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CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT).

The Second Department determined criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts:

CPL 300.30(4) provides that “[c]oncurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater.” CPL 300.40(3)(b) provides, in relevant part, that with respect to inclusory concurrent counts, “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … .

Here, the defendant was convicted of criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b) and criminal possession of a firearm … . As the People correctly concede, because the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Harvey, 2023 NY Slip Op 01099, Second Dept 3-1-23

Practice Point: Criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts. The criminal possession of a firearm conviction and sentence were vacated.

 

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CONCLUSORY AND SPECULATIVE ALLEGATIONS PLAINTIFF WOULD NOT HAVE LOST ITS DISADVANTAGED BUSINESS ENTERPRISE (DBE) STATUS HAD DEFENDANT ATTORNEYS NOT FAILED TO FILE AN ADMINSTRATIVE APPEAL AND REQUEST A HEARING WERE NOT SUFFICIENT TO SURVIVE A MOTION TO DISMISS PURSUANT TO CPLR 3211 (A) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice complaint should have been dismissed. Defendants allegedly did not pursue an administrative appeal and submitted a written response in lieu of a hearing. Plaintiff Mid City alleged the failures resulted in the termination of its status as a disadvantaged business enterprise (DBE). The Second Department held plaintiff did not demonstrate that but for the alleged legal malpractice the DBE status would not have been terminated:

… [E]ven accepting the facts alleged in the complaint as true, and according Mid City the benefit of every possible favorable inference … , the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome regarding the termination of Mid City’s status as a DBE … . The allegation that Mid City lost the opportunity to pursue an administrative appeal, without any indication that the appeal would be successful, is insufficient to state a claim … . Similarly, the allegation that Mid City would have been recertified as a DBE had the defendants requested a hearing, rather than having filed a written response to the initial letter proposing termination of its status as a DBE, is speculative and conclusory … . Mid City Elec. Corp. v Peckar & Abramson, 2023 NY Slip Op 01085, Second Dept 3-1-23

Practice Point: To survive a motion to dismiss the complaint in a legal malpractice action, the plaintiff must make specific factual allegations demonstrating that but for the attorney’s negligence the outcome would have been more favorable. Conclusory or speculative “but for” allegations are not enough.

 

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THE MOTION TO CHANGE VENUE WAS MADE MORE THAN 15 DAYS AFTER THE DEMAND TO CHANGE VENUE; THE 15-DAY TIME-LIMIT IS STRICTLY ENFORCED AND THE MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants’ motion to change venue pursuant to CPLR 511(b) was made more than 15 days after their demand to change venue and was therefore untimely:

Supreme Court should have denied defendants’ motion to change venue from Bronx County to Westchester County because it was untimely made. Defendants have a reasonable excuse for their failure to make a timely demand to change venue. They learned of plaintiff’s Westchester address on April 5, 2022, when they received plaintiff’s medical authorizations and a copy of the Aided report, and made a prompt demand to change venue the day after, on April 6, 2022 … . However, pursuant to CPLR 511(b), defendants had until April 21, 2022, 15 days after service of their demand, to make the motion. Defendants’ motion made on April 26, 2022, 20 days after the demand, is untimely and should have been denied. Defendant did not move within the strict time limits provided by the statute and failed to offer any explanation for the delay … . Gomez v Cypser, 2023 NY Slip Op 01060, First Dept 2-28-23

Practice Point: Once defendant makes a demand to change venue, defendant has 15 days to make a motion to change venue pursuant to CPLR 511(b). The 15-day time-limit is strictly enforced. Here the motion was made 20 days after the demand and Supreme Court should not have granted it.

 

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AFFIDAVITS NOT BASED ON PERSONAL KNOWLEDGE AND NOT SUPPORTED BY CERTIFIED BUSINESS RECORDS HAVE NO PROBATIVE VALUE; HERE THE AFFIDAVITS FAILED TO PROVE DEFENDANT WAS IN THE BUSINESS OF RENTING TRUCKS SUCH THAT THE GRAVE’S AMENDMENT APPLIED, AND FAILED TO PROVE THE TRUCK WAS PROPERLY MAINTAINED; DEFENDANT SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined defendant lessor of the truck which struck plaintiff’s vehicle did not present sufficient evidence that it was in the business of renting trucks, such that the Grave’s amendment applied, or that the truck was properly maintained. The defendant attempted to show it was in the business of renting trucks with affidavits which referred to documents that were not attached. In addition, the papers did not demonstrate the truck was properly maintained:

… [Defendant] failed to establish their entitlement to summary judgment under the Graves Amendment, which bars state law vicarious liability actions against owners of motor vehicles when (1) they are engaged in the trade or business of renting or leasing motor vehicles, (2) they leased the vehicle involved in the accident, (3) the subject accident occurred during the period of the lease or rental and (4) there is no triable issue of fact as to the plaintiff’s allegation of negligent maintenance contributing to the accident ,,, , ,,,

Neither affidavit sufficiently establishes the basis — personal knowledge or from identifiable business records — for the affiants’ knowledge of the contents of the affidavits. Therefore, they are of no probative value.

The documents submitted with the motion cannot be admitted as business records because they are not certified, and the affidavits do not lay a sufficient foundation for their admissibility … . Although an affidavit that is not based on the affiant’s personal knowledge may still serve to authenticate a document for its admissibility as a business record, as long as the affiant demonstrates sufficient personal knowledge of the document in question … , and the affidavit sufficiently establishes that the document falls within the business record exception to the hearsay rule … , here we are lacking both. The “acknowledgment of lease” letters — which refer to an unattached “previously executed Equipment Rental Agreement” — submitted with these affidavits are not certified as business records, nor do the affidavits lay a sufficient foundation for the letters’ introduction as business records. Without a proper foundation, these documents are not admissible. …

When a plaintiff seeks to hold a vehicle owner liable for the failure to maintain a rented vehicle, the owner is not afforded protection under the Graves Amendment if it fails to demonstrate that it did not negligently maintain the vehicle … , or to prove that it was not responsible for the maintenance and repair of the vehicle during the lease … .  Muslar v Hall, 2023 NY Slip Op 01063, First Dept 2-28-23

Practice Point: Affidavits must either be based upon the affiant’s personal knowledge or supported by certified business records. Here the affidavits did not show defendant was in the business of renting trucks and did not show the truck involved in the accident was properly maintained. Therefore the Grave’s amendment criteria were not proven and defendant was not entitled to summary judgment. The Grave’s amendment provides that the vehicle-owner who is in the business of renting vehicles will not be liable for an accident if the vehicle was properly maintained.

 

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PLAINTIFF-STUDENT’S CHEMICAL BURNS WERE CAUSED BY THE INTENTIONALLY WRONGFUL, SPONTANEOUS, UNFORESEEABLE ACTS OF THIRD PARTIES OVER WHOM DEFENDANT SCHOOL HAD NO CONTROL OR AUTHORITY; STUDENTS HAD APPARENLY PUT DRANO IN A WATER BOTTLE WHICH PLAINTIFF KICKED; TWO-JUSTICE DISSENT ARGUED THE SCHOOL DID NOT MEET ITS BURDEN OF PROOF ON ITS LACK OF NOTICE (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined defendant charter school [Mission] did not have notice of the dangerous condition which allegedly caused plaintiff-student’s chemical burns. Plaintiff kicked a plastic water bottle which had Drano in it, called a Drano bomb. Plaintiff alleged school personnel knew or should have known other students were making the Drano bombs:

The court properly granted Mission’s summary judgment motion, even assuming that a triable issue exists as to whether plaintiff was participating in Mission’s afterschool program at the time she was injured. Plaintiff testified that, before she was injured, she had seen other children, who were not participating in Mission’s afterschool program, on a different basketball court in the public park pouring a liquid into a Poland Spring bottle, not a Vitamin Water bottle. Plaintiff theorizes that Mission’s staff should have observed the conduct of these children and intervened to stop them. However, plaintiff’s own testimony, on which Mission was entitled to rely to satisfy its prima facie burden on the summary judgment motion, established that the actions of the children — even indulging the speculative assumption that they created the Drano bomb that later injured plaintiff — were the intentionally wrongful, spontaneous, and unforeseeable acts of third parties over whom Mission had no control or authority … .

From the dissent:

Mission’s motion presented no evidence whatsoever from any of its employees, teachers, supervisors, or in the form of records from the afterschool program. Mission consequently failed to address, in the first instance, the issue of whether it had “notice of the dangerous conduct which caused injury” … . Under the circumstances, Mission’s reliance on the testimony of other parties was insufficient to carry its prima facie burden. S. G. v Harlem Vil. Academy Charter Sch., 2023 NY Slip Op 01069, First Dept 2-28-23

Practice Point: Here the school successfully argued the plaintiff-student’s chemical burns were caused by the intentionally wrongful, spontaneous, and unforeseeable acts of other children over whom the school had no control. Plaintiff kicked a water bottle which had Drano in it (a Drano bomb). Two dissenters argued the school did not present sufficient evidence of its lack of notice.

 

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FAMILY COURT SHOULD NOT HAVE DISMISSED FATHER’S MODIFICATION OF CUSTODY PETITION WITHOUT HOLDING A BEST INTERESTS HEARING, SHOULD HAVE ACCEPTED THE FACTS ALLEGED IN THE PETITION AS TRUE, AND SHOULD NOT HAVE RELIED ON UNSWORN INFORMATION FROM THE ATTORNEYS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father’s petition for a modification of custody should not have been dismissed without holding a best interests hearing. The Third Department noted that Family Court should have accepted the facts alleged in the petition as true and should not have relied on unsworn information provided by the attorneys:

… [F]ather’s petition sufficiently alleged … changed circumstances that, if established at a hearing, would entitle him to a best interests review, including that the mother had thwarted the electronic communication to which he was entitled … , failed to keep him informed of certain health information pertaining to the child and, upon information and belief, was found to have neglected the child … . Even if such circumstances do not ultimately result in an award of joint legal custody as sought by the father, his petition also sought increased visitation and unsupervised parenting time. These changed circumstances, if established, would support a best interests review to determine whether such relief is warranted based upon the totality of the evidence. Matter of Ryan Z. v Adrianne AA., 2023 NY Slip Op 01032, Third Dept 2-23-23

Practice Point: In determining whether a best interests hearing is required when a petition for modification of custody is filed, the facts alleged must be accepted as true. The judge here should not have relied on unsworn information from the attorneys.

 

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IN THIS OIL SPILL CLEAN UP SUIT AGAINST THE PROPERTY OWNER BROUGHT UNDER THE NAVIGATION LAW, THERE IS NO STATUTE PROHIBITING THE STATE FROM SEEKING INDEMNIFICATION FOR FUNDS EXPENDED FROM THE ENVIRONMENTAL RESTORATION PROGRAM FUND PURSUANT TO THE ENVIRONMENTAL CONSERVATION LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint seeking reimbursement of oil spill clean up costs from the defendant property owner should not have been dismissed. Defendant argued the state could not seek reimbursement under the Navigation Law for funds expended from the Environmental Restoration Program Fund pursuant to the Environmental Conservation Law. The Third Department found no support for the argument in the statutes:

Nothing in the Navigation Law prohibits plaintiff from seeking indemnification for funds expended from sources other than the Oil Spill Fund. Moreover, the Environmental Conservation Law requires the state to seek recovery of the funds under any statute (see ECL 56-0507 [2]). * * *

… “[T]he state of New York and any of its political subdivisions or agents” (Navigation Law § 172 [14]). Additionally, the Legislature imposed strict liability against “[a]ny person who has discharged petroleum . . . without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained” (Navigation Law § 181 [1] … ). The language of the statute does not limit recovery solely to the Oil Spill Fund. Rather, the fund simply serves as a possible means to effectuate the statute. “[B]arring plaintiff from seeking to hold defendant strictly liable for the [remediation] expenditures would thwart the plain language of Navigation Law § 181, as well as the express purposes of Navigation Law article 12 …”. State of New York v Alfa Laval Inc., 2023 NY Slip Op 01034, Third Dept 2-23-23

Practice Point: Here the state sought recovery of oil spill clean up costs from the defendant property owner. The defendant argued the state could not be indemnified for funds expended from the Environmental Restoration Program fund (pursuant to the Environmental Conservation Law) by suing under the Navigation Law, which has its own Oil Spill Fund. The Third Department found no such statutory restriction.

 

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IN THIS DIVORCE ACTION, THE SETTLEMENT AGREEMENT STATED THE WIFE’S INCOME WAS WELL BELOW THE FEDERAL POVERTY LEVEL YET SHE WAIVED SPOUSAL SUPPORT; GENERAL MUNICIPAL LAW 5-311 MAY, THEREFORE, HAVE BEEN VIOLATED; ALTHOUGH THE AGREEMENT AS A WHOLE WAS NOT UNCONSCIONABLE, THE MATTER WAS SENT BACK TO ALLOW THE JUDGE TO ENQUIRE ABOUT THE WAIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this divorce action, determined a portion of the settlement agreement may violate the General Municipal Law and sent the matter back for further inquiry by the judge. The wife’s income is well below the federal poverty guidelines yet she waived spousal support:

General Obligations Law § 5-311 prohibits spouses from contracting to dissolve a marriage and “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge …”. * * *

… [A]rticle four of the settlement agreement, concerning spousal support, sets forth the wife’s income as $11,446, which is well below the applicable federal 2020 poverty guidelines … . As such, there is a question as to whether this provision is in violation of General Obligations Law § 5-311 in that the wife “is likely to become a public charge.” Because of this, we find that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife’s waiver of spousal support … .Majid v Hasson, 2023 NY Slip Op 01035, Third Dept 2-23-23

Practice Point: The settlement agreement in this divorce action was not unconscionable, but a provision may violate the General Municipal Law which prohibits agreeing to a level of support which will result in the wife becoming a public charge. The wife’s income is well below the federal poverty level, yet she waived spousal support. The matter was sent back for judicial inquiry into the waiver.

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THE REASONS PROVIDED BY THE ZONING BOARD OF APPEALS FOR THE DENIAL OF A USE VARIANCE TO ALLOW CONSTRUCTION OF A SOLAR ARRAY WERE IRRATIONAL (THIRD DEPT). ​

The Third Department reversed Supreme Court and annulled the determination of the zoning board of appeals [ZBA] which denied a use variance to allow construction of a solar array by Source Renewables. The decision is fact-specific and cannot be fairly summarized here. The Third Department determined the reasons the board gave for finding certain criteria for a use variance were not met were irrational:

… [T]here is no basis in the record for the ZBA’s conclusion that Source Renewables failed to prove that the alleged hardship results from ” ‘unique conditions peculiar to and inherent in the property as compared to other properties in the zoning district’ ” or neighborhood … . … [T]he evidence before the ZBA established that the … parcel is poorly suited for residential development due its lack of access to public utilities…. . …

There is also no evidence in the record to support the ZBA’s conclusion that Source Renewables failed to satisfy the third criteria for a use variance — that the variance would not alter the essential character of the neighborhood. The ZBA acknowledged the negative SEQRA declaration, which …found that the … project would not impair the quality of aesthetic resources or of existing community or neighborhood character … , but ultimately relied upon the opinion of one of its members that the solar array would not be visually pleasing from certain vantage points, particularly in the fall and winter. …

… Supreme Court concluded that Source Renewables failed to prove that the alleged hardship was not self-created because it entered into the subject contract knowing its proposed project was prohibited. This was not the basis articulated by the ZBA … . …

… [T]he ZBA concluded that, because the property has not changed since [the seller] purchased it in 1963, any alleged hardship was self-imposed. This was an irrational reason for branding the hardship self-created. Although a hardship is considered self-created, for zoning purposes, where property is acquired subject to the restrictions from which relief is sought … , here, [the seller]  purchased the … parcel in 1963, and it was not until 1986 and 2018, respectively, that the Town adopted any zoning law … or regulated solar energy systems … . Matter of Source Renewables, LLC v Town of Cortlandville Zoning Bd. of Appeals, 2023 NY Slip Op 01036, Third Dept 2-23-23

Practice Point: Here the reasons provided by the zoning board of appeals for the denial of a use variance to allow construction of a solar array were deemed irrational.

 

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THE SUBSTANCE FOUND ON PETITIONER-INMATE’S PERSON WAS NOT TESTED OR OTHERWISE IDENTIFIED AS A DRUG; THE DRUG POSSESSION AND DISTRIBUTION, AS WELL AS THE SMUGGLING, DETERMINATIONS ANNULLED (THIRD DEPT).

The Third Department, held the drug possession and distribution, as well as the smuggling, determinations should be annulled. A drug sniffing dog alerted to a substance on petitioner-inmate’s person but no testing or other identification of the substance was done:

At the prison disciplinary hearing, it was established that the suspected substance was not subjected to chemical testing, nor was there any evidence indicating that facility pharmacy or nursing staff inspected or visually identified the substance ,,, . Rather, the substance was visually identified as synthetic marihuana by the OSI K-9 officer. However, the regulation does not authorize an OSI officer to identify suspected substances as drugs. Similarly, testimony regarding the K-9 alerting to petitioner’s groin area did not suffice to comply with the regulation. While there was testimony that petitioner admitted that he possessed K2, this would, at most, establish a charge of possession of contraband, but not drug possession. Unlike a drug-related disciplinary charge, which requires compliance with the aforementioned identification procedures … , the prohibition on contraband merely depends on whether or not an item is authorized … . In light of the lack of compliance with regulatory procedures, the identity of the substance was not properly established …

As for the remaining charge of smuggling, this charge only requires that “any item” be smuggled in or out of the facility or from one area to another … , and does not require proof that the item was a drug or contraband. However, in finding petitioner guilty of this charge, the Hearing Officer expressly based his finding on the OSI K-9 officer’s conclusion that the substance was synthetic marihuana, and therefore must have been smuggled in from outside the facility. As noted above, this conclusion was flawed. Given that, and because there was no proof at the hearing that the substance in question was moved from one area to another, the finding as to this charge is also unsupported by substantial evidence and must be annulled. Matter of Then v Annucci, 2023 NY Slip Op 01037, Third Dept 2-23-23

Practice Point: The substance must be tested or otherwise identified by a professional as a drug before a drug possession or distribution determination against an inmate will be upheld.

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