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DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant car dealership (Port Motors) had not transferred ownership of the car to the purchaser (Love) at the time of the accident and was therefore liable to plaintiff as the owner of the vehicle. Plaintiff was injured when the driver (Lemos) struck a barricade which in turn struck plaintiff, who was walking on the sidewalk:

Because Port Motors “fail[ed] to comply with the statutory requirements regarding vehicle registration procedures . . . [it] is estopped from denying ownership of the vehicle and is fully liable to the plaintiff as if it were the owner’ of the vehicle” … . Although this Court has held that “title to a motor vehicle is transferred when the parties intend such transfer to occur” … , here, there is no evidence that the parties intended to transfer title to the vehicle from Port Motors to Love prior to the accident. …

The metal barricade standing in the roadway was not “a sudden and unexpected circumstance which le[ft] little or no time for thought, deliberation or consideration, or cause[d] [Lemos] to be reasonably so disturbed that [he] [had to] make a speedy decision without weighing alternative courses of conduct . . . “… . Rather, by colliding with the barricade and propelling it onto the sidewalk, where it struck a pedestrian, Lemos failed to both operate his vehicle in a manner that was reasonable and prudent under the circumstances  … and to see what was there to be seen through the ordinary use of his senses … . Bunn v City of New York, 2018 NY Slip Op 07936, First Dept 11-20-18

NEGLIGENCE (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (OWNER LIABILITY, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PEDESTRIANS  (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT). ​

The First Department, reversing Family Court, determined that father’s petition to modify custody should not have been denied without a hearing. Mother had relocated to Florida without father’s consent or the permission of the court:

Family Court correctly determined that the mother’s testimony about her unilateral relocation constituted a change in circumstances, triggering an inquiry into whether the child remaining in the mother’s custody in Florida is in the child’s best interests … . However, the court abused its discretion in making a final determination on that issue without a full hearing at which the parties and the child’s attorney had an opportunity to present relevant evidence. The question of a child’s relocation out of state necessarily requires “due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child … . [C]ustody and visitation decisions should be made with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life”… . Relevant factors include the parties’ good faith in requesting or opposing the move, the child’s attachments to each parent, the quality of the life-style that the child would have if the proposed move were permitted or denied, the effect that the move may have on any extended family relationships, and whether a visitation plan can be achieved that permits the noncustodial parent to maintain a meaningful parent-child relationship (id.). In this case, since the father had raised concerns in his petition about the child’s education, the parties should have had the opportunity to present evidence about this, in addition to other relevant factors. Matter of Michael B. v Latasha T.-M., 2018 NY Slip Op 07929, First Dept 11-20-18

FAMILY LAW (RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/CUSTODY (FAMILY LAW, RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/RELOCATION (FAMILY LAW, CUSTODY, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))

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FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT).

The First Department, reversing Family Court, determined that father’s petition to modify custody should not have been denied without a hearing. Mother had relocated to Florida without father’s consent or the permission of the court:

Family Court correctly determined that the mother’s testimony about her unilateral relocation constituted a change in circumstances, triggering an inquiry into whether the child remaining in the mother’s custody in Florida is in the child’s best interests … . However, the court abused its discretion in making a final determination on that issue without a full hearing at which the parties and the child’s attorney had an opportunity to present relevant evidence. The question of a child’s relocation out of state necessarily requires “due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child … . [C]ustody and visitation decisions should be made with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life”… . Relevant factors include the parties’ good faith in requesting or opposing the move, the child’s attachments to each parent, the quality of the life-style that the child would have if the proposed move were permitted or denied, the effect that the move may have on any extended family relationships, and whether a visitation plan can be achieved that permits the noncustodial parent to maintain a meaningful parent-child relationship (id.). In this case, since the father had raised concerns in his petition about the child’s education, the parties should have had the opportunity to present evidence about this, in addition to other relevant factors. Matter of Michael B. v Latasha T.-M., 2018 NY Slip Op 07929, First Dept 11-20-18

FAMILY LAW (RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/CUSTODY (FAMILY LAW, RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/RELOCATION (FAMILY LAW, CUSTODY, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))

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EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP).

The Court of Appeals, over a two-judge dissent, determined the evidence of serious physical injury in this first degree assault case met the “legally sufficient evidence” standard of appellate review. The victim was shot in the leg and bullet fragments remain in his body:

The victim testified that he can still “feel [the bullet] poking out,” and that he continues to endure the effects “of the metal inside [his] leg.” Even four years after the shooting, the victim noted that the injury still “disturbs” him at times, and that “something is wrong with [his] leg.” The victim stated that, because the bullet “didn’t come out of [his] leg,” his “life” had been “tampered with.” For instance, he can no longer participate in competitive sports, as the injury would present a “very, very, very, very big risk.” The medical expert further testified that there are “many repercussions” of the type of muscle damage that the victim sustained: “Muscle damage can cause long-term injuries to the kidneys from leakage of chemicals from the muscle, toxic to the kidneys, can cause pain and weakness, difficulty walking.”

As the dissent notes, there is certainly record evidence favorable to the defense that, when viewed in isolation, might have presented an issue of fact for the jury. That said, viewing the evidence in the light most favorable to the People, as our legal sufficiency standard requires, we have no trouble concluding that the jury acted rationally in finding that the victim’s gunshot wound constituted a “serious physical injury” … . People v Garland, 2018 NY Slip Op 07927, CtApp 11-20-18

CRIMINAL LAW (EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/EVIDENCE (CRIMINAL LAW, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/APPEALS (CRIMINAL LAW, LEGALLY SUFFICIENT EVIDENCE, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/SERIOUS PHYSICAL INJURY (CRIMINAL LAW, ASSAULT, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/LEGALLY SUFFICIENT EVIDENCE (CRIMINAL LAW, APPEALS, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/ASSAULT (EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))

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COUNTERFEIT CONCERT TICKETS FALL WITHIN THE AMBIT OF THE STATUTE PROHIBITING POSSESSION OF A FORGED INSTRUMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that counterfeit concert tickets fall within the ambit of the statute prohibiting possession of a forged instrument:

Defendant’s argument, a jurisdictional challenge to the indictments against him, amounts to the claim that the otherwise valid statement of the elements of the crime in each count is negated by the specific allegation in the “to wit” phrase that the forged instrument purported to be an event ticket. He insists, in effect, that counterfeit event tickets could never fall within the ambit of the second-degree forgery statute. Defendant’s rationale is that event tickets, the instruments that defendant’s counterfeit documents purported to be, are merely revocable licenses and do not “affect a legal right, interest, obligation or status.” …

Defendant’s premise that event tickets are revocable licenses is true. The case law saying as much is venerable. The purchase of an event admission ticket gives the holder “a revocable license . . . to enter the building in which [the event is held], and to attend the performance” … . An event ticket, in other words, is a permission slip, subject to retraction.

It does not follow, however, that an event ticket does not affect a legal right, i.e., “right created or recognized by law” … , or status, i.e., “legal condition, whether personal or proprietary” … . Indeed, the same decisions on which defendant relies to demonstrate the revocable nature of event tickets also describe the legal rights, albeit limited, that a ticket evidences or otherwise affects. An event ticket, the Court wrote, “is a license, issued by the proprietor . . . as convenient evidence of the right of the holder to admission”… . The Legislature has similarly defined a ticket, in the context of entertainment and the arts generally, as “any evidence of the right of entry to any place of entertainment”… . People v Watts, 2018 NY Slip Op 07926, CtApp 11-20-18

CRIMINAL LAW (FORGED INSTRUMENTS, COUNTERFEIT CONCERT TICKETS FALL WITHIN THE AMBIT OF THE STATUTE PROHIBITING POSSESSION OF A FORGED INSTRUMENT (CT APP))/FORGED INSTRUMENTS, POSSESSION OF (COUNTERFEIT CONCERT TICKETS FALL WITHIN THE AMBIT OF THE STATUTE PROHIBITING POSSESSION OF A FORGED INSTRUMENT (CT APP))/CONCERT TICKETS (FORGED INSTRUMENTS, COUNTERFEIT CONCERT TICKETS FALL WITHIN THE AMBIT OF THE STATUTE PROHIBITING POSSESSION OF A FORGED INSTRUMENT (CT APP))

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LANDLORD, BY THE TERMS OF THE LEASE WHICH REQUIRED THE TENANT TO DO RENOVATION WORK, IS DEEMED TO HAVE CONSENTED TO THE WORK, THE CONTRACTOR THEREFORE HAD A VALID MECHANIC’S LIEN WITH RESPECT TO THE LANDLORD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the landlord (COR), by the terms of the lease which required work on the premises to be done by the tenant restaurant (Peaches), consented to the work. Therefore the contractor who did the work had a valid mechanic’s lien with respect to the landlord:

The language of the lease agreement not only expressly authorized Peaches to undertake the electrical work, but also required it to do so to effectuate the purpose of the lease—that is, for Peaches to open the restaurant for business and operate it continuously, seven days a week, during hours specified by COR. Furthermore, the detailed language makes clear that COR was to retain close supervision over the work and authorized it to exercise at least some direction over the work by reviewing, commenting on, revising, and granting ultimate approval for the design drawings related to the electrical work. We therefore conclude that, under our prior precedents, the terms of the lease agreement between COR and Peaches, taken together, are sufficient to establish COR’s consent under Lien Law § 3. Ferrara v Peaches Cafe LLC, 2018 NY Slip Op 07925, CtApp 11-20-18

LIEN LAW (LANDLORD, BY THE TERMS OF THE LEASE WHICH REQUIRED THE TENANT TO DO RENOVATION WORK, IS DEEMED TO HAVE CONSENTED TO THE WORK, THE CONTRACTOR THEREFORE HAD A VALID MECHANIC’S LIEN WITH RESPECT TO THE LANDLORD (CT APP))/LANDLORD-TENANT (LIEN LAW, (LANDLORD, BY THE TERMS OF THE LEASE WHICH REQUIRED THE TENANT TO DO RENOVATION WORK, IS DEEMED TO HAVE CONSENTED TO THE WORK, THE CONTRACTOR THEREFORE HAD A VALID MECHANIC’S LIEN WITH RESPECT TO THE LANDLORD (CT APP))/MECHANIC’S LIEN (LANDLORD-TENANT, LANDLORD, BY THE TERMS OF THE LEASE WHICH REQUIRED THE TENANT TO DO RENOVATION WORK, IS DEEMED TO HAVE CONSENTED TO THE WORK, THE CONTRACTOR THEREFORE HAD A VALID MECHANIC’S LIEN WITH RESPECT TO THE LANDLORD (CT APP))

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THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP).

The Court of Appeals, over a two-judge concurrence, determined the defendant’s argument that the integrity of the grand jury proceedings was impaired by the prosecution’s failure to call a witness requested by the defendant did not raise a constitutional issue and therefore was precluded by defendant’s guilty plea:

Defendant does not contend that the evidence before the grand jury was insufficient to support the indictment. Instead, defendant claims that the prosecutor’s conduct impaired the integrity of the grand jury proceeding and argues his motion to dismiss the indictment for defective grand jury proceedings on that ground is not forfeited by his guilty plea. …

… [W]e have explained that even after entering a valid guilty plea, “a defendant may not forfeit a claim of a constitutional [*2]defect implicating the integrity of the process” …  and we have recognized that certain claimed defects in a grand jury proceeding rise to this level … .

Defendant’s claim in this case rests on the purported exclusion of a witness, the substance of whose testimony was contained in an affidavit provided to the courts below. That proffered testimony was largely inadmissible and, in any event, would have inculpated him by establishing that he had a relationship with the complainant and had been in her presence in violation of an order of protection. The exclusion of such testimony before the grand jury does not present “a constitutional defect implicating the integrity of the process”…  and accordingly the claimed violation in this case did not survive defendant’s guilty plea.  People v Manragh, 2018 NY Slip Op 07924, CtApp 11-20-18

CRIMINAL LAW (THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/EVIDENCE (CRIMINAL LAW, GRAND JURY, THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/APPEALS (CRIMINAL LAW, GUILTY PLEA, THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/GUILTY PLEA (APPEALS, HE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/GRAND JURY (APPEALS, GUILTY PLEA, THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))

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ALTHOUGH THE VILLAGE BUILT THE BRIDGE, THE VILLAGE NEVER IMPLEMENTED THE PROCEDURES IN THE VILLAGE CODE FOR ASSUMING CONTROL OVER THE BRIDGE, THEREFORE THE TOWN WAS RESPONSIBLE FOR REPAIR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, reversing the Appellate Division, determined that the Town, not the Village, was responsible for the repair of a bridge. Although the bridge apparently had been built by the Village, the procedure for assuming control over the bridge laid out in the Village Code, which includes a resolution and a permissive referendum, was never implemented. The case turned on interpretation of the code provisions:

The Town argues, and the Appellate Division held, that a village has discretion to assume control of bridges in ways other than those enumerated in Village Law § 6-606. We disagree. ” [W]here a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded'” … . Here, the legislature has limited the methods by which a village may assume control of a bridge by establishing specific procedures to be followed … . Had the legislature intended for a village to have the ability to unilaterally construct, and thereby control, a bridge—without regard to the passage of resolutions, agreements with the town, or permissive referendums—the legislature could easily have so stated, and its failure to do so compels the conclusion that such other methods of assuming control are ineffective … . Town of Aurora v Village of E. Aurora, 018 NY Slip Op 07923, CtApp 11-20-18

MUNICIPAL LAW (TOWN VS VILLAGE, ALTHOUGH THE VILLAGE BUILT THE BRIDGE, THE VILLAGE NEVER IMPLEMENTED THE PROCEDURES IN THE VILLAGE CODE FOR ASSUMING CONTROL OVER THE BRIDGE, THEREFORE THE TOWN WAS RESPONSIBLE FOR REPAIR (CT APP))/BRIDGES (MUNICIPAL LAW, TOWN VS VILLAGE, ALTHOUGH THE VILLAGE BUILT THE BRIDGE, THE VILLAGE NEVER IMPLEMENTED THE PROCEDURES IN THE VILLAGE CODE FOR ASSUMING CONTROL OVER THE BRIDGE, THEREFORE THE TOWN WAS RESPONSIBLE FOR REPAIR (CT APP))/TOWN VS VILLAGE (MUNICIPAL LAW, BRIDGES, ALTHOUGH THE VILLAGE BUILT THE BRIDGE, THE VILLAGE NEVER IMPLEMENTED THE PROCEDURES IN THE VILLAGE CODE FOR ASSUMING CONTROL OVER THE BRIDGE, THEREFORE THE TOWN WAS RESPONSIBLE FOR REPAIR (CT APP))

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SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissenting opinion, determined that school districts do not have the authority to oversee pre-kindergarten programs offered by charter schools. The court noted that deference to the Commissioner of Education’s contrary finding was not required because the question is one of pure statutory interpretation:

Charter schools are listed among the various eligible providers under the Statewide Universal Full-Day Pre-Kindergarten Program. Unlike other providers, however, charter schools are separately governed by the New York Charter Schools Act, and all “monitoring, programmatic review and operational requirements” related to charter school pre-kindergarten programs are “the responsibility of the charter entity” and must be “consistent with the requirements” of the Charter Schools Act (Education Law § 3602-ee [12]). The issue before us is whether the statutory scheme governing charter school pre-kindergarten programs allows for shared oversight authority between charter entities and local school districts. We hold that it does not … . * * *

According to [the appellate division, affirmed here by the Court of Appeals], the Legislature’s use of the word “all” in subdivision 12 provide the charter entity “with full responsibility for the relevant monitoring, programmatic review and operational requirements’ for the relevant prekindergarten programs” and that the plain meaning of this provision “in no way indicates that another entity — such as a school district — holds concurrent responsibility or authority in this regard” (… quoting Education Law § 3602-ee [12]). This reading, in the Appellate Division’s view, “best harmonizes the provisions of the statute in a manner consistent with the Legislature’s announced purpose” of Universal Pre-K Law which was ” to encourage program creativity through competition'” (… quoting Education Law § 3602-ee [1]). The Court also determined that the plain meaning of the term “inspection” did not include a right to regulate the curriculum (id.; see Education Law § 3602-ee [10]). The Appellate Division remitted the matter to the Commissioner, given that “the Commissioner’s determination regarding Success Academy’s request for funding was affected by its erroneous interpretation of” Universal Pre-K Law” … . Matter of DeVera v Elia, 2018 NY Slip Op 07922, CtApp 11-20-18

EDUCATION-SCHOOL LAW (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/PRE-KINDERGARTEN PROGRAMS (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/CHARTER SCHOOLS, PRE-KINDERGARTEN PROGRAMS, (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))

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PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT).

The First Department determined the production of certain of the condominium’s books and records was properly requested by petitioners and the subpoenaed parties’ legal expenses in resisting petitioners’ subpoenas were properly paid by the condominium board:

In item (j), petitioners seek “all correspondence with . . . NY Urban [or its principal] from 2011 to the present.” This body of correspondence is relevant and necessary to petitioners’ investigation into NY Urban’s dealings with respondents, and therefore is a proper subject of the common-law right of inspection … .

In item (g), petitioners seek “[a]ll documents and records relating to the Condominium’s settlement agreement with the Condominium sponsor.” We agree with petitioners that understanding how the Condominium reached the settlement agreement is a valid purpose. Indeed, respondents concede that petitioners are entitled to receive a copy of the final settlement agreement itself. The documents specified in item (g) following the word “including” are also reasonably relevant and necessary to the stated purpose of exploring the settlement process. We reject respondents’ conclusory assertion that some unknown number of documents are protected by the attorney-client privilege or work product doctrine.

In paying the subpoenaed parties’ legal expenses, respondents were acting within the scope of their authority and in furtherance of the legitimate purpose of resisting litigation disclosure of Condominium documents, and there is no evidence that they were acting in bad faith … . Matter of Healy v Carriage House Condominium, 2018 NY Slip Op 07970, First Dept 11-20-18

CONDOMINIUMS (PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT))/ATTORNEYS (PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT))

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