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Exclusion of Petitioner from Hearing During Testimony of Primary Witness Required Vacation of Award

The exclusion of petitioner from an administrative hearing during the testimony of the only eyewitness to an alleged assault by petitioner required vacation of the arbitrator’s award.  The First Department wrote:

Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional right to confront the witnesses against her …. Nothing in the record indicates that a compelling competing interest warranted the exclusion. There is no finding that petitioner’s presence would cause trauma to the student or substantially interfere with his ability to testify. Indeed, the record contains no indication at all of the basis for the exclusion. Petitioner contends that in addition to her constitutional right she had an absolute right to confront witnesses under Education Law § 3020-a. However … there is no such absolute right under § 3020-a… .  Matter of Stergiou v NYC Dept of Educ, 2013 NY Slip Op 03432, 1st Dept, 5-14-13

 

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Whether the “Assault and Battery” Exclusion from Coverage Pertained to an Arson Is a Question of Fact Which Depends Upon the Motives of the Arsonist

A fire in plaintiff’s building left several people dead or injured.  A person was arrested and charged with arson in connection with the fire. The plaintiff brought a declaratory judgment action to determine whether the defendant insurance company was required to defend and indemnify plaintiff.  The main issue was whether the policy exclusion of damages caused by assault and battery applied. The First Department affirmed the trial court’s denial of plaintiff’s motion to dismiss the insurance company’s affirmative defenses, i.e., the assault and battery exclusion and the lack of bodily injury caused by accident or occurrence.  The First Department wrote:

Civil assault and battery are intentional acts, and the assault offenses with which the accused arsonist is charged do not include the intent to harm a specific individual (compare PJI 2d 3:2 [assault]; 3:3 [battery], with Penal Law 120.10[4] [assault in the first degree]; 120.05[6] [assault in the second degree]). Thus, assuming that the insurance policy exclusion is triggered by civil, rather than criminal, assault or battery, the critical inquiry is whether the accused arsonist, in allegedly causing the fire, intended to harm any occupant of the building. Although the determination of the criminal action is therefore not necessary to a determination of the application of the exclusion, the criminal trial may shed light on the accused arsonist’s motives, including whether he intended to harm anyone inside the building. In any event, the criminal trial may enable defendant to obtain access to evidence and witnesses that will assist in determining whether the exclusion applies. Based on representations made at oral argument, the criminal trial has been concluded and, thus, the stay should be lifted. In light of the foregoing, the motion court correctly denied plaintiff’s motion to dismiss the affirmative defenses based on the assault and battery exclusion and the lack of bodily injury caused by an accident or occurrence.  20-35 86th St Realty, LLC v Tower Ins Co of NY, 2013 NY Slip Op 03413, 1st Dept, 5-14-13

 

 

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Action for Contingency Fee; No Demonstration Law Firm Had Been Discharged

The plaintiff law firm brought breach of contract cause of action to recover contingency fees under a written retainer agreement.  The motion court granted defendant’s motion to dismiss on the ground the law firm had been discharged.  In reversing the motion court, the First Department wrote:

Although no particular formality is required, the discharge of an attorney is effected by “[a]ny act of the client indicating an unmistakable purpose to sever relations . . .”…. The motion should not have been granted because the amended complaint and the documents attached to it set forth no facts from which an unmistakable purpose to sever the attorney-client relationship can be discerned. … A motion to dismiss for failure to state a cause of action “must be denied if from the pleadings’ four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'” … .  Anderson & Anderson, LLP … v North American Foreign Trade Corp, 2-13 NY Slip Op 03430, 1st Dept, 5-14-13

 

 

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Governmental Immunity Applied to Preclude Recovery by Bicyclist​

In finding the City was not liable for injury to a bicyclist because of governmental immunity, the First Department wrote:

In this action for personal injuries allegedly sustained by plaintiff when his bicycle hit a depression in a grassy area, after he was diverted from the bicycle path in a City park due to cleaning activities by defendants’ employees on a retaining wall, defendants moved to dismiss at the close of plaintiff’s… * * *  …[D]ismissal of the complaint is warranted on the … ground … that defendants’ employees were engaged in a governmental function giving rise to the governmental immunity defense. Diverting traffic to protect the public from the harsh chemicals used in the cleaning process was a discretionary act performed by public employees in the exercise of reasoned judgment … . Stashkevetch v City of New York, 2013, NY Slip Op 03418, 1st Dept, 5-14-13

 

 

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Assumption of Duty to Maintain Sidewalk; No Expert Notice Needed for Treating Physician

In reversing a judgment after a jury trial in a slip and fall case, the First Department discussed several issues that came up in the trial, including the denial of a missing witness charge with respect to one of the defense doctors, a translation problem raised by the translator (which may have given the jury the misimpression plaintiff was confused about an important issue), the assumption by the defendant Department of Education (DOE) of a duty to make the sidewalk outside a school (where plaintiff fell) safe, and the trial court’s ruling that one of plaintiff’s treating physicians could not testify because no “expert witness” notice was provided.  In addressing the school’s assumption of a duty with respect to the condition of the sidewalk and the exclusion of plaintiff’s treating physician, the First Department wrote:

The DOE argues on appeal that the action should have been dismissed as against it because it did not own the sidewalk where plaintiff fell. New York City Charter § 521(a) provides that “title to all property … acquired for school or educational purpose … shall be vested in the city, but under the care and control of the board of education for the purposes of public education, recreation and other public uses.” Education Law § 2554(4) affirmatively charges the DOE with responsibility for “the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work.” ……[W]here there was evidence that the DOE affirmatively undertook the duty to maintain the sidewalk, the court was well within its discretion in submitting the question of the DOE’s negligence to the jury ….

CPLR 3101(d)(1) provides that, upon request, parties must identify those expected to be called as experts and “disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify … and a summary of the grounds for each expert’s opinion.” However, the failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 … .  Hamer v City of New York, 2013 NY slip Op 03431, 1st Dept, 5-14-13

 

 

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Assumption of Risk Extends to Condition of Outside Basketball Court

The First Department affirmed the grant of summary judgment to the defendant finding that the plaintiff basketball player assumed the risks associated with playing basketball on defendant’s outdoor court:

Plaintiff, an experienced basketball player who had played on the subject court on numerous occasions, was injured when, while heading toward the rim to take a shot, his ankle twisted and he heard his knee “pop,” causing him to fall to the ground. Plaintiff observed that the court was cracked, repaired and uneven, which he believed to be the cause of his fall. Under the circumstances, dismissal of the complaint was proper since plaintiff assumed the risks associated with playing basketball or warming up to play basketball on this outdoor basketball court… . Felton v City of New York, 2013 NY Slip Op 03423, 1st Dept, 5-14-13

 

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Adverse Possession Not Demonstrated

In reversing the adverse-possession ruling in favor of the plaintiffs, because the proof showed only non-exclusive, sporadic and incomplete use of the land, the Third Department wrote:

…[W]e conclude that plaintiffs’ vague testimony did not establish by clear and convincing evidence that they ever cultivated and improved the entire .17 acre of the disputed area, or that they usually cultivated and improved even a small portion of the disputed area for the full 10-year requisite time period. That is, the minimal and sporadic use that was demonstrated is insufficient, as a matter of law, to constitute the requisite cultivation or improvement …. Further, in light of Powell’s testimony that he cared for the disputed area for defendants, plaintiffs cannot establish the “exclusivity” element, which requires a showing that “the adverse possessor . . . alone care[d] for or improve[d] the disputed property as if it were his/her own”….  Robbins v Schiff, 514749, 3rd Dept, 5-9-13

 

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Investigatory Powers of NYS Commission on Public Integrity Explained​

The investigatory powers of the NYS Commission on Public Integrity were at the heart of this case.  The Commission was investigating allegations the petitioner (the Chief Executive Officer of the State University of New York Research Foundation) provided a job to the daughter of a prominent politician for which she was not qualified and did little work.  During the course of the investigation the Commission issued a Notice of Reasonable Cause (NORC) to the petitioner alleging a violation of Public Officers Law 74 (3) and requiring, by subpoena, the petitioner to provide testimony.  The petitioner argued that the commission’s power to issue a subpoena, under the controlling statutes and regulations, ended upon the issuance of the NORC.  In rejecting that argument, and accepting the Commission’s contrary argument that its power to investigate continued after the issuance of an NORC, the Third Department wrote:

Notably, the Commission’s interpretation of its regulation is consistent with the overall purpose and spirit of Executive Law § 94, which is to “strengthen the public’s trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and  fair and just resolution of all matters” (19 NYCRR 941.1…).   Following the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations.  Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute. Conversely, to interpret the regulation as precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.  In the Matter of O’Connor v Ginsberg…, 514200, 3rd Dept, 5-9-13

 

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Public Access Easement to Recreation Area Granted; Public Hearing Not Required

In a full-fledged opinion by Justice Stein, the Third Department upheld the grant of a petition pursuant to the Eminent Domain Procedure Law (EDPL) to acquire a public access easement over private land abutting a recreation area on land owned by a hydroelectric facility. The condemnation proceeding was triggered when the owner of the private property abutting the recreation area blocked roads which for years had provided public access to the recreation area. In a lengthy and detailed opinion, the Third Department explained the applicable procedures pursuant to the EDPL and why statutory exemptions to the public hearing requirement of the EDPL applied in this case.  In the Matter of Eagle Creek Land Resources, LLC, et al v Woodstone Lake Development, LLC, 514046, 3rd Dept, 5-9-13

 

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Presumption of Validity of Property Tax Assessment Rebutted

In affirming Supreme Court’s determination that petitioner’s Adirondack land had been over-valued for property tax purposes, the Third Department thoroughly examined the appraisal techniques employed and explained the review process as follows:

…[W]e  find that petitioner rebutted the presumption of validity of the disputed tax assessments, by presenting a detailed competent appraisal by a qualified appraiser, based upon accepted appraisal techniques, which constituted substantial evidence of overvaluation and presented a genuine dispute concerning valuation … .  Upon  review of Supreme  Court’s determination that petitioner met its burden of establishing, by a preponderance of the evidence, that parcels one  and  two  had  been  overvalued, we “weigh the entire record” … and  “review the trial court’s finding to determine whether it is supported by or against the weight of the evidence” … .Valuation of assessed property presents the court with a factual question…, and this Court   will defer to the trial court’s decision “unless such  finding is based upon [an] erroneous theory of law or [an] erroneous ruling in the admission or exclusion of evidence, or unless it appears that the court . . . has failed to give to conflicting evidence the relative weight which it should have and thus has arrived at a value which is excessive or inadequate” … . Matter of Adirondack Mountain Reserve v Board of Assessors of the Town of North Hudson, et al, 515190, 3rd Dept, 5-9-13

 

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