You are here: / Failure to Meet One-Year Residency Requirement Invalidated Designating...

Search Results

/ ,

Failure to Meet One-Year Residency Requirement Invalidated Designating Petition

The Third Department affirmed the invalidation of petitioner’s designating petition because petitioner had not lived in the relevant district for one year, as required by the Albany County Charter. The court held the residency requirement did not violate due process:

… [B]y conceding that the address listed on his designating petition is outside the 9th Legislative District and that he did not, in fact, live in that district, petitioner failed to demonstrate that he satisfied the residency requirements and, consequently, did not meet his burden of demonstrating the validity of his designating petition … .

… [W]e find that the one-year durational residency requirement imposes a reasonable, nondiscriminatory restriction on prospective candidates and voters that is supported by a rational basis … . Matter of Scavo v Albany County Bd. of Elections, 2015 NY Slip Op 06640, 3rd Dept 8-20-15

 

/

Plaintiff Entitled to Summary Judgment—Plaintiff Demonstrated Defendant’s Negligence and Plaintiff’s Freedom from Comparative Fault

The Second Department determined plaintiff-pedestrian, who was struck by defendant when in a crosswalk, was entitled to summary judgment.  The court explained plaintiff had demonstrated both required elements: (1) defendant was negligent; and (2) plaintiff was free from comparative negligence. Defendant’s opposing affidavit, which contradicted his deposition testimony, raised only “feigned” issues and did not, therefore, raise a question of fact:

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault …, since there can be more than one proximate cause of an accident … . Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff’s comparative fault … .

The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk at the southwest corner of 84th Street and 17th Avenue and during the course of crossing the street, he looked both ways for oncoming vehicles and that, as he was crossing 17th Avenue within the crosswalk, with the pedestrian control and traffic control devices in his favor, [defendant] failed to yield the right-of-way to him … . The evidence submitted by the plaintiff demonstrated that [defendant] violated Vehicle and Traffic Law § 1111(a)(1) and that the plaintiff was not at comparative fault in the happening of the accident. In opposition, the defendants submitted [defendant-driver’s] affidavit, which contradicted his earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat the plaintiff’s motion… . Zhu v Natale, 2015 NY Slip Op 06586, 2nd Dept 8-19-15

 

/ ,

Defendant, In Its Summary Judgment Motion, Properly Addressed Only the Theory of “Tort Liability Arising from Contract” Which Was Alleged in the Pleadings

The Second Department determined defendant was entitled to summary judgment in an action based upon the allegation defendant had “launched an instrument of harm,” thereby imposing liability in tort arising from a contract. Defendant demonstrated it did not launch and instrument of harm and plaintiff failed to raise a question of fact in response. The court explained the applicable law, noting that defendant need only address the specific theory of contract-based liability which was raised in the pleadings:

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely … . Here, the only exception alleged in the pleadings with respect to the defendant Wiley Engineering, P.C. (hereinafter Wiley), was that Wiley launched a force or instrument of harm … . Therefore, in moving for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, Wiley was only required to address this exception by demonstrating, prima facie, that it did not launch a force or instrument of harm creating or exacerbating any allegedly dangerous condition … . Here, Wiley met its prima facie burden and, in opposition, the plaintiff failed to raise a triable issue of fact. Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06580, 2nd Dept 8-19-15

 

/ , ,

Requirements for an Easement In Favor of Public Use Not Met

The Second Department determined the city had failed to demonstrate that an unmapped roadway used since the 1970’s had become a public highway under the Highway Law, and the city failed to demonstrate an “easement in favor of public use” existed over the portion of the roadway which was on defendant’s land. The “Highway Law” statute invoked by the city applied only to towns, not cities. And the requirements for an easement in favor of public use had not been demonstrated. The court explained the easement requirements:

The City argues … that an easement in favor of the public was created over the defendant’s property pursuant to the common-law doctrine of dedication. This doctrine requires evidence of the owner’s intent to dedicate the property for public use and acceptance of the dedication by the public authorities … . Here, however, the City’s submissions in support of its motion for summary judgment failed to establish, prima facie, that the defendant’s land had been dedicated to the use of public travel by any prior owner or the defendant. City of New York v Gounden, 2015 NY Slip Op 06569, 2nd Dept 8-19-15

 

/ , ,

Allegations of Fraud in the Inducement Did Not Invalidate the Arbitration Clause in the Agreement

The Second Department, over a dissent, determined that plaintiff’s motion to stay arbitration was properly denied. Plaintiff alleged that an agreement to sell her business and related real property was induced by fraud and, therefore, the arbitration clause in the agreement was invalid and unenforceable. The court noted that the agreement was properly signed by plaintiff’s attorney as her attorney-in-fact and plaintiff attended the closing where she signed the relevant documents. She was deemed, therefore, to have read and understood the documents. The court explained its limited role in determining whether a matter is arbitrable, and further explained that, absent fraud which permeated the entire agreement, the arbitration clause will still be enforced in the face of allegations of fraud in the inducement:

Arbitration is a favored method of dispute resolution in New York … . “[T]he announced policy of this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties” … . “New York courts interfere as little as possible with the freedom of consenting parties’ to submit disputes to arbitration” … . Parties to arbitration agreements should be prevented from using the courts as a vehicle to protract litigation … . The threshold issue of whether there is a valid agreement to arbitrate is for the courts … . Once it is determined that the parties have agreed to arbitrate the subject matter in dispute, the court’s role has ended and it may not address the merits of the particular claims … . * * *

… [T]he Court of Appeals ruled that an arbitration clause is generally separable from substantive provisions of a contract, so that an agreement to arbitrate is valid even if the substantive provisions of the contract are induced by fraud … . However, if a party can demonstrate that “the alleged fraud was part of a grand scheme that permeated the entire contract, including the arbitration provision, the arbitration provision should fall with the rest of the contract” … . “To demonstrate that fraud permeated the entire contract, it must be established that the agreement was not the result of an arm’s length negotiation or the arbitration clause was inserted into the contract to accomplish a fraudulent scheme” … . Here, the plaintiff failed to make such a showing. Ferrarella v Godt, 2015 NY Slip Op 06571, 2nd Dept 8-19-15

 

/ , ,

Defendants Demonstrated They Were Entitled to Depose Nonparty Physician Whose Notations Expressed Skepticism About the Cause of Plaintiff’s Injuries

The Second Department determined defendants were entitled to depose a nonparty doctor whose notations in medical records expressed skepticism about the plaintiff’s claims re: the cause of her injuries. The court explained the applicable law:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The notice requirement of CPLR 3101(a)(4) “obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . After the subpoenaing party has established compliance with the CPLR 3101(a)(4) notice requirement, disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action … . However, the party or nonparty moving to vacate the subpoena has the initial burden of establishing either that the requested deposition testimony “is utterly irrelevant'” to the action or that ” the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, contrary to the plaintiff’s contention, the … defendants satisfied the notice requirement. In a copy of the document entitled “Authorization to Permit the Interview of Treating Physician by Defense Counsel,” which was attached to the nonparty witness subpoena, “the circumstances or reasons” requiring the deposition of the nonparty were properly provided (CPLR 3101[a][4]). Since the … defendants met this minimal obligation, the burden shifted to the plaintiff to establish that the deposition testimony sought was irrelevant to this action, which she failed to do. Further, the … defendants demonstrated that it was relevant to the defense of the action … . Bianchi v Galster Mgt. Corp., 2015 NY Slip Op 06568, 2nd Dept 8-19-15

 

/ , ,

Elements of Tortious Interference with Contract and Tortious Interference With Prospective Business Relations Explained

The Second Department, over a dissent, determined that the counterclaims alleging tortious interference with contract and tortious interference with prospective business relations were properly dismissed. The counterclaims alleged that the plaintiffs-attorneys, who represented defendant, Landmark, improperly sought payment of attorney’s fees for a negotiated stipulation of settlement directly from the party with whom Landmark settled, rather than from Landmark. In dismissing the counterclaims, the court explained the required elements of each:

A necessary element of [tortious interference with contract] is the intentional and improper procurement of a breach and damages … . Here, Landmark failed to adequately plead facts that would establish that the plaintiffs, in communicating with the third party to secure their attorney’s fees, intentionally procured that party’s breach of the stipulation of settlement… . …

A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a “more culpable conduct” standard … . This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party … . ” Wrongful means’ include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure” … . As a general rule, the offending party’s conduct must amount to a crime or an independent tort, as conduct that is neither criminal nor tortious will generally be “lawful” and thus insufficiently “culpable” to create liability for interference with prospective business relations … . The mere violation of an attorney disciplinary rule will only create liability if actual damages are incurred as a result of the violating conduct  … . In addition, where the offending party’s actions are motivated by economic self-interest, they cannot be characterized as solely malicious … . Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 2015 NY Slip Op 06575, 2nd Dept 8-19-15

 

/ ,

Police-Monitored, Recorded Phone Conversation Between Minor Victim and Defendant Was Admissible

In affirming defendant’s conviction, the Fourth Department determined a police-monitored, recorded phone conversation between the minor victim and the defendant was admissible. “Vicarious consent” to the recording was given by the victim’s mother. The court rejected arguments that the conversation was inadmissible because the victim was acting as a police agent and because the conversation constituted an impermissibly deceptive tactic on the part of the police:

We reject defendant’s further contention that the court erred in refusing to suppress statements that he made during a police-monitored telephone conversation with the victim. There is no merit to his contention that the statements were admitted in violation of CPLR 4506 (1). It is well established that one of the parties to a telephone conversation may consent to the wiretapping or recording of the conversation… , and here the victim gave her consent. Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations … . We note in any event that the victim’s mother consented to the recording, and we conclude that the “vicarious consent” exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR 4506 … . Also contrary to defendant’s contention, his statements in the controlled telephone call were not inadmissible pursuant to CPL 60.45. Even assuming, arguendo, that the victim was acting as an agent of the police when she telephoned defendant, the calls were recorded with the victim’s consent …, and “the victim did not make a threat that would create a substantial risk that defendant might falsely incriminate himself” … . We reject defendant’s further contention that the controlled telephone call constituted an unconstitutionally deceptive police tactic. “Deceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” … , and there was no such showing here. People v Bradberry, 2015 NY Slip Op 06609, 4th Dept 8-19-15

 

/ ,

“Nailing” of Petition on Next to Last Day for Service, and Mailing on the Last Day, Was Sufficient—Respondent, Who Initially Declined Designation as a Candidate, Could Not Subsequently Accept Designation as a Substitute Candidate

The Fourth Department, over a two-justice dissent, determined that the petition seeking invalidation of respondent’s designating petition was timely served by “nail and mail” because the nailing occurred on the day before the last possible date for service and the mailing occurred on the last possible day for service. The fact the petition could not have been “received” by mail by that date was not determinative. On the merits, the court determined respondent could not be the substitute candidate for a vacancy he himself had created by initially declining the designation. With respect to the service issue, the court wrote:

… [T]he petitioner must effectuate ” actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced’ ” … . In other words, the respondents must “receive delivery” of the order to show cause and the verified petition “within the [statute of limitations] period” … . That requirement operates irrespective of the court’s specific service directions under section 16-116 … .

Contrary to the view of our dissenting colleagues, we conclude that petitioner effectuated “actual delivery” of the commencement papers when they were affixed to respondent’s front door. It is well established that because “the [commencement] papers were timely affixed to the front door, the fact that the papers mailed were not received on [or before the statute of limitations date] was not a jurisdictional defect” … . Matter of Angletti v Morreale, 2015 NY Slip Op 06616, 4th Dept 8-19-15

 

/ ,

Candidate Designating Petition Deemed Invalid Due to Fraud (Unwitnessed Signatures)

The Second Department determined a candidate-designating petition was invalid because the subscribing witness did not in fact witness all of the signatures on the petition. The petition was invalid with respect to the candidate who was aware of the fraud, and the candidates who were not aware of the fraud (because there were not enough signatures after the invalid signatures were struck):

A candidate’s designating petition will be invalidated on the ground of fraud where there is a showing that the entire designating petition is permeated with fraud … , or where the candidate has participated in, or is chargeable with, knowledge of the fraud… , even if there are a sufficient number of valid signatures on the remainder of the designating petition … .

Here, the Supreme Court determined that Shapiro, the subscribing witness with respect to 147 signatures, had fraudulently and knowingly signed and submitted false witness statements, and that Spring [one of the candidates] was a party to the fraud. * * * . Moreover, we agree with the court’s determination that Shapiro fraudulently and knowingly signed and submitted false witness statements . Therefore, the court correctly determined that Spring participated in, and was chargeable with knowledge of, the fraud, and properly granted that branch of the petition which was to invalidate the designating petition as to him … .

However, since the Supreme Court determined that Shapiro’s witness statements on the contested sheets were false, the court erred in denying those branches of the petition which were to invalidate the designating petition as to the other two candidates, Perillo and Milner … .  Shapiro was the subscribing witness with respect to 147 of the 343 total signatures, and her false witness statements render those signatures invalid. Although Perillo and Milner did not engage in candidate fraud, the invalidation of 147 of the 343 collected signatures leaves them with an insufficient number of valid signatures. Thus, the designating petition should have been invalidated with respect to all three candidates … . Matter of Sgammato v Perillo, 2015 NY Slip Op 06630, 2nd Dept 8-19-16

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy