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WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT).

The Third Department determined the insurer’s motion for summary judgment in this property damage case was properly granted. Plaintiff alleged  water damage to its hotel was caused by Hurricane Sandy. There was an exclusion in the policy for “wear and tear.” The insurer’s expert presented evidence that the water damage was due, inter alia, to improper flashing and the absence of proper caulking around the windows:

The dictionary definition of “wear and tear” is “the loss, injury, or stress to which something is subjected by or in the course of use” … . Nothing in the policy language suggests that an average insured would expect the phrase to have another meaning or that the language is subject to any other reasonable interpretation.

As for the application of the exclusion in this case, defendant supported its summary judgment motion with the affidavit and report of an engineer with experience in “structural investigation[s] and failure determinations” who inspected the property several weeks after the hurricane. His examination of the hotel’s exterior walls revealed “improper flashing detail” consisting of failed caulk that had originally been installed to seal the areas where each room’s exterior walls and windows met the hotel’s concrete floors and surrounding masonry walls. According to the engineer, the caulk had separated from these surfaces as a result of age and lack of maintenance, creating spaces through which water could migrate into the walls. The engineer observed significant deterioration in the walls’ internal framing, as well as other indications that water had been seeping into the walls for a long time; in a follow-up inspection several years later, he also found evidence that water continued to enter the walls after the hurricane as a result of the failed caulk, causing new damage to surfaces that had been repaired after the storm. Superhost Hotels Inc. v Selective Ins. Co. of Am., 2018 NY Slip Op 02519, Third Dept 4-12-18

INSURANCE LAW (WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))/WEAR AND TEAR (INSURANCE LAW, WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))/WATER DAMAGE (INSURANCE LAW, WEAR AND TEAR, WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))/EXCLUSIONS (INSURANCE LAW, WEAR AND TEAR, WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))

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AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, addressing many substantive issues not summarized here, determined the Department of Environmental Conservation (DEC) Commissioner’s rulings approving two development projects in the Catskills were proper. The DEC and the permit applicant were in agreement. Only the petitioners (apparently an alliance of affected property owners) were requesting further review, including a request for the adjudication of “substantive and significant” issues (which was denied). The court explained the criteria for further adjudication in this context:

Where, as here, there is no dispute between DEC staff and the permit applicant, adjudication is required only if the issue is “both substantive and significant” … . “An issue is substantive if there is sufficient doubt about the applicant’s ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry” … . “An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit” … . “The resolution of whether an issue is substantive and significant requiring an adjudicatory hearing is left to the Commissioner and will not be disturbed absent a showing that it is predicated upon an error of law, is arbitrary or capricious, or represents an abuse of discretion” … . Further, where “‘the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference'” … . Matter of Catskill Heritage Alliance, Inc. v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 02516, Third Dept 4-12-18

ENVIRONMENTAL LAW (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/ADJUDICATION, REQUEST FOR (ENVIRONMENTAL LAW, AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))

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AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, addressing many substantive issues not summarized here, determined the Department of Environmental Conservation (DEC) Commissioner’s rulings approving two development projects in the Catskills were proper. The DEC and the permit applicant were in agreement. Only the petitioners (apparently an alliance of affected property owners) were requesting further review, including a request for the adjudication of “substantive and significant” issues (which was denied). The court explained the criteria for further adjudication in this context:

Where, as here, there is no dispute between DEC staff and the permit applicant, adjudication is required only if the issue is “both substantive and significant” … . “An issue is substantive if there is sufficient doubt about the applicant’s ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry” … . “An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit” … . “The resolution of whether an issue is substantive and significant requiring an adjudicatory hearing is left to the Commissioner and will not be disturbed absent a showing that it is predicated upon an error of law, is arbitrary or capricious, or represents an abuse of discretion” … . Further, where “‘the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference'” … . Matter of Catskill Heritage Alliance, Inc. v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 02516, Third Dept 4-12-18

ENVIRONMENTAL LAW (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/ADJUDICATION, REQUEST FOR (ENVIRONMENTAL LAW, AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))

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ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, determined electronic images of election ballots are accessible under the Freedom of Information Law (FOIL) after they have been preserved in accordance with the Election Law:

The dispute before us poses a question of public significance: whether electronic images of ballots cast in an election are accessible under the Freedom of Information Law … . We conclude that, once electronic ballot images have been preserved in accordance with the procedures set forth in Election Law § 3-222 (1), there is no statutory impediment to disclosure and they may be obtained through a FOIL request.

Our analysis is informed by the advent of electronic voting in New York (see generally Election Law § 7-202 [4]). As more fully set forth in the record, upon inserting a ballot into an electronic voting machine, it is scanned and an image of it is stored in a random fashion on portable flash drives, which preserve the secrecy of the ballot. The original ballot is then deposited by the scanner into a secure ballot box under the machine. After the polls close, the machine prints out a tabulated results tape containing the official record of votes cast on that particular machine. One of the flash drives is removed from the machine and returned to the applicable board of elections, while the other remains with the machine and is used during the recanvass process. As is relevant here, the content on the portable flash drives is then copied to permanent electronic storage media, such as a hard drive, after which the temporary storage media may be reused in another election … . Matter of Kosmider v Whitney, 2018 NY Slip Op 02517, Third Dept 4-12-18

​ELECTION LAW (FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/FREEDOM OF INFORMATION LAW (FOIL) (ELECTION LAW, ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/ELECTRONIC VOTING (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))//BALLOTS (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))

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13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a two-justice dissenting opinion, affirmed the juvenile delinquent adjudication finding that appellant committed offenses which, if he were an adult, would constitute criminal sexual act, sexual abuse, sexual misconduct and endangering the welfare of a child. It was alleged that appellant, who was 13, put his penis in the anus and mouth of L.F., who was nine. The majority concluded the fact that the appellant’s mother left the room during the police interrogation (at appellant’s request) and the investigator’s having the appellant write a “letter of apology” to the victim during the interrogation did not render the appellant’s confession involuntary. The majority further held that the statements in the medical records made by L.F. during a physical exam were relevant to treatment and therefore admissible to corroborate the confession:

While a parent may choose not to be present when a child is being interviewed, “the police should always ensure that the parent is aware of the right of access to his or her child during questioning,” and if asked to leave, “the parent should be made aware that he or she is not required to leave” … .

To be sure, the presence of a parent is important, as a parent may help a child understand Miranda warnings “so that the child can consciously and voluntarily choose whether to waive or to exercise his constitutional rights to remain silent, to have an attorney present at his questioning, and to have an attorney provided for him without charge if he is indigent” … . A parent present at questioning also is able to “monitor the interrogation lest the police engage in coercive tactics” … .

However, a child does not have an absolute right to the presence of a parent during interrogation, and “it does not follow as a matter of law that a child’s confession obtained in the absence of a parent is not voluntary”  … . * * *

… [A]ppellant’s confession is corroborated by the medical records, which were properly admitted into evidence by Family Court. … Hospital records are admissible under the business records exception to the hearsay rule when they reflect “acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects” of the patient’s hospitalization … . Matter of Luis P., 2018 NY Slip Op 02564, First Dept 4-12-18

​CRIMINAL LAW (JUVENILE DELINQUENCY, EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/JUVENILE DELINQUENCY (EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/CONFESSIONS  (JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, HOSPITAL RECORDS, JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/BUSINESS RECORDS (HOSPITAL RECORDS, CRIMINAL LAW, JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))

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REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT).

The Third Department determined Supreme Court properly denied a DNA-related Frye hearing based on a Frye hearing held in another case, even though that case is on appeal. The hearing was requested concerning a computer program (TrueAllele) which calculates the probability a defendant’s DNA is in a mixture that could not otherwise be definitively tied to the defendant. The original code for the computer program, called the source code, could have been requested by the defendant for a pre-trial analysis by a defense expert. The defense never requested the source code but attempted to have the TrueAllele expert provide the source code during cross-examination. The argument that cross-examination was impeded because the source code was not made available to the defense at trial was rejected. Only an expert could analyze it and there had been no timely request for it by the defense:

…DNA analysis did not definitively tie defendant to the genetic material recovered from the pistol. The People accordingly sought to present proof of a re-analysis conducted with the TrueAllele Casework System (hereinafter TrueAllele), a computer program that subjects a DNA mixture to statistical modeling techniques to infer what DNA profiles contributed to the mixture and calculate the probability that DNA from a known individual contributed to it. Defendant argued that the TrueAllele evidence should be precluded or that the general acceptance of the technique in the scientific community should be assessed via a Frye hearing. Supreme Court denied the application due to the fact that an extensive Frye hearing had been conducted on the issue in another criminal case in the same county and that a determination, issued weeks before the trial in this matter, was rendered finding that the procedure was not novel and was generally accepted by the relevant scientific community … . People v Fields, 2018 NY Slip Op 02503, Third Dept 4-12-18

​CRIMINAL LAW (DNA, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DNA, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/FRYE HEARING (DNA, CRIMINAL LAW, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/TRUEALLELE (DNA, CRIMINAL LAW, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))

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DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT).

The First Department determined Supreme Court properly denied defendant’s request to replace or dismiss defendant’s standby attorney:

After permitting defendant to represent himself at trial, the court providently exercised its discretion in declining to replace or dismiss defendant’s standby counsel. Initially, to the extent defendant sought to proceed with no standby counsel at all, that request was properly denied. That option would have risked a mistrial in the event termination of defendant’s pro se status became necessary, and this was of particular concern because defendant had a history of disrupting the proceedings … . Defendant was under no obligation to solicit or accept any advice from his standby counsel.

Furthermore, there was no good cause for replacement of defendant’s standby counsel, who was defendant’s third assigned attorney, with yet another attorney … . While the record sometimes shows contentious exchanges between defendant and this attorney, the record also shows that he consulted with him, as a legal advisor, on other occasions. There was no irreconcilable conflict amounting to good cause for substitution… , nor does any disagreement over trial strategy … . The attorney’s negative comments about defendant, quoted in a newspaper article, should have been avoided, but they were made well before trial, and did not prejudice defendant or amount to an irreconcilable conflict. People v Findley, 2018 NY Slip Op 02545, First Dept 4-12-18

​CRIMINAL LAW (ATTORNEYS, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, STANDBY COUNSEL, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT))/STANDBY COUNSEL (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT))/PRO SE (CRIMINAL LAW, STANDBY COUNSEL, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT))

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A COURT HAS THE DISCRETION TO GRANT A MOTION TO RENEW THAT IS NOT BASED ON NEWLY DISCOVERED EVIDENCE (FIRST DEPT).

The First Department noted that, although a motion to renew should be based upon newly discovered evidence, a court has the discretion to grant a motion to renew based on evidence which was available:

Although it is true that a motion to renew should generally be based upon newly-discovered facts, this rule is not inflexible, and the court has discretion to grant renewal in the interest of justice even upon facts that were known to the movant at the time the original motion was made … . Here, we decline to interfere with the court’s discretionary decision to grant renewal. Further, in view of the strong policy in favor of resolving disputes on the merits, and in the absence of prejudice to defendants, we conclude that the motion court, upon renewal, providently exercised its discretion in vacating the judgment. Kaszar v Cho, 2018 NY Slip Op 02555, First Dept 4-12-18

​CIVIL PROCEDURE (MOTION TO RENEW, A COURT HAS THE DISCRETION TO GRANT A MOTION TO RENEW THAT IS NOT BASED ON NEWLY DISCOVERED EVIDENCE (FIRST DEPT))/RENEW, MOTION TO (A COURT HAS THE DISCRETION TO GRANT A MOTION TO RENEW THAT IS NOT BASED ON NEWLY DISCOVERED EVIDENCE (FIRST DEPT))

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FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, noted that an administrative tribunal can consider the facts which led up to a record which is sealed and hearsay can be considered at an administrative hearing. The matter which was before the New York City Housing Authority (NYCHA) concerned drug activity at an apartment and rent delinquency. Supreme Court had held that petitioner’s due process rights were violated (reversed by the First Department):

… [T]he IAS court erred in rejecting the arresting officer’s testimony because the underlying criminal proceeding against petitioner had been dismissed and sealed. The sealing of a criminal case will not immunize a defendant against all future consequences of the charges, and an administrative tribunal is permitted to consider evidence of the facts leading to those charges when they are independent of the sealed records… . The IAS court’s finding that the officer’s testimony was improperly based on sealed records, rather than his independent recollection, was simply not accurate. Regardless, the “reception of erroneously unsealed evidence at [an administrative] hearing does not, without more, require annulment of respondent’s determination” … .

The IAS court also improperly rejected the officer’s testimony as impermissible hearsay. It is well-settled that hearsay is admissible in administrative proceedings, that it may be the basis for an administrative determination and — if sufficiently relevant and probative — may constitute substantial evidence alone … . Petitioner did not suffer any due process violation at the hands of NYCHA. Matter of Rosa v New York City Hous. Auth., Straus Houses, 2018 NY Slip Op 02552, First Dept 4-12-18

​ADMINISTRATIVE LAW (FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))/EVIDENCE (ADMINISTRATIVE LAW, SEALED RECORDS, HEARSAY, FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))/SEALED RECORDS (ADMINISTRATIVE LAW, FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))/HEARSAY (ADMINISTRATIVE LAW, FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))

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MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff maintenance worker’s back injury, caused by picking up a heavy bag of garbage, was not actionable because the injury was from a risk inherent in the work:

The defendant [lessee] established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence demonstrating that the subject garbage bag was not over a weight accepted or contractually agreed upon by the defendant and the plaintiff’s employer at the time of the alleged incident, and that the plaintiff’s injury resulted from a risk inherent in his assigned work as a maintenance worker … . Moody v Kelly Drye & Warren, LLP, 2018 NY Slip Op 02454, Second Dept 4-11-18

​NEGLIGENCE (MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, PERSONAL INJURY, MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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