The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody to mother, despite the wishes of the adolescent child. The dissenters argued that great weight should have been given to the expressed wishes of the child. Sheridan v Sheridan, 2015 NY Slip Op 05301, 4th Dept 6-19-15
In an action involving former partners, plaintiffs sought an accounting, a declaration of defendant’s share in the business, and money judgments for breach of contract and unjust enrichment. The Third Department determined Supreme Court properly held plaintiffs are entitled to a jury trial. The inquiry is whether the primary character of the case is legal or equitable. Here the primary character was the seeking of a monetary judgment:
… [W]e agree with Supreme Court that plaintiffs are entitled to a jury trial. In determining whether a party is entitled to a jury trial, “the relevant inquiry ‘is not whether an equitable counterclaim exists but whether, when viewed in its entirety, the primary character of the case is legal or equitable'” … . Here, plaintiffs seek equitable relief — an accounting of defendant’s share of Medical Arts and an account stated between the parties — only for the purpose of determining the money judgment against defendant. Staunton v Brooks, 2015 NY Slip Op 05248, 3rd Dept 6-18-15
The Third Department affirmed summary judgment granted to defendant doctor (Skezas). Plaintiff alleged the doctor failed to properly diagnose and/or treat plaintiff’s decedent’s abdominal pain. Decedent was told by the doctor he may have cancer, which, if not treated, could be fatal within 6 to 12 months. The doctor set up an appointment for plaintiff’s decedent with a specialist. Before seeing the specialist, plaintiff’s decedent committed suicide. The Third Department determined plaintiff’s decedent’s suicide was not a foreseeable consequence of the actions ascribed to the doctor:
“An intervening act will be deemed a superseding cause and will serve to relieve [a] defendant of liability when the act is of such an extraordinary nature or so attenuates [the] defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” … . Applying this rule to a person’s intentional act of taking his or her own life, negligent conduct can only support liability for another person’s suicide under certain circumstances and where suicide is a foreseeable consequence of such conduct … . Here, Skezas did not practice psychiatry, decedent was not confined to Skezas’ care and Skezas did not advise decedent to commit suicide. The possibility that decedent would choose to take his own life in the absence of any actual terminal cancer diagnosis and rather than taking advantage of the second medical opinion — regarding a diagnosis and/or pain management — from the specialist that Skezas had secured for decedent is not a foreseeable consequence of the alleged negligent acts … . Stein v Kendal At Ithaca, 2015 NY Slip Op 05246, 3rd Dept 6-18-15
The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined Judges who reach the age of 70 and are “certificated to continue their services on the Supreme Court bench” are entitled to receive both their pensions and their judicial salaries. To hold otherwise violates the plain meaning of Retirement and Social Security law 212 (1) which reads: “any retired person may continue as retired and, without loss, suspension or diminution of his or her retirement allowance, earn [an amount not greater than statutorily prescribed] in a position or positions in public service.” That same provision provides that “there shall be no earning limitations under the provisions of [Retirement and Social Security Law § 212] on or after the calendar year in which any retired person attains age [65]”… . Matter of Loehr v Administrative Bd. of the Cts. of the State of N.Y.2015 NY Slip Op 05243, 3rd Dept 6-18-15
After transfer of title, the purchaser alleged that the property had been damaged between the execution of the purchase contract and the transfer of title. The Third Department determined summary judgment was properly awarded the seller. The property was sold “as is” and the contract did not survive the transfer of title. Any rights granted purchaser under the Uniform Vendor and Purchaser Risk Act (UVPRA), which allows for rescission in some cases, were extinguished upon the transfer of title:
Unless a land sale contract expressly provides otherwise, a vendor bears the risk of loss until legal title or possession has been transferred to the purchaser … . However, a contract for the sale of real property merges with the deed and, as a result, the terms of the contract do not survive transfer of title unless the parties clearly specify otherwise … . Here, the terms and conditions of the auction provided that the sale would be governed by the Uniform Vendor and Purchaser Risk Act (hereinafter UVPRA), which provides a purchaser with the right to rescind the sale contract or recover money paid toward the purchase price under certain circumstances (see General Obligations Law § 5-1311 [1] [a]). However, there was no indication that plaintiff’s rights under the UVPRA would survive transfer of title. In fact, the terms and conditions provided that the property would be sold “as is” and that a purchaser would not have recourse against defendant for any defects stemming from the sale. Therefore, any rights that plaintiff may have asserted under the UVPRA were extinguished when title was transferred to plaintiff. Burkins & Foley Trucking & Stor., Inc. v County of Albany, 2015 NY Slip Op 05252, 3rd Dept 6-18-15
The Third Department deferred to the interpretation of a statute by the Tax Appeals Tribunal which found that petitioners were not entitled to Qualified Enterprise Zone Enterprise (QEZE) tax reduction credits and refundable Empire Zone (EZ) wage credits. The case turned on the Tribunal’s definition of a business enterprise. The Tribunal determined the term refers to the taxable entity, not the legal entity. Because the interpretation of the relevant statute, Tax Law 14 (a), involved knowledge and understanding of the underlying operational practices, the court deferred to the agency’s determination. (In the usual case a court need not defer to an agency’s interpretation of a statute):
The parties’ primary disagreement here centers on whether the term business enterprise under Tax Law § 14 (a) refers to the taxable entity or the legal entity. The Tax Law does not define business enterprise, and this Court will “defer to the governmental agency charged with the responsibility for administration of [a] statute in those cases where interpretation or application involves knowledge and understanding of underlying operational practices” … . While, as a general rule, courts will not defer to administrative agencies in matters of pure statutory interpretation, where, as here, the question is “‘one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially,'” deference is appropriate … . To prevail over the Tribunal’s construction of the statute, petitioners must establish that their “interpretation of the statute is not only plausible, but also that it is the only reasonable construction”… .
In our view, it cannot be said that the Tribunal acted irrationally in construing the term business enterprise in accordance with an entity’s classification for state and federal income tax purposes. Matter of Ayoub v Tax Appeals Trib. of the State of N.Y., 2015 NY Slip Op 05240, 3rd Dept 6-18-15
The Third Department determined that a lien for attorney’s fees could be attached to Workers’ Compensation benefits prior to reimbursing a municipality for benefits paid to the municipal employee pursuant to the General Municipal Law. Claimant corrections officer was injured on the job. Under General Municipal Law 207-c municipal employers are required to pay full wages to corrections officers injured in the performance of their duties. Workers’ Compensation Law 30 (3) provides that the amount of the payments made under the General Municipal Law shall be credited against any award of compensation pursuant to the Workers Compensation Law. The municipality argued it was entitled to the entire amount paid to the employee and the amount should not be reduced by the attorney’s fees (a lien on the Workers’ Compensation award). The Third Department disagreed:
General Municipal Law § 207-c requires municipal employers to pay full wages to correction officers who are injured in the performance of their duties. Workers’ Compensation Law § 30 (3) provides that the amount of such payments “shall be credited against any award of compensation” that may also be made to such an officer. The employer contends that the mandatory language of the Workers’ Compensation Law provision entitles employers to full credit for such payments and, thus, precludes the attachment of a lien for counsel fees. However, Workers’ Compensation Law § 24 likewise uses mandatory language in providing that, when approved by the Board, counsel fees “shall become a lien upon the compensation awarded . . . [and] shall be paid therefrom only in the manner fixed by the [B]oard” (emphasis added). The lien attaches when the compensation is awarded “and takes precedence over the employer’s right to reimbursement of funds previously paid to the claimant-employee” … . The purpose of enacting Workers’ Compensation Law § 30 (3) was not to preclude counsel fees, but “to avoid duplicate benefits to an injured [officer], the combined total of which might exceed the salary [the officer] would have received for the period” if the injury had not occurred … . Workers’ Compensation Law § 30 (3) must be harmoniously interpreted with the Workers’ Compensation Law as a whole and with General Municipal Law § 207-c … . We find nothing in the statutory language indicating a legislative intent to treat employees who receive benefits under General Municipal Law § 207-c differently from other injured employees by departing from the statutory scheme for payment of counsel fees set forth in Workers’ Compensation Law § 24. Matter of McCabe v Albany County Sheriff’s Dept., 2015 NY Slip Op 05236, 3rd Dept 6-18-15
The Third Department determined the village zoning board of appeals’ interpretation of a zoning ordinance had a rational basis. Petitioner sought a ruling allowing him to keep chickens in a residential zone. Because “poultry husbandry” was specifically mentioned in the zoning ordinances as an agricultural use, and was not mentioned as an allowed residential use, the board’s interpretation was upheld as “neither irrational nor unreasonable:”
Here, Village of Champlain Zoning Code § 119-20 (B) states that the permitted uses in an R1 residential district are “one- and two-family dwellings” and “accessory uses.” The code allows for accessory uses that are “of a nature customarily incidental and subordinate to the principal use of the structure, such as garages, outbuildings, swimming pools, energy collection devices and the keeping of domesticated animals” (Village of Champlain Zoning Code § 119-16). The code also defines “agriculture” as “[t]he use of land for agricultural purposes, including tilling of the soil, dairying, pasture, apiculture, arboriculture, horticulture, floriculture, viticulture, forestry, animal and poultry husbandry and the necessary accessory uses for packing or storing of products” (Village of Champlain Zoning Code § 119-16). The code further states that “[a]ny use not listed as permitted [w]ithin a [z]oning district is assumed to be prohibited in that [z]oning district” (Village of Champlain Zoning Code § 119-191). Matter of Meier v Village of Champlain Zoning Bd. of Appeals, 2015 NY Slip Op 05245, 3rd Dept 6-18-15
The First Department reversed Supreme Court and determined a rider and an exclusion of coverage in a financial institution bond applied to the “Madoff” Ponzi scheme. The losses associated with the Ponzi scheme were therefore not covered by the bond. The rider covered loss resulting from dishonest acts of named persons (including Madoff) “solely” with respect to such persons’ duties as an “outside investment advisor.” Because the losses stemmed from Madoff’s hybrid duties as both an “outside investment advisor” and a “securities broker,” the rider did not cover the losses. In addition, a specific exclusion from coverage included losses caused by the dishonest acts of a non-employee securities broker (i.e., Madoff). Jacobson Family Invs., Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 2015 NY Slip Op 05273, 1st Dept 6-18-15
The Third Department determined an action based upon the republication of an allegedly defamatory statement (made by a nonparticipant in the litigation) by an assistant attorney general in the course of a medical malpractice case was precluded by the absolute privilege afforded attorneys in matters related to litigation:
Statements made by parties and their counsel in the context of a legal action or proceeding are protected by an absolute privilege so long as, “by any view or under any circumstances, they are pertinent to the litigation” … . Allowing such statements or writings to form the basis of an action for defamation “would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires” … . A liberal standard guides the inquiry of what is pertinent … , and encompasses “any statement that may possibly or plausibly be relevant or pertinent, with the barest rationality” … . Moreover, the burden rests with claimant “to conclusively, and as a matter of law, establish the impertinency and the irrelevance of the statement” … .
Here, claimant asserts that the memorandum was prepared by a nonparticipant to the litigation which removes it from the protection of the absolute privilege; however, this contention ignores that claimant’s action is grounded in the republication of the alleged defamatory statement by the AAG, whose statements are afforded the protection … . It is evident that the AAG turned over the memorandum after the malpractice litigation had been commenced in federal court … and, further, the statements in the memorandum were clearly pertinent to the malpractice litigation, as they concerned allegations that were relevant to the treatment of the inmate … . McPhillips v State of New York, 2015 NY Slip Op 05242, 3rd Dept 6-18-15
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