You are here: / AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF...

Search Results

/ ,

AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES.

The Fourth Department, after conducting a weight of the evidence analysis, determined the proof was not sufficient to demonstrate beyond a reasonable doubt that defendant shared the intent of his son who stabbed the victim eight times. Therefore the assault first conviction was reversed. The proof indicated the defendant may have been away from the victim, looking for his dog, when his son stabbed the victim:

Although “all of the elements [of the crime] and necessary findings are supported by some credible evidence,” we conclude that an acquittal would not have been unreasonable … . We therefore must “independently assess all the proof; substitute [our] own credibility determinations for those made by the jury [if necessary]; determine whether the verdict was factually correct; and acquit . . . defendant if [we] are not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt”… . Here, defendant was charged as an accessory, and thus the People had to “prove beyond a reasonable doubt that [defendant] acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crime”  … . We conclude that the People failed to prove beyond a reasonable doubt that defendant acted with the requisite mental culpability to commit assault in the first degree by causing serious physical injury to the victim by the use of a dangerous instrument, or that he solicited, requested, commanded, importuned or intentionally aided his son in committing the offense … . People v Farley, 2017 NY Slip Op 03634, 4th Dept 5-5-17

CRIMINAL LAW (AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, ACCESSORY LIABILITY, AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/ACCOMPLICE, ACCESSORY LIABILITY (AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)

/ ,

IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT. 

The Fourth Department, reserving on the appeal until County Court rules on other issues related to the suppression of the identification of the defendant, determined County Court erred when it concluded the identification of the defendant by a parole officer viewing a surveillance video was not an unduly suggestive procedure. The Fourth Department first noted that the issue was not preserved for appeal by the motion papers, but was appealable because County Court considered the issue in its findings. The Fourth Department held the procedure unduly suggestive because the parole officer was told who the police were seeking to identify before viewing the video:

… [W]e agree with defendant that, contrary to the court’s determination that “[t]here was no influence or suggestion” by the investigator, the evidence establishes that the investigator suggested to the parole officer prior to her identification that the person depicted committing the robbery on the surveillance video was defendant … . Instead of requesting the parole officer’s assistance in identifying someone from the video without preemptively disclosing the subject of his investigation, the investigator engaged in a conversation “about her being a parole officer for [defendant].” During the conversation, the investigator “asked [the parole officer] if she was familiar with [defendant].” The parole officer responded that she had “lots of contact” with defendant, so the investigator proceeded to ask her to “come down and view a video.” The investigator subsequently met with the parole officer at the police department and asked her to view the video to determine if she recognized anyone, and the parole officer identified defendant as the person committing the robbery. We conclude that the investigator, by contacting the parole officer and inquiring about her familiarity with defendant prior to the parole officer’s viewing of the video, engaged in … undue suggestiveness … inasmuch as his comments improperly suggested to the parole officer that the person she was about to view was a particular acquaintance of hers, i.e., defendant … . People v Gambale, 2017 NY Slip Op 03658, 4th Dept 5-5-17

 

/ , ,

PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Fourth Department, in the interest of justice, reversed defendant’s conviction based upon prosecutorial misconduct and ineffective assistance of counsel (failure to object to the prosecutor’s remarks in summation and failure to object to evidence of defendant’s prior bad acts for which no admissibility ruling was sought):

Here, the prosecutor engaged in misconduct during her closing statement by repeatedly appealing to the jury’s sympathy, asking the jury to do justice and protect the victim by convicting defendant, bolstering the victim’s credibility and injecting the prosecutor’s personal opinions into the trial. Perhaps most egregiously, in arguing that the jury should reject defendant’s testimony that he confessed falsely to the police because he needed to use the bathroom, the prosecutor gave her personal opinion regarding defendant’s credibility by stating that she would sit in her own urine rather than falsely admit that she committed a crime. “We can only conclude herein that the prosecutor’s inflammatory [comments had] a decided tendency to prejudice the jury against the defendant’ “… . Consequently, we conclude that the cumulative effect of the prosecutorial misconduct, which substantially prejudiced defendant’s rights … , requires reversal.

Furthermore, “[i]n light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation” … . Defense counsel also failed to object when the prosecutor introduced evidence of prior bad acts despite having failed to seek a ruling regarding the admissibility thereof, most notably the testimony of a sheriff’s deputy that, months before this incident, defendant stole the victim’s truck and was arrested for driving it while intoxicated while on the way to attack a person with whom he believed the victim was having an affair. Defense counsel also failed to object when the prosecutor cross-examined defendant regarding that issue. Thus, reversal is also required because defense counsel was ineffective in “fail[ing] to object to prejudicial evidence of prior uncharged crimes and bad acts introduced by the prosecutor” … . People v Case, 2017 NY Slip Op 03638, 4th Dept 5-5-17

 

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT’S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/APPEALS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/PRIOR BAD ACTS (FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT’S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

/ ,

RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER.

The Third Department, reversing Supreme Court, determined a release referred only to claims arising from injuries suffered by defendant, and not injuries suffered by another:

In March 2013, third-party defendant John Salewski, while operating a tractor trailer owned by his employer and third-party defendant Werner Enterprises, Inc., was involved in a collision with a tractor trailer operated by defendant. Plaintiff is Salewski’s wife and was a passenger in the vehicle operated by Salewski at the time of the accident. Defendant commenced a personal injury action against Salewski and Werner for damages allegedly sustained in that accident. That action was settled in June 2014, and, in connection therewith, defendant executed a general release in favor of Salewski and Werner. In April 2015, plaintiff commenced this action against defendant for damages that she allegedly sustained as a result of the accident. Defendant answered and thereafter commenced a third-party action for contribution and indemnification against Salewski and Werner. Instead of answering, Salewski and Werner moved to dismiss the third-party complaint pursuant to CPLR 3211 (a) (5) on the ground of release. Supreme Court granted the motion, holding that the plain language of the release barred the third-party action. * * *

Here, the release clearly defines the incident, the claim and the lawsuit. The fact that there are multiple references to the term “injuries” indicates an unambiguous intention to limit the release’s application only to the personal injuries suffered by defendant in the incident. We further find this language to be a clear and unambiguous expression of the parties’ intention that the release applies only to claims related to defendant’s injuries. As such, and giving full meaning and effect to its material provisions, the release plainly manifests an intent to release Salewski and Werner for any and all claims related to defendant’s personal injuries, and not to claims for contribution and indemnification for injuries allegedly suffered by another party — here, plaintiff … . Salewski v Music, 2017 NY Slip Op 03582, 3rd Dept 5-5-17

 

CONTRACT LAW (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)/NEGLIGENCE (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)/RELEASES (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)

/ ,

A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER.

The Fourth Department noted that the sentencing court did not have the power to enhance defendant’s sentence for refusing to sign a waiver of appeal because the plea agreement did not call for a written waiver:

While waiving the right to appeal was a condition of the plea bargain, the execution of a written waiver was not, and thus the court was not empowered to enhance the sentence on that ground … . We therefore modify the judgment by reducing the term of imprisonment from a determinate term of 25 years to a determinate term of 20 years, and the period of postrelease supervision from 5 years to 2½ years, in accordance with the plea agreement. People v Days, 2017 NY Slip Op 03632, 4th Dept 5-5-17

CRIMINAL LAW (A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER)/APPEALS (CRIMINAL LAW, WAIVER, A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER)/WAIVER OF APPEAL (CRIMINAL LAW, A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER)

/

SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT’S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM.

The Third Department determined the Special Fund was responsible for the decedent’s Workers’ Compensation claim. Decedent’s claim had been transferred to the Special Fund in 2002. The fact that decedent died after the 2014 cutoff for newly reopened claims was irrelevant:

The Special Fund argues that it is not liable because the consequential death claim is a new claim and, since it was filed after the January 1, 2014 cutoff for newly reopened claims against the Special Fund, liability against it is precluded (see Workers’ Compensation Law § 25-a [1-a]). The Special Fund is correct that “a claim for death benefits . . . is a separate and distinct legal proceeding brought by the beneficiary’s dependents and is not equated with the beneficiary’s original disability claim” … . Indeed, there are separate statutory provisions for disability and death benefits (compare Workers’ Compensation Law § 15, with Workers’ Compensation Law § 16). However, where, as here, liability for a claim has already been transferred from the carrier to the Special Fund and the employee thereafter dies for reasons causally related to the original claim, the Special Fund remains liable for the claim for death benefits … . Thus, under these circumstances, claimant need not obtain another transfer of liability to the Special Fund upon decedent’s death, as liability had already been transferred. In that regard, Workers’ Compensation Law § 25-a (1-a), which closed the Special Fund to newly reopened cases as of January 1, 2014, has no bearing on the Special Fund’s liability for a claim for which liability was transferred to it in 2000 ,,, . This result is consistent with the purpose of Workers’ Compensation Law § 25-a, which “is to shift the liability for paying stale claims to the [Special] Fund” … . Matter of Misquitta v Getty Petroleum, 2017 NY Slip Op 03585, 3rd Dept 5-4-17

WORKERS’ COMPENSATION LAW (SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT’S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM)/SPECIAL FUND (WORKERS’ COMPENSATION LAW, SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT’S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM)

/ , ,

STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS.

The Third Department, reversing (modifying) Supreme Court, determined a state trooper, defendant Begeal, was entitled to summary judgment in this personal injury case because he was immune from suit for his actions, which were discretionary. Plaintiff physician assistant was injured by a patient (Lacey) brought into the hospital by law enforcement officers, including Begeal. Plaintiff was kicked by the patient and alleged Begeal negligently failed to restrain the patient’s legs:

Although Begeal had access to plastic leg restraints, the undisputed evidence established that, at the time that he left the examination room, Lacey was still handcuffed, was “extremely calm” and had allowed a nurse to remove pieces of glass from his feet without kicking or otherwise resisting the nurse’s efforts. Begeal thus made a “reasoned judgment” not to utilize the leg restraints … . Accordingly, “[t]he decision to employ [only handcuffs] was a discretionary one . . ., and [Begeal] may not be held liable for that determination” … . …

Begeal’s decision to leave the examination room to permit the medical personnel to examine Lacey in private was likewise discretionary. Although Lacey was combative when he first arrived at the hospital, Begeal did not leave the examination room until approximately 20 minutes after that time and only after ensuring that Lacey had calmed down. Based on these circumstances, Begeal “did not feel that [the hospital personnel and Feeney] were in any immediate danger” and concluded that he could safely leave the room and go to the main area in order to, among other things, wash off Lacey’s blood from his clothes. While Begeal’s judgment call proved to be incorrect, “it is not for courts to second-guess the wisdom of discretionary governmental choices, troubling though they may sometimes seem in the glaring clarity of hindsight” … . Feeney v County of Del., 2017 NY Slip Op 03583, 3rd Dept 5-4-17

 

NEGLIGENCE (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/MUNICIPAL LAW (IMMUNITY, STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/GOVERNMENTAL IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)

/ , ,

DEFENDANT IN THIS CONDOMINIUM ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE.

The First Department determined the defendant in this condominium foreclosure action was not entitled to a mandatory mortgage foreclosure settlement conference. The court had ordered settlement conferences in the past and defendant had refused to participate:

The express language of the condominium’s bylaws permitted the appointment of a receiver, without notice, to collect unpaid common charges in this foreclosure action. Further, the record demonstrates that while defendant, an owner of an apartment in the condominium, paid maintenance arrears after plaintiff board filed a notice of lien and commenced the action to foreclose on the lien, she still owed plaintiff for assessments, late fees and associated attorney’s fees. Accordingly, plaintiff was entitled to seek judgment for these fees, which constitute common charges under the bylaws… . We reject defendant’s claim that she was entitled to a mandatory mortgage foreclosure settlement conference, particularly since the court directed the parties to engage in settlement conferences to resolve this matter, and it appears that defendant, for the most part, refused to participate. Board of Mgrs. of St. James’s Tower Condominium v Kutler, 2017 NY Slip Op 03605, 1st Dept 5-4-17

FORECLOSURE (CONDOMINIUMS, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (FORECLOSURE, MANDATORY SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CONDOMINIUMS (FORECLOSURE, MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

/

PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED.

The Third Department, reversing Family Court, determined petitioner, the maternal aunt, did not meet the heavy burden of demonstrating extraordinary circumstances warranting the removal of the child from the parents’ custody and the award of custody to petitioner. Temporary custody was awarded to petitioner on the basis of an abuse allegation that was deemed unfounded. The decision to remove the child from the parents’ custody was made after an investigation revealed the parents’ home was filthy, with feces on the floor and walls and a flea infestation. However, after the home was cleaned up and the parents moved back in the condition of the home remained acceptable. The parents arranged to move in with grandparents and the grandparents agreed to supervise and help the parents:

The ground of persistent neglect warranting disruption of parental custody rights at issue here requires a showing “that the parents engaged in gross misconduct or other behavior evincing an utter indifference and irresponsibility” relative to the parental role …  . This Court has previously held that “allowing . . . children to live in squalor” is among the parental behaviors that, considered together with other undesirable conduct, may constitute gross misconduct rising to the level of extraordinary circumstances … . At the outset, it bears noting that we are sympathetic to Family Court’s determination. The evidence at the fact-finding hearing revealed no mitigating explanation for respondents’ failure to maintain minimum sanitary standards in their home; both were unemployed during the time period before the inspection, and there was no evidence that either was hampered by any illness or disability. Joblessness and poverty undeniably lead to significant difficulties in maintaining adequate housing and hardships in raising children, but are not any cause for subjecting children to feces-strewn homes; such conditions result solely from lack of care. Nevertheless, … based upon all of the record evidence, we cannot find that petitioner satisfied her “heavy burden” to establish the existence of extraordinary circumstances … , and are thus constrained to reverse.

The record reveals that respondents immediately corrected the unsanitary conditions when directed to do so, such that child protective authorities permitted the younger children to return to live there. A caseworker testified that the house “exceeded minimal standards” after this intervention, and that respondents cooperated with child protective authorities throughout the investigation and followed through on everything that was asked of them. The father acknowledged that the previous conditions in the home were unacceptable, and both he and the mother testified that they would not let this happen again. The record does not reveal any further problems or complaints about respondents’ care of their children after the initial home visit. No further child protective actions were taken, the child was permitted to return to respondents’ home for regular visits during the pendency of the fact-finding hearing, and the younger children remained in respondents’ custody without interruption. Matter of Jennifer BB. v Megan CC., 2017 NY Slip Op 03576, 3rd Dept 5-4-17

FAMILY LAW (PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/CUSTODY (NON-PARENT, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NEGLECT (FILTHY LIVING CONDITIONS, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NON-PARENTS (CUSTODY, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)

/ ,

ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW.

The Third Department determined the action pursuant to the Civil Service Law was not precluded because an action based on the same facts was still pending under the grievance procedure of the collective bargaining agreement (CBA). The Civil Service Law action was not dependent in any way on the CBA action. The petition challenged the hiring of Walsh as a part-time university police officer (UPO) by the State University of New York (SUNY):

… [T]he petition before us does not challenge any grievance determination by SUNY, nor does it cite a breach of any provision of the CBA as a basis for relief … . Instead, it challenges the appointment of Walsh on the ground that it violated Civil Service Law § 64. Although the remedies sought include an award of back pay for lost overtime assignments, available only under the CBA, counsel for petitioner confirmed, at oral argument of this appeal, that petitioner was no longer seeking such an award. Because petitioner does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA’s grievance procedure … . Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA [7.1 (a)]; second, concerning a term or condition of employment [7.1 (b)]; and third, concerning a claim of improper or unjust discipline [7.1 (c)]. None of these provisions can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY. Since these provisions are inapplicable, use of the grievance process to challenge the appointment on statutory grounds would have been futile … . Given that the appointment of Walsh is final, is alleged to have resulted in an actual, concrete injury to petitioner and because the question presented is “purely legal,” we find that the matter is ripe for judicial review … . Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, 3rd Dept 5-4-17

EMPLOYMENT LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/ADMINISTRATIVE LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/CIVIL SERVICE LAW (EMPLOYMENT LAW, ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/COLLECTIVE BARGAINING AGREEMENT (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)

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