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PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court determined plaintiff, who alleged he was punched in the face by defendant bar’s employee (Bonawitz), properly pled causes of action against the bar for negligent hiring and supervision, as well as vicarious liability. Although vicarious liability requires the employee to be acting within the scope of his employment, and a negligent hiring and supervision cause of action requires that the employee act outside the scope of employment, pleading inconsistent theories in the alternative is allowed. The court noted that the “breach of the duty to keep the premises safe” cause of action was properly dismissed because it constituted an attempt to plead vicarious liability for an intentional tort as negligence to avoid the one-year statute of limitations for intentional torts:

The second cause of action alleges that the employer defendants negligently hired and supervised Bonawitz. Supreme Court dismissed this cause of action based on cases holding that, “[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondent superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training” … . The rationale for this rule “is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training” … . As is apparent from these cases, however, this rule applies where the employee is alleged to have acted negligently, not intentionally.

Plaintiff has adequately alleged that the employer defendants negligently hired, supervised and retained Bonawitz even though they knew or should have known of his propensity to assault or intentionally inflict harm on others … . Moreover, the negligence of an employer is not transformed into intentional conduct simply because the employee’s wrongful conduct was intentional … . Thus, plaintiff’s allegations of negligence were timely asserted within the applicable three-year statute of limitations (see CPLR 214 [5] …).

Plaintiff did not directly allege that Bonawitz was acting within the scope of his employment when he punched plaintiff. Even if such allegations were included, allegations of vicarious liability, though incompatible with a claim of negligent hiring and supervision, do not require dismissal because a plaintiff may plead inconsistent theories in the alternative … . McCarthy v Mario Enters., Inc., 2018 NY Slip Op 05006, Third Dept 7-5-18

​NEGLIGENCE (EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/EMPLOYMENT LAW (NEGLIGENCE, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CIVIL PROCEDURE (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CPLR 214 (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/INTENTIONAL TORTS (STATUTE OF LIMITATIONS, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/THIRD PARTY ASSAULTS (NEGLIGENCE, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))

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ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim against her school based upon bullying and harassment should not have been denied. Before plaintiff turned 18, her father made a motion for leave to file a late notice of claim which was denied because of improper service. When plaintiff turned 18 she made the motion on her own behalf. Because the statute of limitations was tolled until plaintiff turned 18 (CPLR 208) her motion was timely. The Third Department determined the school had timely notice of the claim, plaintiff had introduced some evidence the school would not be prejudiced, meeting her burden, and the school’s demonstration of prejudice was speculative and otherwise inadequate:

Here, our review of the record reveals that defendant had actual knowledge of the alleged harassment, intimidation and bullying within a reasonable time … .

… [P]laintiff was initially required to “present some evidence or plausible argument that supports a finding of no substantial prejudice”… . She did so by submitting the … evidence that defendant knew of plaintiff’s claims and was able to investigate at least one of the incidents shortly after it occurred, as well as screen images taken from defendant’s website indicating that relevant school officials were still employed at the time of the motion. …

The burden thus shifted to defendant “to rebut [plaintiff’s] showing with particularized evidence” … . In this regard, defendant’s counsel asserted by affirmation that the incidents were no longer fresh in witnesses’ memories as a result of the passage of time and that any witnesses “would likely be children” who might have graduated or whose memories might have faded … . However, a finding of substantial prejudice “cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence on the record” … . Sherb v Monticello Cent. Sch. Dist., 2018 NY Slip Op 05004, Third Dept 7-5-18

​EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW,  ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CIVIL PROCEDURE (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CPLR 208 (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))

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ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the evidentiary ruling in a prior appeal was not the law of the case and plaintiff’s attempt to introduce the same type of evidence in the subsequent trial should have been considered on the merits:

This matter comes before us for a fourth time … . In our most recent decision, we affirmed that part of an order of Supreme Court which, after granting a mistrial, precluded plaintiff from offering evidence of prior accidents in a second trial … . Thereafter, plaintiff again moved to admit evidence of prior similar accidents or, in the alternative, for a hearing on the application. Supreme Court denied the motion, effectively concluding that our prior decision constitutes law of the case. Plaintiff now appeals.

We reverse. The underlying motion in limine speaks to an evidentiary ruling and the law of the case doctrine generally speaks to questions of law, not discretionary rulings of the court … . That said, we are mindful that “‘[a]n appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court . . . [and] operates to foreclose reexamination of [the] question absent a showing of subsequent evidence or change of law'”… .

Although defendants contend otherwise, our previous decision was not a definitive ruling as to whether the conditions underlying the prior accidents that plaintiff seeks to admit were substantially similar to the accident at issue. To the contrary, we simply determined that the limited offer of proof that plaintiff then made was inadequate … . As such, the subject motion should have been addressed on the merits … . O’Buckley v County of Chemung, 2018 NY Slip Op 05003, Third Dept 7-5-18

​CIVIL PROCEDURE (APPEALS, LAW OF THE CASE, EVIDENCE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))/EVIDENCE (APPEALS, LAW OF THE CASE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))/APPEALS (EVIDENCE, LAW OF THE CASE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))/LAW OF THE CASES (APPEALS, EVIDENCE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))

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DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT).

The Third Department, over a two-justice dissent, annulled the parole board’s rescission of its decision setting a release date for petitioner. In 1979, when petitioner was 19, he stabbed and killed his 15-year-old friend. The board initially set a release date of August 2016. The victim’s family then submitted two DVDs of statements by family members. Apparently the videos had been submitted before but were never made part of the file. Upon viewing the videos, the board rescinded its decision setting the release date. The Third Department found that the DVDs were not new evidence and therefore the rescission of the release date was not authorized:

Any alleged failure on respondent’s part to consider these materials earlier — not due to a failure to communicate with victims or to offer them opportunities to provide statements, but solely as the apparent result of respondent’s own inefficient filing system — cannot rationally be found to convert materials that had been provided to it 9 and 15 years before into new information that was not previously available or known.

… [O]ther challenges to parole rescission determinations based upon victim impact statements have exclusively involved new factual information that had not previously been known to respondent because the victims either had not provided statements or had not been given opportunities to do so … . Our review of the case law has revealed no other case involving a parole rescission decision that, as here, is based upon additional input from victims or family members who had previously submitted impact statements to respondent — much less multiple submissions of a thorough and extensive nature over many years.

In rescinding petitioner’s parole, respondent did not make the required finding that there was substantial evidence of “significant information” that “was not [previously] known by [respondent]” … . Matter of Duffy v New York State Bd. of Parole, 2018 NY Slip Op 05002, Third Dept 7-5-18

​CRIMINAL LAW (PAROLE, DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PAROLE, DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))/PAROLE (EVIDENCE,  DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))

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ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM WAS LEGALLY SUFFICIENT, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT).

The Third Department determined there was legally sufficient evidence to support defendant’s conviction that he acted as an accomplice in the fatal shooting of the victim by another man, White-Span. In other words, the elements of the charged offense were supported by some credible evidence. Defendant’s conviction was reversed, however, under a weight of the evidence analysis based on the weakness of the evidence that the defendant knew White-Span intended to kill the victim, as opposed to rob or assault the victim:

“Despite the [necessary] elements being supported by some credible evidence, because a different [verdict] would not have been unreasonable, this Court must independently examine the evidence further, viewing it in a neutral light to see if the verdict is against the weight of the evidence”… . Even if we accept that the evidence proved beyond a reasonable doubt that White-Span intentionally caused the victim’s death by shooting him and that defendant intentionally aided White-Span in locating and isolating the victim, the evidence does not prove beyond a reasonable doubt that defendant knew — before the shooting occurred — that White-Span planned to kill the victim, because defendant could have had other equally plausible reasons for wanting access to the victim, such as robbery or assault. …

In light of the People’s failure to establish beyond a reasonable doubt that defendant shared White-Span’s intent to kill the victim, the judgment of conviction must be reversed and the indictment against defendant dismissed … . People v Croley, 2018 NY Slip Op 04984, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/ACCESSORIAL LIABILITY (ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/APPEALS (WEIGHT OF THE EVIDENCE, ACCESSORIAL LIABILITY, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/SHARED INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))

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EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT).

The Third Department determined the Office of Victim Services (OVS) properly paid out the assets of an incarcerated offender to the first crime victim to obtain a judgment. The statute does not provide for retaining assets for other crime victims who may subsequently obtain a judgment against the offender:

“Executive Law § 632—a sets forth a statutory scheme intended to improve the ability of crime victims to obtain full and just compensation from the person(s) convicted of the crime” …  by “allow[ing] crime victims or their representatives to sue the convicted criminals who harmed them when the criminals receive substantial sums of money from virtually any source” and protecting those funds while litigation is pending … . …

There is no doubt that OVS complied with its express obligations under the statute. The problem is that the statute provides no guidance as to how OVS is to respond where, as here, multiple crime victims seek to recover and the preserved assets of a convicted person are inadequate … . OVS viewed its response to be governed by the general rule that, “[w]here two or more . . . orders affecting the same interest in personal property or debt are filed, the proceeds of the property or debt shall be applied in the order of filing,” and acted to have the preserved assets released to satisfy the first judgment obtained by a victim (CPLR 5234 [c]). …

The Legislature could have easily included language in Executive Law § 632-a that substituted a special rule of priority for the one set forth in CPLR 5234 (c), directed OVS to leave any provisional remedies in place until all victims had obtained judgments or created some mechanism for dividing the preserved assets between them. It did not do so, and “‘[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit'” … . Waldman v State of New York, 2018 NY Slip Op 05000, Third Dept 7-5-18

​CRIMINAL LAW (ASSETS OF THE OFFENDER, CRIME VICTIMS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/CRIME VICTIMS (ASSETS OF THE OFFENDER,  EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/OFFICE OF VICTIM SERVICES (OVS) (ASSETS OF THE OFFENDER, CRIME VICTIMS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/DEBTOR-CREDITOR (CRIME VICTIMS, ASSETS OF THE OFFENDER, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/CIVIL PROCEDURE (DEBTOR-CREDITOR, CRIME VICTIMS, ASSETS OF THE OFFENDER, PRIORITY OF JUDGMENTS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/CPLR 5234 (DEBTOR-CREDITOR, CRIME VICTIMS, ASSETS OF THE OFFENDER, PRIORITY OF JUDGMENTS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))

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DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL COULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department reversed defendant’s conviction of felony leaving the scene of an accident and ordered a new trial. Defendant struck a pedestrian whose body came into defendant’s car through the windshield. Defendant did not contact the police for over an hour. Prior to trial defense counsel obtained a ruling from the judge that the People could not introduce any evidence defendant sought to communicate with counsel. That ruling was violated twice by testifying witnesses:

Defendant’s strategy at trial relied in large part upon the fact that she was not at fault in the accident but did witness the victim’s body being propelled through her windshield and coming to rest inches away from her. She relied upon this state of affairs to contend that her failure to contact authorities was not because she was “coldly calculating,” but because she was in shock and incapable of doing so. Defendant further questioned the proof supporting the People’s hypothesis that she left the scene with her sister before the 911 call.

Any indication that defendant sought to consult with counsel would undermine the foundation of this defense by prejudically suggesting that she was conscious of guilt, rational enough to consider the question of counsel and, perhaps, capable of reporting the accident or taking steps to avoid doing so … . …

In our view, [the] repeated violations of the pretrial ruling, in a case where defendant’s capacity to act and her actions after the accident were in serious dispute, caused harm that could not be reliably dissipated. County Court therefore abused its discretion in declining to declare a mistrial … and, inasmuch as we do not agree with defendant that the People deliberately acted to provoke a mistrial …  we remit for a new trial. People v Lentini, 2018 NY Slip Op 04983, Third Dept 7-5-18

CRIMINAL LAW (EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/MISTRIAL (CRIMINAL LAW, EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))

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UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT).

The Third Department determined a seasonal employee of a public benefit corporation who was laid off and re-hired was not entitled to stay with the collective bargaining unit to which he belonged before the lay-off. Petitioner had worked for the Department of Environmental Conservation (DEC) at a ski center. The ski center was transferred from the DEC to Olympic, a public benefit corporation. Under the Public Authorities Law petitioner was entitled to stay with the collective bargaining unit to which he belonged at the DEC. However, after the lay-off, under the terms of the relevant statute, petitioner was properly transferred to the Olympic bargaining unit (with decreased benefits):

This appeal turns on the meaning of the terms “terminated” and “ceases” within the context of Public Authorities Law § 2629 (2) (a). As neither word is defined in the Public Authorities Law and both are words of ordinary import, we interpret them in a manner consistent with “their usual and commonly understood meaning” … . …

Petitioner argues that a layoff is inconsistent with these definitions and merely constitutes a temporary interruption in a career. We disagree, in light of the express statutory provision that an employee whose employment “is terminated or otherwise ceases, by any means” may not return to his or her prior collective bargaining unit upon subsequent rehire (Public Authorities Law § 2629 [2] [a] [emphasis added]). To interpret the language as petitioner urges would render the phrase “by any means” superfluous … . Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v Olympic Regional Dev. Auth.. 2018 NY Slip Op 04998, Third Dept 7-5-18

​EMPLOYMENT LAW (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/UNIONS  (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/PUBLIC BENEFIT CORPORATION (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/PUBLIC AUTHORITIES LAW (UNIONS, UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/COLLECTIVE BARGAINING UNIT (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))

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DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT).

The Third Department determined defendant (TRD) had a prescriptive easement over two portions of a trail that crossed over onto plaintiff’s land to go around obstacles. Seasonal use of the trail for hunting was deemed continuous use. The fact that the trail was not used for five years when the party (Cisgay) who testified on behalf of the defendant was in the service (after 20 years of continuous use of the trail) did not constitute abandonment. The trail had been widened by a forester for logging. Supreme Court should have ordered defendant to restore those portions of the trail that are on plaintiff’s land to the original width:

Contrary to plaintiff’s argument, when we give the requisite deference to Supreme Court’s factual findings and credibility determinations … , we find that Csigay’s unequivocal testimony with regard to his family’s use of the entire skidder trail from 1982 to 2002 established TRD’s claim for a prescriptive easement over the two crossover areas … . The element of continuous use may be established where, as here, a party’s predecessors used the property for the requisite 10 years … . Although TRD’s predecessors used the property primarily during the hunting season, such use did not negate the existence of a prescriptive easement because TRD established that the use was “continuous and uninterrupted and commensurate with appropriate seasonal use” … . Further, in the absence of sufficient evidence that plaintiff and TRD’s predecessors shared a relationship “of neighborly cooperation and accommodation” … , we agree with the court’s determination that plaintiff failed to meet its burden of establishing that the continuous use was permissive … . Although the parties agree that the skidder trail was not used from 2002 to 2007, nonuse of an established easement does not equate to abandonment… . Here, the record reveals no intent to abandon the skidder trail, only that Csigay stopped using it due to his military service. Auswin Realty Corp. v Klondike Ventures, Inc., 2018 NY Slip Op 04997, Third Dept 7-5-18

​REAL PROPERTY (PRESCRIPTIVE EASEMENTS, DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))/EASEMENTS (PRESCRIPTIVE EASEMENTS, DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))/PRESCRIPTIVE EASEMENTS (DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))

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COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the judge did not sufficiently explore alternatives before declaring a mistrial on the basis the jury was deadlocked. Therefore jeopardy attached the defendant’s subsequent guilty plea was vacated:

Here, the jury had deliberated for a little over two hours — excluding a lunch recess — when County Court received a note from the jury stating that “there appears not to be any way to a unanimous decision” and asking for guidance on how to proceed. Without consulting the parties for input on the appropriate response, County Court summoned the jury into the courtroom, noted that it had not been deliberating for very long, provided an Allen charge and asked the jury to resume deliberations and advise the court if it was unable to arrive at a verdict after a reasonable period of time. Fifty-one minutes after the jury had resumed deliberations, County Court recalled the jury back into the courtroom, on its own accord, and inquired whether the jury was still deadlocked. The foreperson confirmed that it was and, without seeking input from the People or defendant, County Court declared a mistrial.

County Court erred in its recall of the jury by: (1) doing so without first apprising the People and defendant of its intent to do so and seeking their comment; (2) doing so only 51 minutes after it had instructed the jury to resume deliberations; (3) not exploring the possibility of a dinner break or an overnight recess upon learning of the continuing deadlock; and (4) not seeking input from the parties before declaring a mistrial upon learning of the continuing deadlock. Because a mistrial was not manifestly necessary under the collective circumstances, County Court abused its discretion in declaring a mistrial, jeopardy attached and the People were precluded from reprosecuting defendant on the indictment … . People v Wilson, 2018 NY Slip Op 04982, Third Dept 7-5-18

​CRIMINAL LAW (DOUBLE JEOPARDY, COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, DOUBLE JEOPARDY, COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))/MISTRIAL (CRIMINAL LAW, DOUBLE JEOPARDY, COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))/DOUBLE JEOPARDY (MISTRIAL,  COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))

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