You are here: / QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE...

Search Results

/ , ,

QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the golf-course sprinkler-valve-hole, which caused plaintiff’s decedent to trip and fall, was concealed or unreasonably increased the risks inherent in the golf course, thereby overcoming the assumption of risk doctrine. Supreme Court should not have excluded the photographs of the area where plaintiff fell. Contrary to Supreme Court’s reasoning, the person who authenticated the photographs was a not a notice witness who should have been named prior to the filing of the note of issue:

… [P]laintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course … In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion. Contrary to the court’s determination, the plaintiff was not required to identify John Flower as a notice witness prior to filing the note of issue. The disclosure requirements of CPLR 3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action” … . Here, Flower did not possess information material and necessary to the prosecution or defense of the action. In his affidavit, Flower merely authenticated certain photographs, most of which had been submitted by the decedent with his notice of claim prior to his death. Consequently, the court should not have rejected Flower’s affidavit and the attendant photographs on the ground that the plaintiff had failed to identify Flower as a notice witness prior to the filing of the note of issue. As a related matter, the court improperly rejected the affidavit of the plaintiff’s expert on the ground that he relied upon the photographs. Further, the court should not have rejected the two remaining affidavits from individuals who were disclosed to the defendant prior to the filing of the note of issue. MacIsaac v Nassau County, 2017 NY Slip Op 05814, 2nd Dept 7-25-17

NEGLIGENCE (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)CIVIL PROCEDURE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/EVIDENCE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/ASSUMPTION OF RISK (GOLF, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/GOLF (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/PHOTOGRAPHS (EVIDENCE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/NOTICE WITNESS (CIVIL PROCEDURE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)

/

PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether defendant had actual or or constructive notice of the black ice which caused plaintiff to fall. There was precipitation earlier on the day plaintiff fell:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the black ice that allegedly caused the plaintiff to fall developed as a result of precipitation that fell on the day of the accident, and that the defendant did not create or have actual or constructive notice of the existence of the black ice… . Contrary to the plaintiff’s contention, the Supreme Court properly considered her deposition transcript in determining the motion … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the black ice was the product of a prior storm … . Vozzo v Fairfield Westlake Sq., LLC, 2017 NY Slip Op 05868, 2nd Dept 7-25-17

NEGLIGENCE (SLIP AND FALL, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT)

/

ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT.

The First Department determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action was properly denied. Plaintiff (Giordano), who was wearing a harness and double lanyard, fell 30 feet from a scaffold when he stepped on a pipe brace which gave way. Although plaintiff had unhooked the lanyard, there was a question of fact whether the scaffold provided a proper method for tying off the lanyard:

“[T]he fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1),” and when “there are questions of fact as to whether the [structure] provided adequate protection,” summary judgment is not warranted … . In this case, plaintiff Paul Giordano fell 30 feet from scaffolding during construction on the Freedom Tower at 1 World Trade Center, when he stepped on a pipe brace that suddenly gave way. Although he was wearing a harness and double lanyard, the record presents issues of fact as to whether the scaffolding itself provided adequate anchoring points at which to tie off, and whether Giordano could have used his double lanyard to remain tied off at all times. Thus, under these circumstances, summary judgment to either party on the Labor Law § 240(1) claim, and the § 241(6) claim premised on a violation of Industrial Code (12 NYCRR) § 23-1.16, is precluded by issues of fact as to whether Giordano was provided with “proper fall protection, namely, an appropriate place to . . . attach his harness” … . … Because there are issues of fact as to whether Labor Law § 240(1) was violated, the issue of whether Giordano was the sole proximate cause of the accident (because he unhooked his lanyard) cannot be determined as a matter of law … . Giordano v Tishman Constr. Corp., 2017 NY Slip Op 05796, 1st Dept 7-25-17

LABOR LAW-CONSTRUCTION LAW (SCAFFOLDS, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, LTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/LANYARDS (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)

/ ,

THE DISCIPLINE AND SUSPENSION OF STUDENTS ARE NOT ARBITRABLE TOPICS, ARBITRATION WOULD CONFLICT WITH PUBLIC POLICY AFFORDING DISCRETION TO SCHOOL DISTRICTS 2ND DEPT.

The Second Department determined the disciplining and suspension of  students were not arbitrable topics because there is a public policy affording the school district discretion in those areas:

In determining whether a dispute between a public sector employer and employee is arbitrable, a court must first determine whether ” there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'”… . If there is no prohibition against arbitration, the court must examine the parties’ collective bargaining agreement to determine “whether the parties in fact agreed to arbitrate the particular dispute”…

Here, the appellant demanded arbitration to compel the petitioner, the Board of Education of the Newburgh Enlarged City School District, to implement certain measures regarding the discipline and suspension of students. Since New York’s Education Law grants discretion to boards of education to implement disciplinary rules and regulations in schools … , such demands are nonarbitrable on public policy grounds … . Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Newburgh Teachers’ Assn., 2017 NY Slip Op 05817, 2nd Dept 7-25-17

EDUCATION-SCHOOL LAW (ARBITRATION, THE DISCIPLINE AND SUSPENSION OF STUDENTS ARE NOT ARBITRABLE TOPICS, ARBITRATION WOULD CONFLICT WITH PUBLIC POLICY AFFORDING DISCRETION TO SCHOOL DISTRICTS 2ND DEPT)/ARBITRATION (EDUCATION-SCHOOL LAW, THE DISCIPLINE AND SUSPENSION OF STUDENTS ARE NOT ARBITRABLE TOPICS, ARBITRATION WOULD CONFLICT WITH PUBLIC POLICY AFFORDING DISCRETION TO SCHOOL DISTRICTS 2ND DEPT)

/ ,

RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT.

The First Department, in a full-fledged opinion by Justice Kahn, over an extensive, two-justice, dissenting opinion, determined a report on the DNA evidence which connected the defendant to the burglary did not violate the Confrontation Clause and was properly admitted. The majority argued that the report contained only raw data that was not part of a law enforcement effort aimed at the defendant because the sources of the DNA which were analyzed were not known to the technicians conducting the procedures. Therefore the raw data was not testimonial evidence (which would violate the Confrontation Clause). The criminologist (Huyck) who testified came to conclusions (testimonial) about the sources of the tested DNA by comparing the (non-testimonial) raw data. The report generated by the criminologist, therefore, was admissible because she testified and was cross-examined. The dissenters argued that someone involved in collecting the raw data should have testified and been cross-examined about the testing procedures (measures taken to avoid contamination, etc.):

Huyck herself conducted an independent review of the raw data derived from the testing of the DNA material derived from both the physical evidence and from defendant’s person, and was not merely “functioning as a conduit for the conclusions of others” … . …[T]he expert witness, “testified that any conclusions or opinions she reached from the raw data . . . were her own” and were not merely conclusions of others with whom she agreed … . Upon her own examination of the machine-generated graphs and raw data in this case, Huyck concluded that the two DNA profiles were a match. Her conclusion, based upon her own “separate, independent and unbiased analysis of the raw data,” was reflected in the … laboratory report bearing her name as analyst as well as in her own testimony at trial … . … Huyck did not base her testimony “solely on the reports of the nontestifying analysts [which were then] admitted into evidence for their truth.” People v Rodriguez, 2017 NY Slip Op 05799, 1st Dept 7-25-17

CRIMINAL LAW (RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/HEARSAY (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/TESTIMONIAL EVIDENCE (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL EVIDENCE, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/CONFRONTATION CLAUSE (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/REPORTS (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)

/

BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT.

The First Department determined defendant, who had pled guilty, was entitled to a hearing on whether the police had probable cause to arrest him. The defendant alleged he was arrested on October 12 at his home. The discovery provided by the People alleged defendant was arrested the following day at the police station. The People did not respond to defendant’s allegation he was arrested at a different time and place. Because the People did not explain the circumstances of defendant’s arrest, defendant’s allegations in the omnibus motion were sufficient to require a hearing. The appeal was held in abeyance pending the hearing:​

… [D]efendant’s claim that he was arrested without probable cause at his home on October 12, 2012, at which time “[h]e was not acting in an illegal or suspicious manner,” although conclusory, was sufficient to entitle him to a hearing on the legality of his arrest and the admissibility of any evidence derived therefrom. It is undisputed that the arrest, whether it occurred on October 12 or (as the People claim) on October 13, took place “at a time and place remote from the [crime] for which [defendant] was charged” … . The People … asserted that defendant was arrested around midday on October 13, at a police station, after giving statements at the same police station that morning and the previous night. Thus, at a minimum, defendant has raised a factual dispute concerning the time of his arrest. Further, the People provided defendant with no information at all as to how, by their account, he came to be at the police station in the first place, nor did they disclose the basis on which he first came to the attention of law enforcement in this investigation … . People v McUllin, 2017 NY Slip Op 05795, 1st Dept 7-25-17​

CRIMINAL LAW (PROBABLE CAUSE HEARING, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/PROBABLE CAUSE (ARREST, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/SUPPRESSION (PROBABLE CAUSE , BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/HEARINGS (CRIMINAL LAW, PROBABLE CAUSE, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)

/ ,

THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT.

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the conviction was against the weight of the evidence. Defendant raised the justification defense in this manslaughter case. Once the defense was raised, the People were required to prove, beyond a reasonable doubt, the defendant’s act was not justified. The Fourth Department held that the jury’s finding the defendant’s act was not justified was against the weight of the evidence:

… [T]he People were required to prove either that defendant lacked a subjective belief that her use of deadly physical force was necessary to protect herself against decedent’s use or imminent use of deadly physical force, or that “a reasonable person in the same situation would not have perceived that deadly force was necessary”… . Although the jury found that the People met that burden, we conclude, upon our independent assessment of the proof… , that the jury “failed to give the evidence the weight it should be accorded”… . Defendant’s statements at the scene and in her police interview evinced a belief that deadly force was necessary to protect her from decedent, and we conclude that the People did not demonstrate beyond a reasonable doubt that her belief was objectively unreasonable. Instead, the credible evidence established that decedent was in a drunken rage during a heated argument with defendant, that he had threatened “trouble” if the police came, that he had repeatedly forced open doors in the course of pursuing defendant through the apartment, that he was not deterred even when she armed herself with a knife, that he had cornered her in the bathroom and pulled her hair, and that he had grabbed her by the hair to prevent her from leaving the bathroom just before she stabbed him. Under those circumstances, we conclude that the People failed to meet their burden of establishing that defendant lacked a reasonable belief that decedent was about to use deadly physical force against her, even though decedent was not armed … . In other words, this is not a case in which the force employed by defendant ” exceeded that which was necessary to defend [herself]’ ” … . People v Marchant, 2017 NY Slip Op 05918, 4th Dept 7-27-17

CRIMINAL LAW (JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/EVIDENCE (CRIMINAL LAW, JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/JUSTIFICATION DEFENSE (MANSLAUGHTER,  THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)

/

HOMEOWNERS’ REBUTTED THE PRESUMPTION THAT THE TAX ASSESSMENT OF THEIR PROPERTY WAS VALID 3RD DEPT.

The Third Department determined petitioners, who had recently purchased the property for $103,000, had rebutted the presumption that the tax assessment of over $156,000 was valid:

Here, petitioners presented the affidavit of the associate real estate broker who had been engaged to sell the subject property, together with their own affidavits describing the underlying transactions. From June 2011 through May 2013, the subject property had been continuously, publicly and widely advertised for sale on a multiple listing service throughout the Capital Region. Flyers were distributed at the broker’s office and during open houses and showings. By May 2012, there had been more than 30 unsuccessful showings of the subject property, which prompted the initial reduction of the sale price to $110,000 in June 2012. Petitioners toured the property with the broker during an open house thereafter, and then met with the broker in May 2013 to execute their purchase offer. Two weeks later, respondents prepared their estimate of the market value of the subject property, which was significantly higher than the purchase price.

Supreme Court held that one can “scarcely envision a better indicator of value than the price established within two weeks of the assessed valuation date in an arm’s[ ]length sale of a property that was publicly listed for sale for a period of two years.” We agree, finding that petitioners’ evidence was certainly adequate to rebut the presumption of validity and also to meet their burden upon the summary judgment motion… . Respondents offered no evidence that suggests or reveals that the arm’s length transaction by which petitioners purchased the subject property was in any manner abnormal. Review of the record reveals that the reduction in the asking price was the natural product of the failure to sell the subject property for a period of two years, and respondents’ assertions to the contrary are mere speculation. Respondents further rely upon the affidavit of a licensed real estate appraiser, who explains that he arrived at the property valuation by using the comparable sales method. However, as this appraiser was unable to inspect the interior or exterior of the subject property, his report merely averaged the sales prices of similar nearby homes; he “was unable to make reliable adjustments to the comparable sales,” as the method requires … . As further adjustments in the valuation might be required, he concluded that “[his] analysis is subject to change.”

Respondents’ submissions thus failed to provide a “fair and realistic value” of the subject property … and were conclusory and speculative, such that they were insufficient to defeat summary judgment … . Matter of Weslowski v Assessor of The City of Schenectady, 2017 NY Slip Op 05784, 3rd Dept 7-20-17

REAL PROPERTY TAX LAW (HOMEOWNERS’ REBUTTED THE PRESUMPTION THAT THE TAX ASSESSMENT OF THEIR PROPERTY WAS VALID 3RD DEPT)

/

ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT.

The Third Department determined the two-year shutdown of electrical power generating facility, which uses Hudson River water to cool machinery and discharges warm water back into the Hudson, was not a permanent shutdown and therefore the operating permits were properly renewed by the Department of Environmental Conservation (DEC):

Contrary to petitioner’s contention, DEC was not required to hold a public adjudicatory hearing prior to issuing final … permits. It was incumbent upon DEC, after evaluating the permit applications and reviewing all comments submitted in response to them, to “determine whether or not to conduct a public hearing ‘based on whether the evaluation or comments raise substantive and significant issues relating to any findings or determinations [DEC] is required to make . . ., including the reasonable likelihood that [the permits] will be denied or can be granted only with major modifications to the project” … . The ultimate burden rested on petitioner to show that its issues were “substantive and significant” enough to warrant a public hearing … .

In that regard, while petitioner raised a number of concerns regarding the draft … permit, it also acknowledged that the draft permit was largely identical to the existing permit… , one that DEC noted had only been issued after extensive administrative proceedings and an adjudicatory hearing. Moreover, to the extent that the draft … permit modified the terms of the prior permit, those modifications reduced the impact of the station upon the river. The objection to the Title V permit amounted to the rather obvious point that a station in service would create more atmospheric emissions than one offline. DEC issued a written response to petitioner’s comments and, while it did make modifications as a result of the concerns raised, it gave no reason to believe that those concerns might have required extensive retooling of either permit or imperiled their issuance altogether. Accordingly, mindful as we are that our judgment should not be substituted for that of the agency, the determination that petitioner had failed to demonstrate the need for an adjudicatory hearing was not arbitrary and capricious … . Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 2017 NY Slip Op 05778, 3rd Dept 7-20-17

ENVIRONMENTAL LAW (ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)/HUDSON RIVER (ENVIRONMENTAL LAW, ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)/DISCHARGE, WARM WATER (ENVIRONMENTAL LAW, ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)

/ ,

AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT.

The Third Department noted that an agreement to pay commissions is an agreement that can be performed in one year, so an oral agreement to pay commissions is not subject to the statute of frauds:

“An agreement to pay an at-will employee commissions earned during the period of his or her employment is capable of performance within one year and does not violate the [s]tatute of [f]rauds” … . Here, the gravamen of plaintiff’s complaint is not about renewal commissions that accrued after his resignation from WorldClaim … . Rather, plaintiff seeks the payment of commissions that he claims were earned while he was still employed by WorldClaim … . Indeed, the complaint alleged that plaintiff, “[d]uring the period from approximately April 2011 to January 2012, . . . earned $104,525 in commissions from sales, [and] $25,000 in monthly bonuses.” Given that plaintiff was still employed by WorldClaim during this alleged time period, the statute of frauds does not bar plaintiff’s claim for unpaid commissions … . Kieper v The Fusco Group Partners Inc., 2017 NY Slip Op 05782, 3rd Dept 7-20-17

EMPLOYMENT LAW (STATUTE OF FRAUDS, COMMISSIONS, AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT)/CONTRACT LAW (EMPLOYMENT LAW, COMMISSIONS, STATUTE OF FRAUDS,  AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT)/STATUTE OF FRAUDS (EMPLOYMENT LAW, COMMISSIONS, AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy