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POSSESSION OF MARIJUANA CONSTITUTED DISQUALIFYING MISCONDUCT.

The Third Department determined claimant's criminal conviction disqualified him from receiving unemployment insurance benefits. Claimant had been a service aide for the developmentally disabled for 25 years and pled guilty to possession of marijuana:

Criminal convictions arising from conduct occurring outside the workplace have been found to constitute disqualifying misconduct where they demonstrate a breach of the standards of behavior to be reasonably expected by an employer in light of the nature of the employment involved … . Significantly, claimant's job responsibilities included, among other things, dispensing medications to developmentally disabled individuals. Given the environment in which claimant worked, it was reasonable for the employer to expect that claimant would not illegally use or possess controlled substances. Clearly, claimant's criminal conduct posed a risk to the employer's mission and was detrimental to its interests. Therefore, we find that substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct … . Matter of Hall (Commissioner of Labor), 2016 NY Slip Op 03797, 3rd Dept 5-12-16

UNEMPLOYMENT INSURANCE (POSSESSION OF MARIJUANA CONSTITUTED DISQUALIFYING MISCONDUCT)

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 DISPUTED BOUNDARY PROVEN THROUGH DOCTRINE OF PRACTICAL LOCATION.

The Third Department determined the disputed boundary line was established by the doctrine of practical location:

Under … doctrine [of practical location], “the practical location of a boundary line and an acquiescence of the parties therein for a period of more than the statutory period governing adverse possession is conclusive of the location of the boundary line” … . Moreover, “application of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled” … .

Here, defendant submitted plaintiff's deposition testimony in support of his motion. Plaintiff had lived continuously upon his property for approximately 23 years, and he acknowledged that, during that time, the occupiers of defendant's parcel had used the strip to access a garage in the rear of their property, and neither plaintiff nor his parents had ever attempted to prevent them from doing so. Plaintiff further acknowledged that there was previously a line of grass running between the two parcels that created the appearance of two separate driveways, and that the remnants of that line were still visible as a triangular patch or “point” of grass. Defendant also submitted an affidavit from a neighbor who had lived across the street for approximately 50 years. This neighbor confirmed that there had been a line of grass that ran between the parties' parcels, and that it had appeared that the occupants had always agreed that their respective driveways were on either side of that line. Finally, plaintiff submitted the affidavit of defendant's immediate predecessor in interest, who had lived on the property for approximately 40 years and had later rented it to tenants. This witness stated that, throughout his involvement with the property, the occupants of the two parcels had always mutually agreed that the boundary line was located along the line of grass bisecting the parcels' driveways. His affidavit included an aerial photograph portraying the boundary as a line extending along the remaining triangular strip of grass. Lounsbury v Yeomans, 2016 NY Slip Op 03798, 3rd Dept 5-12-16

REAL PROPERTY (DISPUTED BOUNDARY PROVEN THROUGH DOCTRINE OF PRACTICAL LOCATION)/PRACTICAL LOCATION, DOCTRIN OF, (DISPUTED BOUNDARY PROVEN THROUGH DOCTRINE OF PRACTICAL LOCATION)

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PISTOL PERMIT PROPERLY REVOKED BY FAMILY COURT.

The Third Department determined Family Court properly revoked petitioner's pistol permit:

Here, the evidence included the report of a police investigator who interviewed both petitioner and his former spouse regarding the 2008 domestic dispute. The former spouse recounted that, during a heated dispute over the status of their marriage, petitioner punched several holes in the wall, removed his pistol from a drawer in his bedroom, began to load it and told her that “he was going to give her something to call the police about.” Contrary to petitioner's claim, respondent was entitled to rely on the hearsay statements contained in the report … . Although petitioner denied threatening his former spouse and testified that he was merely packing the gun with the rest of his belongings in an effort to leave the marital home, respondent expressly found the former spouse's account to be more credible, and we defer to such credibility determinations … . Accordingly, we find no abuse of discretion in respondent's determination that petitioner handled his pistol in an irresponsible manner and that revocation of his permit was therefore justified … . Matter of Schmitt v Connolly, 2016 NY Slip Op 03775, 3rd Dept 5-12-6

PISTOL PERMITS (PISTOL PERMIT PROPERLY REVOKED BY FAMILY COURT)

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QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED TENANT’S USE OF THE PROPERTY FOR COMMERCIAL PURPOSES.

The First Department, in a full-fledged opinion by Justice Tom, reversing Supreme Court, determined questions of fact precluded the granting of landlord's cross-motion for summary judgment dismissing plaintiff-tenant's rescission action (alleging impossibility, fraud, misrepresentation and frustration of purpose). By the terms of the lease the tenant was prohibited from any use of the premises which violated the certificate of occupancy (CO). The lease required tenant to use the premises solely for a commercial purpose (executive recruiting firm). However the CO required that the premises be used solely as residential property. The First Department distinguished the line of cases which enforced leases where the only objection to the lease was a problem with the CO:

… [T]here are issues of fact as to whether plaintiff's cause of action for rescission can be proved. While the purpose of the lease was for the space to be used as an office and plaintiff is in fact prohibited from any other use, the lease also prohibits plaintiff from using the premises in violation of the CO, and the CO itself prohibits commercial use of the space. Therefore, plaintiff properly raises the excuse of impossibility of performance as its ability to perform under the lease was destroyed by law … . Absent defendants' willingness to alter the CO it was impossible for plaintiff to perform its obligations under the lease, and the evidence raises an issue of fact as to whether defendants were willing to cooperate in this regard. * * *

… [T]here is an issue of fact as to whether the lease should be terminated on the ground of frustration of purpose. In order to invoke this defense, “the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense”… . Jack Kelly Partners LLC v Zegelstein, 2016 NY Slip Op 03820, 1st Dept 5-12-16

LANDLORD-TENANT (QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED USE OF THE PROPERTY FOR COMMERCIAL PURPOSES)/CONTRACT LAW (LEASES, QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED USE OF THE PROPERTY FOR COMMERCIAL PURPOSES)/RESCISSION (LEASES, QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED USE OF THE PROPERTY FOR COMMERCIAL PURPOSES)

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HEARING OFFICER IMPROPERLY LIMITED THE NUMBER OF WITNESS PETITIONER COULD CALL, NEW HEARING REQUIRED.

The Third Department determined the hearing officer improperly limited the number of witnesses petitioner could call for the hearing. a new hearing was required:

Prior to the hearing, petitioner gave his assistant a list of 13 potential inmate witnesses who might testify. At the hearing, it appears that he wished to have some of these witnesses testify, but the content of their proposed testimony was never ascertained by the Hearing Officer. Instead, the Hearing Officer limited the number of witnesses to three, stating that he was not going to allow redundant testimony. Significantly, however, the Hearing Officer never explained the reason that the testimony would be redundant and this is not clear from the record. Under these circumstances, we find that the denial of the remaining inmate witnesses was error… . Matter of Payton v Annucci, 2016 NY Slip Op 03791, 3rd Dept 5-12-16

DISCIPLINARY  HEARINGS (INMATES) (HEARING OFFICER IMPROPERLY LIMITED THE NUMBER OF WITNESS PETITIONER COULD CALL, NEW HEARING REQUIRED)

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HEARING OFFICER DID NOT MAKE AN ADEQUATE EFFORT TO FIND WITNESSES, NEW HEARING REQUIRED.

The Third Department determined the hearing officer's failure to make an adequate attempt to locate the witnesses petitioner wanted to testify at the hearing required a new hearing:

At the hearing, petitioner requested the testimony of two fellow inmates. He did not know the inmates' names, but identified them by their nicknames and each of the cell blocks in which they were housed. Although the Hearing Officer made a phone call in an effort to locate one of these inmates, he made no effort to locate the other one, stating that petitioner did not provide him with enough information. Although petitioner's description of the requested witnesses was limited, in our view it was sufficiently detailed in that an attempt to locate them would not have been overly burdensome. Accordingly, the Hearing Officer's failure to make a reasonable effort to locate the inmates violated petitioner's right to call witnesses … . * * *

Given that the Hearing Officer articulated a good-faith reason for denying the witnesses and for his lack of effort in locating them, we find that petitioner's regulatory right to call witnesses was violated and not his constitutional right, and remittal for a new hearing is the proper remedy… . Matter of Allaway v Prack, 2016 NY Slip Op 03777, 3rd Dept 5-12-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT MAKE AN ADEQUATE EFFORT TO FIND WITNESSES, NEW HEARING REQUIRED)

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FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR.

The Third Department determined County Court's failure to address T-shirts memorializing the murder victim worn by trial spectators was error, but the error was harmless:

… [W]e find that County Court's failure to instruct the spectators to remove or cover up their T-shirts was error, but the court was attentive to the courtroom environment and interacted with the spectators in an authoritative yet sensitive manner. In addition, there is no evidence that the spectators who wore the T-shirts called attention to themselves during the trial, nor did the photograph or letters “R.I.P.” convey anything other than remembrance of the victim. Consequently, we conclude that their conduct was not so egregious as to require reversal. We also find that the proof of defendant's guilt was so overwhelming that there was no reasonable possibility that this error might have contributed to his conviction … . People v Jones, 2016 NY Slip Op 03770, 3rd Dept 5-12-16

CRIMINAL LAW (FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR)/T-SHIRTS MEMORIALIZING MURDER VICTIM (CRIMINAL TRIAL. FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR)

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ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE.

The Third Department determined an order precluding a party from introducing evidence at trial was appealable in this case. However, under the facts, the order was properly granted. With respect to the appealability of the motion in limine, the court wrote:

As a threshold matter, an order ruling on a motion in limine is generally not appealable as of right or by permission “since an order[] made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling” … . “However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . The order appealed from here, rather than “merely limit[ing] the production of certain evidence as immaterial to damages,” restricted plaintiffs' ability to prove and recover damages … and it is, therefore, appealable … . Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 2016 NY Slip Op 03772, 3rd Dept 5-12-16

APPEALS (ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/EVIDENCE (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/IN LIMINE, MOTION (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)

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QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK.

The Second Department determined defendant abutting property owner did not demonstrate he owed no duty to the trip and fall plaintiff who allegedly fell over a piece of rebar which was on the sidewalk. The court explained the duty of abutting property owners under the New York City code:

…[L]ability may be imposed on the abutting landowner when the abutting landowner … violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk … .

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . …

Administrative Code section 7-210(a) states that “[i]t shall be the duty of the owner of the real property abutting any sidewalk . . . to maintain such sidewalk in an reasonably safe condition.” Administrative Code section 7-210(b) states that “[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to . . . the negligent failure to remove snow, ice, dirt or other material from the sidewalk” … . Metzker v City of New York, 2016 NY Slip Op 03724, 2nd Dept 5-11-16

NEGLIGENCE (QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)/MUNICIPAL LAW (NEW YORK CITY ADMINISTRATIVE CODE, QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)/SLIP AND FALL (QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)

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QUESTION OF FACT WHETHER GENERAL RELEASE PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES.

The Second Department determined questions of fact whether a general release from liability was procured by fraud precluded summary judgment in favor of the defendant in this Labor Law (fall from scaffold) action:

“A release is a contract, and its construction is governed by contract law” … . In general, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release” … . “A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake'” … . Moreover, there is a requirement that a release covering both known and unknown injuries be ” fairly and knowingly made'” … .

“A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release” (CPLR 3211[a][5]). However, a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint on the basis of a release “should be denied where fraud or duress in the procurement of the release is alleged” … .

Here, in support of their motion to dismiss the complaint, the defendants submitted a general release executed by the plaintiff, which, by its terms, barred the instant action against them … . However, the plaintiff’s allegations were nevertheless sufficient to support a possible finding that the defendants procured the release by means of fraud and that the release was signed by the plaintiff ” under circumstances which indicate unfairness'” … . Pacheco v 32-42 55th St. Realty, LLC, 2016 NY Slip Op 03727, 2nd Dept 5-11-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)/CONTRACT LAW (GENERAL RELEASE, QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)/RELEASES (GENERAL RELEASE, QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)/FRAUD (GENERAL RELEASE, QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)

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