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Voluntary Payment Doctrine Precluded Lawsuit

The First Department, over a dissent, determined plaintiff’s (Klein’s) complaint alleging  breach of contract, fraud, violation of General Business Law, etc., was properly dismissed pursuant to the voluntary payment doctrine. Klein procured a loan from defendant. After paying interest and fees to defendant in order to refinance with another lender, Klein sued defendant alleging the fees were excessive and were paid under duress. The majority concluded the voluntary payment doctrine warranted dismissal of the complaint. The dissent argued plaintiff had stated a cause of action alleging the payment was made under duress, and, therefore, was not voluntary:

The voluntary payment doctrine bars recovery of payments voluntarily made with full knowledge of the facts, in the absence of fraud or mistake of material fact or law … . The onus is on a party that receives what it perceives as an improper demand for money to “take its position at the time of the demand, and litigate the issue before, rather than after, payment is made” … . Here, there is no claim of fraud or mistake. Defendant was entirely aboveboard about the amount of money it expected to be paid to settle the loan. Nevertheless, Klein made the calculated decision to schedule the closing and to pay off the entire amount demanded. Nor, as discussed below, did Klein “take [his] position at the time of the demand.”

Plaintiffs argue that the voluntary doctrine should not apply because Klein was deprived of a meaningful choice as to whether to pay off the loan on defendant’s terms. They further claim that Klein protested the demand and that this shielded plaintiffs from any application of the doctrine. Nothing in plaintiffs’ complaint or papers in opposition to the motion suggests that these are viable positions. It is assumed, of course, that plaintiffs’ factual allegations are true, both in the complaint and in opposition to the motion … . However, conclusory allegations will not serve to defeat a motion to dismiss … . Nothing in the complaint or the affidavit alleges any reason why Klein had no choice but to go through with the closing; indeed, he was able to put off the closing the first time he received from defendant what he considered an unreasonable payoff demand. DRMAK Realty LLC v Progressive Credit Union, 2015 NY Slip Op 08044, 1st Dept 11-5-15

 

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Report of a Robbery Five Minutes Before Justified Street Stop, Flight Justified Pursuit

The First Department, in a full-fledged opinion by Justice Friedman, over a two-justice dissent, determined the police were justified in stopping the defendants for a level-two inquiry, and were further justified in pursuing and detaining them. The majority found that the report of a robbery at a country club five minutes before, together with seeing the defendants on the private country club driveway justified a level two street stop and inquiry. When one of the men fled and the others walked away, the police were justified pursuing and detaining them. The dissenters argued that the police knew only that a robbery in the vicinity of the country club had been reported and that seeing the defendants walking on the driveway in broad daylight justified only a level one inquiry and, therefore, did not justify pursuit:

… [D]efendants were first seen on private property where a burglary had just been reported, in a suburban area, with nobody else visible anywhere in the vicinity. This gave rise to a founded suspicion of criminality, justifying a level-two common-law inquiry under the De Bour analysis.

The police did not exceed the bounds of a common-law inquiry when they requested defendants to stop so that the police could “ask them a question,” because such a direction does not constitute a seizure … . Instead of stopping, defendant Nonni immediately ran, and defendant Parker immediately made what officers described as a “hurried” and “evasive” departure … . Under all the circumstances, the record supports the conclusion that both defendants “actively fled from the police,” rather than exercising their “right to be let alone” … . Defendants’ flight elevated the existing level of suspicion to reasonable suspicion, justifying pursuit and an investigative detention … . Here, “[f]light, combined with other specific circumstances indicating that the suspect[s] . . . [might have been] engaged in criminal activity, . . . provide[d] the predicate necessary to justify pursuit”… . People v Nonni, 2015 NY Slip Op 08081, 1st Dept 11-5-15

 

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Lineup Was Unduly Suggestive, Court Suggested Everyone In the Lineup Should Have Been Given an Eye Patch Because the Complainant Described the Perpetrator as Having a “Deformed Eye”

The First Department reversed defendant’s conviction and ordered a new trial because the lineup in which defendant was identified by the complainant was unduly suggestive. The complainant had described the perpetrator as having a “deformed eye,” and defendant was the only person in the lineup with that feature. The court suggested having everyone in the lineup wear an eye patch:

The complainant described the perpetrator of the alleged robbery as having one distinctive physical feature: a “deformed right eye” which “appeared to be something further into his head.” At the suppression hearing, the detective who prepared a photo array and a postarrest lineup testified that, in each instance, defendant was the only participant who had an “apparently defective eye.” Under the circumstances, we find that the photo array and lineup were unduly suggestive because “only the defendant matche[d] a key aspect of the description of the perpetrator,” namely, a deformed right eye … . While we recognize the practical difficulties in finding fillers with similarly defective eyes, or photographs of such persons, “[a] simple eye patch provided to each of the lineup participants or a hand over an eye would have sufficed to remove any undue suggestiveness of the procedure” …, and similar measures could have been taken with regard to the photos. People v Perry, 2015 NY Slip Op 08046, 1st Dept 11-5-15

 

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Audit Procedures, Disclosure of Which Could Impede Investigations, Are Exempt from Disclosure

The Third Department noted that documents reflecting audit procedures used by the Department of Education are exempt from a FOIL request if they would facilitate attempts to circumvent the law, even though the documents were not directly related to law enforcement proceedings:

“FOIL is based on a presumption of access to the records, and an agency . . . carries the burden of demonstrating that the exemption applies to the FOIL request” … . The Department here relied upon Public Officers Law § 87 (2) (e) in providing redacted records and, specifically, a provision that exempts records from disclosure that “are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings” (Public Officers Law § 87 [2] [e] [i]). Respondents asserted that the redactions were necessary because disclosure of the unredacted documents would reveal auditing techniques that would enable the providers of preschool special education programs to conceal their financial misdeeds more effectively.

The Department was directed to prepare the audit guidelines in the wake of audits conducted by the Comptroller that “found a pattern of mismanagement, waste and even fraud by numerous private providers of preschool special education” … . Those audits resulted in criminal investigations and the referral of “numerous” certified public accountants to the Department for disciplinary proceedings, and there is no reason to doubt that audits conducted under the guidance of the Department are also aimed at uncovering financial malfeasance. As such, while the guidelines and related documents did not arise from a specific law enforcement investigation, they were nevertheless compiled with law enforcement purposes in mind, and are exempt from disclosure if their release would enable individuals to “frustrate pending or prospective investigations or to use that information to impede a prosecution” … . Matter of Madeiros v New York State Educ. Dept., 2015 NY Slip Op 08028, 3rd Dept 11-5-15

 

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Finding by Workers’ Compensation Board that Corrections Officer’s Condition Was Work-Related Did Not Automatically Entitle Officer to Disability Benefits Under General Municipal Law 207-c

In upholding the county’s determination petitioner (a corrections officer) was not entitled to disability benefits under General Municipal Law 207-c., the Third Department noted that the finding by the Workers’ Compensation Board that petitioner’s condition was work-related did not, under the doctrine of collateral estoppel, automatically entitle the petitioner to disability benefits:

Contrary to petitioner’s initial contention, it is settled law that “a determination by the Workers’ Compensation Board that an injury is work-related” does not, “by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law § 207-c benefits” … . Accordingly, the Board’s determination did not collaterally estop [the county] from denying petitioner’s application for General Municipal Law § 207-c benefits.

Further, substantial evidence supports the determination denying petitioner benefits. Pursuant to General Municipal Law § 207-c, correction officers are entitled to benefits when they are injured “in the performance of [their] duties” … , so long as they can establish the existence of a “‘direct causal relationship between job duties and the resulting illness or injury'” … . This Court will uphold a determination regarding a correction officer’s eligibility for benefits if such decision is supported by substantial evidence … , i.e., “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, [which] is ‘less than a preponderance of the evidence'” … . Notably, credibility determinations are within the sole province of the Hearing Officer … . Matter of Jackson v Barber, 2015 NY Slip Op 08025, 3rd Dept 11-5-15

 

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Sidewalk Dropoff Was a Trivial Defect

The Third Department determined the sidewalk defect which allegedly caused plaintiff to fall was trivial and, therefore, not actionable:

“An owner will not be liable . . . for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, which may cause a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection” … . * * *

There is no set point at which a height differential on a sidewalk will rise above the level of triviality and become a dangerous condition … . Instead, “[w]hether a defect is so trivial to preclude liability depends on the particular facts of each case and requires consideration of such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury” … .

… Photographs confirm that the sidewalk dropped off in the area where claimant fell, which the former grounds manager at the university suggested may have been due to a layer of asphalt “hav[ing] peeled away in that section.” No complaints had been made about the dropoff, however, and neither the groundskeeper who cared for the area nor the grounds manager recalled noticing it before claimant was injured. There were also no actual measurements of the depth of the dropoff, and the grounds manager reviewed photographs of the condition and opined that the depth was “much less” than the two inches that claimant believed it to be. Our review of those photographs leads us to agree with the assessment of the grounds manager that the dropoff was a minimal one. Thus, the facts and circumstances established at trial support the determination of the Court of Claims that the dropoff was simply too trivial to be actionable … . Medina v State of New York, 2015 NY Slip Op 08019, 3rd Dept 11-5-15

 

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Umpire Assumed the Risk of Being Struck by a Bat Thrown by Batter

The Third Department determined that an umpire assumed the risk of being struck by a bat thrown by a batter as he ran toward first base. Had the bat been thrown intentionally or recklessly the assumption of the risk doctrine would not apply. There was no admissible evidence the bat was thrown recklessly (in anger):

Under the primary assumption of risk doctrine, a participant, including an umpire, in a sport such as softball “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . Such risks include getting hit with a ball or a bat during a baseball game, particularly for an experienced participant … . That said, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others” … .

… [W]e find unpersuasive plaintiffs’ claim that getting hit with a bat is not an inherent risk in a slow pitch, 65-year-old and older softball game. Neither the age of the players nor the velocity of the pitch negates the readily apparent risk of a batter releasing the bat after a swing. The record shows that [plaintiff] has extensive experience as an umpire and no claim is made that defendant intentionally threw the bat at him. The issue distills to whether defendant recklessly threw the bat, creating a risk “‘over and above the usual dangers that are inherent in the sport'” … . Morrisey v Haskell, 2015 NY Slip Op 08021, 3rd Dept 11-5-15

 

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Claimant Who Cannot Afford Child Care Is Unavailable for Work and Is Not Entitled to Unemployment Insurance Benefits

The Third Department determined the claimant, who stopped working to care for her child, was not “available for work” under the Labor Law and was not, therefore, entitled to unemployment insurance benefits:

Pursuant to Labor Law § 591 (2), a claimant will not be deemed eligible to receive unemployment insurance benefits if he or she is “not ready, willing and able to work in his [or her] usual employment or in any other for which he [or she] is reasonably fitted by training and experience.” A claimant who is unable to work due to the lack of child-care arrangements may be considered to be unavailable for work for purposes of receiving unemployment insurance benefits … . Here, it is undisputed that claimant left her job to care for her son and she testified that, after she did so, her mother-in-law moved away and her husband took a job with long hours that precluded her from relying upon them for childcare. She further stated that she could not afford to put her son in day care and that he could not be placed in a Head Start program until he was three years old. In view of the foregoing, substantial evidence supports the Board’s finding that claimant was ineligible to receive benefits because she was unavailable for work. Matter of Peek (Commissioner of Labor), 2015 NY Slip Op 08029, 3rd Dept 11-5-15

 

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Attorney Whose Testimony Would Support Client Should Have Been Disqualified Under Advocate-Witness Rule, However, the Motion to Disqualify the Attorney’s Firm Was Properly Denied

The Second Department noted that an attorney (Wohlman) should have been disqualified under the advocate-witness rule but the motion to disqualify the attorney’s firm and “of counsel” was properly denied. The attorney’s testimony would not be prejudicial to the client:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to disqualify Derek Wolman from representing the defendant in this action, since Wolman’s testimony will be necessary regarding “a significant issue of fact” in the dealings between the plaintiff and the defendant (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]…). Contrary to the defendant’s contention, the fact that Wolman’s testimony is necessary to and will support the defendant’s case does not preclude application of the advocate-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7…).

However, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff’s motion which were to disqualify Davidoff Hutcher & Citron, LLP, (hereinafter DHC), Candace C. Carponter, and Candace C. Carponter, P.C., from representing the defendant in this action. Wolman is a member of DHC, and Candace C. Carponter and her P.C. appeared as “of counsel” to DHC. Under rule 3.7(b)(1) of the Rules of Professional Conduct (see 22 NYCRR 1200.0), which are not binding authority and provide guidance only … , “[a] lawyer may not act as an advocate before a tribunal if another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client” (22 NYCRR 1200.0, rule 3.7[b][1]). Here, the plaintiff did not argue that Wolman’s testimony would be prejudicial to the defendant. Rather, the plaintiff argued that Wolman’s testimony would support the defendant’s case. Thus, the plaintiff failed to establish any basis for disqualifying DHC, Carponter, or Carponter’s P.C. They can continue to represent the defendant despite the fact that Wolman, their colleague, is a necessary witness … . NY Kids Club 125 5th Ave., LLC v Three Kings, LLC, 2015 NY Slip Op 07958, 2nd Dept 11-4-15

 

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Late Motion to Amend Answer Should Have Been Granted, No Prejudice

The Second Department determined Supreme Court should have granted plaintiff’s motion to amend the answer by adding an affirmative defense. The court noted that, absent prejudice, mere lateness is not a sufficient ground for denial of the motion:

Permission to amend a pleading should be “freely given” (CPLR 3025[b]…). Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party … . Here, the defendant sufficiently alleged that the driver of his vehicle did not have his permission or consent to operate his vehicle at the time of the subject accident … . The proposed affirmative defense set forth allegations based on factual matters that are not palpably insufficient or patently devoid of merit … .

Furthermore, mere lateness is not a basis for denying an amendment unless the lateness is coupled with ” significant prejudice to the other side'” … . Although the defendant waited over 1 ½ years before moving for leave to amend the answer, there was no showing that the plaintiff would be significantly prejudiced, as discovery was ongoing … . Jeboda v Danza, 2015 NY Slip Op 07951, 2nd Dept 11-4-15

 

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