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COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM.

The Third Department, reversing Supreme Court, determined the county’s motion for summary judgment should have been granted. During a hurricane, a county drainage system overflowed and damaged plaintiffs’ property. The county was immune from suit based upon the design and placement of the drainage system. And the plaintiff’s failed to raise a question of fact concerning the allegation the county negligently maintained the drainage system:

… [T]o the extent that plaintiffs’ negligence claim alleges that defendant failed to adequately design or redesign the drainage system, it cannot be maintained. Decisions “‘determining when and where [drainage ditches] shall be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion . . . [which] is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land'” … .

The act of maintaining a drainage system, on the other hand, is ministerial in nature and, thus, governmental immunity will not insulate defendant from plaintiffs’ alternative claim that it did so negligently … . “Nonetheless, [defendant] is not an insurer of its [drainage] system and cannot be held liable for injury unless it is shown that the injury was caused by active negligence in the maintenance of the system” … . Watt v County of Albany, 2016 NY Slip Op 04281, 3rd Dept 6-2-16

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/IMMUNITY (GOVERNMENTAL IMMUNITY, COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/STORM DRAINAGE SYSTEMS (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)

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NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL.

The First Department, in a full-fledged opinion by Justice Andrias, over an extensive dissenting opinion, determined a New York City local law mandating the disclosure of information about the selection process for construction of affordable housing was not preempted by state statutes and was not unconstitutional:

Although one may reasonably argue, as does the dissent, that the disclosure requirements imposed by the law are costly, difficult or cumbersome, or that the law will not remedy corruption in the developer selection process or further the flexible and economical implementation of publicly funded housing, the wisdom, necessity or efficacy of the law is not the province of the courts… .  … [T]he only issue before us is whether Local Law No. 44 is unconstitutional because it is preempted by state statutes or violates the Due Process and Equal Protection Clauses of the New York State Constitution. Applying well established precedent to the facts, we find that Local Law No. 44 does not unlawfully interfere with or frustrate [New York City Department of  Housing Preservation and Development (HPD)'s] authority under the City Charter or impermissibly conflict with the State Legislature's delegation of authority and discretion over affordable housing programs to HPD, and that it is not otherwise unconstitutional. New York State Assn. for Affordable Hous. v Council of the City of N.Y., 2016 NY Slip Op 04320, 1st Dept 6-2-16

MUNICIPAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/AFFORDABLE HOUSING (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/PREEMPTION (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/LOCAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/HOUSING  (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)

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HOMEOWNER’S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME.

The First Department, reversing Supreme Court, determined the homeowner's exemption from liability under the Labor Law for one- and two-family homes applied, despite evidence three families lived in the home:

The applicability of the homeowner exemption is determined by a “site and purpose” test … , which “hinges upon the site and the purpose of the work” and “must be employed on the basis of the homeowners' intentions at the time of the injury” … . Here, the evidence established that, at the time of the accident, defendants' house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income. That three families, two of which are related, lived in the home is insufficient to raise an issue of fact as to whether the home was a three-family dwelling … . Del Carnen Diaz v Bocheciamp, 2016 NY Slip Op 04305, 1st Dept 6-2-16

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)/HOMEOWNER'S EXEMPTION (LABOR LAW, HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)

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GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS.

The First Department determined, under the facts, the police department's Glomar response to the request for documents was appropriate. A Glomar response refuses to admit or deny the existence of documents:

FOIL does not prohibit respondents from giving a Glomar response to a FOIL request — that is, a response “refus[ing] to confirm or deny the existence of records” where, as here, respondents have shown that such confirmation or denial would cause harm cognizable under a FOIL exception … . Although petitioners contend that such a response is impermissible in the absence of express statutory authorization, the Glomar doctrine is “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” … . * * *

Respondents met their burden to “articulate particularized and specific justification” for declining to confirm or deny the existence of the requested records, which sought information related to NYPD investigations and surveillance activities … . In particular, respondents showed that answering petitioners' inquiries would cause harm cognizable under the law enforcement and public safety exemptions of Public Officers Law § 87(2) (see § 87(2)[e], [f] … . Matter of Abdur-Rashid v New York City Police Dept., 2016 NY Slip Op 04318, 1st Dept 6-2-16

FREEDOM OF INFORMATION LAW (FOIL) (GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)/GLOMAR RESPONSE (FOIL, GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)

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DISMISSAL WITHOUT A HEARING ON PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR.

The Third Department, reversing Family Court, determined the dismissal without a hearing of mother's petition for modification of the custody arrangement was error:

In her petition, the mother alleged, among other things, that the father was charged with reckless endangerment, vehicular assault and driving while intoxicated after he crashed a car in January 2015, thereby causing injury to himself and his three passengers. The mother also alleged that the father engaged in a course of conduct that alienated the children from her, that the children desired to spend more time with her and that her work schedule had become more flexible since completing her medical residency. If established after a hearing, these allegations could afford a basis for modifying the prior custodial arrangement and, thus, Family Court erred in dismissing the petition without first conducting a hearing … . Given that the mother's petition places both legal and physical custody in issue, we further note that if, after a hearing, the mother makes the requisite showing of a change in circumstances sufficient to warrant a best interests inquiry and Family Court determines that joint legal custody is not feasible, it is “'incumbent upon Family Court to determine a custodial arrangement based upon the best interests of the child[ren] despite the absence' of a petition definitively seeking sole custody” … . Matter of Engelhart v Bowman, 2016 NY Slip Op 04294, 3rd Dept 6-2-16

FAMILY LAW (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)/CUSTODY (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)

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DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES (FAITHLESS SERVANT DOCTRINE) ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT.

The Third Department, in a full-fledged opinion by Justice Peters, determined plaintiff-employer was entitled to summary judgment on both liability and damages in this “disloyal or faithless performance of employment duties” case. Defendant-employee stole $50,000 from his employer. The employer sought recovery of the compensation paid to the employee over the six-year period of the theft and relief from the obligation to provide health insurance. Supreme Court granted summary judgment on liability but ruled the employee's otherwise unblemished career raised a question of fact about damages. The Third Department held Supreme Court's damages ruling was error:

New York law with respect to the disloyal or faithless performance of employment duties has developed for well over a century. Firmly rooted in this state's jurisprudence is the principle that “an employee is to be loyal to his [or her] employer and is 'prohibited from acting in any manner inconsistent with his [or her] agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his [or her] duties'” … . Under what is commonly referred to as the faithless servant doctrine, “[o]ne who owes a duty of fidelity to a principal and who is faithless in the performance of his [or her] services is generally disentitled to recover his [or her] compensation, whether commissions or salary” … . Thus, where an employee “engage[s] in repeated acts of disloyalty, complete and permanent forfeiture of compensation, deferred or otherwise, is warranted” … . * * *

The Court of Appeals has made clear that forfeiture of compensation is required even when some or all of “the services were beneficial to the principal or [when] the principal suffered no provable damage as a result of the breach of fidelity by the agent” … . City of Binghamton v Whalen, 2016 NY Slip Op 04289, 3rd Dept 6-2-16

EMPLOYMENT LAW (DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)/DISLOYAL OR FAITHLESS PERFORMANCE (EMPLOYMENT LAW, DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)/FAITHLESS SERVANT DOCTRINE (DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)

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PROSECUTOR’S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE.

The Third Department reversed defendant's conviction in the interest of justice because of prosecutorial misconduct in summation:

Counsel is afforded wide latitude during summations, but when a prosecutor's remarks are so egregious such that they deprive a defendant of a fair trial, reversal is warranted … . During his summation, the prosecutor remarked that defendant failed to provide an “innocent explanation” for his actions or that it was necessary for him to do so. Indeed, a recurring and substantial theme in the prosecutor's summation was defendant's inability to provide an innocent explanation for his conduct following the incident giving rise to the charges against him or for the presence of incriminating evidence at the crime scene. We agree with defendant that these comments improperly shifted the burden of proof from the People to defendant … . People v Rupnarine, 2016 NY Slip Op 04257, 3rd Dept 6-2-16

CRIMINAL LAW (PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)/PROSECUTORIAL MISCONDUCT (PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)

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CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED.

The Third Department determined the evidence was not sufficient to support defendant's conviction of conspiracy in the second degree in this drug-sale case. In addition, the Third Department explained the proof required for criminal sale of a controlled substance where the evidence is primarily recorded phone calls and text messages:

“A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct” (Penal Law § 105.15). Notably, “[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 …).

At the joint trial, the People sought to convict [co-defendant] Wright of [criminal sale of a controlled substance second degree] based solely upon recorded telephone conversations between [Wright and defendant], in which Wright allegedly agreed to sell heroin to defendant. However, during those conversations, defendant equivocated as to how much heroin he sought to buy, and none of the heroin from the transaction was recovered by police. As a result, the People failed to independently establish that the weight of the heroin sold exceeded the statutory threshold … and, in turn, they failed to prove an alleged overt act by defendant or Wright in support of the conspiracy charge … . * * *

Where, as here, the People primarily rely on intercepted telephone conversations as evidence of a sale of drugs (see Penal Law §§ 220.00 [1]; 220.39 [1]), all that [is required] is the production of “some additional evidence establishing the existence of [the drug in question] to support [defendant's] convictions for [its sale]” … . People v Cochran, 2016 NY Slip Op 04255, 3rd Dept 6-2-16

CRIMINAL LAW (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)/EVIDENCE (CRIMINAL LAW, CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)/CONSPIRACY (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN)/CONTROLLED SUBSTANCE (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)

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OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND.

The First Department determined plaintiffs' opening statement, which alleged an intentional act by defendant, warranted dismissal of the negligence claims:

Plaintiffs' opening statement warranted dismissal of the negligence and negligent battery claims, because the claim that defendant … used excessive force in handcuffing plaintiff … is fatally inconsistent with the negligence claims … . Vaynshelbaum v City of New York, 2016 NY Slip Op 04302, 1st Dept 6-2-16

CIVIL PROCEDURE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/NEGLIGENCE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/OPENING STATEMENTS (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)

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LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Martin Act (General Business Law article 23-A) allowed a permanent injunction imposing a lifetime ban on defendants' participation in the securities industry and service as an officer or director of a public company. The court further found that both the Martin Act and the Executive Law allowed the remedy of disgorgement of wrongfully obtained profits. [This is the second time this securities-fraud case reached the Court of Appeals. The underlying facts were laid out in the prior decision (21 NY3d 439).]:

… [T]he Attorney General may obtain permanent injunctive relief under the Martin Act and Executive Law § 63 (12) upon a showing of a reasonable likelihood of a continuing violation based upon the totality of the circumstances … . “This is not a 'run of the mill' action for an injunction, but rather one authorized by remedial legislation, brought by the Attorney General on behalf of the People of the State and for the purposes of preventing fraud and defeating exploitation” … . “'[T]he standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief'”. Therefore, we reject defendants' argument that the Attorney General must show irreparable harm in order to obtain a permanent injunction. * * *

We further conclude that disgorgement is an available remedy under the Martin Act and the Executive Law. The Martin Act contains a broad, residual relief clause, providing courts with the authority, in any action brought under the Act, to “grant such other and further relief as may be proper” (General Business Law § 353-a). Indeed, this Court has previously recognized that the courts are not limited to the remedies specified under either of these statutes … . In our view, disgorgement “merely requires the return of wrongfully obtained profits [and] does not result in any actual economic penalty” … . As we have previously stated, in an appropriate case, disgorgement may be an available “equitable remedy distinct from restitution” under this State's anti-fraud legislation … . People v Greenberg, 2016 NY Slip Op 04253, CtApp 6-2-16

SECURITIES (LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/MARTIN ACT (LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/EXECUTIVE LAW (SECURITIES, LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/FRAUD (SECURITIES, LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)

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