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REVIEW CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD.

Reversing the Appellate Term, the Second Department explained the review criteria for a Small Claims Court (District Court) ruling. The Second Department upheld the Small Claims determination a contract was unenforceable as unconscionable:

An appeal from a small claims judgment is permitted “on the sole ground that substantial justice has not been done between the parties according to the rules and principles of substantive law” (Uniform Dist Ct Act § 1807). ” Accordingly, a small claims judgment may not be overturned simply because the determination appealed from involves an arguable point on which an appellate court may differ; the deviation from substantive law must be readily apparent and the court’s determination clearly erroneous'” … .

Here, the District Court’s determination that the subject contract was unenforceable according to its literal terms because it was unconscionable was not clearly erroneous … . Tranquility Salon & Day Spa, Inc. v Caira, 2016 NY Slip Op 05637, 2nd Dept 7-27-16

 

CONTRACT LAW (REVIEW CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD)/APPEALS (SMALL CLAIMS, CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD)/SMALL CLAIMS (APPEAL, (REVIEW CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD)

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ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA.

The First Department determined the doctrine of res judicata prohibited litigation in state court of an issue which was not raised but which constituted a compulsory counterclaim in the prior federal action:

 

… [T]he Court of Appeals has provided clear guidance on this issue in Gargiulo v Oppenheim (63 NY2d 843, 845 [1984]), stating in dicta, “For purposes of the disposition of this appeal we assume, without deciding, that under the procedural compulsory counterclaim rule in the Federal Courts (FRCP rule 13[a] [in 28 USC, Appendix]) claim and issue preclusion would extend to bar the later assertion in the present State court action of a contention which could have been raised by way of a counterclaim … . … [W]e conclude that the later assertion in a state court action of a contention that constituted a compulsory counterclaim (FRCP rule 13[a]) in a prior federal action between the same parties is barred under the doctrine of res judicata … . Paramount Pictures Corp. v Allianz Risk Transfer AG, 2016 NY Slip Op 05618, 1st Dept 7-21-16

CIVIL PROCEDURE (ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA)/RES JUDICATA (ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA)/COUNTERCLAIMS (RES JUDICATA, ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA)

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USE OF SINGLE FAMILY RESIDENCE FOR WEDDINGS, RECEPTIONS AND OTHER EVENTS VIOLATED THE ZONING ORDINANCE WHICH ALLOWED “ACCESSORY USE.”

The Third Department determined the use of a single family residence (called Highland Castle) for weddings, receptions and other events constituted a violation of the zoning ordinance, which allowed “accessory use” of residential property:

The ZBA [zoning board of appeals] found that, given the manner in which petitioner utilized and marketed Highlands Castle as a venue for weddings and other large social gatherings, the challenged use was neither subordinate nor customarily incidental to the primary single-family residential use of the property. On this record, we cannot say that such determination is either irrational or unreasonable. Petitioner insists that Highlands Castle is held out merely for residential rental use, yet the record belies such a claim. In offering Highlands Castle for rent, petitioner emphasized its availability for weddings, large parties and other social receptions. Notably, the property was marketed as available on a daily or even a “half-day” basis and was advertised upon a pricing structure specific to the type of event that may be of interest to the consumer and, in some instances, to the number of individuals that will be attending. The marketing of Highlands Castle thus evinces a clear intent to target a rental audience that sought more than just residential use of the property and, indeed, no evidence was presented that Highlands Castle had ever been rented out for use as a single-family residence. To the contrary, the evidence shows that Highlands Castle was rented eight times over the course of a roughly two-year period for large-scale events — including three weddings and an American Bar Association function. Further, given that the property is advertised for rent on a year-round basis without restriction as to availability, nothing prevents its regular use as an event venue on a more frequent basis than that which has previously occurred. Matter of Lavender v Zoning Bd. of Appeals of The Town of Bolton, 2016 NY Slip Op 05599, 3rd Dept 7-21-16

ZONING (USE OF SINGLE FAMILY RESIDENCE FOR WEDDINGS, RECEPTIONS AND OTHER EVENTS VIOLATED THE ZONING ORDINANCE WHICH ALLOWED “ACCESSORY USE”)

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OWNER OF SEASONAL BUSINESS WAS NOT TOTALLY UNEMPLOYED AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined claimant, the owner of a seasonal charter fishing business, was not totally unemployed and thus was not entitled to unemployment insurance benefits:

It is well settled that a “claimant who performs activities on behalf of an ongoing business may not be considered totally unemployed, even if such activities are minimal or the business is not profitable, if he or she stands to benefit financially from its continued operation” … . Notably, this rule has been applied to seasonal businesses as well as those that operate throughout the year … . Here, claimant performed a number of activities related to his fishing business after he filed his unemployment insurance claim. Specifically, he maintained a business website, communicated with prospective customers through email and by telephone, paid various business-related expenses, renewed insurance, placed an advertisement in a local circulation, leased a boat slip and prepared the boat for operation. Matter of Pasinski (Commissioner of Labor), 2016 NY Slip Op 05606, 3rd Dept 7-21-16

UNEMPLOYMENT (INSURANCE OWNER OF SEASONAL BUSINESS WAS NOT TOTALLY UNEMPLOYED AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

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MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED.

The Third Department determined the motion to dismiss the demand for punitive damages was properly denied. The action stemmed from an physical confrontation between plaintiff and defendant, an off-duty police officer:

“Punitive damages may be awarded in an action to recover damages for assault” … , but “are permitted only when a defendant purposefully causes, or is grossly indifferent to causing, injury and defendant’s behavior cannot be said to be merely volitional” … . Defendant’s conduct, in other words, must reflect “a high degree of moral culpability, . . . [be] so flagrant as to transcend mere carelessness, or . . . constitute[] willful or wanton negligence or recklessness” … . * * *

… [The] proof permits the finding that defendant pursued plaintiff and angrily confronted him over his perceived deficiencies as a driver, then physically subdued plaintiff and falsely accused him of starting the confrontation to ensure that he would be detained by police. If true, this aggressive and dishonest behavior by an off-duty state trooper is precisely the type of “morally culpable” behavior that defendant and others should be deterred from engaging in … . George v Albert, 2016 NY Slip Op 05613, 3rd Dept 7-21-16

NEGLIGENCE (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/INTENTIONAL TORT (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/ASSAULT (CIVIL ACTION, MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/PUNITIVE DAMAGES (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)

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AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID.

The Third Department determined the authorization purporting to allow the opening of petitioner’s mail was invalid:

Petitioner argues that his mail was opened in violation of established mail watch procedures. Specifically, petitioner contends that the “express written authorization” that permitted facility personnel to open, inspect or read his outgoing correspondence (7 NYCRR 720.3 [3] [e]) failed to “set forth the specific facts forming the basis for the action” (7 NYCRR 720.3 [e] [1]) and, as such, the subject authorization was invalid. Upon reviewing the document at issue, we agree. Accordingly, the determination of guilt must be annulled … . Matter of Ramos v Annucci, 2016 NY Slip Op 05601, 3rd Dept 7-21-16

DISCIPLINARY HEARINGS (INMATES) (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/INMATES (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/MAIL (INMATES, AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)

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TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION; ILLEGAL STOP DID NOT REQUIRE SUPPRESSION OF STATEMENT, SUFFICIENT ATTENUATION.

The Third Department, in affirming defendant’s conviction, determined the testimony of the DNA expert (Pasqualino) did not violate defendant’s right of confrontation. Although the expert relied on data collected by non-testifying witnesses, the conclusions drawn from the data were entirely her own. In addition, the Third Department determined the concededly illegal stop of the defendant did not require suppression of his statement because the statement was sufficiently attentuated from the stop. An officer illegally stopped the defendant to tell him the police wanted to speak to him. The defendant  then drove to the station where he was read his Miranda rights. With respect to the DNA evidence, the court wrote:

Pasqualino testified that she analyzed raw data compiled by the nontestifying lab technicians and that she did not rely on the opinions or interpretation of anyone else in forming her scientific conclusions linking defendant’s DNA profile to the victim’s rape kit, which conclusions were contained in the reports that she authored… . * * *

There is no evidence in the record that any lab technician or analyst who participated in the preliminary processing and testing of this DNA evidence engaged in any data editing, analysis, comparisons or interpretations of the evidence or rendered any opinions regarding whether the data collected from the rape kit matched defendant’s DNA profile; likewise, there is no proof that Pasqualino relied upon any such opinions or conclusions drawn by others … . Further, the technicians’ compilation of objective data was not accusatory and did not, without Pasqualino’s expert analysis and testimony, link defendant to these crimes … . Under these circumstances, defendant’s right of confrontation was not violated when Pasqualino relied upon and made reference to data collected by nontestifying lab technicians … . People v Stahl, 2016 NY Slip Op 05597, 3rd Dept 7-21-16

 

CRIMINAL LAW (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/EVIDENCE (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/CONFRONTATION, RIGHT TO (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/DNA (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/STREET STOPS (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/SUPPRESSION (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/ATTENUATION (CRIMINAL LAW, (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)

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ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL.

The First Department, in an extensive opinion by Justice Mazzarelli, determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant had sufficiently alleged the prosecutor may have withheld information which could have been used to impeach the testimony of an important witness in this murder case (Brady material). In addition, the First Department held that “actual innocence” can be raised as a ground for vacation of a conviction pursuant to Criminal Procedure Law 440.10. Although the First Department found the defendant did not present sufficient evidence of actual innocence to warrant a hearing, the “actual innocence” discussion is most significant part of the opinion:

We agree with the [2nd] Department [People v Hamilton, 115 AD3d 12} that CPL 440.10(1)(h) embraces a claim of actual innocence. If depriving a defendant of an opportunity to prove that he or she has not committed a crime for which he or she has been convicted is not a “violation of a right . . . under the constitution of this state or of the United States,” then that section of the statute is virtually hollow. Both constitutions guarantee liberty through their due process clauses, and a wrongful conviction represents the ultimate deprivation of liberty. Notably, the People do not contest the applicability, in theory, of Hamilton to this case.

Nevertheless, defendant did not clear the threshold set by the Hamilton court as necessary to gain a hearing on an actual innocence claim, because he did not present “a sufficient showing of possible merit to warrant a fuller exploration by the court” … . This is the sole articulation in Hamilton of a standard governing when a hearing is warranted on such a claim. However, this specific standard for actual innocence claims should be considered in light of, and alongside, the more general standard applicable on any motion to vacate a conviction brought under CPL 440.10. Thus, statements of fact supporting the motion must be sworn … . Further, hearsay statements in support of such motions are not probative evidence … . People v Jimenez, 2016 NY Slip Op 05620, 1st Dept 7-21-16

CRIMINAL LAW (ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/MOTION TO VACATE CONVICTION (ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/BRADY MATERIAL (HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/ACTUAL INNOCENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10)

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FAILURE TO DISCLOSE DETAILS OF ARRESTS JUSTIFIED DENIAL OF PISTOL PERMIT.

The Second Department determined the petitioner’s failure to disclose the details of his prior arrests justified denial of a pistol permit:

Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be at least 21 years of age, of good moral character with no prior convictions of a felony or serious offense, a person who has not had a license revoked or who is not under a suspension or ineligibility order, and a person “concerning whom no good cause exists for the denial of the license” … . “A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause” … .

Contrary to the petitioner’s contention, the licensing officer’s determination that good cause existed to deny his application for a pistol license was not arbitrary and capricious. The petitioner failed to disclose all of the required details of his three prior arrests, thus hindering the licensing officer’s ability to determine his moral fitness to possess a pistol. Matter of Praino v Forman, 2016 NY Slip Op 05572, 2nd Dept 7-20-16

 

PISTOL PERMITS (FAILURE TO DISCLOSE DETAILS OF ARRESTS JUSTIFIED DENIAL OF PISTOL PERMIT)

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HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE.

The First Department, over an extensive dissent, determined the New York City Housing Authority (NYCHA) effectively made it impossible for the petitioner to meet the prerequisites for a hearing (paying use and occupancy arrears) on her “remaining family member” grievance. The case was therefore remitted for a hearing on the grievance:

The NYCHA Management Manual requires that a remaining family member grievant must remain current in use and occupancy to pursue the grievance (NYCHA Management Manual, ch 1, subd XII[D][2][b]). This Court has upheld that requirement (Matter of Garcia v Franco, 248 AD2d 263, 265 [1st Dept 1998], lv denied 92 NY2d 813 [1998]). However, in this case, NYCHA’s application of that rule to petitioner, and its resulting dismissal of her remaining family member grievance, was arbitrary and capricious. NYCHA failed and refused to recalculate use and occupancy based on petitioner’s income, notwithstanding that the NYCHA Management Manual requires that it do so, during the pendency of a remaining family member grievance, in order for it to determine use and occupancy as the lower of the tenant of record’s rent or the rent rate based on the income of the remaining occupant (Manual, at ch 1, subd XII[D][2][b])[FN1]. NYCHA also failed and refused to provide petitioner with information and documents necessary for her to apply for funds to pay the arrears in use and occupancy. As a result, it was impossible for petitioner to meet the condition precedent to a hearing. Matter of Figueroa v New York City Hous. Auth., 2016 NY Slip Op 05619, 1st Dept 7-21-16

MUNICIPAL LAW (HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)/LANDLORD-TENANT (NEW YORK CITY HOUSING AUTHORITY, HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)/NEW YORK CITY HOUSING AUTHORITY (HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)

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