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PLAINTIFF’S MOTION TO AMEND THE NOTICE OF CLAIM TO ADD ALLEGATIONS WHICH MERELY AMPLIFIED THE ALLEGATIONS IN THE ORIGINAL NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion to amend the notice of claim in this traffic accident case should have been granted to the extent the amendment merely amplified the allegations in the original notice. By contrast, the attempts to amend the notice by adding new theories of liability were properly denied. Plaintiff, a police officer, was a passenger in a police car driven by another officer, Lassen. Plaintiff sued Lassen for negligent operation of the police car and the city for negligent supervision and training:

… Supreme Court should have granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add allegations relating to purported acts or omissions regarding Lassen’s operation of the police vehicle, including causes of action pursuant to General Municipal Law § 205-e asserted against the City defendants and predicated upon Lassen’s alleged violation of various provisions of the Vehicle and Traffic Law regulating the operation of motor vehicles … . These causes of action were based upon the same purported acts and omissions already set forth in the notice of claim … . Since Lassen’s alleged negligent and/or reckless operation of the police vehicle and the City’s concomitant negligence in failing to properly supervise and/or train Lassen were set forth in the notice of claim and the complaint, the new allegations effectively “amplif[ied]” the previously asserted allegations and did not constitute “new, distinct, and independent theories of liability” … . The fact that the proposed amended complaint alleged violations of statutory provisions not set forth in the notice of claim or original complaint, was not, standing alone, a basis to deny leave to amend … . Since the notice of claim “provided information . . . sufficient to alert the [defendants] to the potential [General Municipal Law § 205-e] cause[s] of action” predicated upon Lassen’s alleged failure to properly operate the police vehicle … , the court should not have denied that branch of the plaintiff’s motion which was for leave to amend the complaint to add those allegations on the ground that they were outside the existing notice of claim. Mitchell v Jimenez, 2024 NY Slip Op 06192, Second Dept 12-11-24

Practice Point: A motion to amend a notice of claim which seeks to amplify allegations in the original notice should be granted. A motion to amend a notice of claim which seeks to add new theories of liability is properly denied.

 

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THE FOLD-DOWN LADDER WHICH WAS PERMANENTLY ATTACHED TO THE CEILING WAS THE FUNCTIONAL EQUIVALENT OF A LADDER FOR GAINING ACCESS TO THE ATTIC; PLAINTIFF FELL WHEN THE LADDER DETACHED FROM THE CEILING; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor :Law 240(1) and 241(6) causes of action. Plaintiff needed to access the attic using a fold-down ladder which was permanently attached to the ceiling. The ladder came loose from the ceiling and plaintiff fell to the floor:

​… [T]he plaintiff described the ladder as “a type of stairs that are up on the attic and you pull them” with a rope, and the stairs would unfold and extend to the floor to allow someone to climb up them. The plaintiff acknowledged that the pull-down attic stairs were permanently affixed to the ceiling, but he also testified that climbing the pull-down attic stairs was the only way to access the attic, which he was required to access to connect certain cables to a security camera. * * *

… [T]he pull-down attic stairs, in effect, operated as a safety device within the meaning of Labor Law § 240(1) … , since the pull-down attic stairs served as the functional equivalent of a ladder at the time of the accident … . The plaintiff’s testimony that the pull-down attic stairs detached from the ceiling and fell as he was ascending them, causing him to fall, demonstrated, prima facie, that the defendants violated Labor Law § 240(1) and that this violation proximately caused the plaintiff’s injuries … . …

To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision mandating compliance with concrete specifications …  Pursuant to 12 NYCRR 23-1.21(b)(1), “[e]very ladder shall be capable of sustaining without breakage, dislodgment or loosening of any component at least four times the maximum load intended to be placed thereon.” Here, given the plaintiff’s testimony that the pull-down attic stairs fell as he was ascending them, the plaintiff established, prima facie, that the defendants violated 12 NYCRR 23-1.21(b)(1) … . Jaimes-Gutierrez v 37 Raywood Dr., LLC, 2024 NY Slip Op 06187, Second Dept 12-11-24

Practice Point: Although the fold-down stairs to the attic were permanently attached to the ceiling, it it was the functional equivalent of a ladder and served as a safety device within the meaning of Labor Law 240(1) and 241(6).

 

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PLAINTIFFS RAISED QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE APPLIED TO RENDER THE LEGAL MALPRACTICE CAUSES OF ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the continuous representation doctrine applied to render legal malpractice causes of action timely:

The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214[6]). “However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” … . “For the continuous representation doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … . “[A] person [is not] expected to jeopardize his [or her] pending case or his [or her] relationship with the attorney handling that case during the period that the attorney continues to represent the person. Since it is impossible to envision a situation where commencing a malpractice suit would not affect the professional relationship, the rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed” … . Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC, 2024 NY Slip Op 06184, Second Dept 12-11-24

Practice Point: Here there were questions of fact whether the continuous representation doctrine applied to render the legal malpractice causes of action timely.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR COUNSEL OF HIS CHOICE, ASSIGNED COUNSEL’S DISPARAGING REMARKS, AND ASSIGNED COUNSEL’S FAILURE TO INFORM DEFENDANT DEPORTATION WAS MANDATORY, AMOUNTED TO A DEPRIVATION OF DEFENDANT’S RIGHT TO COUNSEL; GUILTY PLEA WITHDRAWN AND VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to withdraw and vacate his guilty plea should have been granted. Defendant did not receive effective assistance of counsel:

The People concede that defendant’s right to counsel was violated by the court’s ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter … , and by the conflict of interest between assigned counsel and defendant that arose from counsel’s disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing.

Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant’s conviction would trigger mandatory deportation … . People v Pan, 2024 NY Slip Op 06166, First Dept 12-10-24

Practice Point: The judge improperly prohibited defendant from obtaining counsel of his choice.

Practice Point: Assigned counsel’s disparaging remarks about defendant created a conflict of interest.

Practice Point: Assigned counsel’s failure to inform defendant deportation was mandatory constituted ineffective assistance.

 

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DEFENDANT’S 140-YEARS-TO-LIFE SENTENCE IN THIS PREDATORY-SEXUAL-ASSAULT-OF-A-CHILD PROSECUTION DEEMED UNDULY HARSH AND SEVERE; THE PEOPLE HAD TWICE OFFERED A 15-20-YEAR SENTENCE; SENTENCE REDUCED TO 20-TO-LIFE (THIRD DEPT).

The Third Department held that defendant’s 140 years-to-life sentence in this predatory-sexual-assault-of-a-child prosecution was unduly harsh and severe. The sentence was reduced to 20 years-to-life:​

We turn to defendant’s aggregate sentence of 140 years to life in prison. As a threshold matter, our determination that the sentences imposed on counts 2 and 15 must run concurrently reduces defendant’s aggregate prison term to 118 years to life. The bulk of that remaining aggregate sentence is still consumed by the consecutive 22-years-to-life prison terms imposed for defendant’s convictions of predatory sexual assault against a child under counts 2 and 15, 4, 5, 6 and 7. Although defendant’s crimes are heinous, the sentences on each of those counts are near the top end of the permissible range notwithstanding defendant’s lack of any prior criminal history (see Penal Law § 70.80 [2] …). We also note that the People advocated for the 140-years-to-life aggregate sentence even though that sentence exceeded by over a century their plea offer of 12 to 15 years in satisfaction of all 15 counts of the indictment — an offer they extended twice.

Accordingly, we find that defendant’s aggregate prison sentence is unduly harsh and severe (see CPL 470.15 [6] [b] …). We modify the sentences, in the interest of justice, by reducing the term of imprisonment imposed on defendant’s convictions on the counts of predatory sexual assault against a child (counts 2, 4, 5, 6, 7 and 15) to 20 years to life, and we direct those sentences to run concurrently with each other. We further modify the sentences imposed on counts 8, 9, 10, 11 and 13 to run concurrently with each other and with the sentences imposed on counts 2 and 15, 4, 5, 6 and 7, resulting in an aggregate prison term of 20 years to life, to be followed by 10 years of postrelease supervision … . People v Mayette, 2024 NY Slip Op 06083, Third Dept 12-5-24

Practice Point: Here the court noted that the People had offered a 15-20-year sentence as part of a plea deal and then advocated for the 140-years-to-life sentence upon conviction, which was imposed. The Third Department reduced the sentence to 20-to-life.​

 

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PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-judge dissent, determined the planning board did not have the power to issue a special use permit and site plan approval for a commercial park:

… [T]he jurisdiction of a zoning board of appeals is appellate in nature (see Town Law § 267-a [4]). Nevertheless, a town possesses the authority to enact a local law or ordinance vesting its zoning board of appeals with original jurisdiction (see Town Law § 267-a [4]), including, for example, to address questions of zoning code interpretation … . Here, the Code of the Town of Thompson expressly provides that the ZBA may pass on matters of interpretation as to whether a proposed use is permitted under the zoning code either “[o]n appeal from a[ ] . . . determination made by an administrative official, or on request by an official, board or agency of the Town” (Code of the Town of Thompson § 250-46 [A] …), the latter option being what was requested by petitioners. * * *

… [I]t is evident that a genuine question exists as to whether the project will fall within a permissible or prohibited use, and the Planning Board improperly resolved this issue on its own. “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … . As such, the issue should have been resolved either by the local code enforcement officer, or by the ZBA upon referral from the Planning Board (see Code of the Town of Thompson §§ 250-41 [C], 250-46 [A] … . Matter of Smith v Town of Thompson Planning Bd., 2024 NY Slip Op 06085, Third Dept 12-5-24

Practice Point: Check the Town Law and the local Town Code to determine whether a Planning Board has the power to act. Here the Planning Board did not have the power to interpret a local zoning law and determine, on its own, that the proposed development is a permissible use of the land.​

 

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THE ZONING REGULATION WHICH REQUIRES PAYMENT TO AN “ARTS FUND” OF $100 PER SQUARE FOOT FOR CONVERSION OF “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO FULLY RESIDENTIAL USE IS AN UNCONSTITUTIONAL TAKING (FIRST DEPT).

The First Department, reversing Supreme Court, found unconstitutional a NYC Zoning Regulation (ZR) which required artists who wish to convert their “joint living-work quarters for artists (JLWQA)” to residential use to pay $100 per square foot to an “Arts Fund.” The fund did not have a sufficient connection with the government’s land-use interest:

The ZR amendment passed by the City, in establishing the Special SoHo-NoHo Mixed Use District (SNX District), provides current JLWQA unit owners a pathway to convert uses but also requires them, if and when they seek conversion, to contribute “$100.00 per square foot of floor area to be converted” to the Arts Fund, with annual increases … . “[T]he payment of such non-refundable contribution shall be a precondition to filing for or issuing of any building permit allowing the conversion [of] a joint living-work quarters for artists to a residence” … .

The Arts Fund fee constitutes a permit condition for which the “two-part test modeled on the unconstitutional conditions doctrine” applies … . Thus, the permit condition “must have an ‘essential nexus’ to the government’s land-use interest,” which “ensures that the government is acting to further its stated purpose” … , and the condition “must have ‘rough proportionality’ to the development’s impact on the land-use interest” … .

In applying the two-part test, we find that petitioners are entitled to a declaration that the Arts Fund fee requirement constitutes a taking without just compensation (US Const Amend V; NY Const art I, § 7[a]). Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2024 NY Slip Op 06118, First Dept 12-5-24

Practice Point: Here a zoning regulation which required payment of a fee of $100 per square foot to an “Arts Fund” as a precondition for a building permit was deemed an unconstitutional taking.

 

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THERE WAS A QUESTION OF FACT WHETHER THE TIME-OF-THE-ESSENCE CLOSING DATE SET IN SELLER’S LETTER PROVIDED SUFFICIENT TIME FOR BUYER TO CLOSE; THEREFORE SELLER WAS NOT ENTITLED TO SUMMARY JUDGMENT REQUIRING SPECIFIC PERFORMANCE; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the time-of-the-essence closing date set in a letter from seller’s counsel allowed sufficient time for the buyer to close. Therefore the seller was not entitled to summary judgment requiring specific performance based on the buyer’s failure to appear:

“Where there is an indefinite adjournment of the closing date specified in the contract of sale, some affirmative act has to be taken by one party before it can claim the other party is in default; that is, one party has to fix a time by which the other must perform, and it must inform the other that if it does not perform by that date, it will be considered in default” … . “The notice setting a new date for the closing must (1) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he [or she] does not perform by the designated date, he [or she] will be considered in default” … . “It does not matter that the date is unilaterally set, and what constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case” … . “Included within a court’s determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance” … . “‘[T]he question of what constitutes a reasonable time is usually a question of fact'” … . Fink v 218 Hamilton, LLC, 2024 NY Slip Op 06026, Second Dept 12-4-24

Practice Point: Consult this decision for an explanation of the law surrounding setting an enforceable time-of-the-essence date for the closing.

 

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OFFICIALS OF A NATIVE AMERICAN NATION CAN BE SUED IN NEW YORK STATE COURTS FOR OFF-RESERVATION ACTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, over a partial concurrence and partial dissent, determined the trustees (officials) of a sovereign Native American nation may be sued in New York State courts for their off-reservation actions. Here the defendants constructed billboards within a highway right of way which traversed land owned by the Nation. The opinion addresses an issue of first impression and is too complex and detailed to fairly summarize here:

In March and April 2019, the defendants allegedly had trees cut and removed from within the highway right-of-way, without obtaining a work permit from the DOT, and the DOT allegedly issued two stop work orders to the defendants’ alleged contractors. Thereafter, the defendants allegedly began trenching and placed large equipment, a pile of stones, and support piles within the highway right-of-way, without a work permit from the DOT. The DOT allegedly issued another stop work order and a cease and desist letter to the defendants. The plaintiffs alleged that the defendants ignored the stop work orders and the cease and desist letter. * * *

… [N]otwithstanding sovereign immunity, Native Americans “going beyond reservation boundaries are subject to any generally applicable state law,” “[u]nless federal law provides differently” … . Here, the plaintiffs alleged that the structures are being constructed upon the subject property, over which the State has a permanent easement. The plaintiffs further alleged that the subject property is not aboriginal or sovereign land of the Nation, the Nation owns the subject property in fee simple, and the subject property is not part of the Reservation nor held in trust by the federal government. Thus, according to the plaintiffs, the Trustee defendants have engaged in conduct “beyond reservation boundaries,” and they are subject to generally applicable state laws … . Commissioner of the N.Y. State Dept. of Transp. v Polite, 2024 NY Slip Op 06023, Second Dept 12-4-24

Practice Point: Officials (trustees) of a Native American Nation can be sued in New York State courts for off-reservation actions. Here the trustees constructed billboards on a highway right of way which traversed land owned by the Nation.

 

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THE ORDER OF FACT-FINDING IN THIS JUVENILE DELINQUENCY PROCEEDING WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STREET STOP WAS NOT SUPPORTED BY REASONABLE SUSPICION; AND THE SHOWUP IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE (SECOND DEPT). ​

The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the order of fact-finding was against the weight of the evidence, the appellant was stopped by the police in the absence of reasonable suspicion, and the victim’s identification of the appellant should have been suppressed. The victim was struck from behind and saw only the backs of the assailants’ heads. The identification was made from a police car at a distance of 240 feet, and the show-up identification procedure was unduly suggestive:

… [W]hile the complainant initially claimed that he had a momentary opportunity to see his alleged assailants’ faces after he stood up, he later acknowledged that he merely observed “the backs of their heads” as they fled. Moreover, the credibility of the complainant’s testimony was undermined by his claim to have been able to identify the appellant during a showup identification procedure from a significant distance in the backseat of a police car using only one eye. * * *

… [T]he testimony presented at the suppression hearing established that the police, using two police cars, stopped the appellant and two companions because they fit the general description given by the complainant of “black male[ ]” “youths” riding bicycles. The presentment agency did not present any evidence at the suppression hearing that the appellant and his companions were engaged in any suspicious behavior at the time of the police stop. Moreover, at the time of the police stop, the appellant was with only two companions, which conflicted with the complainant’s description of “five youths.” Under these circumstances, the evidence presented at the suppression hearing was insufficient to establish that the police had reasonable suspicion to stop the appellant … . * * *

Wayne Bowman, a police officer who accompanied the complainant during the showup identification procedure, testified at the suppression hearing that he assured the complainant that “[w]e’re far enough back they’re not going to be able to see you” and acknowledged that he and the complainant were positioned about the distance of “[a] football field” away from the appellant and his companions during the showup identification procedure. Moreover, the complainant acknowledged at the suppression hearing that prior to the showup identification procedure, Bowman told him that the police “had stopped people that fit the description.” Under these circumstances, the Family Court improperly determined that the showup identification procedure was reasonable and not unduly suggestive … . Matter of Ahmand T., 2024 NY Slip Op 06051, Second Dept 12-4-24

Practice Point: The identification-evidence in this juvenile delinquency proceeding was too weak to support the order of disposition.

Practice Point: The street stop was not supported by reasonable suspicion.

Practice Point: The showup identification procedure was unduly suggestive.

 

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