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DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT).

The Third Department determined defendant Kain had raised two non-negligent explanations for rear-ending the car in front of him and therefore plaintiffs’ motion for summary judgment was properly denied. Kain had testified that his brakes didn’t work properly and the cars in front of him stopped abruptly. Although Kain had not raised brake failure as an affirmative defense, the court noted that the defense could be considered in opposition to a summary judgment motion absent surprise and provided the moving party has a chance to respond:

The claim that an accident was unavoidable due to brake failure is an affirmative defense … . However, “[e]ven an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent” … .. Accordingly, a nonmovant may invoke a waived defense to defeat a motion for summary judgment if the movant has the opportunity to respond … . Kain testified at his deposition that the brakes in his vehicle failed, and plaintiffs addressed that issue in their moving papers and again in their reply.

… [D]efendants met their burden to provide a nonnegligent explanation for the accident. Kain testified that the brakes did not operate normally when he applied them and, further, that the application of the brakes did not appreciably slow the speed of the vehicle as he approached the vehicles that were stopped at the traffic signal. Further, he testified that his vehicle was relatively new and was in good working order, and that the only mechanical problems he had experienced prior to the accident were unrelated to the brakes. He further testified that the brakes operated properly prior to the accident, the inspection was current and the malfunction caused him to apply his emergency brake. …

Kain also testified [the two cars in front of him] abruptly stopped directly in front of his vehicle. He specifically stated that [plaintiffs’] vehicle approached the intersection without slowing, as if it was going to proceed, and that it stopped immediately when the light turned red, thereby forcing the [car behind plaintiffs’] to also stop abruptly. He further testified that he was traveling at or below the speed limit and that he applied his brakes immediately upon seeing that both vehicles had stopped abruptly in his path. Warner v Kain, 2018 NY Slip Op 04630, Third Dept 6-21-18

​NEGLIGENCE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/REAR-END COLLISIONS (DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/SUMMARY JUDGMENT (A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/AFFIRMATIVE DEFENSES (SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/BRAKE FAILURE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))

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PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT).

The Third Department annulled the misbehavior determination because there was no proof the superintendent provided written permission to open petitioner’s mail as required by a Department of Corrections directive. All the disciplinary rule violations stemmed from the contents of the mail:

Petitioner’s sole claim is that the Superintendent did not provide written authorization pursuant to Department of Corrections and Community Supervision Directive No. 4422 (III) (B) (9) (see 7 NYCRR 720.3 [e]) for opening the outgoing correspondence that led to the investigation implicating him as the sender. Significantly, such correspondence provided the basis for all of the disciplinary rule violations of which petitioner was found guilty. The directive at issue specifically provides that “[o]utgoing correspondence . . . shall not be opened, inspected, or read without express written authorization from the facility superintendent” … . It further states that “[s]uch written authorization shall set forth the specific facts forming the basis for the action” … . Here, there was no proof presented that the Superintendent issued a written authorization supported by specific facts permitting the correction official to open the correspondence. Rather, the record suggests that the authorization was verbal, as no written instrument was ever produced and the Superintendent did not testify at the hearing. Under these circumstances, the determination of guilt must be annulled … . Matter of Sudler v Annucci, 2018 NY Slip Op 04629, Third Dept 6-21-18

​DISCIPLINARY HEARINGS (INMATES) (PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT))/MAIL (DISCIPLINARY HEARINGS (INMATES), PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT)

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DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT).

The Third Department determined that defendant did not rebut the presumption that the deed to the property where plaintiff fell was delivered and accepted the day before plaintiff’s fall:

… [D]efendant submitted, among other things, an executed copy of the referee’s deed transferring ownership of the subject property to defendant, dated March 28, 2013, one day before plaintiff’s alleged accident. Based on the foregoing, there is a strong presumption that the deed was delivered and accepted as of that date (see Real Property Law § 244…). The only additional documentation that defendant submitted to overcome the presumption was an affidavit from Anthony Iacchetta, an attorney who represented defendant’s predecessor in interest in its acquisition of the subject premises and a letter from Iacchetta’s firm dated April 11, 2013. In his affidavit, Iacchetta represents “that the transfer documents executed by the referee were not received by [his] firm until April 11, 2013,” and he provided a copy of the letter sent that same day forwarding said documentation to be countersigned. The documents submitted by defendant, however, do not address the parties’ intent or whether the deed was intended to be delivered and accepted as of April 11, 2013, as opposed to the deed’s March 28, 2013 execution date. Defendant, therefore, failed to rebut the presumption that the deed was delivered and accepted on March 28, 2013 … . Wisdom v Reoco, LLC, 2018 NY Slip Op 04628, Third Dept 6-21-18

​REAL PROPERTY (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/DEEDS (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/DELIVERY AND ACCEPTANCE (DEEDS, DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/SLIP AND FALL (OWNERSHIP OF PROPERTY, DEEDS, (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))

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FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT).

The First Department determined summary judgment was properly granted to the plaintiff in this slip and fall case because the defendant store did not preserve video which would have shown the condition of the floor prior to the fall:

Although it was demanded within days of plaintiff’s slip and fall, defendants failed to preserve a video recording of its store that depicted the area of plaintiff’s fall prior to it occurring. Instead, a store employee selectively edited the video to retain only that portion showing approximately 30 seconds prior to plaintiff’s fall and the fall itself. Without the video recording, plaintiff may be unable to establish the origin of the liquid on the floor that she claims caused her to fall, and thus be unable to establish the requisite notice of the alleged condition … . Despite a court order and a discovery conference stipulation, defendants failed to explain why the remainder of the video became unavailable. Davis v Pathmark, 2018 NY Slip Op 04656, First Dept 6-21-18

​NEGLIGENCE (SLIP AND FALL, EVIDENCE, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/EVIDENCE (SLIP AND FALL, SPOLIATION,  FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/SPOLIATION (SLIP AND FALL, VIDEO, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/VIDEO (EVIDENCE, SPOLIATION, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/NOTICE (SLIP AND FALL, VIDEO, SPOLIATION, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))

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CIVIL ENFORCEMENT COMPLAINT BROUGHT BY THE ATTORNEY GENERAL STATED CAUSES OF ACTION AGAINST DEFENDANT INTERNET SERVICE PROVIDER ALLEGING FRAUDULENT AND DECEPTIVE PRACTICES CONCERNING THE ADVERTISING OF BROADBAND SPEEDS AND ACCESS TO ONLINE CONTENT (FIRST DEPT).

The First Department determined the civil enforcement complaint stated causes of action under the Executive Law and the General Business Law for fraudulent practices in advertising Internet speeds and reliable access to online content:

Defendants make official disclosures about broadband speeds (actual speeds measured according to a testing protocol on the modems of consumers deemed representative) in accordance with the federal rule [Transparency Rule, 47 CFR 8.3]. The complaint alleges that defendants’ use of their official disclosures in consumer advertisements is misleading, because other statements in the advertisements give consumers the false impression that the disclosed speeds represent speeds that consumers can expect to experience on their devices, including wireless devices, consistently … . The Transparency Rule does not preempt state laws “that prevent fraud, deception and false advertising” … .

The court correctly determined that the complaint’s allegations about the advertisements’ representations of speeds “up to” a certain level state a cause of action … . Issues of fact exist as to whether defendants delivered the advertised speed levels consistently.

The court correctly declined to dismiss claims based on allegations about network quality and reliability on the ground that some of the language in the advertisements is mere puffery, because other statements in the advertisements are not mere puffery and are actionable … . People v Charter Communications, Inc., 2018 NY Slip Op 04644, First Dept 6-21-18

​CONSUMER LAW (INTERNET, CIVIL ENFORCEMENT COMPLAINT BROUGHT BY THE ATTORNEY GENERAL STATED CAUSES OF ACTION AGAINST DEFENDANT INTERNET SERVICE PROVIDER ALLEGING FRAUDULENT AND DECEPTIVE PRACTICES CONCERNING THE ADVERTISING OF BROADBAND SPEEDS AND ACCESS TO ONLINE CONTENT (FIRST DEPT))/FRAUD  (INTERNET, CIVIL ENFORCEMENT COMPLAINT BROUGHT BY THE ATTORNEY GENERAL STATED CAUSES OF ACTION AGAINST DEFENDANT INTERNET SERVICE PROVIDER ALLEGING FRAUDULENT AND DECEPTIVE PRACTICES CONCERNING THE ADVERTISING OF BROADBAND SPEEDS AND ACCESS TO ONLINE CONTENT (FIRST DEPT))/ADVERTISING (CONSUMER LAW, INTERNET,  CIVIL ENFORCEMENT COMPLAINT BROUGHT BY THE ATTORNEY GENERAL STATED CAUSES OF ACTION AGAINST DEFENDANT INTERNET SERVICE PROVIDER ALLEGING FRAUDULENT AND DECEPTIVE PRACTICES CONCERNING THE ADVERTISING OF BROADBAND SPEEDS AND ACCESS TO ONLINE CONTENT (FIRST DEPT))/INTERNET (CONSUMER LAW, CIVIL ENFORCEMENT COMPLAINT BROUGHT BY THE ATTORNEY GENERAL STATED CAUSES OF ACTION AGAINST DEFENDANT INTERNET SERVICE PROVIDER ALLEGING FRAUDULENT AND DECEPTIVE PRACTICES CONCERNING THE ADVERTISING OF BROADBAND SPEEDS AND ACCESS TO ONLINE CONTENT (FIRST DEPT))/CIVIL ENFORCEMENT ACTION (INTERNET, CIVIL ENFORCEMENT COMPLAINT BROUGHT BY THE ATTORNEY GENERAL STATED CAUSES OF ACTION AGAINST DEFENDANT INTERNET SERVICE PROVIDER ALLEGING FRAUDULENT AND DECEPTIVE PRACTICES CONCERNING THE ADVERTISING OF BROADBAND SPEEDS AND ACCESS TO ONLINE CONTENT (FIRST DEPT))

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EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT).

The First Department determined defendant buyer failed to demonstrate the seller was not ready, willing and able to close on the time-of-the-essence date. The seller was entitled to keep the deposit. The buyer claimed that an easement-covenant addressing a three inch encroachment was an encumbrance which violated the purchase agreement. The court held that the encroachment was a “permitted exception” under the purchase agreement:

… [B]uyer claimed that seller had not been ready, willing, and able to close because the property had an easement-covenant that had not been removed and therefore seller’s representation in the contract that there would be no encumbrances on the property at closing was untrue. The easement-covenant, which allowed the subject property to encroach three inches onto neighboring property, was disclosed in a title report issued eight months prior to the scheduled closing. …

… [D]efendant buyer failed to demonstrate that it had a lawful basis for refusing to close since the easement-covenant, which benefitted the property and was evident in the title survey, was a “permitted exception” as defined in schedule 1.21 of the contract for sale. Thus, buyer materially breached the contract when it failed to appear on the time-is-of-the-essence closing date, and, under the limited amendment to the Contract of Sale, seller is entitled to retain the deposit as liquidated damages …  Pursuant to the contract, plaintiff seller is also entitled to recover its attorneys’ fees for both the proceedings before Supreme Court and this Court, to be determined, as directed by the court, by a referee. 45 Renwick St., LLC v Lionbridge, LLC, 2018 NY Slip Op 04641, First Dept 6-21-18

​REAL ESTATE (EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))/EASEMENTS (EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))/TIME OF THE ESSENCE (REAL ESTATE, EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))/PURCHASE CONTRACT (REAL ESTATE, EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))/PERMITTED EXCEPTION (REAL ESTATE, PURCHASE CONTRACT, EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))/TIME OF THE ESSENCE (REAL ESTATE, EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))/SECURITY DEPOSIT (REAL ESTATE, EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))/ATTORNEY’S FEES  (REAL ESTATE, EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT))

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PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT).

The Third Department annulled the determination and expunged the inmate’s record because he was never informed of his right to call witnesses:

While petitioner did not, at the hearing, request that the inmate be called to testify or demand that there be a further inquiry into his refusal… , the record does not reflect that petitioner was ever advised of his constitutional or regulatory right to call witnesses at the hearing … . The constitutional right to call witnesses at a prison disciplinary proceeding “is not waivable in the absence of [an inmate] being informed of its existence”… . As such, the determination must be annulled. Given that petitioner’s due process rights were violated and that this situation is comparable to the outright denial of the constitutional right to call witnesses, expungement is the proper remedy … . Matter of Ballard v Annucci, 2018 NY Slip Op 04625, Third Dept 6-21-18

​DISCIPLINARY HEARINGS (INMATES) (PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT))/EXPUNGEMENT (DISCIPLINARY HEARINGS (INMATES), PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT))

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PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT).

The Third Department, modifying Supreme Court, determined petitioner’s application for a variance should have been granted on financial hardship grounds, but the action alleging a regulatory taking was not ripe, an issue which can be raised on appeal for the first time. Petitioner demonstrated the character of the surrounding area had changed from residential to commercial over the past 30 years rendering the property unmarketable as residential property:

The ZBA [zoning board of appeals] actually agreed that “the location of this property on a corner may impact its value,” and its ultimate conclusion that the financial hardship was not unique seemingly ran counter to that observation … . Moreover, in light of the proof that the need for a use variance only arose decades after the property was acquired due to a gradual shift in the character of the area that rendered the permitted residential use onerous and obsolete, petitioners sufficiently alleged “that the hardship identified by [them] . . . was [not] self-created” … . Accepting the foregoing as true, as we must, petitioners stated a viable claim attacking the ZBA’s determination.

… [T]he remaining regulatory taking claim must be dismissed. The petition/complaint states, and petitioners’ arguments on appeal reflect, that the owner’s taking claim is solely premised upon a deprivation of rights afforded under the Federal Constitution (see US Const 5th Amend; 42 USC § 1983). In order for a 42 USC § 1983 claim based upon a regulatory taking to be ripe, however, it is necessary for a petitioner/plaintiff to “demonstrate that [he or] she has both received a ‘final decision regarding the application of the [challenged] regulations to the property at issue’ from ‘the government entity charged with implementing the regulations,’ and sought ‘compensation through the procedures the [s]tate has provided for doing so'”… . The denial of the application for a use variance constituted a final decision regarding the application of the zoning regulations to its property… , but there is no indication that the owner then asserted a state claim for inverse condemnation… . Thus, inasmuch as ripeness is a “matter[] pertaining to subject matter jurisdiction which can be raised at any time” and the second cause of action founded upon 42 USC § 1983 is “unripe because [the owner] failed to seek compensation from the [s]tate before” asserting it… , it must be dismissed. Matter of 54 Marion Ave., LLC v City of Saratoga Springs, 2018 NY Slip Op 04611, Third Dept 6-21-18

​ZONING (PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/VARIANCE (ZONING, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/CIVIL PROCEDURE (RIPENESS, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/RIPENESS (REGULATORY TAKING, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/REGULATORY TAKING (RIPENESS, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/APPEALS (RIPENESS, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))

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COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeals Board, over a two-justice dissent, determined that a courier for a web based delivery service (Postmate) was not an employee entitled to unemployment insurance benefits:

… [I]n order to work as a courier or delivery professional for Postmates, claimant and others similarly situated need only download Postmates’ application software platform and provide his or her name, telephone number, Social Security number and driver’s license number; there is no application and no interview. Although Postmates thereafter obtains a criminal background check from a third-party provider and provides an orientation session on how to utilize the application software platform, significantly, claimant and those similarly situated are not thereafter required to report to any supervisor, and they unilaterally retain the unfettered discretion as to whether to ever log on to Postmates’ platform and actually work. When a courier does elect to log on to the platform, indicating his or her availability for deliveries, he or she is free to work as much or little as he or she wants — there is no set work schedule, there is no minimum time requirement that a courier must remain logged on to the platform and there is no minimum or maximum requirement with respect to the number of deliveries a courier must perform. In fact, once logged on to the platform, a courier may decline to do anything. When a customer requests a delivery using Postmates’ platform, the platform identifies the closest available courier(s) and sends basic information about the delivery request. Couriers, however, may accept, reject or ignore a delivery request, without penalty. Moreover, while logged on to Postmates’ platform, couriers maintain the freedom to simultaneously work for other companies, including Postmates’ direct competitors. Further, they are free to choose the mode of transportation they wish to use for deliveries, they provide and maintain their own transportation, they choose the route they wish to take for the delivery, they are not required to adhere to a stringent delivery schedule, they are not required to wear a uniform, they are not provided any identification card or logo, they are only paid for the deliveries they complete and they are not reimbursed for any of their delivery-related expenses. Matter of Vega (Commissioner of Labor), 2018 NY Slip Op 04610, Third Dept 6-21-18

​UNEMPLOYMENT INSURANCE (COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT))/COURIERS (UNEMPLOYMENT INSURANCE, COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT))/DELIVERY SERVICE (UNEMPLOYMENT INSURANCE, COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT))

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IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, modifying Supreme Court, determined the amount of an applicant’s equity in an automobile, not the fair market value (FMV), should be used in calculating whether an applicant is eligible for public assistance. Here the applicant owed more than the car was worth, but she was erroneously deemed ineligible because of the fair market value of the car. The Third Department further determined that the applicant was entitled to discovery in her effort to get class action certification seeking retroactive relief for persons who had been wrongly denied public assistance under similar circumstances:

Only the net amount that could be received upon the sale of an asset that is encumbered by an outstanding loan balance, i.e., the FMV less the outstanding loan balance, could be available to eliminate or reduce an applicant’s need for public assistance. The arbitrary nature of OTDA’s [Office of Temporary and Disability Assistance’s] contrary position is aptly illustrated in this case, where the sale of the vehicle would not have generated any resources that petitioner could have used to meet her own support needs. Indeed, based on the automobile’s FMV, she would not have received enough upon its sale to pay the entire outstanding loan balance. For these reasons, we conclude that Supreme Court properly held that the extent to which the FMV of an automobile that exceeds the exempt amount is an available resource must be determined based on the applicant’s equity interest therein, and that OTDA’s contrary interpretation was irrational and unreasonable. * * *

… [T]he present record does not permit identification of the number of individuals who were the subject of adverse action based on application of respondent’s erroneous rule within the specified time period. The petition seeks a judgment directing respondent to identify all individuals meeting the characteristics of the proposed class and, in her brief on appeal, she again seeks discovery regarding class size. Timely requests for disclosure on the issue of numerosity must be granted … . Matter of Stewart v Roberts, 2018 NY Slip Op 04609, Third Dept 6-21-18

​SOCIAL SERVICES LAW (PUBLIC ASSISTANCE, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/PUBLIC ASSISTANCE (WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/CIVIL PROCEDURE (CLASS ACTIONS, DISCOVERY , NUMEROSITY, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/CLASS ACTIONS (DISCOVERY, NUMEROSITY, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/DISCOVERY (CLASS ACTIONS, NUMEROSITY,  IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/NUMEROSITY (CLASS ACTIONS, DISCOVERY,  IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))

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