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RAISED FIST DID NOT SUPPORT AN INTERFERENCE-WITH-AN-EMPLOYEE CHARGE 3RD DEPT.

The Third Department determined a raised fist was sufficient to support the “creating a disturbance” charge, but not the “interference with an employee” charge:

… [A]s to the charge of interfering with an employee, while the evidence establishes that prison staff were alarmed by petitioner’s gesture resulting in additional staff reporting to the mess hall, we agree with petitioner that these facts, standing alone, do not constitute substantial evidence to support the finding that petitioner “physically or verbally obstruct[ed] or interfere[d] with an employee,” and, therefore, the determination should be annulled to that extent… . While the normal duties of the prison staff were presumably interrupted or redirected when they responded to the incident in the mess hall, this, in our view, is not the type of conduct that the at-issue rule was designed to prevent … . Matter of Taylor v Lee, 2017 NY Slip Op 05903, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (RAISED FIST DID NOT SUPPORT AN INTERFERENCE-WITH-AN-EMPLOYEE CHARGE 3RD DEPT)

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ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT.

The Third Department, over a two-justice dissent, determined the contraband-possession charge was supported by sufficient evidence. The petitioner had a small package of a leafy green substance which tested negative for marijuana. The supervisor who seized the substance, after the test had been done, alleged it was synthetic marijuana. Because all of the substance was used up in the marijuana test, no further tests were possible. The dissent argued the proof was insufficient because the supervisor did not describe the nature of his experience which led to his conclusion the substance was contraband:

As for the … charge of possessing contraband, “an inmate shall not possess any item unless it has been specifically authorized” … . Given petitioner’s concessions and the supervisor’s representations in the misbehavior report that his identification was based upon his prior training and experience, we find that the item contained in the tobacco pouch was adequately identified as synthetic marihuana and, therefore, the determination that it was unauthorized contraband is supported by substantial evidence … . * * ​

FROM THE DISSENT:

The supervisor who identified the substance as synthetic marihuana offered no details regarding his training or experience, nor any explanation of how they qualified him to make such an identification. Indeed, he did not testify, so the Hearing Officer was left to rely on a vague and conclusory statement included in a misbehavior report and repeated in a memorandum. Moreover, the quantity of the substance recovered apparently allowed for only one drug test, and the record indicates that the substance was tested to discover whether it was marihuana. If the supervisor actually had the ability to identify synthetic marihuana and had, in fact, so identified the substance taken from petitioner when the supervisor viewed it before the testing was conducted, there is no explanation as to why he would thereafter have his subordinate use the entirety of the substance in a test for marihuana, which would not indicate a positive or a negative result for synthetic marihuana … . Thus, the record contains no evidence that the supervisor was qualified to identify synthetic marihuana, but does contain evidence that leads to an inference that he had, initially, incorrectly identified the substance as marihuana. The Hearing Officer should not have relied on the supervisor’s second guess as to the nature of the substance, supported by nothing other than his own vague and self-serving statement regarding his training and experience. Matter of King v Venettozzi, 2017 NY Slip Op 05899, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (CONTRABAND, ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT)/CONTRABAND (DISCIPLINARY HEARINGS, INMATES, ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT)

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CPLR 5003-A, WHICH MANDATES PROMPT PAYMENT OF A SETTLEMENT TO THE PLAINTIFF, DOES NOT APPLY TO PAYMENTS TO THIRD PARTIES REQUIRED BY THE SETTLEMENT AGREEMENT 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Peters, determined CPLR 5003-a, which requires the prompt payment of a settlement to the plaintiff, does not apply to payments owed to a third-party, even though the settlement agreement requires that the third party be paid. Here the settlement agreement required defendant to pay a Worker’s Compensation lien:

… [W]e conclude that CPLR 5003-a applies only to the nonpayment of settlement monies owed directly to a settling plaintiff pursuant to a settlement agreement. This construction is not only in accord with the plain language of the prompt payment mandate itself, but is also supported by the language of the statutory enforcement mechanism set forth in subdivision (e). CPLR 5003-a (e), the teeth that effectuate subdivision (a)’s prompt payment directive, authorizes an “unpaid plaintiff” to enter judgment inclusive of interest, costs and disbursements against the nonpaying settling defendant … . Simply put, plaintiff here is not “unpaid” — all sums required to be paid to him pursuant to the parties’ settlement agreement (i.e., $3.25 million) were paid by defendant within the statutorily-prescribed 21-day time period. Had the Legislature intended to extend the reach of CPLR 5003-a to a settling defendant’s failure to promptly pay all valuable consideration due a settling plaintiff pursuant to the parties’ settlement agreement, it could have easily said so. It did not, and “‘a court cannot amend a statute by inserting words that are not there'” … . Ronkese v Tilcon N.Y., Inc., 2017 NY Slip Op 05905, 3rd Dept 7-27-17

CIVIL PROCEDURE (SETTLEMENTS, CPLR 5003-A, WHICH MANDATES PROMPT PAYMENT OF A SETTLEMENT TO THE PLAINTIFF, DOES NOT APPLY TO PAYMENTS TO THIRD PARTIES REQUIRED BY THE SETTLEMENT AGREEMENT 3RD DEPT)/SETTLEMENTS (CPLR 5003-A, WHICH MANDATES PROMPT PAYMENT OF A SETTLEMENT TO THE PLAINTIFF, DOES NOT APPLY TO PAYMENTS TO THIRD PARTIES REQUIRED BY THE SETTLEMENT AGREEMENT 3RD DEPT)

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DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT.

The Third Department, over a strong dissent, determined the denial of youthful offender status was not an abuse of discretion. Defendant lost both parents, dropped out of school after having been a successful student and admitted to college, became addicted to drugs, and was targeted and victimized by persons who moved into his home. He had never before committed a crime. He pled guilty to seven burglaries which took place in the space of two weeks:

Defendant contends that County Court abused its discretion in denying him youthful offender status and that the sentence imposed was harsh and excessive. “[T]he decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court’s discretion and, absent a clear abuse of that discretion, its decision will not be disturbed” … . Upon our review of the record, we are unpersuaded that County Court abused its discretion in denying defendant’s application for youthful offender status … . In making its determination, County Court considered numerous mitigating circumstances, including, among other things, defendant’s youth, his lack of a criminal record or prior acts of violence, his cooperation with authorities, his familial history and his expressed remorse for his conduct … .. Nevertheless, based upon the seriousness of the charges for which defendant was convicted and the fact that he willingly participated in seven separate and distinct residential burglaries over a two-week period, we perceive no abuse of discretion in County Court’s ultimate decision to deny defendant youthful offender status … . Nor do we find any extraordinary circumstances or an abuse of discretion that would warrant a reduction of his sentence … . People v Strong, 2017 NY Slip Op 05876, 3rd Dept 7-27-17

CRIMINAL LAW (YOUTHFUL OFFENDER, DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT)/SENTENCING (YOUTHFUL OFFENDER, DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT)/YOUTHFUL OFFENDER (DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT)

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NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT DIFFERENT TIMES, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT.

The Third Department, reversing County Court, determined the People did not demonstrate the two sexual offenses to which defendant pled guilty occurred at different times, therefore consecutive sentences should not have been imposed. The Third Department explained that only the accusatory instrument to which defendant pled (here a superior court information) and the plea allocution can be considered in this context.  To the extent that a prior ruling suggested admissions in a pre-sentence report and victim statements could be considered to determine the facts of the offenses, that ruling is no longer to be followed:

Pursuant to Penal Law § 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” … . Thus, “to determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” … . “[E]ven if the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the acts or omissions committed by [the] defendant were separate and distinct acts” … . * * *

… [B]oth counts in the superior court information alleged that the acts occurred during the same time frame (between July 1, 2012 and July 31, 2012), neither count contained allegations about the specific acts constituting the crime, and there is no bill of particulars narrowing the specific type of sexual contact or sexual conduct alleged under either count … . Likewise, the plea allocution did not include admissions or particularity as to the acts committed that qualify as sexual contact or oral sexual conduct … . Given that the term “sexual contact” is broad enough to include all forms of “oral sexual conduct” … , the actus reus element could be the same for both offenses, that is, the same act could satisfy both crimes. As no specific date and time for each crime were alleged in the superior court information or plea allocution, and neither included underlying facts or alleged acts that were separate and distinct, consecutive sentences were not authorized … . People v Mangarillo, 2017 NY Slip Op 05872, 3rd Dept 7-27-17

CRIMINAL LAW (SENTENCING, NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT THE SAME TIME, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT)/SENTENCING (NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT THE SAME TIME, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT)

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QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT.

The Second Department, reversing Supreme Court, in the context of a legal malpractice action, determined plaintiff had raised a question of fact whether the property owner created or exacerbated the dangerous condition by snow removal efforts. Plaintiff alleged she fell while stepping over a pile of snow:

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff’s deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts … . In particular, in light of the plaintiff’s deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to “lift [her] leg” to “cross” over, causing her to slip and fall. Accordingly, that branch of the defendant’s motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied. Balan v Rooney, 2017 NY Slip Op 05801, 2nd Dept 7-26-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT)/SLIP AND FALL (QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT)

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BANK DID NOT COMPLY WITH THE STATUTORY NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

Here, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the defendants pursuant to the terms of the statute … . Contrary to the plaintiff’s contention, the affidavit of an assistant secretary of the loan servicer was insufficient to establish that the notice was sent to the defendants in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … . Investors Sav. Bank v Salas, 2017 NY Slip Op 05811, 2nd Dept 7-26-17

FORECLOSURE (BANK DID NOT COMPLY WITH THE STATUTORY NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION 2ND DEPT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, BANK DID NOT COMPLY WITH THE STATUTORY NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION 2ND DEPT)

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SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT.

The Second Department determined a special use permit was properly granted to a golf course seeking permission to host nonmember events. The court explained the different criteria for a special use permit versus a variance:

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special use permit gives permission to use property that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . The burden of proof on an applicant seeking a special use permit is lighter than that carried by an applicant for a zoning variance … . Once an applicant shows “that the contemplated use is in conformance with the conditions imposed, a special [use] permit or exception must be granted unless there are reasonable grounds for denying it that are supported by substantial evidence” … .

Here, on this record, there was substantial evidence that Hampshire Club, Inc.’s contemplated use comported with the requirements of Village of Mamaroneck Zoning Code … , and there were no reasonable grounds for denying the special use permit. Therefore, the special use permit to host nonmember events at the Country Club should have been granted… . “Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record” … . Matter of Mamaroneck Coastal Envt. Coalition, Inc. v Board of Appeals of the Vil. of Mamaroneck, 2017 NY Slip Op 05822, 2nd Dept 7-25-17

ZONING (SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)/SPECIAL USE PERMIT (ZONING, SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)/VARIANCE (ZING, SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)

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ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT.

The Second Department, reversing Supreme Court, determined that the mortgage-holder’s motion for a default judgment and order of reference should not have been denied. The 1970 deed for the property named defendant and his mother as husband and wife. Pursuant to 1970 law (which changed in 1975) the erroneous “husband and wife” designation created a tenancy in common with no right of survivorship. Therefore, although defendant was not the sole owner at the time the mortgage loan was made, the mortgage was secured by his interest in the property and that interest was subject to foreclosure:

Contrary to the Supreme Court’s determination, while the defendant may not have been the sole owner of the subject property at the time of the loan, he was still able to mortgage the subject property to the extent of his interest therein, since ” [a] mortgage given by one of several parties with an interest in the mortgaged property is not invalid; it gives the mortgagee security, but only up to the interest of the mortgagor'” … . “[T]here is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” … . John T. Walsh Enters., LLC v Jordan, 2017 NY Slip Op 05813, 2nd Dept 7-25-17

REAL PROPERTY (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/FORECLOSURE (DEEDS,  ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/TENANCY IN COMMON (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)

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THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was sufficient circumstantial evidence of the cause of plaintiff’s fall down a set of stairs to survive summary judgment. The plaintiff alleged there was inadequate lighting:

The defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the plaintiffs could not identify the cause of the injured plaintiff’s fall. “[T]hat a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury”… . Here, the defendant failed to eliminate triable issues of fact as to whether the alleged inadequate lighting condition for the subject staircase was a proximate cause of the injured plaintiff’s fall… . Such a finding, given the eyewitness account of the circumstances surrounding the fall and the injured plaintiff’s own statement just before the fall, warning his companions to “watch out, it is dark, you cannot see,” would be based on logical inferences, not speculation … . Pajovic v 94-06 34th Rd. Realty Co., LLC, 2017 NY Slip Op 05831, 2nd Dept 7-25-17

NEGLIGENCE (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/EVIDENCE (SLIP AND FALL, THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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