You are here: / Termination of Teacher for Failure to Control Special-Education Class to...

Search Results

/ ,

Termination of Teacher for Failure to Control Special-Education Class to Which He Was Assigned After an Unblemished 18-Year Career Shocked the Court’s Sense of Fairness

The First Department, over a two-justice dissent, determined that the termination of a teacher shocked the court’s sense of fairness. The teacher had an unblemished 18-year record before being assigned to a special-education class.  Although the court agreed that the teacher’s inability to control the class had been demonstrated, the punishment was deemed too severe:

While we do not dispute the specific findings of the Hearing Officer concerning petitioner’s deficiencies in the management of this one special education class, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness … . Matter of Russo v New York City Department of Educ, 2014 NY Slip Op 05032, 1st Dept 7-3-14

 

/ ,

Hearsay Evidence of Another’s Admission to the Crime Warranted a Hearing Pursuant to Defendant’s Motion to Set Aside the Conviction

The Third Department determined newly discovered evidence, including hearsay evidence of the admission of another (Melton) to the commission of the crime, warranted a hearing pursuant to the defendant’s motion to set aside his conviction:

“[A] defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged” … . “Depriving a defendant of the opportunity to offer into evidence another person’s admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . The People’s claims regarding Melton’s unwillingness to testify were themselves hearsay, and simply created issues of fact as to whether he was available and, if not, whether his posttrial statements were admissible as declarations against his penal interest … . A statement is admissible under this hearsay exception if (1) the declarant is unavailable because of death, absence or a refusal to testify on constitutional grounds, (2) the declarant knew when making the declaration that it was contrary to his or her penal interest, (3) he or she had competent knowledge of the facts, and (4) other independent evidence supports the reliability and trustworthiness of the declaration … . Where, as here, the statement at issue tends to exculpate a criminal defendant, a more lenient standard of reliability is applied than to inculpatory statements; an exculpatory declaration is admissible if competent independent evidence “establishes a reasonable possibility that the statement might be true” .. . .  People v Sheppard, 2014 NY Slip Op 04982, 3rd Dept 7-3-14

 

/ ,

Possible Error of Law Committed by Judge Did Not Warrant a Prohibition Action

The Fourth Department determined the prosecutor’s prohibition action against a judge should have been dismissed.  The judge had ordered a competency hearing to determine if the complainant in a criminal case was competent to testify in light of her intoxication:

Here, petitioner argued — and Supreme Court agreed — that respondent acted in excess of her authority in ordering a competency hearing because a witness’ level of intoxication at the time of the incident in question and its effect on his or her ability to recall the events has no bearing on whether such witness is competent to testify at trial. It is manifest, however, that a trial court has the authority to make a preliminary inquiry as to a witness’ competency to testify at trial (see CPL 60.20 [1]…). As such, any error in respondent’s decision to hold a competency hearing would, at most, amount to a mere substantive error of law that does not justify the invocation of this extraordinary remedy. “[P]rohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” … . Matter of Getman, 2014 NY Slip Op 05012, 3rd Dept 7-3-14

 

/ ,

Adirondack Park Agency Properly Approved the Construction of a Resort Within the Confines of the Park

In a full-fledged opinion by Justice Rose, the Third Department determined the Adirondack Park Agency (APA) properly approved the construction of a club and resort project which will include a ski area, an inn, single family residences, camps and a marina.  The court went through each of the required findings and found them supported by substantial evidence.  The court explained its review role as follows:

Judicial review of the APA’s determination, made after a hearing at which evidence was taken pursuant to law, is limited to whether the decision is supported by substantial evidence (see CPLR 7803 [4]…). Substantial evidence does not require overwhelming evidence or even a preponderance of the evidence … . Rather, all that is required is “‘relevant proof [that] a reasonable mind may accept as adequate to support a conclusion or ultimate fact'” … . Additionally, “[t]he fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination” … .

To the extent that petitioners argue that the APA’s determination was affected by errors of law (see CPLR 7803 [3]), this Court’s “review of these arguments, made in a CPLR article 78 proceeding following a hearing, is limited to whether the [APA] exceeded its authority, violated a controlling law or otherwise acted in an arbitrary and capricious manner” … . Matter of Protect the Adirondacks! Inc v Adirondack Park Agency, 2014 NY Slip Op 04992, 3rd Dept 7-3-14

 

/ ,

Petitioners Did Not Have Standing to Contest County’s Negative Declaration After a SEQRA Review

The Fourth Department determined petitioners did not have standing to contest the county’s negative declaration pursuant to a State Environmental Quality Review Act (SEQRA) review.  The action involved the county’s permitting the Monroe County Fair and Recreation Association, Inc. to operate a four-day agricultural festival on county land:

Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise a SEQRA challenge” based solely on a party’s proximity … . In such a situation, parties seeking to establish standing must establish that the injury of which they complain “falls within the zone of interests,’ or concerns, sought to be promoted or protected” …, and that they “would suffer direct harm, injury that is in some way different from that of the public at large” … . Contrary to petitioners’ contention, we conclude that the court properly determined that the environmental effects relied on by each petitioner to establish his or her standing are no different in either kind or degree from that suffered by the general public … . We further conclude that the alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … . Thus, the court did not err in concluding that none of the petitioners has standing … . Matter of Kindred v Monroe County, 2014 NY Slip Op 05069, 4th Dept 7-3-14

 

/

Work-Related Call to Coworker Which Triggered Harassment by Coworker’s Husband Was Proper Basis for Workers’ Compensation Benefits

The Third Department determined the claimant was properly awarded workers’ compensation benefits for exacerbation of post traumatic stress disorder.  A work-related phone call made by the claimant to a coworker caused the coworker’s husband to suspect a romantic relationship between claimant and the coworker.  The coworker’s husband undertook a course of threatening conduct which culminated in an unsuccessful murder-for-hire plot:

Whether the injury producing event arose out of and in the course of claimant’s employment depends upon whether it “originated in work-related differences or purely from personal animosity” … . If there is “any nexus, however slender, between the motivation for the assault and employment,” an award of workers’ compensation benefits is appropriate … . Here, the work-related phone call from claimant to his coworker’s home was the basis for the subsequent harassment of claimant at his place of employment, the employer’s internal investigation and claimant’s request for a transfer — all of which exacerbated claimant’s preexisting stress disorder. As the record reveals no connection between claimant and the coworker’s husband outside of claimant’s work-related duties, the Board properly found the required nexus between the threatening conduct that exacerbated claimant’s preexisting condition and claimant’s employment …  Matter of Mosley v Hannaford Bros Co, 2014 NY Slip Op 04997, 3rd Dept 7-3-14

 

/

Two Asbestos Cases Properly Consolidated

The First Department, in a full-fledged opinion by Justice Mazzarelli, over a two-justice dissent, determined Supreme Court properly consolidated two cases alleging injury related to asbestos exposure.  One case involved a worker injured by asbestos dust from drywall sanding at a construction site.  The other involved a navy boiler technician who maintained steam valves containing asbestos.  The court determined that the cases had more commonality than differences:

Consolidation of cases is authorized by CPLR 602(a), which provides:

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

As the statutory language suggests, joining cases together is designed to “reduce the cost of litigation, make more economical use of the trial court’s time, and speed the disposition of cases” … . Further, “[g]reat deference is to be accorded to the motion court’s discretion” in joining cases together … .

Malcolm v National Gypsum Co. (995 F2d 346 [2d Cir 1993]) is the seminal case concerning consolidation in asbestos cases. There, the Second Circuit endorsed “[a standard set of] criteria . . . as a guideline in determining whether to consolidate asbestos exposure cases[, including]: (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged” … .

The court entertaining a consolidation motion is further required to take into consideration the number of separate cases (id. at 352). This Court has applied the Malcolm factors to asbestos cases … . Not all of the factors need be present; consolidation is appropriate so long as “individual issues do not predominate over the common questions of law and fact” (id.). However, in asbestos cases, it has been “routine” to join cases together for a single trial … . Matter of New York City Asbestos Litig, 2014 NY Slip Op 05054, 1st Dept 7-3-14

 

/ ,

Flawed Appraisals Would Not Allow a Determination of the Highest and Best Use of the Taken Land

The Third Department determined the appraisal reports submitted for both side were flawed such that the highest and best use of the taken land could not be determined.  The matter was sent back to the Court of Claims.  The court explained the operative principles:

When private property is appropriated for public use, just compensation must be paid, which requires that the owner be placed in the financial position that he or she would have occupied had the property not been taken … . Upon a partial taking of real property, an owner is not only entitled to the value of the land taken — i.e., direct damages — but also to consequential damages, which consist of the diminution in value of the owner’s remaining land as a result of the taking or the use of the property taken … . Damages must be measured based upon the fair market value of the property as if it were being put to its highest and best use on the date of the appropriation, whether or not the property was being used in such manner at that time … . Matter of State of New York…, 2014 NY Slip Op 05002, 3rd Dept 7-3-14

 

/

Easement Grants Only the Right to Ingress and Egress, Not a Right to the Physical Passageway Itself

The Third Department determined Supreme Court should not have ordered defendant to remove a gravel driveway.  The easement over defendant’s land gave plaintiffs the right of ingress and egress.  Installing the gravel driveway did not impair plaintiff’s right to ingress and egress:

“[W]here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” … . Accordingly, “in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired” … .

Here, the deed establishing the right-of-way states that it is “for the purpose of ingress and egress to” plaintiffs’ property. The uncontroverted evidence established that, while the turnaround was previously comprised of hard-packed dirt, defendant installed a gravel driveway on the turnaround. Plaintiffs did not submit any evidence establishing that the gravel driveway impeded their use of the turnaround. Although plaintiffs established that they had a right of passage for the purpose of ingress and egress, they failed to further establish that defendant’s addition of a gravel driveway impaired that right to any extent. Thibodeau v Martin, 2014 NY Slip Op 04996, 3rd Dept 7-3-14

 

/ ,

Capacity to Sue Does Not Go to the Jurisdiction of the Court—Court Can Not Dismiss a Complaint Sua Sponte On that Ground—Capacity to Sue Must Be Raised as a Defense in the Answer or in a Pre-Answer Motion

The Third Department determined Supreme Court did not have the authority to dismiss a complaint sua sponte based upon the plaintiff’s capacity to sue.  The capacity to sue is not jurisdictional and must be raised as a defense:

“The issue of lack of capacity to sue does not go to the jurisdiction of the court . . . . Rather, lack of capacity to sue is a ground for dismissal which must be raised by [pre-answer] motion [or in the answer] and is otherwise waived” … . Here, plaintiff’s capacity to sue was not raised by pre-answer motion or in defendant’s answer. Consequently, Supreme Court erred in raising the issue sua sponte and dismissing the complaint on that basis (see CPLR 3211 [e]). As such, the order must be reversed and the complaint reinstated. Town of Delhi v Telian, 2014 NY Slip Op 05008, 3rd Dept 7-3-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy