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
In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 Second Dept. 2-13-13
Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire. The defendant’s flight provided reasonable suspicion to pursue and stop him. The defendant’s discarding of a gun during the chase, therefore, was not the result of improper police action. People vs Barrow, 2011-030059, Ind. No. 1356/09 Second Dept. 2-13-13
DeBour, street stops
The Second Department determined the “zone of danger” theory of recovery for witnessing the death of someone in the plaintiff’s “immediate family” did not allow recovery for witnessing the death of a man, not plaintiff’s biological father, who was the only person plaintiff had ever known as a father figure. Thompson vs Dhaiti, 2011-11215, Index No. 24951/09 Second Dept. 2-13-13
When an insured settles with a tortfeasor in violation of a condition requiring his or her insurer’s written consent to settle, and fails to preserve the insurer’s subrogation rights, the insurer is prejudiced, and the insured is prohibited from asserting a claim for underinsured motorist benefits …”. Matter of Travelers Home and Marine Insurance Company vs Kanner, 2012-02625, Index No. 16172/11 Second Dept. 2-13-13
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