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REQUIREMENT THAT INDIAN RETAILERS COLLECT AND REMIT TAXES ON CIGARETTES SOLD TO NON-INDIAN CONSUMERS DOES NOT VIOLATE INDIAN LAW OR THE BUFFALO CREEK TREATY OF 1842 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the requirement that retailers on Indian lands collect and remit taxes on cigarettes sold to non-Indian consumers did not violate the Indian Law or the Buffalo Creek Treaty of 1842:

Plaintiffs commenced this action seeking (1) a declaration that Tax Law § 471 is unconstitutional and invalid and (2) a permanent injunction enjoining defendants from enforcing the law against them. The complaint alleged that the tax law conflicts with the Buffalo Creek Treaty of 1842 and Indian Law § 6. * * *

… “[I]t is the legal burden of a tax—as opposed to its practical economic burden—that a state is categorically barred by federal law from imposing on tribes or tribal members” … . The express language of New York’s tax law provides that “the ultimate incidence of and liability for the tax shall be upon the consumer,” and mandates that the tax money advanced by any “agent or dealer” be paid back by the consumer … . * * *

Tax Law § 471 does not constitute a tax on an Indian retailer, and therefore it does not run afoul of the plain language of the Treaty or Indian Law § 6. White v Schneiderman, 2018 NY Slip Op 04028, CtApp 6-7-18

​TAX LAW (CIGARETTES, REQUIREMENT THAT INDIAN RETAILERS COLLECT AND REMIT TAXES ON CIGARETTES SOLD TO NON-INDIAN CONSUMERS DOES NOT VIOLATE INDIAN LAW OR THE BUFFALO CREEK TREATY OF 1842 (CT APP))/INDIAN LAW CIGARETTES, REQUIREMENT THAT INDIAN RETAILERS COLLECT AND REMIT TAXES ON CIGARETTES SOLD TO NON-INDIAN CONSUMERS DOES NOT VIOLATE INDIAN LAW OR THE BUFFALO CREEK TREATY OF 1842 (CT APP))/TREATIES (INDIAN LAW, CIGARETTES, REQUIREMENT THAT INDIAN RETAILERS COLLECT AND REMIT TAXES ON CIGARETTES SOLD TO NON-INDIAN CONSUMERS DOES NOT VIOLATE INDIAN LAW OR THE BUFFALO CREEK TREATY OF 1842 (CT APP))/CIGARETTES (INDIAN LAW,  REQUIREMENT THAT INDIAN RETAILERS COLLECT AND REMIT TAXES ON CIGARETTES SOLD TO NON-INDIAN CONSUMERS DOES NOT VIOLATE INDIAN LAW OR THE BUFFALO CREEK TREATY OF 1842 (CT APP))

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STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the state was properly held 100% liable in this fatal motorcycle-truck collision case. The truck driver testified that he looked both ways and didn’t see the motorcycle before pulling out into the motorcycle’s lane of traffic. There had been 14 right-angle collisions at this intersection. The state started but never finished an investigation into whether safety measures should be implemented. The Court of Appeals held the plaintiff need not demonstrate the state could have timely made effective safety improvements, i.e., a four-way stop and/or a reduction of the speed limit. The fact that the truck driver violated the Vehicle and Traffic Law did not require the apportionment of some liability to the truck driver:

The State agrees it cannot invoke qualified immunity because it did not complete the safety study; therefore, ordinary rules of negligence apply … . The State has a nondelegable duty to keep its roads reasonably safe … , and the State breaches that duty “when [it] is made aware of a dangerous highway condition and does not take action to remedy it”… . A breach proximately causes harm if it is a substantial factor in the plaintiff’s injury … . * * *

We have never required accident victims to identify a specific remedy and prove it would have been timely implemented and prevented the accident. * * *

Here, there is record support for the finding that the State’s breach was a proximate cause of the accident. * * *

Once on notice of the dangerous condition, it was the State’s burden to take reasonable steps in a reasonable amount of time. Instead, it did nothing. That right-angle collisions would continue to occur absent the adoption of some safety measure is hardly surprising. “[T]he most significant inquiry in the proximate cause analysis is often that of foreseeability”… . Where, as here, the risk of harm created by the defendant corresponds to the harm that actually resulted, we cannot say that proximate cause is lacking as a matter of law. Brown v State of New York, 2018 NY Slip Op 04029, CtApp 6-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/COURT OF CLAIMS (INTERSECTION SAFETY, TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/INTERSECTIONS  (TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/HIGHWAYS AND ROADS (INTERSECTIONS, TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/TRAFFIC ACCIDENTS (INTERSECTIONS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, INTERSECTIONS,  STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))

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DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, EXTENSIVE DISSENTING OPINION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed defendant’s conviction for attempted possession of a weapon, i.e., a switchblade. The dissent argued that the proof at the non-jury trial and the allegations in the accusatory instrument did not demonstrate the knife met the statutory definition of a switchblade:

From the dissent:  … [T]he narrow issue presented on this appeal is whether the knife described in the accusatory instrument and at trial meets the statutory description for a per se weapon, one which is outlawed regardless of the defendant’s reasons for possession. The majority holds that the accusatory instrument is jurisdictionally sound because the knife as described meets the statutory definition of a switchblade… . I disagree. Moreover, even if the majority were correct, the evidence at trial established that the knife in question was not a switchblade within the meaning of the Penal Law. People v Berrezueta, 2018 NY Slip Op 04032, CtApp 6-7-18

CRIMINAL LAW (DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, DISSENTING OPINION DISAGREED (CT APP))/SWITCHBLADES (CRIMINAL LAW, DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, DISSENTING OPINION DISAGREED (CT APP))

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CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, BUT CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT). ​

The Second Department determined the city was properly found liable for the stabbing death of plaintiff’s decedent in a parking garage, but found that the city should not have been held 100% liable. Operating a parking garage is a proprietary function to which governmental immunity does not apply:

Contrary to the City’s contention, it was not entitled to governmental immunity for these claims, which arose out of the performance of proprietary functions. In that respect, the plaintiffs offered proof that the City failed in its capacity as a commercial owner of a public parking garage to meet the basic proprietary obligation of providing minimal security for its garage property … . …

… [T]he plaintiffs made out a prima facie case of negligence at trial, and the jury’s finding in this regard was not against the weight of the evidence. Under the circumstances of this case, in which the plaintiffs established that the City employed almost no security measures in the parking garage where the decedent was murdered, no expert testimony was necessary for the plaintiffs to establish that the City breached its duty to provide minimal security precautions to protect the patrons of the parking garage where the decedent was murdered … . Additionally, in light of the history of criminal activity in the parking garage, which included people being ambushed as they walked to their cars, as was the decedent in this case, the City should have been aware of the “likelihood of conduct on the part of third [parties]” that would “endanger the safety” of visitors to the garage … . …

… [T]he apportionment of 100% of the fault in the happening of the attack to the City was not supported by a fair interpretation of the evidence … . An apportionment of 65% of the fault to the defendant and 35% of the fault to the nonparty tortfeasor better reflects a fair interpretation of the evidence … . Granata v City of White Plains, 2018 NY Slip Op 03964, Second Dept 6-6-18

​NEGLIGENCE (MUNICIPAL LAW, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, ASSAULT, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, ASSAULT, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/ASSAULT (MUNICIPAL LAW, NEGLIGENCE, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/PARKING GARAGE (MUNICIPAL LAW, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))

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PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town had used land as a public park and, therefore, the land was not subject to taxation by the county:

The New York State Legislature has declared that “[a]ll real property within the state shall be subject to real property taxation . . . unless exempt therefrom by law”… . “Tax exclusions are never presumed or preferred and before [a party] may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion” … .

Here, the Town relies upon section 406 of the Real Property Tax Law. That section provides, with limited exceptions not applicable to this appeal, that “[r]eal property owned by a municipal corporation within its corporate limits held for a public use shall be exempt from taxation and exempt from special ad valorem levies and special assessments” … .

“Although what comprises a public use’ within the meaning of the statute has never been defined with exactitude’ and must necessarily depend upon the peculiar circumstances of each case’, it has been said . . . that [h]eld for a public use, in this connection, means that the property should be occupied, employed, or availed of, by and for the benefit of the community at large, and implies a possession, occupation and enjoyment by the public, or by public agencies'” … . …

The Town’s submissions demonstrated that the subject property was exempt from taxation from the time of its conveyance to the Town in 2005, and that the subsequent tax liens issued by the County were therefore “void ab initio” … . Town of N. Hempstead v County of Nassau, 2018 NY Slip Op 04021, Second Dept 6-6-18

​MUNICIPAL LAW (REAL PROPERTY TAX LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/REAL PROPERTY TAX LAW (MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/PARKS (REAL PROPERTY TAX LAW, MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))

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ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the court should not have awarded attorney’s fees to the defendant in this Labor Law 740 action. Plaintiff had alleged ongoing sterility problems in defendant’s operating room. Plaintiff lost the trial, in which she claimed she had been wrongfully terminated because of her complaints. The Second Department found that her claims were not without basis and, therefore, the award of attorney’s fees to defendant was an abuse of discretion:

Labor Law § 740(6) provides that a court, in its discretion, may award an employer attorneys’ fees and costs if it determines that the employee’s action is ” without basis in law or in fact'” … . Here, the trial record included testimonial and documentary evidence of the plaintiff’s numerous complaints about ongoing sterility problems in the operating room, which problems arguably constituted a violation of applicable regulations and posed a present, substantial, and specific danger to patient health. The plaintiff and other witnesses testified that these issues arose hundreds of times over the relevant time period and were not seriously addressed until after the plaintiff finally complained to her supervisor’s supervisor. The plaintiff’s annual performance evaluations demonstrate that she met or exceeded expectations throughout her tenure as a nurse manager and, despite identifying areas for improvement, did not indicate a risk of dismissal until after she complained to upper management. While ultimately unpersuasive in light of the defendant’s evidence, the plaintiff’s action “cannot reasonably be characterized as being without basis in law or in fact'” … .  The Supreme Court therefore improvidently exercised its discretion in awarding the defendant attorneys’ fees and costs pursuant to Labor Law § 740(6). Berde v North Shore- Long Is. Jewish Health Sys., Inc., 2018 NY Slip Op 03955, Second Dept 6-6-18

​EMPLOYMENT LAW (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/LABOR LAW (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/ATTORNEYS (FEES, WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/ATTORNEY’S FEES (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/WRONGFUL TERMINATION (LABOR LAW 740, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))

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DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school bus company and board of education did not have notice that two children who allegedly injured infant plaintiff on the bus were capable of dangerous conduct:

Schools are under a duty to adequately supervise children in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . Schools are not, however, “insurers of [the] safety [of students] . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students”… . A school bus operator owes the “very same duty to the students entrusted to its care and custody”… . In cases involving injury caused by the acts of fellow students, to establish a breach of the duty to provide adequate supervision, plaintiffs must show that school authorities had “sufficiently specific knowledge or notice of the [alleged] dangerous conduct” … .

\Here, the defendants established their prima facie entitlement to judgment as a matter of law by producing evidence that they had no knowledge or notice of the infant perpetrators’ dangerous conduct, as there was no record of any inappropriate conduct by them, sexual or otherwise, prior to the incident … . Champagne v Lonero Tr., Inc., 2018 NY Slip Op 03959, Second Dept 6-6-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SCHOOL BUSES  (NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ASSAULT (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT).

The Second Department affirmed defendant’s conviction of depraved indifference murder and assault. During a high speed chase defendant fired a bullet into the car he was following. The driver, Singh, lost control and struck a trestle. One person, Arena, was killed, and Singh and another person, Weiner, were seriously injured. Defendant fled the scene. Defendant had been convicted of these crimes in 2003 and they were affirmed on appeal. But he obtained federal habeas corpus relief in 2013 and was retried in 2015.The sentencing court properly imposed a consecutive sentence for criminal possession of a weapon, which was not an inclusory concurrent count. One of the witnesses in the first trial had been deported and the court properly admitted his testimony at the second trial:

[T]he evidence proved beyond a reasonable doubt that the defendant recklessly engaged in conduct which created a grave risk of death to another person. The defendant engaged in a high-speed chase, in the course of which he fired a gun at the fleeing car, causing Singh, the driver, to lose control of that car. Following the crash, the defendant exhibited no signs of remorse for the results of his recklessness, and even went so far as to express his disappointment that Weiner had survived the crash. The direct and circumstantial evidence proved that the defendant deliberately engaged in a high-speed chase and shot at Singh’s car with an utter disregard for the value of human life, and thus, was legally sufficient to support the jury’s determination that the defendant acted with depraved indifference with respect to the death of Arena and the serious injuries sustained by Singh and Weiner … . …

The defendant’s contention that the County Court erred in admitting the testimony of Jose Vanderlinde from the first trial is without merit. Vanderlinde had testified at the defendant’s first trial but was deported before the second trial commenced, and was barred from re-entering the United States. Under these circumstances, the court properly admitted Vanderlinde’s testimony from the defendant’s first trial, as the prosecutor’s failure to produce the witness “was not due to indifference or a strategic preference for presenting [the witness’s] testimony in the more sheltered form of [trial] minutes rather than in the confrontational setting of a personal appearance on the stand … . People v Williams, 2018 NY Slip Op 04015, Second Dept 6-6-18

​CRIMINAL LAW (DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/DEPRAVED INDIFFERENCE (CRIMINAL LAW, DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/PRIOR TESTIMONY (CRIMINAL LAW, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))

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DECLARATORY JUDGMENT ACTION ATTACKING THE PROCEDURE USED TO ENACT LEGISLATION IS SUBJECT TO THE FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT ACTION CHALLENGING THE LEGISLATION ITSELF IS SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, in a lawsuit brought by plaintiff village alleging the county did not have the power to issue parking tickets in the village, explained how to determine the appropriate statute of limitations in actions seeking a declaratory judgment:

While no period of limitation is specifically prescribed for a declaratory judgment action, the six-year catch-all limitation period of CPLR 213(1) does not necessarily apply to all such actions. Rather, in order to determine the statute of limitations applicable to an action for a declaratory judgment, a court must examine the substance of the action. Where it is determined that the parties’ dispute can be, or could have been, resolved in an action or proceeding for which a specific limitation period is statutorily required, that limitation period governs … .

A proceeding pursuant to CPLR article 78 is unavailable to challenge the validity of a legislative act … . However, when a challenge is directed to the procedure followed in enacting, rather than the substance of, legislation, a proceeding pursuant to CPLR article 78 may be maintained … . …

… [T]he plaintiff’s third cause of action alleged that the actions taken by the defendants in the formation of the agency were void, invalid, and illegal due to the failure of the defendants to comply with the requirements of the State Environmental Quality Review Act … . “SEQRA challenges must be commenced within four months after the determination becomes final and binding upon the petitioner … .

… [T]he plaintiff’s … causes of action … for declaratory relief … challenging the substantive validity of the defendants’ formation of the [county parking ticket] agency and the defendants’ continuing actions with respect to the adjudication of tickets issued for violations occurring in the Village, either could not have been maintained in a proceeding pursuant to CPLR article 78 … , or related to ongoing actions of the defendants, and, thus, were not barred by the four-month limitation period under CPLR 217(1). Accordingly, since the six-year statute of limitations of CPLR 213(1) applies … .  Village of Islandia v County of Suffolk, 2018 NY Slip Op 04025, Second Dept 6-6-18

​CIVIL PROCEDURE (DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ATTACKING THE PROCEDURE USED TO ENACT LEGISLATION IS SUBJECT TO THE FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT ACTION CHALLENGING THE LEGISLATION ITSELF IS SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS (SECOND DEPT))/STATUTE OF LIMITATIONS (DECLARATORY JUDGMENT ACTION ATTACKING THE PROCEDURE USED TO ENACT LEGISLATION IS SUBJECT TO THE FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT ACTION CHALLENGING THE LEGISLATION ITSELF IS SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS (SECOND DEPT))/DECLARATORY JUDGMENT (STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT ACTION ATTACKING THE PROCEDURE USED TO ENACT LEGISLATION IS SUBJECT TO THE FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT ACTION CHALLENGING THE LEGISLATION ITSELF IS SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS (SECOND DEPT))/MUNICIPAL LAW  (DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ATTACKING THE PROCEDURE USED TO ENACT LEGISLATION IS SUBJECT TO THE FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT ACTION CHALLENGING THE LEGISLATION ITSELF IS SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS (SECOND DEPT))

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PLAINTIFF JUDICIALLY ESTOPPED FROM IMPOSING A CONSTRUCTIVE TRUST ON REAL PROPERTY, PLAINTIFF STATED HE HAD NO INTEREST IN THE PROPERTY IN PRIOR BANKRUPTCY PROCEEDINGS (SECOND DEPT).

The Second Department determined plaintiff was judicially estopped from imposing a constructive trust on real property because he stated he had no interest in the property in prior bankruptcy proceedings:

Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed … . The doctrine applies only where the party secured a judgment in his or her favor in the prior proceeding … . This doctrine “rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise'” … . “The doctrine is invoked to estop parties from adopting such contrary positions because the judicial system cannot tolerate this playing fast and loose with the courts”… .

Here, the plaintiff’s contention that he had an interest in the … property based on promises that [defendant]  made to the plaintiff … is contrary to his representation to the United States Bankruptcy Court … that he had no interest in real property. Based upon the plaintiff’s representations to the Bankruptcy Court, his debts were discharged. Therefore, we agree with the Supreme Court that this action is barred by the doctrine of judicial estoppel … . Bihn v Connelly, 2018 NY Slip Op 03956, Second Dept 6-6-18

​CIVIL PROCEDURE (JUDICIAL ESTOPPEL, PLAINTIFF JUDICIALLY ESTOPPED FROM IMPOSING A CONSTRUCTIVE TRUST ON REAL PROPERTY, PLAINTIFF STATED HE HAD NO INTEREST IN THE PROPERTY IN PRIOR BANKRUPTCY PROCEEDINGS (SECOND DEPT))/JUDICIAL ESTOPPEL (PLAINTIFF JUDICIALLY ESTOPPED FROM IMPOSING A CONSTRUCTIVE TRUST ON REAL PROPERTY, PLAINTIFF STATED HE HAD NO INTEREST IN THE PROPERTY IN PRIOR BANKRUPTCY PROCEEDINGS (SECOND DEPT))

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