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PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED.

The Court of Appeals, in an extensive opinion by Judge Pigott, over a dissent in two of the three cases, determined the evidence presented in Mental Hygiene Law Article 10 proceedings supported civil commitment of the three respondents as sex offenders with mental abnormalities resulting in “serious difficulty in controlling [sexual] conduct.”  The facts of each case were discussed in detail, and the determination in each case must be considered “fact specific.” However, in one case the diagnosis of anti-social personality disorder (ASPD) coupled with paraphilia NOS was deemed sufficient. In the other two cases, the diagnosis of borderline personality disorder coupled with ASPD and evidence of sexual crimes was deemed sufficient. The dissent would have found the proof of borderline personality disorder insufficient. The number of distinct issues discussed, and the depth of those discussions, cannot fairly be summarized here. Matter of State of New York v Dennis K., 2016 NY Slip Op 05330, CtApp 7-5-16

 

MENTAL HYGIENE LAW (PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/EVIDENCE (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/SEX OFFENDERS (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/CRIMINAL LAW (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/ANTISOCIAL PERSONALITY DISORDER (ASPD) (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/PARAPHILA NOS  (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/BORDERLINE PERSONALITY DISORDER (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)

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THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined the three-year time limit within which a municipality must commence eminent domain proceedings begins to run when the Court of Appeals dismisses the appeal:

EDPL 401, entitled “Time for acquisition,” prescribes the time during which a condemnor may commence proceedings “to acquire the property necessary for the proposed public project” (EDPL 401[A]). Specifically, section 401(A) provides that the condemnor may commence such proceedings “up to three years” after the latest of “(1) publication of its determination and findings pursuant to [EDPL 204], or (2) the date of the order or completion of [an exemption procedure under EDPL 206], or (3) entry of the final order or judgment on judicial review pursuant to [EDPL 207]” (EDPL 401[A][1]-[3]). Section 401(B) provides that if the condemnor does not commence EDPL article 4 proceedings within the specified time, “the project shall be deemed abandoned, and thereafter, before commencing [EDPL article 4 proceedings,] the condemnor must again comply with the provisions of article two” (EDPL 401[B]).

The plain and common-sense interpretation of the statute is that “the final order or judgment on judicial review” is the final order or judgment disposing of any EDPL 207 challenge and terminating judicial review. Our October 12, 2010 decision did not finally terminate judicial review, as the challengers filed a notice of appeal which entailed further review by the Court of Appeals. The decision of the Court of Appeals could not be known until such time as it issued its order dismissing the appeal. Matter of City of New York v 2305-07 Third Ave., LLC, 2016 NY Slip Op 05352, 1st Dept 7-5-16

 

EMINENT DOMAIN (THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION)/MUNICIPAL LAW (EMINENT DOMAIN, THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION)

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COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS.

The Fourth Department, reversing County Court, reinstated three indictment counts which County Court had dismissed. The Fourth Department explained the criteria for sufficient evidence in grand jury proceedings and the court’s sufficiency-review powers. Here it was determined County Court improperly weighed the evidence:

“The standard for reviewing the legal sufficiency of the evidence before the grand jury is whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury” … . “On a motion to dismiss, the reviewing court’s inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy” … . ” In the context of the [g]rand [j]ury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt’ ” … . Further, the fact “[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the [g]rand [j]ury could rationally have drawn the guilty inference” … .

Here, we conclude that the evidence, viewed in the light most favorable to the People … , is legally sufficient to support the counts that were dismissed by County Court, and that the court improperly weighed the evidence … . People v Roth, 2016 NY Slip Op 05257, 4th Dept 7-1-16

CRIMINAL LAW (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/EVIDENCE (GRAND JURY, COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/GRAND JURY (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)

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ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED.

The Fourth Department, affirming Supreme Court, determined the arbitrator exceeded his powers vacation of the award was therefore proper. The arbitration concerned the termination of a deputy sheriff for driving while intoxicated and related charges. The arbitrator refused to consider some of the evidence (finding it inadmissible) and reinstated the deputy:

“Under CPLR 7511 (b) an arbitration award must be vacated if, as relevant here, a party’s rights were impaired by an arbitrator who exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made’ ” … . “It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact’ ” … .

Here, we conclude that the arbitrator clearly exceeded his authority as provided by the CBA [collective bargaining agreement]. The CBA mandated that “[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence.” Rather than comply with that mandate and review the record from the hearing, the arbitrator considered a portion of the record only, deciding to exclude certain evidence from his review. Having failed to review that which he was required to review, the court properly concluded that the arbitrator exceeded his authority and vacated the arbitration award … . Matter of O’Flynn (Monroe County Deputy Sheriffs’ Assn., Inc.), 2016 NY Slip Op 05261, 4th Dept 7-1-16

 

ARBITRATION (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/MUNICIPAL LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/EMPLOYMENT LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)

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INTERPRETER WAS AN EMPLOYEE.

The Third Department determined a foreign language interpreter (linguist) was an employee of Legal Interpreting Services (LIS) entitled to unemployment insurance benefits:

The record establishes that LIS recruits through advertisements in newspapers and social media. Before adding an individual to its database of available interpreters, LIS recruiters meet with the applicant, review his or her resume, request certain personal identification information and negotiate his or her hourly pay rate. Claimants signed contracts, which set forth rules and regulations governing their conduct when providing translation or interpretation services. Although the principal of LIS testified that the rules and regulations were included at the insistence of certain customers and were merely “suggestions,” the contracts were drafted by an attorney hired by LIS and printed on LIS letterhead and do not indicate that the rules and regulations were merely suggestions.

When clients contacted LIS to request interpretation services, LIS selected a linguist from its database and provided that linguist with the specifics of the assignment, including the languages required and the date, time and location. Linguists were free to accept or decline assignments at their convenience. However, once they accepted an assignment, the linguists were required to notify LIS if they were running late, were unable to complete the assignment or were sending a substitute in their stead. With respect to pay, LIS required the linguists to submit time sheets, billed its clients and paid its linguists prior to receiving payment from those clients. A linguist’s payment was not contingent upon the client’s payment of the bill. Matter of Bin Yuan (Legal Interpreting Servs., Inc.–Commissioner of Labor), 2016 NY Slip Op 05200, 3rd Dept 6-30-16

 

UNEMPLOYMENT INSURANCE (INTERPRETER WAS AN EMPLOYEE)

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BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS.

The First Department determined a Florida statute was broader than its New York counterpart and the Florida conviction (for a violation of the Florida statute) could not be the basis of second felony offender status in New York:

The court incorrectly adjudicated defendant a second felony offender based on a conviction under a Florida statute that is broader than its New York counterpart for enhanced sentencing purposes … . Florida Statutes Annotated § 831.02 is broader than Penal Law § 170.25 because the Florida statute could be violated by uttering or publishing an instrument that merely contained false information, while under the New York statute an instrument is only considered forged if it is falsely made, completed or altered; a genuine instrument containing false information does not suffice … .  People v Catmon, 2016 NY Slip Op 05228, 1st Dept 6-30-16

CRIMINAL LAW (BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS)/SECOND FELONY OFFENDER (BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS)

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COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING ETHICAL ISSUES IN A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION.

The First Department, in an extensive full-fledged opinion by Justice Friedman (which cannot be fairly summarized here), determined the communications between attorneys in a law firm and the firm’s in house counsel were protected by attorney-client privilege and were not subject to the fiduciary exception to the privilege. The communications were sought by plaintiff, a former client of the firm, who brought the instant malpractice action against the firm:

The primary issue on this appeal is whether attorneys who have sought the advice of their law firm’s in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client’s demand for the disclosure of communications seeking or giving such advice. We hold that such communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege … because, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel’s advice, as well as the firm itself, were the general counsel’s ” real clients'” … . Further, we decline to adopt the “current client exception,” under which a number of courts of other jurisdictions … have held a former client entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing that client. Because we also find unavailing the former client’s remaining arguments for compelling the law firm and one of its attorneys to disclose the in-firm attorney-client communications in question, we reverse the order appealed from and deny the motion to compel. Stock v Schnader Harrison Segal & Lewis LLP, 2016 NY Slip Op 05247, 1st Dept 6-30-16

 

ATTORNEYS (PRIVILEGE, COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/PRIVILEGE (ATTORNEY-CLIENT,COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/ATTONNEY-CLIENT PRIVILEGE (COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/FIDUCIARY EXCEPTION (ATTORNEY-CLIENT PRIVILEGE, COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/MALPRACTICE (ATTORNEYS, COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)

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EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined evidence of a consent order, in which defendant physician acknowledged a negligent failure to adequately monitor a dozen patients for whom he prescribed medication, should not have been admitted in evidence. The essence of the malpractice claim was defendant’s continued prescription of an anti-depressant for plaintiff’s decedent over a ten-year period, without seeing plaintiff’s decedent in his office, proximately caused plaintiff’s decedent’s suicide:

The record establishes that the Consent Order was neither probative of defendant’s negligence or the question of proximate cause. As part of the Consent Order defendant agreed not to contest negligent treatment of certain anonymous patients, none of whom was the decedent. As such, defendant preserved his objections to factual allegations related to decedent and any charges of misconduct based on those allegations. Since the Consent Order did not establish facts concerning defendant’s treatment of decedent, it was not probative as to that issue. In any event, given defendant’s pre-trial concession that he deviated from accepted medical practice, the issue of negligent treatment did not require resolution by the jury.

Further, any possible relevance of the Consent Order’s contents was outweighed by the obvious undue prejudice of his repeated violations of accepted medical standards … . The Consent Order was nothing more than evidence of unrelated bad acts, the type of propensity evidence that lacks probative value concerning any material factual issue, and has the potential to induce the jury to decide the case based on evidence of defendant’s character … . Mazella v Beals, 2016 NY Slip Op 05182, CtApp 6-30-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/EVIDENCE (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/MEDICAL MALPRACTICE (EVIDENCE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/PRIOR BAD ACTS (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)

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LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE; FRAUD CAUSE OF ACTION CANNOT BE BASED ON THE RELIANCE OF A THIRD-PARY, AS OPPOSED TO THE PLAINTIFF, UPON A MISREPRESENTATION.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over two dissenting opinions, determined: (1)  a laboratory (LabCorp) which tests urine for the presence of drugs did not owe a duty of care to a testee based upon the violation of a federal regulation which did not involve a scientific testing procedure; and (2), a fraud cause of action against the laboratory could not be based upon a third party’s, as opposed to the plaintiff’s, reliance upon a misrepresentation.  Here plaintiff, a physician and a pilot, was selected for a random drug test. Plaintiff could not produce enough urine for the test and left the laboratory, returning the next day. Under Federal Aviation Administration (FAA) regulations, plaintiff’s leaving the laboratory constituted a refusal to take the test. The FAA revoked plaintiff’s airman certificates and his authority to conduct FAA mandated pilot examinations. A court ultimately restored plaintiff’s certificates and examination authority. In his lawsuit against the laboratory, plaintiff alleged: (1) the laboratory was negligent in not informing him of the procedures and rules surrounding the inability to provide a urine sample; and (2) a laboratory employee (Montalvo) misrepresented to the FAA that plaintiff was uncooperative during the test.

… [I]n Landon (22 NY3d 1) we held that a drug testing laboratory can be liable to a test subject under the common law for negligent testing of a biological sample. We decline to extend Landon’s reasoning to impose a duty upon a laboratory to test subjects that requires the laboratory to adhere to aspects of the federal regulations and guidelines that do not implicate the scientific integrity of the testing process. * * *

Plaintiff alleges fraud against LabCorp, contending that Montalvo, LabCorp’s employee, made false statements to the FAA investigators, which they relied on to plaintiff’s detriment. Specifically, plaintiff points to Montalvo’s statement to the FAA investigators that plaintiff was on his cell phone and uncooperative during the test, making it impossible to warn him of the consequence of leaving the testing site without giving a sample, which statement the FAA relied on in revoking plaintiff’s airman certificates. We hold that under New York law, such third-party reliance does not satisfy the reliance element of a a fraud claim. Pasternack v Laboratory Corp. of Am. Holdings, 2016 NY Slip Op 05179, CtApp 6-30-16

 

NEGLIGENCE (LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE); DRUG-TESTING (LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE)/LABORATORIES (DRUG-TESTING, NEGLIGENCE, LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE)/FRAUD (FRAUD CAUSE OF ACTION CANNOT BE BASED ON THE RELIANCE OF A THIRD-PARY, AS OPPOSED TO THE PLAINTIFF, UPON A MISREPRESENTATION)

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VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF.

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff fell on a concrete sidewalk and sued both the village and the abutting property owner. The village code required abutting property owners to keep sidewalks in good repair but did not impose tort liability for failure to keep the sidewalk in good epair. To hold an abutting property owner liable, therefore, plaintiff must demonstrate the property owner created the dangerous condition or subjected the sidewalk to special use:

Although the Code of Incorporated Village of Valley Stream requires an abutting landowner to keep a sidewalk in good and safe repair …. , it does not specifically impose tort liability for a breach of that duty … . Thus, without proof that [the property owner] either created the alleged defective condition or caused it to occur because of a special use, which is absent in the record before us, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability … . Obee v Ricotta, 2016 NY Slip Op 05129, 2nd Dept 6-29-16

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/SLIP AND FALL (SIDEWALKS,  VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/SIDEWALKS (SLIP AND FALL, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)

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