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“Conclusory” Affidavit Submitted In Support of Motion to Dismiss for Failure to State a Cause of Action Did Not Demonstrate the Allegation Defendants Were Directly Liable for Negligent Maintenance of a Taxi Cab Was “Not a Fact At All”—Analytical Criteria Explained

The Second Department determined plaintiff’s complaint should not have been dismissed in its entirety because the documentary evidence submitted in support of the motion to dismiss for failure to state a cause of action (CPLR 3211(a)(7)) did not demonstrate the facts alleged (which could support defendants’ direct liability for negligent maintenance of a taxi cab) “were not facts at all.” Plaintiff was injured when his motorcycle struck a tire which had come off defendants’ taxi cab. Although the information in the affidavit submitted by a defendant was sufficient to warrant the dismissal of causes of action which relied on piercing the corporate veil, the information did not demonstrate defendants could not be directly liable for negligent maintenance of the cab. The related causes of action should not have been dismissed.  The Second Department explained the analytical criteria to be applied when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:

“In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, “the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … .

Here, [defendant’s] affidavit falls short of establishing, conclusively, that [plaintiff] has no cause of action. The affidavit completely fails to address [plaintiff’s] allegation that the subject taxi was not “roadworthy.” The affidavit, while offering conclusory statements, did not supply competent evidence as to which of the various defendants, if any, might have had a duty to maintain, or might in fact have maintained, the offending taxi prior to the accident. Indeed, [defendant’s] conclusory statements are completely unsupported with evidence or specific factual references … and, hence, are of no probative force … . Rathje v Tomitz, 2015 NY Slip Op 04467, 2nd Dept, 5-27-15

 

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“Preamble” Read to Defendant Before the Miranda Warnings Neutralized the Effect of the Warnings—Defendant’s Statement Should Have Been Suppressed

The Second Department determined defendant’s suppression motion should have been granted because the “preamble” read to him before he waived his right to remain silent neutralized the effect of the Miranda warnings. “Before the defendant was read his Miranda rights, the detective investigator said to him (1) “if you agree to speak with us, you may, if you wish, explain what you did and what occurred at that date, time, and place,” (2) “[i]f . . . you have an alibi . . . and you want to tell us where you were, we will ask that you please give us as much information as you can, including the names of any people you were with,” and (3) “[i]f you agree to speak to us and your version of the events of that day differs from what we have heard, you may, if you so choose, tell us your story.” Thus, a clear implication was conveyed to the defendant that he ought to speak to the detective investigator and the assistant district attorney present at the interview in order to set forth his version of events so that they could be investigated. As such, the preamble here … rendered the subsequent Miranda warnings inadequate and ineffective in advising the defendant of his rights …”. People v Rivera, 2015 NY Slip Op 04517, 2nd Dept 5-27-15

 

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Juvenile Delinquency Adjudication Should Not Have Been Considered in SORA Risk Assessment—Criteria for an Upward Departure Explained

The Second Department determined defendant’s juvenile delinquency adjudication should not have been considered in determining the defendant’s risk level. The court explained the proper procedure for considering an upward departure: … “[T]he County Court upwardly departed without following the required three analytical steps of determining, first, whether an aggravating factor exists as a matter of law, second, whether the People have adduced clear and convincing evidence of the facts in support of that aggravating factor, and third, whether, in the court’s discretion, the totality of the circumstances warrant the upward departure to avoid an under-assessment of the defendant’s dangerousness and risk of sexual recidivism …”. People v Ruland,  2015 NY Slip Op 04464, 2nd Dept 5-27-15

 

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Upward Departure Proper In Light of Felony Conviction Not Considered in the Risk Assessment–Criteria for Upward Departure Explained In Some Detail

The Second Department determined County Court properly departed (upward) from the presumptive risk level based upon a felony conviction which pre-dated the sexual offenses considered in the risk assessment. The Second Department explained in some detail the criteria for an upward departure:

A court is permitted to depart from the presumptive risk level if “special circumstances” warrant departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). An upward departure is permitted only if the court concludes “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (id. at 4…). In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a multi-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the existence of that aggravating factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart … . People v Williams, 2015 NY Slip Op 04465, 2nd Dept 5-27-15

 

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“Whistleblower Statute” Cause of Action Should Have Survived the Motion to Dismiss—No Need to Cite Particular Statute, Rule or Regulation Alleged to Have Been Violated by the Employer in the Complaint

The Second Department determined plaintiff’s Labor Law 740 cause of action should have survived a motion to dismiss for failure to state a cause of action.  “A cause of action based upon Labor Law § 740, commonly known as the ‘whistleblower statute,’ is available to an employee who ‘discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety’…”. The court noted that, to survive dismissal, the particular law, rule or regulation which was purportedly violated need not be specified in the complaint:

Here, the amended complaint alleged, inter alia, that the plaintiff’s employment with the corporate defendants was terminated after he complained to the individual defendants and the human resources department about certain activities and practices which the corporate defendants engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public safety. Notably, “for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct” … . Ulysse v AAR Aircraft Component Servs., 2015 NY Slip Op 04474, 2nd Dept 5-27-15

 

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Town Board Should Not Have Considered the Environmental Impact of Only One Small Part of a Revitalization Project, as Opposed to the Entire Revitalization Project, without Explaining the Reasons for Limiting Its Review In Accordance with the Requirements of the State Environmental Quality Review Act

The Second Department determined the town board did not complete the required review under the State Environmental Quality Review Act (SEQRA) in connection with an Eminent Domain Procedure Law (EDPL) 207 proceeding to condemn certain land for drainage and storm water management improvements (drainage plan).  Even though the drainage plan is part of a much larger revitalization plan, the town board considered only the drainage plan in its SEQRA review, a limited review which can be done only if certain SEQRA requirements are met.  The matter was remitted to the town board for compliance with the relevant provisions of SEQRA:

…[U]nder SEQRA, the Town Board was obligated to consider the environmental concerns raised by the entire project (see 6 NYCRR 617.3[g][1]…). If, at this stage, the larger project is merely speculative or hypothetical, then the Town’s separate consideration of the drainage plan would not constitute impermissible segmentation … . However, the respondents are not claiming that the larger project is speculative or hypothetical. Moreover, to the extent that the Town Board concluded that segmenting the environmental review of the drainage plan from that of the larger revitalization project was warranted under the circumstances presented here, it was required under the SEQRA regulations to “clearly state in its determination of significance . . . the supporting reasons[,]” “demonstrate that such review is clearly no less protective of the environment[,]” and to identify and discuss “[r]elated actions . . . to the fullest extent possible” (6 NYCRR 617.3[g][1]). The Town Board failed to do so. Since the Town Board failed to properly comply with SEQRA, the determination and findings must be rejected, and the matter remitted to the Town Board to undertake an appropriate review … . Matter of J. Owens Bldg. Co., Inc. v Town of Clarkstown, 2015 NY Slip Op 04487, 2nd Dept 5-27-15

 

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Lease and Lease Amendment Invalid Even Though Approved by County Legislature—County Charter Required that All Contracts with the County Be Executed by the County Executive—The County Executive Signed the Lease But Not the Lease Amendment (Which Was Integral to the Agreement)—Lease Required All Modifications to Be In Writing, So Signing the Lease Amendment Was Not a “Purely Ministerial Act”—A Municipal Contract Which Does Not Comply with Statutory Requirements or Local Law Is Invalid and Unenforceable

The Second Department determined that a lease and a lease amendment were invalid and unenforceable, even though the documents had been approved by the Nassau County Legislature.  The Nassau County Charter required that any contract entered into by the county be executed by the County Executive. The County Executive signed the lease, but not the lease amendment (which was integral to the final agreement). Execution of the lease amendment was not a “purely ministerial act” because the lease required that any modifications be in writing:

” A municipal contract which does not comply with statutory requirements or local law is invalid and unenforceable'” … . Here, the County demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the lease amendment, which was integral to the final agreement between the parties, was not executed by the County Executive or his authorized designee, as required by Nassau County Charter § 2206. Contrary to the defendant’s contention, the execution of the lease amendment by the County Executive or his designee was not a purely ministerial act in light of the express language in the lease requiring any modifications thereto to be in writing … . Further, the express terms of the proposed lease provided that it could not be modified “except by a writing subscribed by both parties” (emphasis added), and the lease amendment expressly contemplated that it would be effective when “last executed by the parties.” Since the lease amendment was integral to the final agreement between the parties, and the proposed lease and lease amendment together constituted the entirety of the parties’ understanding of their obligations, the County established, prima facie, that the County Executive’s determination not to execute the lease amendment rendered the proposed lease unenforceable because there was no meeting of the minds between the parties … . County of Nassau v Grand Baldwin Assoc., L.P., 2015 NY Slip Op 04445, 2nd Dept 5-27-15

 

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Grandparents Did Not Have Standing to Bring a Petition for Visitation

The Second Department determined Family Court properly dismissed the grandparents’ petition for visitation with the grandchildren without a hearing. Family Court properly determined the grandparents did not have standing to bring the petition because no triable issues of fact were raised in the submitted papers. The standing question is determined by applying equitable principles re: the nature of the grandparents’ relationship with the children and the nature and basis of the parents’ objection to visitation:

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” … . “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” … .

“In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72[1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” … . Additionally, the court must consider ” the nature and basis of the parents’ objection to visitation'” … . “A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers” … .

Here, the Family Court properly denied the grandparents’ petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents … . Matter of Moskowitz v Moskowitz, 2015 NY Slip Op 04490, 2nd Dept 5-27-15

 

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Ambiguity Should Have Been Resolved Against the Insurer

Reversing Supreme Court, the Second Department determined the ambiguity in the supplemental underinsured motorist (SUM) endorsement about whether a snowmobile was a covered “motor vehicle” should have been resolved against the insurer. “We find that the policy, when read as a whole, is ambiguous as to whether the term “motor vehicle” in the SUM endorsement refers to the snowmobile, the only vehicle covered by the policy. Contrary to State Farm’s contention and the Supreme Court’s determination, this ambiguity must be resolved ‘against the insurer and in favor of coverage’ … , without reference to the definition of ‘motor vehicle’ set forth in the Vehicle and Traffic Law.”  Matter of State Farm Mut. Auto. Ins. Co. v Jones, 2015 NY Slip Op 04493, 2nd Dept 5-27-15

 

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The Amount of Alcohol Consumed by Defendant and the Extent of His Intoxication at the Time of the Vehicle-Accident Evinced “Wanton and Reckless” Conduct Which Supported a Punitive-Damages Award

The Second Department determined the award of punitive damages by the jury was supported by clear and convincing evidence.  Defendant was intoxicated at the time of the vehicle accident.  The fact that defendant was driving while intoxicated would not, standing alone, warrant punitive damages. However, other factors, including defendant’s high blood-alcohol level and his “incoherence” at the time of the accident evinced the requisite “wanton and reckless” conduct:

Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages … . However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in “wanton and reckless” conduct evincing heedlessness and an utter disregard for the safety of others … . Chiara v Dernago, 2015 NY Slip Op 04444, 2nd Dept 5-27-15

 

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