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Defendant’s Hospital Records Properly Admitted—Physician-Patient Privilege Waived by Defense Counsel’s Attempt to Show (During Cross-Examination of Police Officers) that Defendant’s Conduct Was Related to a Medical Condition, Not Intoxication

The Second Department determined defendant’s hospital records were properly admitted into evidence because the defendant waived the physician-patient privilege by placing his medical condition in issue.  During cross-examination of the police officers, defense counsel attempted to show defendant’s conduct was the result of a medical condition, not intoxication. People v Williams, 2015 NY Slip Op 03391, 2nd Dept 4-22-15

 

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A Party Which Is Merely a Possible Beneficiary of a Charitable Trust Does Not Have Standing to Bring an Action to Enforce the Trust

The Second Department reversed Supreme Court finding that the plaintiff Historical Society did not have standing to bring an action seeking a declaratory judgment re: the intent of the grantor of a charitable trust.  At stake are trust assets of $81 million distributed to a charitable foundation (Foundation) set up by the grantor.  The Foundation was set up to sponsor and encourage historical societies. Plaintiff Historical Society sought a declaratory judgment that it was a beneficiary of the trust. The Second Department held that Supreme Court should have dismissed the complaint, explaining that the attorney general is responsible for representing charitable trust beneficiaries and there was no indication the plaintiff Historical Society was a party with a “special interest” entitling it to sue for enforcement on its own behalf:

In an action for the enforcement of a charitable trust, EPTL 8-1.1(f) provides that “[t]he attorney general shall represent the beneficiaries of such dispositions for religious, charitable, educational or benevolent purposes and it shall be his [or her] duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts.” A party with a special interest in the enforcement of the trust may have standing to commence such an action; however, “one who is merely a possible beneficiary of a charitable trust, or a member of a class of possible beneficiaries, is not entitled to sue for enforcement of the trust” … . This “special interest” is found by looking to the trust’s chartering documents to discern the purpose of the trust, and whether there is a class of intended beneficiaries that is entitled to a preference and is sharply defined and limited in number … .

In support of their motion, the appellants submitted the Foundation’s certificate of incorporation … which states that the Foundation’s purpose includes educating the public about state and local history and encouraging and sponsoring existing and future historical societies. That document does not name the Historical Society as a beneficiary, nor does it name any beneficiary. [The grantor’s] will did not mention the Historical Society. Accordingly, the Historical Society was not part of a class of potential beneficiaries of the Foundation that is sharply defined and limited in number. Therefore, it lacked standing to commence this action … . Sagtikos Manor Historical Socy., Inc. v Robert David Lion Gardiner Found., Inc., 2015 NY Slip Op 03342, 2nd Dept 4-22-15

 

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Evidence Which Is “Material and Necessary” in the Context of Discovery Is Much Broader in Scope than Evidence Which Is Admissible at Trial

The First Department, over a two-justice dissent, determined that Supreme Court should have allowed discovery of documents relating to a prior steam pipe explosion (in Texas) in the instant proceeding, which also involves a steam pipe explosion. Defendant Con Ed sought the records of defendant Team Industrial Services, Inc. (Team), which applied pipe sealant where both explosions occurred, alleging that the pipe sealant application caused the explosions. The dissent felt the Appellate Division should defer to Supreme Court’s finding, made after an extensive review of the Texas records, that the two incidents were not sufficiently similar to warrant discovery. The First Department explained that the criteria for the reach of discovery is broad and goes beyond what might be admissible at trial:

The words “material and necessary,” as used in CPLR 3101(a) are “to be interpreted liberally to require disclosure . . . of any facts bearing on the controversy” … . “The weight to be given evidence of other [lawsuits or claims] on the issues of notice and causation, and indeed the very admissibility of such evidence . . . are not of concern in the context of disclosure” … .

In our view, the motion court applied too harsh a standard in determining that documents concerning the prior … incident are not discoverable. We are not concerned with the ultimate admissibility of the evidence at trial, but with the discovery of information concerning the prior incident, as to which a more liberal standard applies … . Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 2015 NY Slip Op 03269, 1st Dept 4-21-15

 

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Allowing Testimony that Defendant’s Name Was Mentioned in an Out-of-Court Conversation About the Underlying Assault Was (Harmless) Error/The Confrontation Clause Was Not Implicated Because the Hearsay Was Not Testimonial/Admission of the Hearsay Was Not Justified as “Completing the Narrative” or “Preventing Jury Confusion”

Although the admission of hearsay was deemed harmless error, the First Department determined that allowing the hearsay in evidence to “complete the narrative” or to “eliminate jury confusion” was improper.  The hearsay identified defendant as one of the assailants by indicating the defendant’s name was one of the names mentioned in a phone call about the underlying assault.  The court noted that the Confrontation Clause was not implicated because the hearsay was not “testimonial,”  citing People v Gantt, 48 AD3d 59:

…[T]he hearsay nature of [the] testimony relating [an] out-of-court statement … identifying defendant as [an] assailant — either by name or by an identifying description …— was not remedied by framing the query posed … as seeking the “name mentioned …” during the call.

We do not adopt the trial court’s reasoning that the admission of this hearsay evidence was necessary to convey a coherent narrative of the relevant events or to eliminate the possibility of jury confusion … .  People v Owens, 2015 NY Slip Op 03270, 1st Dept 4-21-15

 

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Questions of Fact Remained About Whether the Seller Was “Ready, Willing and Able to Close” and Whether the Seller Had Breached the Implied Covenant of Good Faith and Fair Dealing—Supreme Court Should Not Have Granted Summary Judgment to Seller

The First Department, in a full-fledged opinion by Justice Acosta, determined that summary judgment, entitling the seller of shares of a cooperative allocated to a penthouse to keep the plaintiff-buyer’s $2.75 million deposit, should not have been granted. During the course of purchase negotiations a dispute arose about whether a terrace was exclusively for the use of the occupants of the penthouse or whether it was a common area which could be used by other residents. Supreme Court held the issue had been resolved in the plaintiff-buyer’s favor. But the First Department held that the proof did not demonstrate the issue had been fully resolved such that the plaintiff could be sure of an exclusive right to the use of the terrace. Because the proof did not demonstrate the issue had been fully resolved, there were questions of fact whether the seller was “ready, willing and able to close” on the time-of-the-essence closing date and whether the plaintiff had a good reason not to attend the closing.  The First Department also found there were questions of fact about whether the seller had breached the implied covenant of good faith and fair dealing by trying the force the closing irrespective of whether the cooperative might later take steps to interfere with the plaintiff’s exclusive use of the terrace:

Without the [cooperative’s] Board’s affirmative and unequivocal acknowledgment that the shareholders have no right to traverse the terrace, and that it would not take future action to revoke plaintiff’s exclusive right to use that space, plaintiff lacked adequate assurances that his right of exclusivity (and the market value of the apartment) would remain undisturbed if he consummated the sale … .

The [seller] has not shown that plaintiff was given these assurances and, consequently, it failed to demonstrate its ability to close … . Moreover, absent a showing that plaintiff received unequivocal assurances that the Coop would not interfere with his right of exclusivity going forward, the [seller] cannot show that plaintiff lacked a lawful excuse to abstain from attending the closing … . Pastor v DeGaetano, 2015 NY Slip Op 03307, 1st Dept 4-21-15

 

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Although a “Fundamental” Error Requiring Reversal If Preserved, Failure to Administer the Oath of Truthfulness to Potential Jurors is Not a “Mode of Proceedings” Error

The Third Department determined that defendant was not entitled to reversal based on the trial judge’s failure to administer the oath of truthfulness to potential jurors (Criminal Procedure Law 270.15(1)(a))  because the error, although fundamental, was not preserved for appeal by objection. It was not a “mode of proceedings” error (which would not need to be preserved by objection to require reversal). Had the error been preserved, reversal would have been mandatory. People v Chancey, 2015 NY Slip Op 03197, 3rd Dept 4-16-15

 

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“Head Waiter” with Substantial Managerial Duties and “Wine Steward” Whose Duties Did Not Include Serving Customers Were Not Entitled to Share in the Servers’ and Bus Boys’ Tip Pool

The Third Department affirmed the NYS Industrial Board of Appeals’ determination that two senior restaurant employees were not entitled to share in the servers’ and bus boys’ tip pool based upon the nature of their duties—one, the “head waiter,” had substantial managerial duties, and the other, the “wine steward,” had computer-programming duties, assisted customers with the wine list, and had little to do with serving customers.  Labor Law 196-d, as interpreted by the Court of Appeals, looks at the actual duties of employees, as opposed to their titles.  Those who exercise substantial managerial responsibilities, and those who cannot be characterized as “food service workers,” cannot participate in the tip pool:

The governing statute, Labor Law § 196-d, provides that “[n]o employer or his [or her] agent . . . shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. . . . Nothing in this subdivision shall be construed as affecting . . . the sharing of tips by a waiter with a busboy or similar employee.” Recently, the Court of Appeals clarified that eligibility to participate in a tip pool “‘shall be based upon duties and not titles'” (Barenboim v Starbucks Corp., 21 NY3d 460, 471 [2013], quoting 12 NYCRR 146-2.14 [e]), and the Court held that “employer-mandated tip splitting should be limited to employees who, like waiters and busboys, are ordinarily engaged in personal customer service, a rule that comports with the ‘expectation[s] of the reasonable customer'” (Barenboim v Starbucks Corp., 21 NY3d at 471-472, quoting Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]; see 12 NYCRR 146-2.16 [b]; 146-3.4 [a]). Consistent with longstanding DOL policy, the Court further observed that “employees who regularly provide direct service to patrons remain tip-pool eligible even if they exercise a limited degree of supervisory responsibility” (Barenboim v Starbucks Corp., 21 NY3d at 472). The Court concluded, however, “that there comes a point at which the degree of managerial responsibility becomes so substantial that the individual can no longer fairly be characterized as an employee similar to general wait staff within the meaning of Labor Law § 196-d” (id. at 473). The Court determined that “the line should be drawn at meaningful or significant authority or control over subordinates” (id.). The Court explained that “[m]eaningful authority might include the ability to discipline subordinates, assist in performance evaluations or participate in the process of hiring or terminating employees, as well as having input in the creation of employee work schedules, thereby directly influencing the number and timing of hours worked by staff as well as their compensation” (id.). Matter of Marzovilla v New York State Indus. Bd. of Appeals, 2015 NY Slip Op 03219, 3rd Dept 4-16-15

 

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Premises Clause Prevails Over Habendum Clause in a Deed/Failure to Expressly Label Parties and Include the Parties’ Addresses Does Not Invalidate a Deed

The Third Department determined that where there is a conflict between the premises clause and the habendum clause in a deed, the premises clause prevails.  Here the premises clause clearly indicated the creation of a life estate with the remainder interest going to decedent’s only children.  The habendum clause indicated the decedent conveyed the property to “[defendant] and assigns forever.”  The court also noted that the failure to label the parties and include the parties’ addresses in a deed does not invalidate the deed, although it may preclude recording of the deed:

…[T]he rules of construction applicable to deeds provide that where there is a conflict between the provisions set forth in the premises clause and those in the habendum clause relative to the extent of the conveyance, the premises clause will control, absent a clear indication of a contrary intent elsewhere in the deed … . Here, the premises clause provides that the remainder interest in the property is conveyed to plaintiffs, and nothing in the deed other than the habendum clause suggests that decedent had a contrary intent. …

Contrary to defendant’s assertion, Real Property Law § 258 did not require the deed to expressly label plaintiffs as parties or to include their addresses. The statute does not mandate the use of the deed formats that it sets forth, but instead provides that “this section does not prevent or invalidate the use of other forms” (Real Property Law § 258). Although the failure to include a party’s address may prevent a deed from being recorded, it does not operate to invalidate the underlying conveyance … . Basile v Rose, 2015 NY Slip Op 03213, 3rd Dept 4-16-15

 

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Attesting Witnesses Did Not See Decedent’s Signature on the Will and One Attesting Witness Did Not Know the Document Was a Will—The Will Was Not Duly Executed and the Petition for Probate Was Properly Dismissed

The Third Department determined the petition seeking probate of a will was properly dismissed because the attesting witnesses did not know whether the decedent had signed the will.  One attesting witness was approached by decedent in the hallway of the assisted living facility where the witness worked and saw only the page of the document which he signed.  Another attesting witness, also approached in the hallway by the decedent, was not aware she was signing a will and did not see decedent’s signature on the document. The court explained that an attestation clause, standing alone, will not demonstrate due execution of a will. “…[T]he testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator’s will (see EPTL 3-2.1 [a]).” Here, two of the three attesting witnesses did not sign the will in conformity with the statutory requirements:

To be duly executed, a will must be subscribed by the testator in the presence of at least two attesting witnesses, or the testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator’s will (see EPTL 3-2.1 [a]). Here, the subject will contains an attestation clause. However, Surrogate’s Court must nonetheless examine the attendant circumstances to determine the validity of the will, and it is well established that the attestation clause standing alone will not suffice to meet the proponent’s burden of demonstrating due execution by a preponderance of the evidence if affirmative proof reveals that the required elements were lacking … . In this analysis, “the testimony of the attesting witnesses is entitled to great weight” … . Matter of Yen, 2015 NY Slip Op 03228, 3rd Dept 4-16-15

 

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Claimant Delivery Driver Was an Employee of Partsfleet Despite Fact that Claimant Was Paid by Another Company (SCI) With Which Partsfleet Had a Contract

The Third Department determined the employer, Partsfleet, exercised sufficient control over the claimant, a delivery driver, to support the finding that the driver was an employee, even though the employer had a contract with another company, SCI, which issued claimant’s paycheck. SCI had no involvement with the duties performed by the claimant. “Claimant was retained as a delivery driver following a short interview with a Partsfleet representative and a check of his motor vehicle record. Partsfleet trained him on the operation of a scanner used to schedule and track customer deliveries, and briefed him on the requirements of the customers. The delivery schedule was set by Partsfleet based upon customer requests, and it monitored deliveries via the scanner. Claimant was paid based on the particular delivery route that he had completed at a rate that Partsfleet set with its customer, and claimant was paid if he completed the route regardless of whether the customer paid Partsfleet. Claimant worked out of a warehouse that belonged to one of Partfleet’s customers and that is where he left his completed route sheets, which were then collected by a Partsfleet representative. Any problems with deliveries were generally handled by a Partsfleet representative. Although claimant could work for other companies and find replacements if he could not work a particular route, the replacements had to be approved by Partsfleet. The foregoing establishes that Partsfleet maintained control over important aspects of claimant’s work as was necessary to insure that its customers’ needs were satisfied…” Matter of Watson (Commissioner of Labor), 2015 NY Slip Op 03224, 3rd Dept 4-16-15

 

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