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SUPREME COURT PROPERLY VALIDATED 25 SIGNATURES ON THE DESIGNATING PETITION WHICH HAD BEEN INVALIDATED BY THE BOARD OF ELECTIONS, THEREBY ALLOWING THE DEMOCRATIC CANDIDATE FOR COUNTY EXECUTIVE TO RUN IN THE NOVEMBER ELECTIONS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly validated signatures which had been declared invalid by the Oneida County Board of Elections, allowing the Democratic candidate for Oneida County Executive to run in the upcoming election:

The designating petition had been invalidated by respondent Board of Elections of County of Oneida (Board), which determined in response to objections filed by James Genovese (respondent) that the designating petition contained 22 fewer valid signatures than required. After a hearing, Supreme Court validated 25 signatures that had been invalidated by the Board and thus ordered that petitioner be declared a duly qualified candidate of the Democratic Party for County Executive. …

With respect to the merits, we reject respondent’s contention that the court erred in validating the signatures at lines 2 through 4 and lines 6 and 7 of page 28 of the designating petition. Each of those signatures had listed by them the same street address, but no apartment numbers were included even though testimony at the hearing established that there are “maybe 60 [to] 70” apartments at that address. We nonetheless conclude that the designating petition adequately set forth the “residence address” of those signers within the meaning of Election Law § 6-130 “by indicating each signer’s respective street address”… , and that an apartment number is not a required component of a residence address for purposes of section 6-130 … .

… The signatures at line 8 of page 17 and line 8 of page 6 were properly validated based on the testimony of the signers identifying their signatures … . The court validated the other three signatures by crediting the testimony of “subscribing witnesses attesting to the identity of [the signers]” … , i.e., testimony that the subscribing witnesses either personally knew the signer or required the signer to present identification before signing … .

… Respondent also contends that the subscribing witness for page 90 of the designating petition engaged in fraud by attesting in his subscribing witness statement that the signer listed at line 8 signed her name in his presence, when in fact her son signed for her pursuant to a power of attorney. In view of the court’s determination to credit the testimony of the subscribing witness, however, we conclude that the record fails to establish that the subscribing witness statement was false, i.e., that the listed signer did not sign the designating petition herself … . Matter of Hennessy v Board of Elections of County of Oneida, 2019 NY Slip Op 06450, Fourth Dept 9-4-19

 

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PROPOSED 2019 ELECTION REFERENDUM REGARDING PUBLIC EDUCATION OFFICIALS IN THE CITY OF ROCHESTER IS IMPERMISSIBLY ADVISORY AND WAS PROPERLY DECLARED VOID (FOURTH DEPT).

The Fourth Department determined the proposed 2019 referendum on amendments to City of Rochester Local Laws regarding the Board of Education, Commissioners and the salaries of School Board Members was impermissibly advisory:

Any local law that “[a]bolishes an elective office” or “reduces the salary of an elective officer during his [or her] term of office” is subject to mandatory referendum (Municipal Home Rule Law § 23 [2] [e]), but an “advisory” referendum—i.e., one that lacks legal effect or consequence—is not permitted in the absence of express constitutional or statutory authority for it … .

Contrary to respondents’ contention, we conclude, for two independent reasons, that the referendum on the Local Law is impermissibly advisory and, thus, that the court properly declared the Local Law invalid and the referendum void. First, the language of section 5 of the Local Law, which conditions its effectiveness on subsequent action by the New York State Legislature, strips the referendum of any binding legal effect (…see … Municipal Home Rule Law § 23 [1]). Second, as the court correctly noted, a local government may not legislate in areas “where the State has evidenced its intent to occupy the field” … , and it is well established that the State has preempted local action in the field of public education … . Matter of Rochester City Sch. Dist. v City of Rochester, 2019 NY Slip Op 06449, Fourth Dept 9-4-19

 

DEFENDANTS BREACHED THE CONTRACT BY TERMINATING IT WITHOUT GIVING PLAINTIFF THE TIME TO CURE DEFICIENCIES CALLED FOR IN THE CONTRACT (FOURTH DEPT).

The Fourth Department determined defendants should not have terminated plaintiff’s contract to install a heating system without giving plaintiff the time to cure deficiencies called for by the contract:

… [W]e conclude that plaintiff met its initial burden of establishing that defendants failed to follow the termination for cause procedures in the contract when they, inter alia, did not provide plaintiff seven days to cure deficiencies before terminating the contract, and defendants failed to raise a triable issue of fact with respect thereto … . “Where a contract provides that a party must fulfill specific conditions precedent before it can terminate the agreement, those conditions are enforced as written and the party must comply with them” … . Here, defendants’ failure to allow plaintiff the requisite time to cure before terminating the contract rendered defendants’ termination wrongful, and therefore the court erred in denying that part of plaintiff’s motion with respect to liability on the breach of contract cause of action … . Black Riv. Plumbing, Heating & A.C., Inc. v Board of Educ. Thousand Is. Cent. Sch. Dist., 2019 NY Slip Op 06321, Fourth Dept 8-22-19

 

PLAINTIFF ENTITLED TO JURISDICTIONAL DISCOVERY WITH RESPECT TO DEFENDANT HOSPITAL IN THIS MEDICAL MALPRACTICE ACTION; HOSPITAL DID NOT CONSENT TO JURISDICTION BY REGISTERING AS A FOREIGN CORPORATION; DOCTORS DID NOT CONSENT TO JURISDICTION BY BECOMING LICENSED IN NEW YORK (FOURTH DEPT).

The Fourth Department determined the plaintiff was entitled to jurisdictional discovery with regard to a hospital defendant in this medical malpractice action. The court noted that the hospital did not consent to the general jurisdiction of New York courts by registering as a foreign corporation with the Department of State and the defendant doctors did not consent to New York personal jurisdiction based upon becoming licensed to practice medicine in New York:

… [P]laintiff made a “sufficient start” in establishing personal jurisdiction over the hospital pursuant to CPLR 301 and 302 (a) (1) to be entitled to disclosure pursuant to CPLR 3212 (f)  … . The record “is not clear whether [the hospital’s] affiliations with the State [of New York] are so continuous and systematic as to render [it] essentially at home in the . . . State’ ” as required for general jurisdiction … or whether its activities in New York are ” purposeful and [whether] there is a substantial relationship between the transaction and the claim asserted’ ” as required for long-arm jurisdiction … . However, the record contains evidence that the hospital advertises to prospective New York patients and has at least some relationship with New York providers, New York insurers, and defendant Guthrie Medical Group, P.C., which owns New York offices. The record also contains evidence that the hospital derives substantial revenue from New York residents. Based on that initial showing, we conclude that plaintiff has made a “sufficient start” by establishing that facts “may exist to exercise personal jurisdiction” over the hospital, warranting jurisdictional discovery … . Best v Guthrie Med. Group, P.C., 2019 NY Slip Op 06320, Fourth Dept 8-22-19

 

CELLINO’S PETITION FOR DISSOLUTION OF CELLINO & BARNES PC PROPERLY SURVIVED A MOTION FOR SUMMARY DISMISSAL (FOURTH DEPT).

The Fourth Department determined petitioner’s (Cellino’s) petition for dissolution of the professional corporation (Cellino & Barnes, PC) properly survived a motion for summary dismissal:

… [W]e reject respondents’ [Barnes’] contention that the court erred in denying their motion insofar as it sought summary dismissal of the amended petition on the ground that dissolution would not benefit the shareholders because the PC has continued to function effectively and prosperously. The determination whether a corporation should be dissolved is within the discretion of the court (see Business Corporation Law § 1111 [a] … ), and “the benefit to the shareholders of a dissolution is of paramount importance” in making that determination … . Although respondents submitted evidence demonstrating that the PC has continued to conduct business at a profit, dissolution is not to be denied in a proceeding brought pursuant to Business Corporation Law § 1104 simply because the corporate business has been conducted at a profit … or because the dissension has not yet had an appreciable impact on the profitability of the corporation … .

Here, the record contains ample evidence of dissension and deadlock between petitioner and Barnes, and we conclude that … petitioner raised issues of fact whether dissension and deadlock have so impeded the ability of the PC to function effectively that dissolution would benefit the shareholders. In a close corporation like the PC, “the relationship between the shareholders is akin to that of partners and when the relationship begins to deteriorate, the ensuing deadlock and dissension can effectively destroy the orderly functioning of the corporation” … . When a point is reached at which the shareholders who are actively conducting the business of the corporation cannot agree, dissolution may be in the best interests of those shareholders … , and we agree with the court’s determination that a hearing should be held to give the parties an opportunity to present their evidence on this controverted issue … . Matter of Cellino v Cellino & Barnes, P.C., 2019 NY Slip Op 06365, Fourth Dept 8-22-19

 

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IN DENYING A SUPPRESSION MOTION THE JUDGE CAN CONSIDER EVIDENCE SUBMITTED BY THE PEOPLE, EVEN IF THAT EVIDENCE WAS NOT EXPRESSLY RELIED UPON BY THE PEOPLE; OBSERVATION OF WHAT APPEARED TO BE A DRUG TRANSACTION PROVIDED PROBABLE CAUSE; THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIED; THE INVENTORY SEARCH WAS VALID (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress tangible evidence was properly denied, finding (1) the suppression court could properly consider all the evidence presented by the People, even if the evidence was not expressly relied upon by the People; (2) although the vehicle occupants were seized at the time the police approached, the officers’ prior observation of what appeared to be a drug transaction provided probable cause; (3) the search of the vehicle was justified by the automobile exception; and (4) the inventory search was lawful:

… [W]e conclude that the court was entitled to consider legal justifications that were supported by the evidence, even if they were not raised explicitly by the People (see CPL 710.60 [6] …). “By presenting evidence sufficient to support the court’s findings, the People met their burden of going forward . . . and the court may rely on any legal justification for police conduct for which there is factual support in the record” … . …

… .[B]efore defendant’s seizure, an officer observed defendant conduct what, based on his training and experience, appeared to be a hand-to-hand drug transaction, even though he “couldn’t tell” what “items” he had seen during the exchange other than money. Additionally, that officer was in the area conducting surveillance on an unrelated narcotics investigation, raising the inference that the transaction occurred in a drug-prone area. Furthermore, once two other officers approached the vehicle based on the above observations, one officer saw packaging material of the kind used to store narcotics, and the other officer observed that the driver of the vehicle engaged in “furtive” behavior. Based on the totality of those factors, we conclude that the police had probable cause to believe that defendant engaged in a narcotics offense justifying the stop of the vehicle and his arrest … . …

“The [automobile] exception requires both probable cause to search the automobile generally and a nexus between the probable cause to search and the crime for which the arrest is being made’ ” … . Based on the foregoing, at the time of the search, the police had probable cause to believe that narcotics or packaging materials used in the sale and possession of narcotics were present in the vehicle … . Thus, inasmuch as there was a nexus between the probable cause to search the vehicle and the crime for which defendant was being arrested, we conclude that the police were not required to obtain a warrant … . People v Nichols, 2019 NY Slip Op 06361, Fourth Dept 8-22-19

 

DEFENDANT’S ABSENCE FROM SIDEBAR CONFERENCES DURING JURY SELECTION DID NOT REQUIRE REVERSAL (FOURTH DEPT). ​

The Fourth Department, over a dissent, determined defendant’s absence from sidebar conferences did not require reversal:

Defendant contends that the court violated the rule in People v Antommarchi (80 NY2d 247, 250 [1992] …) when it conducted several sidebar conferences in his absence and that reversal is required with respect to two of those conferences. We disagree with defendant that reversal is required as a result of any violation of defendant’s Antommarchi rights. It is well settled that a criminal defendant has a statutory right to be present at all material stages of the trial (see CPL 260.20 …), including the sidebar questioning of a prospective juror when the purpose of the questioning is “intended to search out a prospective juror’s bias, hostility or predisposition to believe or discredit the testimony of potential witnesses” … . Nevertheless, “reversal is not required when, because of the matter then at issue before the court or the practical result of the determination of that matter, the defendant’s presence could not have afforded him or her any meaningful opportunity to affect the outcome” … . In determining whether the defendant’s presence could have afforded him or her such an opportunity, the test is whether the record negates the possibility that the defendant “could have provided valuable input on his [or her] counsel’s apparently discretionary choice to excuse those venire persons” … . Thus, reversal is not required where the defendant’s attorney does not exercise a choice to exclude a prospective juror, such as where a prospective juror is excused for cause or where the People have exercised a peremptory challenge to the prospective juror … .

… [W]e conclude that defendant had no opportunity to provide any input that might have affected the outcome regarding the relevant prospective jurors. People v Wilkins, 2019 NY Slip Op 06238, Fourth Dept 8-22-19

 

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UNDER THE TERMS OF THE LEASE AND VILLAGE REGULATIONS, THE HERKIMER COUNTY INDUSTRIAL DEVELOPMENT AGENCY, AS THE OWNER OF PROPERTY ABANDONED BY THE TENANT, IS RESPONSIBLE FOR THE UNPAID WATER CHARGES INCURRED BY THE TENANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined Herkimer County Industrial Development Agency (HCIDA) as the owner of property which had been abandoned by the tenant was responsible to the Village for water charges incurred by the tenant:

… [W]here, as here, an owner “consents to the tenant’s using water in [a] building, supplied through pipes installed by the owner, or continued by the owner, for the purpose of connecting the building with the [municipality’s] water main, the owner assents to the [municipality’s] supplying water to the tenant for use in the building” … . In the case before us, it appears that the water pipes of the facility that were connected to the Village’s water mains “were installed by the owner of the [facility], if not by the present owner, [HCIDA], then by [its] predecessor in title and the connection was never shut off or disconnected by [HCIDA],” and we note that “[t]he only purpose of maintaining a connection between [the facility] and the [Village’s] water mains [was] to have the [Village] supply the [facility] with water”… . Moreover, the lease contemplated that the tenant would incur utility charges as part of its operation, use, and occupancy of the leased facility. “When such assent [to] or arrangement [for the tenant’s use of water] is made, it must be deemed to be made with a view to the existing law” … . We therefore must evaluate the existing law at the time of HCIDA’s assent to the Village supplying water to the tenant in order to determine whether liability for the unpaid water rents may be imposed upon HCIDA. …

… [U]nder the section entitled “Liability for Water Service,” Rule No. 7 of the [Village] regulations provides that “[a]ll bills, whether for use of water or repairs to water service, are a charge against the owner of the premises or property where the water is used, and said bills will be rendered to the owner or occupant of said premises.” Under the same section, Rule No. 8 provides, in pertinent part, that “[a]ll bills for the use of water become due and payable and are a lien on the premises where the water is used” and that “[f]ailure to receive bills for said water services . . . does not relieve the owner and/or consumer from liability to pay.” … Upon construing the regulations as a whole and according to the ordinary and plain meaning of the words therein, we conclude that the regulations provide for the imposition of liability on property owners for water consumed on such property and supplied by the Village.  Herkimer County Indus. Dev. Agency v Village of Herkimer, 2019 NY Slip Op 06237, Fourth Dept 8-22-19

 

PLAINTIFF WAS KILLED WHEN A HEAVY PIECE OF EQUIPMENT HE WAS WELDING FELL; ALTHOUGH THE EQUIPMENT WAS FABRICATED FOR A POWER PLANT BEING CONSTRUCTED IN NEW HAMPSHIRE, PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK WITHIN THE MEANING OF LABOR LAW 240 (1) (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff was not involved in an activity covered by Labor Law 240 (1) when he was pinned and killed by a piece of equipment he was welding. Plaintiff was engaged in fabricating a rotor compartment which was to be installed in a power plaint in New Hampshire. Plaintiff and the dissent argued plaintiff’s work was part of the New Hampshire construction project:

We conclude that defendants thus established that decedent was not engaged in a covered activity under Labor Law § 240 (1) inasmuch as he was performing his “customary occupational work of fabricating” and welding a rotor compartment “during the normal manufacturing process” at the plant in Wellsville, and was not involved in the construction project in New Hampshire nor involved in renovation or alteration work on the plant in Wellsville … . Preston v APCH, Inc., 2019 NY Slip Op 06236, Fourth Dept 8-22-19

 

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COUNTY COURT SHOULD NOT HAVE ACCEPTED GRAND JURY REPORTS RE: THE ALLEGED MISCONDUCT, NONFEASANCE OR NEGLECT IN OFFICE OF THREE PUBLIC OFFICIALS; THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON THE SUBSTANTIVE ASPECTS OF THE PUBLIC OFFICIALS’ DUTIES (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that the grand jury reports concerning the alleged misconduct, nonfeasance or neglect in office of three public officials should not have been accepted by County Court. The reports were therefore sealed:

… County Court erred in directing the public filing of three grand jury reports that accused each appellant respectively of misconduct, nonfeasance, or neglect in office (see generally CPL 190.85 [1] [a]). …

“It is incumbent upon the prosecutor to instruct the [g]rand [j]ury regarding the duties and responsibilities of the public servant . . . target[ed by] the probe’ ” … .”Without a charge as to the substantive aspects of the official’s duties, it [is] not only impossible for the [g]rand [j]ury to determine that the public servant was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allow[s] the [g]rand [j]ury to simply substitute its judgment for that of the public servant” … . Here, the prosecutor failed to provide the grand jury with any instructions regarding appellants’ substantive duties in office. Matter of May/June 2018 Oneida County Grand Jury Report (John Doe #1), 2019 NY Slip Op 06356, Fourth Dept 8-22-19

 

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