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SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT.

The Second Department determined the school’s motion for summary judgment was properly granted. Plaintiff and her father were allegedly assaulted 30 to 100 feet beyond the entrance to the infant plaintiff’s school by students from the school:

With respect to the contention that the defendants may be liable for the infant plaintiff’s injuries, a school’s duty is coextensive with, and concomitant with, its physical custody and control over a child …. “When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly  free to reassume control over the child’s protection, the school’s custodial duty also ceases” … . “As a result, where a student is injured off school premises, there can generally be no actionable breach of a duty that extends only to the boundaries of school property” … . Here, the defendants established, prima facie, that they may not be held liable for the infant plaintiff’s injuries since, at the time of the subject incident, the infant plaintiff was no longer in their custody or under their control and was, thus, outside the orbit of their authority … .

Nor is there a basis to impose liability upon the defendants for the injuries sustained by the infant plaintiff or her father for failure to provide adequate security, since the defendants demonstrated that they did not affirmatively assume a duty to protect either plaintiff from criminal activity which occurred off the school premises … . Hernandez v City of New York, 2017 NY Slip Op 00962, 2nd Dept 2-8-17

 

EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)/NEGLIGENCE (SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)/ASSAULT (NEGLIGENCE, SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)

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FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department, in a case remitted after reversal by the Court of Appeals, determined the trial judge’s failure to respond to the deliberating jury’s request for a witness’s (Richard’s) testimony by reading both the direct and the cross deprived defendant of a fair trial. The Second Department had previously found the error to be a mode of proceedings error that required reversal in the absence of an objection. The Court of Appeals held the error was not a mode of proceedings error. On remand the Second Department addressed the unpreserved error in the interest of justice:

Although the defendant’s contentions regarding the jury note are unpreserved for appellate review, as no objections were raised (see CPL 470.05[2]), we reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]). Under the circumstances of this case, the trial court’s failure to meaningfully respond to the jury note requesting a readback of Richards’ testimony deprived the defendant of a fair trial … . ” [A] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise'” ,,, . Richards was the only witness to the argument and the shooting, other than the complainant and the defendant. Richards’ cross-examination testimony included testimony that was relevant to the defense, directly impeached significant portions of his direct examination testimony, and was detrimental to the prosecution. As a result, the trial court’s readback of only Richards’ direct examination testimony in response to the jury’s request seriously prejudiced the defendant … . People v Morris, 2017 NY Slip Op 01007, 2nd Dept 2-8-17

CRIMINAL LAW (FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/JURY NOTES (CRMINAL LAW, FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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CPLR 205 (a), WHICH ALLOWS SIX MONTHS FOR RECOMMENCING AN ACTION AFTER DISMISSAL, APPLIES TO FORECLOSURE PROCEEDINGS, EVEN WHEN THE CURRENT HOLDER OF THE NOTE IS A SUCCESSOR IN INTEREST TO THE PARTY WHICH STARTED THE FORECLOSURE ACTION.

The Second Department, in a full-fledged opinion by Justice Maltese, determined the six-month extension of a statute of limitations provided by CPLR 205 (a) applied in this foreclosure action. The court summarized the rulings as follows:

Under certain conditions, CPLR 205(a) provides an additional six months in which to recommence a prior action that has been dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits. The first question in this case is whether a prior action to foreclose the same mortgage was dismissed for neglect to prosecute, a category of dismissal that renders CPLR 205(a) inapplicable. We answer this question in the negative, concluding that the prior action was not dismissed for neglect to prosecute.

The second question is more novel. We must determine whether the plaintiff in this mortgage foreclosure action, which was assigned the note and mortgage during the pendency of the prior foreclosure action, is entitled to the savings provision—or grace period—of CPLR 205(a) even though the prior action was commenced by a prior holder of the note. … [W]e conclude that a plaintiff in a mortgage foreclosure action which meets all of the other requirements of the statute is entitled to the benefit of CPLR 205(a) where, as here, it is the successor in interest as the current holder of the note. Wells Fargo Bank, N.A. v Eitani, 2017 NY Slip Op 01015, 2nd Dept 2-8-17

 

CIVIL PROCEDURE (CPLR 205 (a), WHICH ALLOWS SIX MONTHS FOR RECOMMENCING AN ACTION AFTER DISMISSAL, APPLIES TO FORECLOSURE PROCEEDINGS, EVEN WHEN THE CURRENT HOLDER OF THE NOTE IS A SUCCESSOR IN INTEREST TO THE PARTY WHICH STARTED THE FORECLOSURE ACTION)/FORECLOSURE (CPLR 205 (a), WHICH ALLOWS SIX MONTHS FOR RECOMMENCING AN ACTION AFTER DISMISSAL, APPLIES TO FORECLOSURE PROCEEDINGS, EVEN WHEN THE CURRENT HOLDER OF THE NOTE IS A SUCCESSOR IN INTEREST TO THE PARTY WHICH STARTED THE FORECLOSURE ACTION)

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THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR NYC PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the various record-keeping and inspection statutes and regulations which apply to New York City pawnbrokers did not violate the unreasonable search and seizure prohibition in Article I, section 12 of the New York State Constitution. Therefore, the preliminary injunction prohibiting enforcement of the statutes, regulations and procedures should not have been granted:

Here, the statutory and regulatory framework at issue consists of two distinct components: not merely inspection requirements involving targeted, on-premises administrative inspections by government officials, but also substantial reporting requirements, involving submission of transactional information to the government.

To the extent the statutory and regulatory framework involves transactional reporting requirements, it does not involve either physical inspections or administrative searches of a business or its records; instead, it merely requires the submission of information in which the businesses have little, if any, expectation of privacy. * * *

Even if we focus on those provisions that authorize inspections, and characterize them as administrative searches, plaintiffs failed to demonstrate a likelihood that they will prevail. The Court of Appeals … acknowledged the continued viability of an “administrative search” exception to the constitutional requirements of probable cause and warrants. While that exception “cannot be invoked where … the [administrative] search is undertaken solely to uncover evidence of criminality’ and the underlying regulatory scheme is in reality, designed simply to give the police an expedient means of enforcing penal sanctions'” … , a regulatory administrative search scheme can pass muster under New York’s Constitution where it is “pervasive and include[s] detailed standards in such matters as, for example, the operation of the business and the condition of the premises” … . Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2017 NY Slip Op 00953, 1st Dept 2-7-17

 

MUNICIPAL LAW (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/CONSITUTIONAL LAW (NYS) (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/PAWNBROKERS (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/ADMINISTRATIVE SEARCHES (NYC) (PAWNBROKERS, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/SEARCH AND SEIZURE (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)

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NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE.

The First Department, reversing Supreme Court, determined plaintiff’s notice of claim in this medical malpractice action was timely served as a matter of law under the continuous treatment doctrine. Two justices, in a concurring decision, agreed that the action should not have been dismissed, but argued there was a question of fact whether the continuous treatment doctrine applied:

On January 25, 2006, plaintiff served a notice of claim on defendant HHC. At the 50-h hearing in June 2006, plaintiff testified that while her last actual medical treatment at Lincoln Hospital occurred on October 19, 2005, when hospital personnel removed the sutures from her leg, she received a follow-up appointment to return to Lincoln Hospital on October 24, 2005. Plaintiff stated that she arrived at Lincoln Hospital for treatment on that date, but was informed that the staff could not locate her medical records and that she should return to the Hospital in one week, on October 31, 2005. Plaintiff testified that she did, in fact, return on October 31, only to have the staff inform her that they did not accept her insurance and that she should seek treatment elsewhere.

… [P]laintiff argued, her last treatment date was October 31, 2005 and thus, she had timely served her notice of claim on January 25, 2006. Hill v New York City Health & Hosps. Corp., 2017 NY Slip Op 00914, 1st Dept 2-7-17

 

MUNICIPAL LAW (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)

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PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW.

The First Department affirmed the dismissal of a former police officer’s complaint which alleged he was fired from his job at Con Edison because of his convictions, in violation of the state and city Human Rights Law. While a police officer, the plaintiff was charged with beating and sodomizing an arrestee in a notorious case. Plaintiff’s assault-related convictions were vacated and the jury deadlocked in the second trial. The only conviction which remained was for perjury. Plaintiff was fired because of workplace disruption and customer relations stemming from plaintiff’s perceived involvement in the assault. The First Department determined the firing was not the result of discrimination based upon the perjury conviction. The vacated convictions were not “convictions” covered by the statutory prohibition:

The assault-related convictions on which plaintiff was retried, and the jury deadlocked, are not covered by article 23-A [of the Correction Law], since the article applies only to individuals who “previously have been convicted,” and the vacatur of plaintiff’s prior assault convictions rendered those convictions nullities … . Although plaintiff maintains that he remains “previously … convicted,” we reject this interpretation since it would permit an employer to deny employment based on a vacated conviction in reliance on the statutory exceptions … .

The legislative intent is to rehabilitate, and therefore avoid recidivism by, “ex-offenders,” not those whose convictions have been vacated, who generally do not need rehabilitation and are not at risk of recidivism … . “Although ex-offenders were urged when released from prison to find employment as a part of their rehabilitation, they had great difficulty in doing so because of their criminal records…. Failure to find employment … injured society as a whole by contributing to a high rate of recidivism … Thus, [article 23-A] sets out a broad general rule that employers and public agencies cannot deny employment or a license to an applicant solely based on status as an ex-offender” … . Schwarz v Consolidated Edison, Inc., 2017 NY Slip Op 00927, 1st Dept 2-7-17

 

EMPLOYMENT LAW (DISCRIMINATION, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)/CONVICTIONS (HUMAN RIGHTS LAW, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)

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DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED.

The Fourth Department determined the ruling of the zoning board of appeals (ZBA) was properly upheld by Supreme Court. Petitioner-trust owns a landlocked undeveloped parcel. An offer to buy the parcel was contingent on the grant of variances allowing off-site billboards visible from the adjacent highway. The town code allows only on-site billboards. The ZBA denied the variances.

We reject petitioners’ contention that the ZBA acted arbitrarily and capriciously in determining that they failed to establish the factors constituting unnecessary hardship required for the issuance of the use variances (see Town Law § 267-b [2] [b]). The court properly determined, upon review of the record as a whole, including the evidence submitted to the ZBA, the findings and conclusions articulated by the ZBA during the hearing, and its subsequent letter decision … , that there is substantial evidence supporting the ZBA’s determination that the hardship was self-created (see § 267-b [2] [b] [4]). * * * … [T]he Trust possesses the same unused, oddly-shaped, difficult-to-develop property that [its predecessor] purchased, and although the purchase may now be viewed as a poor investment, courts are not responsible for “guarantee[ing] the investments of careless land buyers” … .

Contrary to petitioners’ contention, the court properly concluded that there is substantial evidence supporting the ZBA’s determination that the billboards would have a negative and adverse effect upon the character of the neighborhood inasmuch as the relevant area could not aesthetically support additional signs … . Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 2017 NY Slip Op 00874, 4th Dept 2-3-17

ZONING (DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)/VARIANCES (ZONING, DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)/BILLBOARDS (ZONING, DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)

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DETERMINATION ALLOWING USE OF RESIDENTIAL STREETS TO ACCESS A CLAY MINING OPERATION REVERSED, NO DEMONSTRATION PROPERTY WAS WORTHLESS UNDER EXISTING ZONING.

The Fourth Department, reversing the zoning board of appeals (ZBA) and Supreme Court, held that the ZBA’s determination allowing respondent Seneca Meadows Inc (SMI) to use residential streets to access a clay mining operation was irrational and unreasonable. SMI did not demonstrate that no reasonable return may be obtained from the property under existing zoning:

SMI’s proposed clay mine is located within its agriculturally zoned parcel, but it is bordered by its commercially and residentially zoned parcels that provide access to public roads. The Zoning Law of the Town of Waterloo prohibits commercial excavation operations in residential districts. Nevertheless, the ZBA upheld [the code enforcement officer’s] determination that the access road can cross the residential district because the agricultural portion of the property is landlocked. …

The ZBA’s and the court’s reliance on our determination in Matter of Passucci v Town of W. Seneca (151 AD2d 984) is misplaced. In that case, similar to this case, the commercially zoned portion of the petitioner’s property was landlocked, and the only access was over the residentially zoned portion of the property (id. at 984). In that case, however, the Town’s ordinance prohibited the petitioner from using the residential portion of his premises to access his commercial portion, and thus enforcing the zoning restriction would be unconstitutionally applied inasmuch as it “would prevent [the petitioner] from making any use of the property and would destroy its economic value” (id. …). SMI has failed to carry its “heavy burden of establishing that no reasonable return may be obtained from the property under the existing zoning” … . Matter of Lemmon v Seneca Meadows, Inc., 2017 NY Slip Op 00798, 4th Dept 2-3-17

 

ZONING (DETERMINATION ALLOWING USE OF RESIDENTIAL STREETS TO ACCESS A CLAY MINING OPERATION REVERSED, NO DEMONSTRATION PROPERTY WAS WORTHLESS UNDER EXISTING ZONING)

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PETITIONER DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE REAL PROPERTY TAX ASSESSMENT WAS VALID.

The Fourth Department determined the petitioner (city) did not overcome the presumption that the respondent’s (town’s) real property tax assessment was valid. The city owned a drinking water reservoir and dam area in the town. The city failed to produce an appraisal to challenge the town’s assessment. Therefore, the town was not required to come forward with any proof to support the assessment:

It is the rule in an RPTL article 7 proceeding that the “locality’s tax assessment is presumptively valid,” but that “[the] petitioner may overcome that presumption by bringing forth substantial evidence that its property has been overvalued” … . “In the context of a proceeding to challenge a tax assessment, substantial evidence will often consist of a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser” … . Until the presumption of the validity of the assessment is overcome, there is no obligation on the part of the assessor to come forward with proof of correctness of the assessment … . Only if the petitioner rebuts the presumption of validity must the court then examine and “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . …

Here, the record contains no competent appraisal evidence by which the court plausibly might have determined that the fair value of the parcel was, on each of the taxable dates in question, $11.45 million. Given that lack of proof of valuation, it must be concluded that petitioner failed to carry its evidentiary burden in challenging its tax assessment … . Matter of City of Rome v Board of Assessors, 2017 NY Slip Op 00864, 4th Dept 2-3-17

 

REAL PROPERTY TAX LAW (PETITIONER DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE REAL PROPERTY TAX ASSESSMENT WAS VALID)/MUNCIPAL LAW (REAL PROPERTY TAX LAW, CITY DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE TOWN’S REAL PROPERTY TAX ASSESSMENT WAS VALID)

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COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT, THEREFORE, BE DISTURBED BY THE COURT; TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY.

The Fourth Department determined Supreme Court properly determined the respondent county had timely notified petitioner of the denial of petitioner’s request for Medicaid overburden expenditures. If the denial had been deemed untimely, petitioner argued, the county would be required to pay. The court noted that the county’s interpretation of the relevant time limits was rational and therefore could not be disturbed by a court. The court further noted that, even if the time limits had been exceeded, denial of the claim would still have been proper because the time limits are discretionary in this context:

It is well settled that “the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable” … . * * *

… [I]t is well settled that, “[a]bsent an express limitation upon the power of a particular agency to act after the expiration of the relevant statutory period, the time limits within which an administrative agency must act generally are construed as discretionary” … . As the Court of Appeals noted, ” [a] rule that rendered every administrative decision void unless it was determined in strict literal compliance with statutory [or regulatory] procedure would not only be impractical but would also fail to recognize the degree to which broader public concerns, not merely the interests of the parties, are affected by administrative proceedings’ ” … . Matter of County of Oneida v Zucker, 2017 NY Slip Op 00785, 4th Dept 2-3-16

MEDICAID (OVERBURDEN EXPENDITURES, COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT BE DISTURBED BY THE COURT, TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY)/ADMINISTRATIVE LAW (COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT BE DISTURBED BY THE COURT, TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY)

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