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RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY.

The Second Department, reversing Supreme Court, determined rabbinical arbitrators were immune from suit in the absence of an allegation the rabbinical court acted in the clear absence of all jurisdiction. The fact that a court previously determined the rabbinical court acted in excess of its authority did not destroy the arbitral immunity:

Here, the factual allegations of the complaint merely asserted conduct by the rabbinical defendants in their capacity as arbitrators … . It is well established that arbitrators are immune from liability for acts performed in their arbitral capacity … . Such immunity also applies to acts taken in excess of authority … . As the plaintiffs failed to allege how any of the acts of the rabbinical court defendants were undertaken in the clear absence of all jurisdiction, these defendants enjoy arbitral immunity from civil liability … . Pinkesz Mut. Holdings, LLC v Pinkesz, 2016 NY Slip Op 04034, 2nd Dept 5-25-16

ARBITRATION (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)/IMMUNITY (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)/RABBINICAL COURTS (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)/ARBITRAL IMMUNITY (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)

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BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED; CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED.

The Second Department determined defendant did not meet its burden on its motion to change venue. The court noted that, although one of the arguments in opposition was not raised below, the argument met the criteria for an issue which may be raised for the first time on appeal. The court further noted that reply papers could not be used to meet the defendant's burden. The relevant law was explained as follows:

” [T]o prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper'” … . “Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper” … . * * *

Although the plaintiff did not point out [the] deficiency in proof in opposing the motion to transfer venue, ” questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal'” … . Pinos v Clinton Cafe & Deli, Inc., 2016 NY Slip Op 04035, 2nd Dept 5-25-16

CIVIL PROCEDURE (BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED; CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED)/APPEALS (CIVIL, CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED)/VENUE (BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED)

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CORRESPONDENCE ESTABLISHED AN ENFORCEABLE SETTLEMENT AGREEMENT.

The Second Department determined a letter from counsel, together with other correspondence, established an enforceable settlement agreement of a real property dispute:

CPLR 2104 governs the enforceability of settlement agreements … . Pursuant to CPLR 2104, a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by his or her attorney. To be enforceable, a settlement agreement must set forth all material terms, and there must be clear mutual accord between the parties … .

Here, the material terms of the settlement agreement were set forth in a letter by the plaintiff's then attorney, who had apparent authority to settle the case on her behalf based on the plaintiff's actions … . The exchange of correspondence between the attorneys for the parties, in conjunction with the defendants' completion of the tasks demanded in the settlement without any objection by the plaintiff, was sufficient to constitute an enforceable settlement agreement between the parties … . Martin v Harrington, 2016 NY Slip Op 04027, 2nd Dept 5-25-16

CIVIL PROCEDURE (CORRESPONDENCE ESTABLISHED AN ENFORCEABLE SETTLEMENT AGREEMENT)/CONTRACT LAW (CORRESPONDENCE ESTABLISHED AN ENFORCEABLE SETTLEMENT AGREEMENT)

AFTER MAKING A FINAL AWARD, THE RABBINICAL COURT EXCEEDED ITS AUTHORITY BY MAKING A SECOND AWARD BASED ON NEW EVIDENCE.

The Second Department determined the arbitration award made by the rabbinical court was properly vacated. After making a final award, the rabbinical court, based on new information, made a second award:

“An arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power” … . After an arbitrator renders an award, he or she is generally without power to render a new award or to modify the original award … . Here, because the arbitration award dated May 5, 2011, was final and definite within the meaning of CPLR 7511 … , the rabbinical court exceeded its authority in modifying the original award by rendering the new arbitration award dated July 22, 2013… . Matter of Pinkesz v Wertzberger, 2016 NY Slip Op 04060, 2nd Dept 5-25-16

ARBITRATION (AFTER MAKING A FINAL AWARD, THE RABBINICAL COURT EXCEEDED ITS AUTHORITY BY MAKING A SECOND AWARD BASED ON NEW EVIDENCE)/RABBINICAL COURT (AFTER MAKING A FINAL AWARD, THE RABBINICAL COURT EXCEEDED ITS AUTHORITY BY MAKING A SECOND AWARD BASED ON NEW EVIDENCE)

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PETITIONERS DID NOT HAVE STANDING TO CONTEST APPROVAL OF CONSTRUCTION PROJECT, CLOSE PROXIMITY IS NOT ENOUGH.

The Second Department determined Supreme Court properly found the petitioners did not have standing to challenge the approval of construction project by the zoning board. Although petitioners' property is in close proximity to the proposed project, the petitioners did not demonstrate any harm peculiar to them, as opposed to the community at large:

An allegation of close proximity may give rise to an inference of damage or injury that enables a nearby property owner to challenge a land use decision without proof of actual injury. However, this does not entitle the property owner to judicial review in every instance … . Rather, in addition to establishing that the effect of the proposed change is different from that suffered by the public generally, the petitioner must establish that the interest asserted is arguably within the zone of interests the statute protects … . Thus, “even where petitioner's premises are physically close to the subject property, an ad hoc determination may be required as to whether a particular petitioner itself has a legally protectable interest so as to confer standing” … . * * *

The Supreme Court properly determined that the petitioners failed to establish standing on the basis of alleged traffic impacts, impacts arising from issues of compliance, or community character impacts, as the petitioners failed to establish any harm distinct from that of the community at large … . Matter of CPD NY Energy Corp. v Town of Poughkeepsie Planning Bd., 2016 NY Slip Op 03877, 2nd Dept 5-18-16

ZONING (PETITIONERS DID NOT HAVE STANDING TO CONTEST APPROVAL OF CONSTRUCTION PROJECT, CLOSE PROXIMITY IS NOT ENOUGH)/LAND-USE (PETITIONERS DID NOT HAVE STANDING TO CONTEST APPROVAL OF CONSTRUCTION PROJECT, CLOSE PROXIMITY IS NOT ENOUGH)/STANDING (ZONING, PETITIONERS DID NOT HAVE STANDING TO CONTEST APPROVAL OF CONSTRUCTION PROJECT, CLOSE PROXIMITY IS NOT ENOUGH)/LAND-USE (PETITIONERS DID NOT HAVE STANDING TO CONTEST APPROVAL OF CONSTRUCTION PROJECT, CLOSE PROXIMITY IS NOT ENOUGH)

WHEN DETERMINING THE VALUE OF A PARTNERSHIP SHARE UPON DISSOLUTION, A MINORITY DISCOUNT CAN PROPERLY BE APPLIED TO A PARTNER WHO WRONGFULLY DISSOLVED THE PARTNERSHIP AND WHO DID NOT EXERCISE CONTROL OVER THE PARTNERSHIP AS A GOING CONCERN.

The Second Department, in a full-fledged opinion by Justice Dickerson, determined a “minority discount” should be applied to the share of a partnership awarded to a partner who wrongfully dissolved the partnership. The minority discount is appropriate where the partner did not exercise control over the partnership as a going concern. The court noted that the prohibition of a minority discount for minority corporate shareholders did not apply to partnerships:

… [T]his case does not involve a determination of the “fair value” of a dissenting shareholder's shares pursuant to Business Corporation Law §§ 623 and 1118, but rather, involves the determination of the “value” of the shares of a partner who has wrongfully caused the dissolution of a partnership pursuant to Partnership Law § 69(2)(c)(II). … [A]pplying a minority discount in the context of valuing a partnership interest “would not contravene the distinctly corporate statutory proscription (Business Corporation Law § 501[c]) against treating holders of the same class of stock differently, or undermine the remedial goal of the appraisal statutes to protect shareholders from being forced to sell at unfair values, or inevitably encourage oppressive majority conduct” … . Congel v Malfitano, 2016 NY Slip Op 03845, 2nd Dept 5-18-16

PARTNERSHIP LAW (WHEN DETERMINING THE VALUE OF A PARTNERSHIP SHARE UPON DISSOLUTION, A MINORITY DISCOUNT CAN PROPERLY BE APPLIED TO A PARTNER WHO WRONGFULLY DISSOLVED THE PARTNERSHIP AND WHO DID NOT EXCERCISE CONTROL OVER THE PARTNERSHIP AS A GOING CONCERN)/MINORITY DISCOUNT (PARTNERSHIP LAW, WHEN DETERMINING THE VALUE OF A PARTNERSHIP SHARE UPON DISSOLUTION, A MINORITY DISCOUNT CAN PROPERLY BE APPLIED TO A PARTNER WHO WRONGFULLY DISSOLVED THE PARTNERSHIP AND WHO DID NOT EXCERCISE CONTROL OVER THE PARTNERSHIP AS A GOING CONCERN)

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DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO BOTH QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY.

The Second Department determined defendants' motion to set aside the plaintiff's verdict, in a case alleging use of excessive force by police officers, should have been granted. Plaintiff, who was mentally ill, punched a police officer who approached him and ran up some stairs. When the police attempted to restrain him, he and the officers fell down the stairs. The Second Department held the facts did not support a finding of excessive force. The court further held the officers did not clearly violate plaintiff's statutory or constitutional rights and were therefore entitled to qualified immunity. In addition, the Second Department found the officers were performing a discretionary, not ministerial function, and were therefore entitled to government function immunity, requiring dismissal of the negligence cause of action. On the topic of qualified immunity, the Second Department wrote:

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” … . While the doctrine does not require “a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate” … . The dispositive question is whether the violative nature of particular conduct is clearly established … . “This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition” … . “Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts” … . “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments' by protect[ing] all but the plainly incompetent or those who knowingly violate the law'” … . Davila v City of New York, 2016 NY Slip Op 03846, 2nd Dept 5-18-16

MUNICIPAL LAW (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/CIVIL RIGHTS (POLICE, EXCESSIVE FORCE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/QUALIFIED IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/GOVERNMENT FUNCTION IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/NEGLIGENCE (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)

INSURER NOT OBLIGATED TO SATISFY JUDGMENT AGAINST ITS INSURED; INJURED PARTY FAILED TO TIMELY NOTIFY INSURER OF THE FIRE WHICH CAUSED THE DAMAGE.

The Second Department, reversing Supreme Court, determined plaintiff insurer was not required to satisfy the injured party's (Seville's) judgment against its insured because Seville did not timely notify plaintiff insurer of the fire which damaged Seville's property:

“Insurance Law § 3420(a)(2) expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer” … . Insurance Law § 3420(a)(3) requires the injured party to demonstrate that he or she acted diligently in attempting to ascertain the identity of the insurer, and thereafter expeditiously notified the insurer … . “In determining the reasonableness of an injured party's notice, the notice required is measured less rigidly than that required of the insured[ ]” … . “The injured person's rights must be judged by the prospects for giving notice that were afforded him, not by those available to the insured” … . “What is reasonably possible for the insured may not be reasonably possible for the person he has injured. The passage of time does not of itself make delay unreasonable” … .

Here, the plaintiff made a prima facie showing that Seville failed to act diligently in attempting to ascertain the plaintiff's identity and in expeditiously notifying it. In opposition, Seville failed to raise a triable issue of fact … . Mt. Hawley Ins. Co. v Seville Electronics Trading Corp., 2016 NY Slip Op 03862, 2nd Dept 5-18-16

INSURANCE LAW (INSURER NOT OBLIGATED TO SATISFY JUDGMENT AGAINST ITS INSURED; INJURED PARTY FAILED TO TIMELY NOTIFY INSURER OF THE FIRE WHICH CAUSED THE DAMAGE)

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33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE.

The Second Department, in affirming defendant’s conviction over a dissent, determined a 33 hour delay of arraignment did not, under the facts, render defendant’s statement involuntarily made:

… [T]he testimony at the suppression hearing demonstrated that approximately 29-33 hours passed between the defendant’s arrest and his arraignment and that he provided statements after being in custody for approximately 25-28 hours. … [T]his was not a typical armed robbery case, and … the delay in arraignment was satisfactorily explained. The NYPD coordinated with three other law enforcement agencies to investigate not only the attempted murder and two robbery charges, but also the extent to which the defendant used false identities and counterfeit money in various jurisdictions, before presenting these matters at arraignment, where a judge would be considering the likelihood that the defendant would return to court before setting bail. Notably, prior to obtaining a statement from the defendant, the lead detective traveled to the hospital where the victim was recovering, conducted a photo array identification procedure when the victim became available, and then traveled back to the station house. Under these circumstances, we conclude that the delay in arraigning the defendant was attributable to a thorough and necessary police investigation. Thus, his “detention [was not] prolonged beyond a time reasonably necessary to accomplish the tasks required to bring [him] to arraignment” … . Further, the record does not otherwise demonstrate that the police unnecessarily delayed the arraignment in order to obtain an involuntary confession … . People v Johnson, 2016 NY Slip Op 03896, 2nd Dept 5-18-16

CRIMINAL LAW (33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE)/EVIDENCE (CRIMINAL LAW, 33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE)

SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE.

The Second Department determined, under the facts, the sidewalk was not “used” as a dangerous instrument by the defendant. The defendant punched the victim who then fell and struck his head on the sidewalk, suffering very serious injury. Although it is possible to intentionally or recklessly “use” a sidewalk as a dangerous instrument, here the sidewalk was not “used” by the defendant to cause injury withn the meaning of the assault statute (Penal Law 120.05(4)):

We agree with the People's interpretation of Penal Law § 120.05(4) that the reckless mens rea must be read to modify the phrase “by means of . . . a dangerous instrument” (see Penal Law § 15.05[3]), and that the statute does not, as the Supreme Court held, require “purposeful use” of the dangerous instrument (see Penal Law § 15.15[1]…). However, we disagree with the People's contention that Penal Law § 120.05(4) does not require that the serious physical injury be recklessly caused by the use of a dangerous instrument. Such a reading of the statute ignores the definition of dangerous instrument, which expressly focuses on the circumstances in which the instrument is “used” (Penal Law § 10.00[13]), and the use-oriented approach that has evolved directly from that definition … . Moreover, a person can “use” a dangerous instrument in a reckless manner … . Therefore, a conviction under Penal Law § 120.05(4) requires legally sufficient evidence establishing that the defendant recklessly “used” the dangerous instrument. People v McElroy, 2016 NY Slip Op 03897, 2nd Dept 5-18-16

CRIMINAL LAW (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)/ASSAULT (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)/DANGEROUS INSTRUMENT (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)

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