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Court Has No Authority to Grant Application to File Late Notice of Claim After Statute of Limitations Has Expired.

Plaintiff filed a notice of claim and commenced a suit against the City of New York.  The complaint was amended to add the New York City Transit Authority as a defendant.  The First Department affirmed the dismissal of the complaint against the Transit Authority because no notice of claim against the Transit Authority had been filed and the motion to file a late notice of claim was made more than one year and 90 days after the incident. Martinez v City of New York, et al, 9428, 16403/03, First Dept. 3-5-13

 

 

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Failure to Request Court-Permission to Re-Present Charges to a Grand Jury Is Reversible Error Which Survives a Guilty Plea

The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required.  “The critical question is whether the grand jury failed to indict after a full presentation of the case.”  The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence.  The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea.  People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13

 

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State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

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CPLR 7511 Review of Compulsory Arbitration Under the Education Law

The First Department explained and applied the principles of a CPLR 7511 review of a hearing officer’s determination after compulsory arbitration pursuant to the Education Law. The case concerned allegations of inappropriate touching of students by a tenured school librarian.  In affirming the hearing officer’s findings and penalty, the Court noted that “ ‘ where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration’ … . [T]he determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78’ …”.  In re Ash v New York City Board/Dept of Education, 8655, 108528/10 1st Dept. 3-5-13

 

 

Mistrial on Motion by Prosecution Precluded Retrial.

The prosecution moved for a mistrial based on defense counsel’s improper questioning of a witness in defiance of the court’s instructions.  The court granted the mistrial.  The First Department, in a full-fledged opinion by Justice Freedman, determined that the defendant could not be retried.  “When the court declares a mistrial on the prosecution’s motion and over the defendant’s objection, a retrial is precluded unless ‘there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated’ …”  The First Department felt that defense counsel’s conduct, while blameworthy, could have been adequate addressed by alternative measures and, therefore, there was not a sufficient basis in the record for a mistrial.  Matter of Morris vs. Livote, 4334/10, 9012-5107, First Dept. 2-21-13

double jeopardy

Journalist Deemed “Limited Public Figure.”

A defamation complaint was dismissed because the plaintiff, a journalist, was deemed to be a “limited public figure,” and there was no showing the challenged statements were made with “actual malice or gross irresponsibility.”  The First Department noted that the statement which included the word “liar” was likely to be understood as opinion, not fact.  Farber vs Jeffreys, 9297, 106399/09 First Dept. 2-19-13

 

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Fee Agreement Unenforceable as Vague.

A written agreement concerning a “success fee” and real estate broker’s commissions was deemed unenforceable as vague, “since the agreement fails to set the price or compensation to be received…”.  Magnum Real Estate Services, Ind. Vs 133-134-135 Associates, LLC, 8058, 107850/06 First Dept. 2-14-13

 

Permission to Re-Submit Charges to a Second Grand Jury Was Required.

The prosecutor’s failure to get the court’s permission to re-submit charges to a second grand jury was a jurisdictional defect requiring dismissal of the indictment after a guilty plea.  The first grand jury took “no affirmative action” on drug charges before them. There were not enough votes to indict on or dismiss the charges.  The prosecutor then submitted the drug charges to a second grand jury which voted to indict.  The First Department noted: “Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75(3) if the prosecutor “prematurely takes the charge away from the grand jury…”.  People vs Smith, 7310, 135/10, 801/10 First Dept. 2-7-13

 

Intentional Assault Did Not Sever Causal Connection to Serving Alcohol.

The First Department determined an intentional assault would not sever the causal connection between injury to the plaintiff and the bar’s serving alcohol to a person alleged to have been visibly intoxicated, as well as the bar’s alleged failure to provide proper security.  Carver vs P.J. Carney’s, 9216, 103191/10 First Dept. 2-7-13

 

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Property Owner Responsible for Defect in Sidewalk that Did Not Directly “Abut” Owner’s Property (Liability Based On New York City Ordinance).

In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property.  The sidewalk was separated from the defendant’s property by a strip of land owned the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… .  James vs 1620 Westchester Avenue, LLC, 8710A, 17396/06 First Dept. 2-7-13

 

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