fact-finding role by adopting the findings and recommendations of the forensic evaluator, in the face of the evaluator’s obvious bias in favor of the father. Family Court had granted sole custody to the father in North Carolina, without evaluating the custody/relocation-modification factors, despite the child’s life-long residence in New York and evidence of a supportive home life:

In its decision and order, Family Court recognized that the testimony given by the forensic evaluator “demonstrated[,] at times[,] a little less than neutral tone” and that it was apparent from her testimony that she was “challenged in her dealings” with the mother and her husband. Nevertheless, Family Court wholly adopted the forensic evaluator’s factual assertions, opinions, conclusions and recommendations, without any perceivable independent consideration given to the best interests of the child. In doing so, the court improperly delegated its fact-finding role and ultimate determination to the forensic evaluator… . We emphasize that “[t]he recommendations of court[-]appointed experts are but one factor to be considered” and, although entitled to some weight, such recommendations are not determinative and should not usurp the trial court’s independent impressions of the evidence and conclusions drawn from that evidence … . …

…[I]n granting the father sole legal and primary physical custody of the child, Family Court did not engage in an assessment of the relocation factors … . Had the court done so, it would have been apparent that the father’s proof was lacking in this regard. Neither the father nor the forensic evaluator offered demonstrable proof, such as photographs or a home study, as to the suitability of the father’s home. In commenting on the quality of the father’s home environment, the forensic evaluator relied solely on her assumptions and the self-serving representations made by the father. Matter of Montoya v Davis, 2017 NY Slip Op 08434, Third Dept 11-30-17

FAMILY LAW (FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY-RELOCATION MODIFICATION, FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))/CUSTODY (FAMILY LAW, CUSTODY-RELOCATION MODIFICATION, FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))

November 30, 2017

Search Results

DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT).

BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT).

SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT).

NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT).

HOTEL NOT ENTITLED TO CREDIT FOR SALES TAX FOR CONTINENTAL BREAKFASTS PURCHASED FROM A THIRD PARTY, CONTINENTAL BREAKFASTS WERE INCLUDED IN THE ROOM RENTAL AND WERE NOT PURCHASED FOR RESALE (THIRD DEPT).

OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT).

QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT).

MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT).

QUESTION OF FACT ABOUT WHETHER THE FIRE DAMAGED PROPERTY WAS PLAINTIFF’S RESIDENCE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS DISCLAIMER ACTION (THIRD DEPT).

FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTORS (THIRD DEPT).

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