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Question of Fact Whether Negligent Supervision Was the Proximate Cause of the Injuries Plaintiff’s Son Suffered in an Attack by Another Student–the School Was Aware of Prior Assaultive Behavior by the Attacker and the School Was Aware of Recent Threats of Violence (Against Plaintiff’s Son) by the Attacker—The Court Noted that, In a Summary Judgment Motion, the Evidence Is Viewed in the Light Most Favorable to the Nonmovant

The Third Department determined questions of fact precluded summary judgment in favor of defendant high school in a negligent supervision case. Plaintiff’s son, LaValley, was assaulted by another student, Breyette, after plaintiff had alerted school officials about threats of violence made by Breyette against her son. Breyette had a history of assaultive behavior for which he was suspended in middle school. LaValley was punched 37 times in the school cafeteria in close proximity to a teacher who did not intervene and who was not aware of the conflict between the two students. The Third Department noted that, in determining a summary judgment motion, the evidence is viewed in the light most favorable to the nonmovant:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Where a fellow student intentionally injures another, the duty is breached if the school had actual or constructive notice of the conduct that caused the injury such that the acts of the fellow student could have been reasonably anticipated … . The adequacy of supervision and proximate cause are generally issues of fact for the jury … .

Viewing the evidence in the light most favorable to plaintiff as the nonmovant …, we note that Breyette had a history of assaultive behavior, including a previous assault against LaValley in middle school that resulted in Breyette’s out-of-school suspension. There is also evidence that, within the month prior to the assault, Breyette specifically threatened violence against LaValley, and plaintiff testified that she immediately informed the high school principal about this threat. Plaintiff also testified that she brought up the conflict between LaValley and Breyette during a meeting with the principal and her son’s teachers. Although the principal acknowledged that plaintiff had informed him about the conflict and he testified that he spoke to Breyette about it, Breyette denied that the principal had spoken to him prior to the attack. The attack itself occurred in the school cafeteria, in close proximity to a teacher who had not been notified of the threat or the conflict between the two students. According to Breyette, he calmly approached LaValley, called his name to get his attention and proceeded to punch him in the head 37 times without any adult intervention. He did not stop until another student intervened. In light of this evidence, we agree with Supreme Court that factual issues exist with respect to the adequacy of defendants’ supervision and whether the lack of adequate supervision was a proximate cause of LaValley’s injuries … . LaValley v Northeastern Clinton Cent. Sch. Dist., 2015 NY Slip Op 06187, 3rd Dept 7-16-15

 

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Conversion of Water to Steam and Steam to Water Did Not Constitute a Manufacturing Process—Therefore Petitioner Was Not Entitled to Manufacturing Tax Credits in Connection with the Operation of Its “Boiling Water” Nuclear Power Facilities—The Certification Prerequisite for Pollution Tax Credits Is Not Preempted by Federal Law which Regulates the Construction and Operation of Nuclear Power Facilities

The Third Department, in a full-fledged opinion by Justice Garry, determined that petitioner, the owner of two nuclear power plants, was not entitled to manufacturing tax credits or pollution tax credits under the Tax Law. The production of electricity is specifically excluded from the range of “manufacturing” for which manufacturing credits are available. The petitioner argued that the water which is turned into steam and then back into water (to operate the turbines) constituted a manufacturing process within the meaning of the Tax Law. The Third Department disagreed, describing the process as recycling, not manufacturing. The pollution tax credits are available only to facilities certified by the Department of Environmental Conservation as compliant with state environmental, public health and sanitary rules. Petitioner’s facilities were not so certified. The Third Department determined that the state certification requirement was not preempted by federal law, which exclusively regulates the construction and operation of nuclear power facilities, because tax credits do not regulate the construction or operation of such facilities. Petitioner was not, therefore, entitled to pollution tax credits. With regard to the manufacturing tax credits, the court explained:

Manufacturing is defined as “the process of working raw materials into wares suitable for use or which gives new shapes, new quality or new combinations to matter which already has gone through some artificial process by the use of machinery . . . and other similar equipment” (Tax Law former § 210 [12] [b] [ii] [A]), and “‘processing’ speaks to an industrial activity related to manufacturing” … . Here, the water that is converted to steam by petitioner’s assets is then converted back to its original form as water and then to steam again in an ongoing, continuous cycle that makes no permanent change in the water and yields no final product. This is more akin to recycling than to manufacturing. On these facts, we cannot find it irrational for the Tribunal to conclude that the claimed assets were not principally engaged in producing any tangible property other than electricity … . Petitioner has neither established that its interpretation of the governing statute is the only reasonable construction nor that the Tribunal’s interpretation was “irrational or unreasonable”…  and, thus, has not shown that the Tribunal’s determination that it is ineligible for the manufacturing tax credits should be reversed.  Matter of Constellation Nuclear Power Plants LLC v Tax Appeals Trib. of the State of N.Y., 2015 NY Slip Op 06183, 3rd Dept 7-16-15

 

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Two-Part Inquiry for Determining Whether a Dispute is Arbitrable Under a Collective Bargaining Agreement Clearly Explained and Applied

The Third Department determined the dispute between teachers and the board of education (concerning the board’s hiring of a teacher from an outside agency without posting the position as required by the collective bargaining agreement [CBA]) was arbitrable. The court first determined a provision of the Education Law, which allowed hiring from an outside agency, did not erect a policy/statutory barrier to hiring in accordance with the procedures in the CBA. The statute merely allowed the board to hire from an outside agency, but the statute did not preclude the board from using the hiring process agreed to in the CBA. The Third Department then went on to hold there was a reasonable relationship between the subject of the dispute and the general subject matter of the CBA. the only factors a court can look at to determine arbitrability.  The responsibility for any further inquiry and analysis then passed to the arbitrator:

Petitioner contends that arbitration of the subject matter of the dispute is barred by Education Law § 3602-e and public policy. Determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry, the first issue being “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . “[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute” … .

Under the statutory scheme at issue, a “pre[]kindergarten program plan” is defined as a plan “designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies” (Education Law § 3602-e [1] [d] …). Petitioner’s argument rests upon Education Law § 3602-e (5) (d), which states that “[n]otwithstanding any other provision of law, [a] school district[] shall be authorized to enter any contractual or other arrangements necessary to implement the district’s prekindergarten plan.” Contrary to petitioner’s contention, this language does not suggest a legislative intent that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services. A more natural reading of Education Law § 3602-e supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA … . * * *

Having found that there is no public policy prohibition, we turn to the second part of the threshold inquiry — that is, whether the parties agreed to submit the subject matter of the dispute to arbitration … . In considering this issue, we must only ascertain if “there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” … . Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 2015 NY Slip Op 06190, 3rd Dept 7-16-15

 

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Defense Counsel’s Failure to Investigate the Victim’s Medical Condition (Which Would Have Allowed More Effective Cross-Examination of the People’s Expert and the Victim), Failure to Object to Testimony Which May Have Been More Prejudicial than Probative (and which Clearly Required a Jury Instruction Limiting Its Use), and Failure to Object to Improper Comments Made by the Prosecutor, Deprived Defendant of Effective Assistance of Counsel

In a sexual abuse case based entirely on the victim’s testimony (alleging anal intercourse), the Third Department determined defense counsel’s failure to investigate the nature of the victim’s bleeding disorder (which could have called into question the prosecution’s expert’s opinion that victims of sexual abuse, like the victim here, often show no signs of injury), the failure to object to the testimony of the defendant’s spouse alleging his preference for anal intercourse (the prejudicial effect may well have outweighed the probative value—at the very least a limiting instruction should have been requested as to the jury’s limited use of such evidence), and the failure to object to improper comments made by the prosecutor in summation (appealing to jurors’ sympathy, exhorting the jurors to fight for the victim), required reversal and a new trial:

Had counsel sought to inform himself about the victim’s VWD [bleeding disorder] diagnosis, he likely would have become aware of medical experts such as Howard Snyder, a board-certified doctor of emergency medicine who submitted an affidavit in support of defendant’s postconviction motion. Snyder averred that “[t]he presence of VWD [in the victim] would have made the presence of bruising or bleeding during forceful, non-consensual anal intercourse more likely than in [a] patient without VWD.”Undoubtedly, expert testimony similar to Snyder’s would have done much to increase the significance of the SANE [sexual assault nurse examiner] report’s lack of physical findings and would have provided a powerful basis for cross-examination to counter the damaging effects of the SANE’s opinion testimony.

Counsel’s failings were magnified by the fact that the People’s only direct evidence of defendant’s guilt was the victim’s testimony, making counsel’s efforts to undermine her credibility of paramount importance. Indeed, there were no other witnesses to the alleged sexual assaults and no DNA evidence was recovered. In similar situations, the Second Circuit, applying New York law, has repeatedly held that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the vagaries of abuse indicia is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation” (Eze v Senkowski, 321 F3d 110, 129 [2d Cir 2003] …). Thus, the record establishes that, without any justification, counsel prejudiced defendant by “s[itting] on his hands, confident that his client would be acquitted” rather than “consult[ing with] and be[ing] prepared to call an expert” … , whose testimony then would have been “available [to] assist[] the jury in its determination” … .

Counsel’s conduct further fell below our standard of meaningful representation because he failed to object to, and request a limiting instruction to guide the jury in assessing, the testimony of defendant’s former spouse regarding defendant’s sexual preferences. Counsel sat mute while the witness testified that, upon reading the victim’s statement to police, it struck her that it contained details “only someone who had been intimate with [defendant] would know,” including what she then proceeded to describe as defendant’s preference for anal intercourse during their consensual sexual relationship [. We do not think that counsel’s failure to object to this testimony can be excused on the ground that such an objection had “little or no chance of success” … . “Not all relevant evidence is admissible as of right. . . . Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side” … .

In our view, a legitimate question exists as to whether the prejudicial effect of the former spouse’s testimony regarding defendant’s sexual preferences substantially outweighed its probative value, especially considering that she testified that she and defendant had not been sexually active for several years prior to the alleged assaults on the victim. Supreme Court should have had the opportunity to consider this question and make an appropriate ruling in the exercise of its discretion. The court would have done so, but for counsel’s inexplicable failure to object. In the event that the court had determined this testimony to be admissible, counsel could then have requested a limiting instruction, as the lack thereof would “permit[] the jurors to perhaps consider [the former spouse’s statements] as proof of defendant’s propensity” to engage in the sexual acts charged here … . * * *

Finally, we note with disapproval certain remarks made by the prosecutor during summation, to which counsel did not object. The prosecutor improperly attempted to appeal to the jury’s sympathy by asking the jurors to consider how they would have felt if they “were in [the victim’s] shoes” … . The prosecutor also exhorted the jurors to advocate for the victim during deliberations by using the phrase “you fight for her” … . While counsel’s failure to object to these remarks does not, in and of itself, amount to ineffective assistance of counsel, it further illustrates counsel’s representation, the cumulative effect of which deprived defendant of meaningful representation, especially “where, as here, the determination of guilt . . . hinged on sharp issues of credibility” … . People v Cassala, 2015 NY Slip Op 06176, 3rd Dept 7-16-15

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Failure to Instruct the Jury on the Justification Defense Required Reversal and a New Trial/Referring to the Defendant as a Liar, Vouching for the People’s Case, and Asking the Jury to Draw Inferences Not Based Upon the Evidence Constitutes Prosecutorial Misconduct

The Second Department determined defendant was entitled to a new trial because his request for a jury instruction on the justification defense should not have been denied.  There was evidence the victim was in defendant’s home and was attempting to beat and rob the defendant at the time the victim was stabbed. That evidence was sufficient to require submission of the justification defense to the jury. Although the error was not preserved for appeal, the Second Department also noted that the prosecutor improperly characterized the defendant as a liar, vouched for the strength of the People’s case, and asked the jury to draw inferences which were not based upon evidence. With respect to the justification defense, the court explained:

” A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified'” … . Here, there was a reasonable view of the evidence to support the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). Viewing the evidence in the light most favorable to the defendant, the jury reasonably could have concluded that the defendant reasonably believed that the use of deadly force was necessary to prevent the victim from robbing him (see Penal Law § 35.15[2][b]…). Contrary to the People’s contention, it would not have been irrational for the jury to credit the defendant’s account of the incident … . Accordingly, the Supreme Court erred in denying the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). The error in failing to give the requested justification charge was not harmless, as it cannot be said that there was no significant probability that the verdict would have been different absent this error … . People v Irving, 2015 NY Slip Op 06167, 2nd Dept 7-15-15

 

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Failure to Pay Wages In Violation of Labor Law 191 (1)(a) is a Class A Misdemeanor—Therefore Defendant Was Properly Sentenced to a Period of Incarceration Followed by a Period of Probation—The Statute Authorizes Incarceration or a Fine—Because the Defendant Was Incarcerated, the Fine Must Be Vacated

The Second Department determined defendant was properly incarcerated for 60 days and sentenced to a period of probation for failure to pay wages in violation of Labor Law 191(1)(a), which in a Class A misdemeanor.  However, the statute allows for incarceration or a fine.  Because defendant had served 60 days, the imposition of the $5000 fine was vacated:

Contrary to the defendant’s contention, the County Court was permitted to sentence him to a period of probation. A conviction of failure to pay wages in violation of Labor Law § 191(1)(a), which is defined as a misdemeanor punishable by a fine or imprisonment, is a class A misdemeanor (Labor Law § 198-a[1]; see Penal Law § 55.10[2][b]) and, therefore, a crime (see Penal Law § 10.00[6]). Thus, a court may sentence a defendant to a period of probation for the crime of failure to pay wages (see Penal Law § 65.00[1][a]), and the imposition of a period of probation in addition to a 60-day term of incarceration was authorized here (see Penal Law § 60.01[2][d]…).

However, the County Court improperly imposed a $5,000 fine on the defendant. By its terms, Labor Law § 198-a(1) provides for punishment by a fine or imprisonment, but not both a fine and imprisonment, for a first conviction. As the defendant has already served his 60-day term of incarceration, the provision of the sentence imposing a $5,000 fine on the defendant must be vacated. People v DiSalvo, 2015 NY Slip Op 06164, 2nd Dept 7-15-15

 

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Criteria for Valuation of a Partial Taking of Vacant Land Explained

The Second Department determined the valuation of a partial taking of vacant land (the value before minus the value after the taking based on the highest and best use of the land)  was flawed and remitted the matter for a new valuation.  The decision is detailed and fact-specific and therefore is not fully summarized here.  The court explained some of the most significant valuation criteria, noting that any comparable sales considered in the valuation must be similar in character to the subject land (not so here):

When private property is taken for public use, the condemning authority must “compensate the owner so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred'” … . Where, as here, there is a partial taking of real property, “the measure of damages is the difference between the value of the whole before the taking and the value of the remainder after the taking” … . “The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time”… . The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future … . Matter of County of Orange v Monroe Bakertown Rd. Realty, Inc., 2015 NY Slip Op 06143, 2nd Dept 7-15-15

 

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Service of an Unverified Petition in Violation of the Court of Claims Act Did Not Constitute a Jurisdictional Defect

Reversing the Court of Claims, the Second Department determined that service of a petition which was not verified was not a jurisdictional defect in a proceeding to recover money placed in escrow by the NYS Comptroller pending claims for the state’s appropriation and use of easements.

In accordance with the Eminent Domain Procedure Law, after the Attorney General determined that there was or might be a conflict with regard to the money allegedly owed as a result of the extended use of these temporary easements, the funds were deposited by the New York State Comptroller into a special interest-bearing eminent domain account (see EDPL 304[E][1]). Upon receiving notice of this deposit, the petitioner commenced this special proceeding for the distribution of the money pursuant to EDPL 304(E)(1) and Court of Claims Act § 23. The State promptly rejected the petition, noting that it was served without a proper verification. Within days, the petitioner provided the missing verification. The Court of Claims, however, dismissed the petition, concluding, inter alia, that the failure to comply with the statutory provisions requiring verification constituted a jurisdictional defect that mandated dismissal, without consideration of the merits. The petitioner appeals, and we reverse.

While the time limitations and service requirements set forth in Court of Claims Act §§ 10 and 11 have been referred to as “jurisdictional” … , the instant matter concerns a special proceeding pursuant to EDPL 304(E) for the distribution of money that had been deposited (see Court of Claims Act § 9[12]), and service of the petition without a verification did not constitute an incurable “jurisdictional” defect … . In this regard, the petitioner, upon notice from the State, cured the omission within a matter of days (see CPLR 3022, 3025[a]…). Moreover, considering that no substantive right of the State was prejudiced by the missing verification, even if the omitted material had not been supplied, the Court of Claims, under the circumstances presented to it, should have disregarded the technical infirmity pursuant to CPLR 2001 and 3026 … . Matter of Mazur Bros. Realty, LLC v State of New York, 2015 NY Slip Op 06149, 2nd Dept 7-15-15

 

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Custody Properly Awarded to Non-Parents—Criteria Explained

The Second Department affirmed Family Court’s award of custody to non-parents, explaining the relevant criteria:

In a custody proceeding between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances … . The burden is on the nonparent to prove the existence of extraordinary circumstances … . Where extraordinary circumstances are found to exist, the court must then consider the best interests of the child in awarding custody … .

Here, the Family Court properly determined that the nonparent petitioners, Yasmin Culberson and Walter Culberson, sustained their burden of demonstrating extraordinary circumstances based upon, inter alia, the mother’s prolonged separation from the subject child and lack of significant involvement in the child’s life for a period of time, the mother’s failure to contribute to the child’s financial support, and the strong emotional bond between the child and the nonparent petitioners … . Moreover, the Family Court’s determination that an award of custody to the nonparent petitioners would be in the best interests of the child is supported by a sound and substantial basis in the record … . Matter of Culberson v Fisher, 2015 NY Slip Op 06144, 2nd Dept 7-15-15

The Third Department determined grandmother demonstrated extraordinary circumstance justifying the award of custody to her with visiting rights for the parents. The court explained the relevant analytical criteria:

“It is well settled that a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” … . “The burden of proving such extraordinary circumstances rests with the nonparent seeking custody and, if established, the controlling consideration in determining custody is the best interests of the child” … . Proof regarding extraordinary circumstances may include, among other things, that “the parent has neglected ‘to maintain substantial, repeated and continuous contact with’ the child[] or make plans for [her] future” …. . Matter of Yandon v Boisvert, 2015 NY Slip Op 06177, 3rd Dept 7-16-15

 

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Arbitrator’s Award Should Not Have Been Vacated—No Clear and Convincing Evidence of Arbitrator’s Bias or Misconduct or that the Arbitrator Exceeded His Power

The Second Department reversed Supreme Court’s vacation of an arbitration award. The vacation was based in part on a finding of an appearance of bias on the part of the arbitrator. The motion to vacate the award alleged the fact that both the mediator and arbitrator were past Supreme Court justices with overlapping terms demonstrated the arbitrator’s bias or the appearance of bias.  The Second Department explained the limited role of a court in reviewing an arbitrator’s award and noted that any ground for vacation must be proven by clear and convincing evidence:

“It is well settled that judicial review of arbitration awards is extremely limited” … . “A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden, and must establish a ground for vacatur by clear and convincing evidence” … .

An arbitrator’s partiality may be established by an actual bias or the appearance of bias from which a conflict of interest may be inferred … . * * * [T]he fact that both the mediator and arbitrator were former Supreme Court Justices who served overlapping terms …, standing alone, did not constitute clear and convincing evidence of actual bias or the appearance of bias on the part of the arbitrator … . Moreover … [the movant] failed to present clear and convincing evidence that the arbitrator exceeded his power in issuing the award (see CPLR 7511[b][1][iii]), or that he engaged in misconduct … . David v Byron, 2015 NY Slip Op 06107, 2nd Dept 7-15-15

 

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