A defamation complaint was dismissed because the plaintiff, a journalist, was deemed to be a “limited public figure,” and there was no showing the challenged statements were made with “actual malice or gross irresponsibility.” The First Department noted that the statement which included the word “liar” was likely to be understood as opinion, not fact. Farber vs Jeffreys, 9297, 106399/09 First Dept. 2-19-13
Resentencing was required where the sentencing judge indicated the five-year post-release supervision was mandatory. There was, however, an applicable exception to the five-year rule which the judge had the discretion to impose. (Penal Law section 70.45 former [2]). People vs Whitmore, 104652 Third Dept. 2-14-13
The Third Department described the proper procedure for a petition for the modification of a SORA level pursuant to Correction Law section 168-o. Both an updated recommendation of the Board of Examiners and a hearing are required. People vs Hazen, 514028 Third Dept. 2-14-13
A written agreement concerning a “success fee” and real estate broker’s commissions was deemed unenforceable as vague, “since the agreement fails to set the price or compensation to be received…”. Magnum Real Estate Services, Ind. Vs 133-134-135 Associates, LLC, 8058, 107850/06 First Dept. 2-14-13
The Third Department applied the “relation back” doctrine (see CPLR 203(f)) to allow the amendment of a complaint to include causes of action that otherwise would have been time-barred. US Bank National Association vs Gestetner, et al, 514808 Third Dept. 2-14-13
The Third Department held that a reversal of the NYS Office of Victim Services determination was required because the respondent Office heard the testimony of two witnesses in the absence of the petitioner, thereby depriving her of her right to cross-examine witnesses, a right which applies to a quasi-judicial administrative hearing. Matter of Barber vs NYS Office of Victim Services, 513256 Third Dept. 2-14-13
“The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the” Workers’ Compensation Board with respect to “findings of fact that are necessary for an administrative agency to reach.” Here the Workers’ Compensation Board’s determination of the duration of the work-related injury was given preclusive effect in a related personal injury action. Judge Pigott wrote a strong dissent, arguing in part that the finding was necessarily a mixture of fact and law, not subject to the collateral estoppel principle. Auqui v Seven Thirty One Ltd. Partnership, 2013 NY Slip Op 00950 [20 NY3d 1035], CtApp 2-14-13
A zoning measure that prohibited check cashing establishments in a town’s business district was invalid. Zoning is concerned with the use of the land, not with the identity of the user. The Town did not try to show and did not argue that check cashing services are in the same category as “adult entertainment” uses which have been found to have “negative secondary effects” on the surrounding community. The zoning measure could not be justified as a “public safety measure.” Sunrise Check Cashing and Payroll Services, Inc. vs Town of Hempstead, No. 12, CtApp 2-14-13
This case, which was not affected by the 2010 amendment to Family Court Act section 451(2)(a), includes a clear discussion of the criteria for an upward modification of a child support obligation where a party is seeking to modify “a child support provision derived from an agreement or stipulation incorporated but not merged into a divorce decree…”. The party seeking modification “has the burden of proving that the agreement was unfair or inequitable when entered into or that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the child are not being adequately met…”. Matter of Overbaugh vs Schettini, 515079 Third Dept. 2-14-13
A finding of neglect based upon the respondent’s allowing the mother of the children to drive with the children when she was intoxicated (.10%) was affirmed by the Third Department. Matter of Darcy Y., 514430 Third Dept. 2-14-13
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