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EXCEPTION TO FINALITY RULE WHERE IT IS CLEAR FURTHER ADMINISTRATIVE PROCEEDINGS WOULD BE FUTILE; DEVELOPER DID NOT HAVE A PROPERTY INTEREST IN A SITE PLAN APPROVAL WHICH WOULD SUPPORT A VIOLATION-OF-DUE-PROCESS CAUSE OF ACTION.

In finding the town planning board’s motion for summary judgment on several causes of action brought by respondent developer should have been granted, the Second Department explained (1) the finality rule need not be mechanically applied where it is clear further administrative proceedings would be futile, and (2) the developer did not have a property interest in a site plan approval which would support a violation-of-due-process cause of action:

 

“To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied'” … . “The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury'” … .

In the area of land use, “[a] final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations” … . In this regard, “[a] property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied” … . Additionally, an exception to the finality requirement exists where the municipal entity uses “repetitive and unfair procedures in order to avoid a final decision” … . …

[Respondent developer] alleged that it had a cognizable property interest in the approval of the application that was injured in violation of its right to due process under both the United States and New York State Constitutions. However, as the Planning Board has significant discretion in reviewing site plan applications … , East End does not have a cognizable property interest in the approval of a particular site plan application …. .  East End Resources, LLC v Town of Southold Planning Bd., 2016 NY Slip Op 00476, 2nd Dept 1-27-16

 

ADMINISTRATIVE LAW (FINALITY RULE NOT APPLIED WHERE FURTHER PROCEEDINGS FUTILE)/ZONING (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/DUE PROCESS (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/SITE PLAN (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)

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JUDGE PROPERLY REFUSED TO DISQUALIFY A JUROR WHO SAID SHE COULD NOT CONTINUE DELIBERATING BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM THE CASE.

The First Department, affirming defendant’s manslaughter conviction over an extensive dissent, determined the trial court properly refused to disqualify a juror after she stated she was not able to continue deliberating because she could not “separate [her] emotions from the case.” The First Department explained the criteria for disqualifying a juror as “grossly unqualified” and noted the juror ultimately agreed she would be able to determine what the facts were, on her own, and then apply the law:

 

After a juror is sworn in, the juror should be disqualified only “when it becomes obvious that [the] juror possesses a state of mind which would prevent the rendering of an impartial verdict” (CPL § 270.35[1]). The trial court properly concluded, based upon its observations of the juror and its interactions with her, that she was not grossly unqualified from continuing to serve (CPL § 270.35[1]…). Contrary to how the dissent characterizes the trial court’s interactions with the juror, the colloquy, consisting of some 10 transcribed pages, shows that the court patiently listened to the juror and tactfully asked her probing questions to determine whether, for some reason, she could not be impartial … . She was candid in her responses and forthright about her concerns. None of her concerns had to do with fear about her personal safety … , nor did she express any concerns about feeling coerced by her fellow jurors to vote in any particular way … . The juror never expressed an inability to deliberate fairly and render an impartial verdict, nor did she make any statements that could be taken as evidence of bias or sympathy either towards the deceased or the defendant that would have prevented her from deciding defendant’s guilt or innocence. The juror only said that she was having difficulty separating her emotions, not that she was incapable of deciding the facts or applying the law, or that she would disobey the court’s instructions. People v Spencer, 2016 NY Slip Op 00447, 1st Dept 1-26-16

 

CRIMINAL LAW (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/JURIES (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/DISQUALIFICATION OF JUROR (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)

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THE INSTALLATION OF LIGHT FIXTURES ON A PARTY WALL EXCEEDED ANY EASEMENT THAT MIGHT ARISE FROM THE EXISTENCE OF A PARTY WALL.

A wall separating plaintiff’s (NYCAR’s) and defendant’s property was located entirely on NYCAR’s property. Defendant installed light fixtures on the wall for commercial purposes (an outdoor eating area for defendant’s restaurant). The defendant also installed a door in the wall to act as an emergency exit for patrons of the restaurant. Defendant argued the wall was a party wall and the easement which accompanies a party wall allowed the installation of fixtures on the wall. The Third Department explained that the installation of fixtures on the wall exceeded any easement which might exist:

 

Defendant concedes that the survey that plaintiff submitted in support of its motion for summary judgment shows that the wall lies wholly on NYSARC’s property, but argues that defendant’s installation of the fixtures and utilities was nevertheless proper because it is a party wall. “‘A party wall is generally described as a wall erected between two adjoining pieces of property and used for the common advantage of both owners'” … . Party walls are often located on the boundary line between parcels, in which case the portion of the wall on each property belongs to that parcel’s owner, subject to an easement in the other building’s owner for its support … . A party wall, however, may also “belong[] entirely to one of the adjoining owners, but [be] subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements” … .

Here, defendant’s actions were beyond the scope of a party wall easement; the fixtures and utilities that defendant placed on the exposed eastern portion of the wall neither provided support to defendant’s building nor contributed in any way to the maintenance of a dividing wall between the buildings. Instead, they were installed solely for defendant’s “mere convenience or advantage” in operating its restaurant … . Stamp v 301 Franklin St. Café, Inc., 2016 NY Slip Op 00410, 3rd Dept. 1-21-16

 

REAL PROPERTY (PARTY WALL, EASEMENT EXCEEDED BY INSTALLATION OF LIGHT FIXTURES ON THE WALL)/PARTY WALL (EASEMENT EXCEEDED BY INSTALLATION OF LIGHT FIXTURES ON THE WALL)/EASEMENTS (EASEMENT ASSOCIATED WITH A PARTY WALL WAS EXCEEDED BY THE INSTALLATION OF LIGHT FIXTURES ON THE WALL)

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SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING HIS MAXIMUM SENTENCE ON THE GROUND SUITABLE HOUSING HAD NOT YET BEEN FOUND.

The Third Department, in a full-fledged opinion by Justice Lynch, determined a sex offender could not be kept in prison after he had served his maximum sentence on the ground that suitable housing had not yet been found:

 

There is no dispute here that, due to petitioner’s status as a risk level III sex offender, his release was subject to the mandatory condition that he have suitable housing located more than 1,000 feet from school grounds (see Executive Law § 259-c [14]…). Further, petitioner concedes that the Board of Parole (hereinafter the Board) was authorized to order, on January 15, 2015, that he be transferred to an RTF [residential treatment facility] (see Penal Law § 70.45 [3]; Correction Law § 73 [10]). In response to the petition, respondents explain that petitioner was assigned, but never actually transferred, to Woodbourne Correctional Facility, an RTF, due to an unspecified mental health condition … . Accordingly, there is no dispute that petitioner remained confined in a maximum security correctional facility for more than eight months past the expiration of his three-year determinate sentence. Respondents provide no convincing authority for this unilateral decision, nor do we discern any.

We have previously held that the Board has discretion to deny parole release to an inmate who has not secured an approved residence on his or her conditional release date … . In contrast, we recently held that DOCCS does not have the authority to retain an inmate beyond the inmate’s maximum expiration date in order to finalize the terms of PRS [postrelease supervision], because it was conclusively bound by the sentence and commitment order … . … [W]e find that when a risk level III sex offender reaches his or her maximum expiration date, DOCCS must release the individual to either an approved residence or to an RTF. Where an individual needs mental health treatment not otherwise available at an RTF, DOCCS must, prior to the release date, seek a court order authorizing continued hospitalization pursuant to Mental Hygiene Law article 9 or admission to a secure detention facility pursuant to Mental Hygiene Law article 10 (see Correction Law § 404). People ex rel. Green v Superintendent of Sullivan Corr. Facility, 2016 NY Slip Op 00417, 3rd Dept 1-21-16

 

CRIMINAL LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/SEX OFFENDERS (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/MENTAL HYGIENE LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)

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EVIDENCE OF AN UNRELATED DRUG SALE WAS NOT ADMISSIBLE TO SHOW DEFENDANT’S MOTIVE, CONVICTION REVERSED.

The Third Department reversed defendant’s conviction in a drug-sale case because evidence of a prior unrelated drug sale was allowed to be introduced. There was no issue in the case to which the prior crime pertained. The evidence was not necessary to demonstrate defendant’s motive. The prejudicial effect of the evidence, therefore, outweighed its probative value:

 

Evidence of prior bad acts or uncharged crimes may be admissible to show motive to commit a crime under one of the traditional Molineux exceptions — where the probative value exceeds its prejudicial effect … . That said, “there is usually no issue of motive in a drug sale case, as the seller’s motivation is nearly always financial gain” … . Moreover, “evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his [or her] past” … . The [evidence in question] is highly suggestive of an illicit drug transaction, and it is difficult to discern any relevant impact other than to show defendant’s criminal propensity. As this case largely turned on [a witness’] credibility, we cannot characterize the error in admitting this evidence as harmless, notwithstanding County Court’s curative instruction … . People v Magee, 2016 NY Slip Op 00399, 3rd Dept 1-21-16

 

CRIMINAL LAW (EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/MOLINEUX (EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)

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WHERE A WITNESS STATES SHE DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT.

The Third Department determined County Court properly denied defense counsel’s request to enter the victim’s statement in evidence as a prior inconsistent statement. The court explained that, where a witness states she does not recall making a statement, it is necessary to call a witness who was present when the statement was made to lay a proper foundation for admission. The court also noted that the statement was not so inconsistent with the witness’ testimony as to warrant its use in cross-examination. With respect to the foundation for the evidence, the court wrote:

 

“It is well established that a witness’ prior inconsistent statements may be used to impeach his [or her] trial testimony [a]nd the test of inconsistency . . . is not limited to outright contradictions between a witness’ prior statements and his [or her] trial testimony” … . However, before a witness may be impeached with such a statement, a proper foundation must be laid … , and, “[i]f the witness denies that the statement was made or does not remember making it, he or she may be impeached by the testimony of others who heard the statement” … .

Here, while cross-examining the victim at trial, defense counsel questioned her about the statement that she gave to State Trooper Joseph Smith several hours after the attack occurred. Specifically, counsel asked the victim if she remembered giving a statement to Smith, to which she said, “I don’t recall. I don’t remember a lot.” Counsel then asked, “You don’t remember giving a statement?” to which the victim answered, “I remember giving a statement, yes, I do, but everything was jumbled.” Counsel then asked if the victim remembered telling Smith that she was sleeping on the couch just before the altercation. The victim denied making such statement and explained that she told Smith that she was lying on the couch trying to go to sleep. After being shown the statement by counsel, the victim confirmed that it was, in fact, the statement she vaguely recalled being read to her by Smith and that she had signed. Defendant then unsuccessfully attempted to offer the victim’s statement into evidence. County Court sustained the People’s hearsay objection, noting that Smith was available to be called as a witness and questioned with regard to the victim’s statement. Inasmuch as defendant failed to lay a proper foundation for admission of this hearsay evidence, we find no abuse of discretion in County Court’s ruling. People v Maxam, 2016 NY Slip Op 00391, 3rd Dept 1-21-16

 

CRIMINAL LAW (WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/EVIDENCE (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION)

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THE PEOPLE’S STATEMENTS OF READINESS FOR TRIAL WERE DEEMED ILLUSORY; CASE DISMISSED ON SPEEDY TRIAL GROUNDS.

The First Department, over an extensive dissent, determined the People’s two statements of readiness (for trial) were illusory. The defendant’s case should have been dismissed on speedy trial grounds:

 

First, the People provided no explanation why, after filing and serving the certificate of readiness on August 30, 2011, shortly after defendant’s arraignment on August 25, 2011, they answered not ready at the next court date on September 7, 2011 … . Nothing in the record, express or inferred, explains their change in status from ready to not ready. As the People “gave no explanation for the change in circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed,” and the statement of readiness thus “did not accurately reflect the People’s position,” the People should have been charged with the entire period, a total of 70 days … . The People argue that the court did not ask for any reason, but the burden rests on the People to clarify, on the record, the basis for the adjournment … .

Second, after the People answered not ready on January 31, 2012, because the prosecutor was on trial in another case, the matter was adjourned to March 20, 2012. On February 7, 2012, the People filed and served a certificate of readiness. At the next court date, March 20, 2012, however, they again answered not ready because the prosecutor was on trial in another case. The court properly deemed the entire period chargeable to the People, “notwithstanding” the February 7, 2012 certificate of readiness, but should have also charged subsequent adjournments to the People. If the prosecutor was on trial at the prior and subsequent adjournments, it is unclear why the People filed and served an off-calendar certificate of readiness, or whether the prosecutor was on trial in the same or a different case. As a result, the February 7, 2012 certificate of readiness was illusory, and the entirety of subsequent adjournment periods (not merely the number of days the People requested), until the People next announced that they were ready, should have been charged to them. Specifically, the 50 days from March 20, 2012 until May 9, 2012, 61 days from May 9, 2012 to July 9, 2012, and 52 days from July 9, 2012, until August 30, 2012, when the People validly declared their readiness, should have been charged. People v Rodriguez, 2016 NY Slip Op 00423, 1st Dept 1-21-16

 

CRIMINAL LAW (SPEEDY TRIAL, PEOPLE’S STATEMENTS OF READINESS DEEMED ILLUSORY)/SPEEDY TRIAL (PEOPLE’S STATEMENTS OF READINESS DEEMED ILLUSORY)/STATEMENT OR READINESS (SPEEDY TRIAL, STATEMENTS OF READINESS DEEMED ILLUSORY)

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PLAINTIFFS HAD STANDING TO BRING A COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS BY VIRTUE OF THE CLOSE PROXIMITY OF PLAINTIFFS’ AND DEFENDANTS’ PROPERTIES.

The Second Department determined plaintiffs had standing to bring a private common-law action to enjoin zoning violations by virtue of the proximity of plaintiffs’ property to defendants’ property:

 

“To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are different in kind and degree from the community generally’ and that the asserted interests fall within the zone of interest to be protected’ by the statute or ordinance at issue” … . However, “an allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury” … . Here, the record demonstrates that the plaintiffs’ property was in close proximity to the defendants’ property and that the plaintiffs’ interests “were within the zone of interest to be protected by the zoning ordinances alleged to be violated” … . Since the appellant failed to demonstrate that the plaintiffs lacked standing to maintain this action, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3)… . Gershon v Cunninghaml, 2016 NY Slip Op 00332, 2nd Dept 1-20-16

 

ZONING (STANDING FOR PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)/STANDING (PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)

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THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION WERE NOT ACCURATELY STATED IN THE JURY INSTRUCTIONS AND VERDICT SHEET; MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department reversed Supreme Court, in the interest of justice, because the jury instructions and verdict sheet did not accurately state the elements of malpractice based upon a lack of informed consent. Plaintiff’s motion to set aside the verdict should have been granted. The elements of a “lack of informed consent” cause of action were explained:

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove “(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … . ” To state it in other terms, the causal connection between a doctor’s failure to perform his [or her] duty to inform and a patient’s right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures actually performed. Once that causal connection has been established, the cause of action in negligent malpractice for failure to inform has been made out and a jury may properly proceed to consider plaintiff’s damages’ ” … . Figueroa-Burgos v Bieniewicz, 2016 NY Slip Op 00329, 2nd Dept 1-20-16

NEGLIGENCE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURIES (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURY INSTRUCTIONS (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/VERDICT SHEET (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/INFORMED CONSENT, LACK OF (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)

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GOLFER ASSUMED THE RISK OF SLIPPING ON A WET RAILROAD TIE WHICH LINED A PATH ON THE GOLF COURSE.

The Second Department, reversing Supreme Court, determined plaintiff golfer assumed the risk of slipping on a wet railroad tie which lined a path on the golf course:

 

Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played … .

“[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . Moreover, “[i]t is not necessary to the application of assumption of risk that the injured plaintiff [had] foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . While participants are not deemed to have assumed the risks of concealed or unreasonably increased risks … , if “the risks are fully comprehended or obvious and the plaintiff has consented to them, the defendant has satisfied its only duty of care which is to make the conditions as safe as they appear to be” … . Bryant v Town of Brookhaven, 2016 NY Slip Op 00323, 2nd Dept 1-20-16

 

NEGLIGENCE (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURSE PATH)/ASSUMPTION OF RISK (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURS PATH)

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