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Intent to Rob Sufficiently Proven by Circumstantial Evidence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was sufficient evidence to support the attempted robbery conviction.  Defendant, when the business was closed, was dressed in dark clothes, wearing a mask, and carrying a handgun (BB gun) while pounding on the door of the business asking to enter.  The defendant never was allowed inside and ran when the police arrived.  The defendant argued there was no evidence he intended to commit robbery, as opposed to some other crime.  The Court of Appeals found the circumstantial evidence of an intent to commit robbery sufficient:

…[H]ere there was evidence that defendant, who was unknown to any of the employees present that morning, and had no apparent business at Wendy’s, nevertheless showed up masked and armed, carrying a backpack, seeking entry at 6:30 am through a locked rear door not used by the public, with an escape vehicle conveniently parked nearby. This fit the pattern common to an early morning robbery of a commercial establishment and was sufficient to support the inference that defendant intended to steal. People v Lamont, 2015 NY Slip Op 04165, CtApp 5-14-15

 

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Reduced Sentences Pursuant to the Drug Law Reform Act Apply to Those on Parole As Well As Those Who Are Incarcerated

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a two-judge dissent, determined that the ability to apply for a reduced sentence for drug offenses pursuant to the Drug Law Reform Act applied to those on parole, as well as those who are incarcerated: “The issue presented by this appeal is whether the 2011 amendments to CPL 440.46 expanded the class of defendants eligible for resentencing under the Drug Law Reform Act to include those who are on parole at the time resentencing is sought. We left this question open in People v Paulin (17 NY3d 238, 243 [2011]) and People v Santiago (17 NY3d 246, 247 [2011]), and now hold that the amendments did expand eligibility to parolees …” . People v Brown, 2015 NY Slip Op 04163, CtApp 5-14-15

 

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In Extraordinary Circumstances, Testimony by Two-Way Video Conference Can Be Used In Mental Hygiene Law Article 10 Proceedings

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the judge in a Mental Hygiene Law article 10 proceeding has the discretion, in extraordinary circumstances, to allow testimony by electronic appearance (live two-way video conference). Here, however, the respondent objected to the procedure and the State did not demonstrate the requisite extraordinary circumstances.  The error  was deemed harmless however:

…[W]e hold that permitting the two-way, live video testimony … was within the discretion of the court. As we have previously explained, “[l]ive televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances” … . … [Here} [p]ermitting [the witness] to deliver her testimony via video conference over respondent's objection without requiring a proper showing of exceptional circumstances was error. Matter of State of New York v Robert F., 2015 NY Slip Op 04162, CtApp 5-14-15

 

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Confinement in Special Housing Unit Was Harsh and Excessive Punishment—No Showing Petitioner Was a Threat to Institutional Safety

The Third Department determined petitioner posed no threat to institutional safety and, therefore, his confinement in a special housing unit constituted harsh and excessive punishment:

… [B]ecause neither the charges of which he is guilty nor the evidence presented at the hearing establishes that petitioner’s conduct was a threat to institutional safety and security, we find that the imposition of confinement in the special housing unit is harsh and excessive … . Matter of Kim v Annucci, 2015 NY Slip Op 04178, 3rd Dept 5-14-15

 

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Inability to Remember Fall and Absence of Witnesses Did Not Preclude Summary Judgment on Labor Law 240(1) Cause of Action

The First Department determined the plaintiff’s inability to remember his fall from a scaffold and the absence of witnesses did not preclude summary judgment in his favor for the Labor Law 240(1) cause of action:

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability in this action where he sustained injuries when, while performing asbestos removal work in a building owned by defendant, he fell from a baker’s scaffold. Plaintiff’s testimony that he was standing on the scaffold working, and then woke up on the ground with the scaffold tipped over near him, established a prima facie violation of the statute and that such violation proximately caused his injuries … . That plaintiff could not remember how he fell does not bar summary judgment … . Nor does the fact that he was the only witness raise an issue as to his credibility where, as here, his proof was not inconsistent or contradictory as to how the accident occurred, or with any other evidence … . Strojek v 33 E. 70th St. Corp., 2015 NY Slip Op 04203, 1st Dept 5-14-15

 

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Claimant Did Not Demonstrate a Compelling Reason to Close His Business—Unemployment Insurance Benefits Denied

The Third Department determined a business owner who voluntarily closed his business was not entitled to unemployment insurance benefits because a compelling reason for the closure was not demonstrated:

“When a claimant closes an operating business, the issue of whether he or she is qualified to receive benefits turns upon whether there was a compelling reason to close the business” … . Here, claimant testified that, beginning in 2009, his business began to decline and that, between 2009 and 2012, there was a 50% drop-off of catering contracts. The corporation’s tax returns reflect, however, gross receipts of $297,167 in 2009, with a net income of $2,522, gross receipts of $281,397 in 2010, with a net income of $4,997, and gross receipts of $279,755 in 2011, with a net income of $764. Claimant’s individual tax returns reveal that he was paid a moderate salary in each of these three years. At the time he closed the business at the end of August 2012, claimant estimated corporate gross receipts of $220,970 for the year to date, with a net income of $26,620, after payment of claimant’s salary, in a sum that was lower than the prior years, but was not an extreme departure from his prior earnings. Although the decline in business had required claimant to reduce personnel, there was no proof that the business was otherwise unable to meet its financial obligations. Claimant owned the building where he ran the business, and there was no mortgage; the premises were rented to the business for favorable tax treatment. Although claimant testified that, at the time he closed the business he had no bookings for October 2012 to December 2012, he also testified that his business was seasonal and that this was generally a slow time. In our view, the record thus establishes that this was a viable business, and the Board’s decision is supported by substantial evidence … . Matter of O’Connell (Commissioner of Labor), 2015 NY Slip Op 04176, 3rd Dept 5-14-15

 

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Alterations to Easement Okay—They Did Not Interfere With the Easement-Holder’s Right of Passage

The Third Department determined the alterations made to an ingress and egress easement along a private road, including the installation of a gate, were not actionable because they did not interfere with the easement holder’s right of passage:

It is well settled that “[t]he extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties” … . Here, the easement specifically granted plaintiff and defendants the right of “ingress and egress and for electric, gas, water, sewer and similar services over, under and along [the] farm road” on the McLean property. Importantly then, “[a] right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed” … . In the absence of a demonstrated intent to provide otherwise, an easement of ingress and egress may be narrowed, covered, gated or fenced off, “‘so long as the easement holder’s right of passage is not impaired'”… . Boice v Hirschbihl, 2015 NY Slip Op 04191, 3rd Dept 5-14-15

 

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“Lack of Capacity to Sue” Defense Waived If Not Raised in Pleadings/Court Should Not Have Decided Summary Judgment Motion by Searching the Record and Ruling On Issues Not Raised by Anyone

In the context of a suit alleging conversion stemming from the handling of an estate, the Second Department determined the “lack of capacity to sue” defense had been waived because it was not raised by defendant in his pleadings.  The court further determined Surrogate’s Court exceeded its powers when it went beyond the issues placed before it plaintiff’s summary judgment motion, searched the record and decided the motion in defendant’s favor on grounds not raised by anyone:

[The defendant] waived the defense of lack of capacity by failing to raise such defense in a pre-answer motion to dismiss or in his answer to the amended complaint in the action (see CPLR 3211[e]…).

… [O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court … . “A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense” … .

The Surrogate’s Court improperly searched the record and awarded summary judgment to [defendant] dismissing objections 1(i) and 9. [Plaintiff] moved for summary judgment on these objections solely on the grounds that he established that [defendant] converted funds from the father’s estate and failed to account for funds that the estate owed to [plaintiff]. [Defendant] did not cross-move for summary judgment dismissing those objections on the basis of the statute of limitations, nor did he argue it in opposition. In view of the limited scope of [plaintiff’s] motion, it was not appropriate to search the record and award summary judgment to [defendant] dismissing these objections upon arguments that were not raised … . Matter of Ray C., 2015 NY Slip Op 04134, 2nd Dept 5-13-15

 

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Criteria for Setting Aside a Verdict as Against the Weight of the Evidence Explained

The Second Department determined plaintiff’s motion to set aside the defense verdict as against the weight of the evidence was properly denied.  Plaintiff, a bicyclist, was injured when he struck the open door of defendant’s (Roche’s) vehicle.  Defendant testified the door was ajar, not fully open: “A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence … .  A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … . [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view… . However, where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, because the only reasonable view of the evidence is that a defendant’s negligence was a proximate cause of the plaintiff’s injuries, that verdict must be set aside as contrary to the weight of the evidence … . In this case, it was within the jury’s province to credit Roche’s testimony that she did not open her car door into the plaintiff’s path. The jury reasonably could have concluded that Roche was negligent in some other respect—such as the positioning of her car or her act of leaving the door “slightly ajar”—but that, despite such negligence, the plaintiff should have been able to avoid the collision and, thus, his conduct was the sole proximate cause of the accident.” [quotations omitted] Membreno v Roche, 2015 NY Slip Op 04102, 2nd Dept 5-13-15

 

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A Conditional Judgment May Be Rendered On the Issue of Contractual Indemnity—The Party Seeking Contractual Indemnity Must Be Free from Negligence

Plaintiff was injured at a construction site when he fell from a ladder. The construction manager commenced a third-party action against the general contractor seeking contractual indemnification in the event the construction manager is liable to the plaintiff,. The Second Department noted that a ” ‘court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed’ … . The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability …”. Arriola v City of New York, 2015 NY Slip Op 04079, 2nd Dept 5-13-15

 

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