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A VERDICT FINDING DEFENDANT GUILTY OF GRAND LARCENY BUT NOT GUILTY OF POSSESSION OF STOLEN PROPERTY WOULD NOT BE REPUGNANT; INSTRUCTING THE JURY OTHERWISE WAS REVERSIBLE ERROR.

The First Department determined the jury was erroneously instructed they could not find the defendant guilty of grand larceny but not guilty of possession of stolen property. A new trial was ordered. The court explained the analytical criteria for a repugnant verdict:

The repugnancy test is “essentially a variant of the theoretical impossibility’ test that is applied in the realm of lesser included offenses” … . Notwithstanding the overwhelming evidence as to both submitted counts in this case, and notwithstanding the practical remoteness of the possibility that a person who commits grand larceny will not also be guilty of criminal possession of the property he or she steals, our examination of the elements of the two crimes persuades us that it is theoretically possible for a person to possess the mental state required for guilt of grand larceny in the third degree, and at the same time lack the mental state necessary for guilt of criminal possession of stolen property in the third degree. Accordingly, the mixed verdict contemplated in the challenged instruction would not have been a repugnant verdict, and the court therefore erred in instructing the jury that it was “not a legally permissible verdict.” People v Simmons, 2016 NY Slip Op 06175, 1st Dept 9-28-16

CRIMINAL LAW (A VERDICT FINDING DEFENDANT GUILTY OF GRAND LARCENY BUT NOT GUILTY OF POSSESSION OF STOLEN PROPERTY WOULD NOT BE REPUGNANT; INSTRUCTING THE JURY OTHERWISE WAS REVERSIBLE ERROR)/REPUGNANT VERDICT (CRIMINAL LAW, A VERDICT FINDING DEFENDANT GUILTY OF GRAND LARCENY BUT NOT GUILTY OF POSSESSION OF STOLEN PROPERTY WOULD NOT BE REPUGNANT)

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AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT.

The Second Department affirmed the sanctions/attorney’s fees awarded for frivolous conduct. The court noted that an aggrieved party need not demonstrate pecuniary loss to warrant an award and an attorney who represents himself defending against frivolous conduct is entitled to an award:

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). “In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court’s sound discretion … . * * *

While compensatory sanctions should correspond at least to some degree to the amount of damages, the aggrieved party is not always required to show ” actual pecuniary loss'”… . …

An attorney … , who represents himself, may recover fees for ” the professional time, knowledge and experience . . . which he would otherwise have to pay an attorney for rendering'” … . Board of Mgrs. of Foundry at Wash. Park Condominium v Foundry Dev. Co., Inc., 2016 NY Slip Op 06189, 2nd Dept 9-28-16

 

ATTORNEYS (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/CIVIL PROCEDURE (FRIVOLOUS CONDUCT, AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/FRIVOLOUS CONDUCT (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)

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PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED BY A PARTICULAR TRAIN AND THE OPERATOR OF THE TRAIN WAS NEGLIGENT; GRANT OF MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT AFFIRMED.

The First Department, over a two-justice dissent, determined the NYC Transit Authority’s motion to set aside the verdict was properly granted. Plaintiff, who had no memory of the incident, claimed he was struck by defendant’s train due to the defendant train-operator’s (Lopez’s) negligence. The First Department found the evidence of both causation and negligence was speculative. With respect to the proof of the operator’s (Lopez’s) negligence, the court wrote:

… [A]ssuming arguendo that Lopez’s train caused plaintiff’s injury, plaintiff failed to make a prima facie showing that Lopez could have avoided injuring plaintiff if he had activated the train’s emergency brake upon observing plaintiff’s sneakers … . * * *

The [Ct.] of Appeals has explained that a train operator “may be found negligent if he or she sees a person on the tracks from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person'” (Soto v New York City Tr. Auth., 6 NY3d 487, 493 [2006] …). Contrary to the dissent’s arguments that our holding here “eviscerate[s]” Soto, this Court and our colleagues in the [2nd] Department have explained that Soto does not relieve a plaintiff of the burden to introduce competent evidence, nor does it allow a plaintiff to rely solely on conclusory assertions and mere speculation … . Obey v City of New York, 2016 NY Slip Op 06183. 1st Dept 9-27-16

 

NEGLIGENCE (TRAIN ACCIDENT, PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED BY BEING STRUCK BY A PARTICULAR TRAIN AND THE OPERATOR OF THE TRAIN WAS NEGLIGENT; GRANT OF MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT AFFIRMED)/TRAINS (NEGLIGENCE, PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED BY BEING STRUCK BY A PARTICULAR TRAIN AND THE OPERATOR OF THE TRAIN WAS NEGLIGENT; GRANT OF MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT AFFIRMED)

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TERMINATION OF TENURED TEACHER WAS TOO SEVERE A SANCTION FOR INAPPROPRIATE BEHAVIOR WHICH DID NOT VIOLATE ANY RULE.

The First Department, over a dissent, determined termination of a tenured teacher for inappropriate behavior which did not violate any rule was too severe a sanction. It was alleged, inter alia, the teacher asked his eighth-grade female students about their older sisters and accepted the phone number of one 23-year-old sister:

Based on all the circumstances of the case, including the lack of any prior allegations of misconduct against petitioner during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation, we find the penalty of termination sufficiently disproportionate to the offenses to shock the conscience … .

Moreover, petitioner had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, there is no evidence that a warning or reprimand or other penalty short of termination would not have caused petitioner to cease the objectionable conduct immediately.

While we share some of our dissenting colleague’s concern regarding petitioner’s behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, we do not agree that the law supports petitioner’s termination at this time. Matter of Williams v City of New York, 2016 NY Slip Op 06184, 1st Dept 9-27-16

 

EDUCATION-SCHOOL LAW (TERMINATION OF TENURED TEACHER WAS TOO SEVERE A SANCTION FOR INAPPROPRIATE BEHAVIOR WHICH DID NOT VIOLATE ANY RULE)/EMPLOYMENT LAW (TEACHERS, TERMINATION OF TENURED TEACHER WAS TOO SEVERE A SANCTION FOR INAPPROPRIATE BEHAVIOR WHICH DID NOT VIOLATE ANY RULE)/TEACHERS (TERMINATION OF TENURED TEACHER WAS TOO SEVERE A SANCTION FOR INAPPROPRIATE BEHAVIOR WHICH DID NOT VIOLATE ANY RULE)

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IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED.

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Acosta, over a two-justice dissent, determined the First Department’s prior ruling that a search warrant was invalid was the law of the case. The trial court had ruled new evidence demonstrated the validity of the warrant and granted a directed verdict in favor of the defendants (the city and police officers who procured and executed the search warrant). The plaintiffs, who had been pushed to the floor at gunpoint, handcuffed, and held for three hours while their apartment was searched (and trashed), sued alleging the violation of their civil rights:

This case gives us the opportunity to emphasize that when an issue is specifically decided on a motion for summary judgment, that determination is the law of the case. As such, the trial court, as well as the parties, are bound by it “absent a showing of subsequent evidence or change of law” … . Applying this rule to the case at hand, we specifically found in Delgado v City of New York (86 AD3d 502, 508 [1st Dept 2011] [Delgado I]), that the no-knock search warrant at issue was not valid. Thus, the trial court was bound by that determination absent the introduction of subsequent evidence to show otherwise. The evidence that was introduced at trial on the validity of the warrant, however, was not significantly different from what was previously before the court on the motion for summary judgment. Accordingly, the trial court erred in deeming the warrant valid and granting defendants’ motion for a directed verdict in their favor. * * *

Whether this Court’s conclusion regarding the validity of the search warrant in Delgado I was erroneously reached is irrelevant. The law of the case precluded the trial court from re-examining the issue (see Carmona, 92 AD3d at 492-493), and it was therefore bound by our conclusion regardless of its views on our analysis … .

At the very least, the issue as to the validity of the search warrant should have gone before the jury since the additional evidence adduced at trial did not significantly alter our analysis. Instead, acting essentially as an appellate court, the trial court effectively reversed this Court’s finding on the validity of the warrant. Delgado v City of New York, 2016 NY Slip Op 06185, 1st Dept 9-27-16

 

CIVIL PROCEDURE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CIVIL RIGHTS LAW (PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CRIMINAL LAW ((IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/LAW OF THE CASE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)

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FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION.

The Second Department determined failure to strictly comply with the signature requirements in the Village Law invalidated a referendum concerning the elimination of paid fireman positions:

Village Law § 9-902(8) states: “Petition shall be made upon white paper containing the signatures of qualified electors of the village. The sheets of such a petition shall be numbered consecutively beginning with number one at the foot of each sheet. Such petition must set forth in every instance the correct date of signing, the full name of the signer, his present residence, the ward if any and the village election district if any. A signer need not himself fill in the date, residence, ward, or election district” … . The respondents/defendants do not dispute that their referendum petitions failed to set forth the village election district for all but 5 of the 4,254 signatories. * * *

The Court of Appeals has held that, “[w]hile substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content” … . Here, the prescribed content includes the village election district, which is a matter of substance, not form … . Matter of Pilla v Karnsomtob, 2016 NY Slip Op 06142, 2nd Dept 9-26-16

 

MUNICIPAL LAW (FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)/VILLAGE LAW (FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)/REFERENDUM (FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)/PETITIONS (REFERENDUM, VILLAGE LAW, FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)

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FAILURE TO INCLUDE YEAR IN THE DATES OF THE SIGNATURES REQUIRED INVALIDATION OF THE DESIGNATING PETITION.

The Second Department, over a dissent, determined strict compliance with the Election Law required that 29 signatures on a designating petition be invalidated. The dates opposite the signatures included the day and month but not the year:

Two statutory provisions are directly relevant to the disposition of this appeal. First, Election Law § 6-130 provides that “[t]he sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed.” Second, Election Law § 6-132(1) requires that the “day and year” be “placed opposite” the signature of each signer on a designating petition (Election Law § 6-132[1]). * * *

The requirement that the date—the “day and year”—accompany those signatures is a matter of prescribed content, not form … . “While substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content” … . Matter of Avella v Johnson, 2016 NY Slip Op 06141, 2nd Dept 9-26-16

 

ELECTION LAW (FAILURE TO INCLUDE YEAR IN THE DATES OF THE SIGNATURES REQUIRED INVALIDATION OF THE DESIGNATING PETITION)/DESIGNATING PETITIONS (ELECTION LAW, FAILURE TO INCLUDE YEAR IN THE DATES OF THE SIGNATURES REQUIRED INVALIDATION)

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SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW.

The Second Department, in a full-fledged opinion by Justice Cohen, determined a scrap metal seller was not operating a “transfer station” within the meaning of the Westchester County Solid Waste Law. Therefore, certain fines and license fees related to the operation of a transfer station should not have been imposed by the county. The Second Department noted that, in reviewing an Article 78 proceeding, as long as the underlying statute does not require expertise to interpret, the reviewing court has the power to determine the meaning of the controlling statute. Here the plain meaning of the statute would not support defining the scrap metal sales operation as a transfer station:

The petitioner, Universal Metal & Ore, Inc. (hereinafter Universal), is an international metal trading company founded in 1951, which maintains a facility in Mount Vernon. Essentially, Universal is in the business of purchasing scrap metal, and reselling it at a profit to other companies. The primary issue raised on appeal is whether Universal’s Mount Vernon facility, where Universal accepts deliveries of scrap metal from independent dealers and stores it pending transport, may be considered a solid waste “transfer station” under the Westchester County Solid Waste and Recyclables Collection Licensing Law (hereinafter the Solid Waste Law). … [W]e conclude that Universal’s facility is not a transfer station as defined by the Solid Waste Law, and that there was thus no rational basis for the Westchester County Solid Waste Commission’s determination to fine Universal for operating a transfer station without a license. Matter of Universal Metal & Ore, Inc. v Westchester County Solid Waste Commn., 2016 NY Slip Op 06091, 2nd Dept 9-21-16

MUNICIPAL LAW (SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)/ENVIRONMENTAL LAW (SOLID WASTE LAW, SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)/SOLID WASTE LAW (SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)/SCRAP METAL (SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)

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OFFICE OF MEDICAID INSPECTOR GENERAL COULD NOT SEEK REIMBURSEMENT OF OVERPAYMENTS IN AN AMOUNT HIGHER THAN SPECIFICALLY INDICATED IN ITS WRITTEN NOTICE.

The First Department, over a two-justice dissent, determined the language of the written notice to petitioner from the Office of the Medicaid Inspector General (OMIG) did not allow the OMIG to seek the higher of two estimated overpayment reimbursement amounts. The terms of the final audit report (FAR) required a lower payment if the findings were not challenged, and a higher payment if the findings were challenged at a hearing. Petitioner did not request a hearing to challenge the findings, but did not make payment arrangements within the time allowed. The OMIG then notified petitioner it would withhold future reimbursement to pay off what was owed. Although the written notice of the withholding stated the lower amount would be withheld, petitioner was informed orally by OMIG the higher amount would be withheld:

Petitioner seeks to limit its Medicaid reimbursement overpayment liability, in connection with a final audit report [FAR] issued by respondent (OMIG), to the “lower confidence limit” amount of $1,460,914 set forth in the FAR. The FAR states that, although OMIG did not waive any available remedies, if petitioner did not remit payment or arrange a payment plan within 20 days, OMIG would withhold a percentage of Medicaid billings to “liquidate the lower confidence limit amount.” In the alternative, if petitioner challenged OMIG’s findings at a hearing, OMIG would seek to recover at the hearing the FAR’s higher point estimate of overpayments, which was $1,857,401. * * *

The actual FAR language states that, in the event a settlement is not reached within 20 days, OMIG will begin withholding “to recover payment and liquidate the lower confidence amount, interest, and/or penalty, not barring any other remedy at law” (emphasis added). FAR expressly states that if a settlement is not reached, OMIG will begin withholding to collect “the lower confidence amount” of $1,460,914. Thus, contrary to the dissent’s interpretation, the FAR expressly states that in the event there is no settlement, OMIG will withhold the lower confidence limit. West Midtown Mgt. Group, Inc. v State of New York, 2016 NY Slip Op 06111, 1st Dept 9-21-16

 

MEDICAID (OVERPAYMENT REIMBURSEMENT, OFFICE OF MEDICAID INSPECTOR GENERAL COULD NOT SEEK REIMBURSEMENT OF OVERPAYMENTS IN AN AMOUNT HIGHER THAN SPECIFICALLY INDICATED IN ITS WRITTEN NOTICE)

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CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY.

The Second Department, reversing (modifying) Supreme Court, determined plaintiff had made out a prima facie case for damages stemming from the defendant's breach of the implied warranty of habitability. Plaintiff held a proprietary lease in a cooperative. A storm damaged the terrace adjacent to the apartment. Plaintiff was entitled to damages for the period of time the terrace was closed:

The implied warranty of habitability, codified in the Real Property Law, provides that in every written lease for residential purposes, the landlord or lessor “shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety” (Real Property Law § 235-b[1]). In Solow v Wellner (86 NY2d 582, 587-588), the Court of Appeals clarified that Real Property Law § 235-b(1) includes three separate covenants: “(1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety” (id. at 587-588 [internal quotation marks omitted]). “A breach of warranty may be said to have occurred where the premises have not met the reasonable expectations of the parties” (7-82 Warren's Weed New York Real Property § 82.22 [2016]). Here, the plaintiff established that the water damage and subsequent closures of the terrace rendered it unfit for the uses reasonably intended by the parties … . Goldhirsch v St. George Tower & Grill Owners Corp., 2016 NY Slip Op 06060, 2nd Dept 9-21-16

LANDLORD-TENANT (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/REAL PROPERTY LAW (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/APARTMENTS (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/TERRACES (APARTMENTS, CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/HABITABIILITY, IMPLIED WARRANTY OF (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)

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