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Title Insurance Company Insures Only Whether a Property Has Legal Access to a Street, Not Whether Physical Access to the Street Is Possible

The Second Department determined that the action against a title insurance company was properly dismissed.  The insured property abutted a street.  However, a retaining wall on the property blocked access to the street.  When a problem developed with respect to removing the retaining wall, the property owners sued the title insurance company.  The Second Department held that the title insurance company was only obligated to determine whether the property had  “legal access” to a street, not “physical access:”

The title insurance policies … insure against “[l]ack of a right of access to and from the land.” “[S]uch a provision refers to the absence of a legal right to access and does not cover claims concerning lack of an existing means of physical access” … . On its motion for summary judgment, Stewart established that [plaintiffs] have a legal right of access because the subject property abuts a public street … . 43 Park Owners Group LLC v Commonwealth Land Tit Ins Co, 2014 NY Slip Op 07120, 2nd Dept 10-22-14

 

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Request for Redacted Signatures on Sheriff’s Department Overtime Records Properly Granted—-Attorney’s Fees Properly Awarded

The Second Department determined the sheriff’s department did not sufficiently justify the redaction of signatures on the requested documents (overtime records) and the petitioners were entitled to attorney’s fees:

In a proceeding pursuant to CPLR article 78 challenging denial of a Freedom of Information Law (hereinafter FOIL) request, the agency denying access has the burden of demonstrating that the information requested falls within a statutory exemption, which exemptions are to be narrowly construed (see Public Officers Law § 89[5][e], [f]…). This showing requires the entity resisting disclosure to “articulate a particularized and specific justification for denying access'” … . “Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” … . Because FOIL is “based on a presumption of access to the records” …, “FOIL compels disclosure, not concealment'” wherever the agency fails to demonstrate that a statutory exemption applies … . * * *

The agency claimed that redaction was proper pursuant to the “unwarranted invasion of personal privacy” statutory exemption (Public Officers Law § 87[2][b]) since disclosing the captains’ signatures “would result in economic or personal hardship to the subject party” and the signatures were “not relevant to the work of the agency” (Public Officers Law § 89[2][b][iv]). However, because the agency failed to proffer more than conclusory assertions supporting these claims, the Supreme Court correctly determined that the agency failed to meet its burden of demonstrating that the information requested fell within this statutory exemption (see Public Officers Law § 89[5][e], [f]…), and thus, properly directed disclosure of the records without these redactions.  Matter of Jaronczyk v Mangano, 2014 NY Slip Op 070164, 2nd Dept 10-22-14

 

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Defendant’s Request for New Assigned Counsel Was Not Supported by Sufficient Facts to Warrant Inquiry by the Court

In finding defendant’s request for new assigned counsel was properly denied, the Second Department explained the relevant analytical criteria:

A defendant may be entitled to new assigned counsel upon a showing of good cause, such as a conflict of interest or other irreconcilable conflict with counsel … . “Whether counsel is substituted is within the discretion and responsibility’ of the trial judge, and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[ ]'” … . Where a seemingly serious request is made, the trial court is obligated to conduct at least a “minimal inquiry” to determine the nature of the conflict and a possible resolution … .

In People v Porto, the Court of Appeals delineated the threshold necessary to require a court to make further inquiry, to wit, a defendant’s request to substitute counsel must contain “specific factual allegations of serious complaints about counsel'” … . Here, no serious complaint about counsel was raised by the defendant … . Instead, the defendant, who already had at least one prior change of counsel, stated that he wanted new counsel because he didn’t “want [his current counsel] anymore. First and foremost [he is] not helping me at all. I don’t see myself even surviving the jungle right here with him even representing me.” The defendant further stated, “I don’t want to proceed with him. And I’m going to tell you, I’m not a lawyer or nothing like that. But I think I can do better than him.” The defendant’s bare assertions did not suggest the serious possibility of a genuine conflict of interest or other impediment to the defendant’s representation by assigned counsel, and did not create a duty of inquiry on the part of the trial court … . Under these circumstances, the trial court providently exercised its discretion in denying the defendant’s request … . People v Ward, 2014 NY Slip Op 07193, 2nd Dept 10-22-14

 

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Permit Allowing the Killing of 62 Deer Properly Issued/Exception to the Mootness Doctrine Applied

The Second Department determined an Article 78 proceeding contesting a permit issued by the Department of Environmental Conservation (DEC) allowing Vassar College to kill 62 deer was properly dismissed.  At the time of the appeal, the permit had already expired and the deer had been killed.  The court determined the appeal as an exception to the mootness doctrine because the issue is likely to reappear:

 …[A]n exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable … .

Here, although the subject deer cull has been completed and the challenged permit has expired, the appellants raise a substantial and novel issue as to whether the DEC is fulfilling its statutory responsibilities under SEQRA [State Environmental Quality Review Act] related to the issuance of nuisance deer permits. The issue is likely to recur and to evade appellate review, given the extremely short period of time during which such permits are valid … . * * *

Judicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and “whether the agency identified the relevant areas of environmental concern, took a hard look’ at them, and made a reasoned elaboration’ of the basis for its determination” … . “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . The agency decision should be annulled only if it is arbitrary and capricious, or unsupported by the evidence … . Further, an agency’s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational … .

Here, the Supreme Court properly determined that the DEC’s issuance of a nuisance deer permit to Vassar pursuant to Environmental Conservation Law § 11-0521 complied with the requirements of SEQRA and its implementing regulations. The DEC’s use of a generic EIS, updated with a supplemental findings statement, to assess the impacts of the issuance of nuisance deer permits as a part of its wildlife game species management program was proper… . Matter of In Defense of Animals v Vassar College, 2014 NY Slip Op 07162, 2nd Dept 10-22-14

 

Court Should Have Allowed Service of an Order to Show Cause by Means Other than Personal Delivery after Plaintiff Failed to Effect Personal Delivery Despite Due Diligence

The Second Department determined plaintiff’s motion for leave to serve an order to show cause by means other than personal delivery should have been granted.  The plaintiff had been unable to effect personal delivery despite due diligence:

As a general matter, an order to show cause must be served at a time and in the manner specified therein (see CPLR 403[d]; 2214[d]…). However, under the particular circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was, in effect, for leave to serve … by a method of personal service pursuant to CPLR 308 other than personal delivery. The plaintiff demonstrated that personal delivery … pursuant to CPLR 308(1), as required by the order to show cause, could not be effected despite the exercise of due diligence. Moreover, service pursuant to the other means set forth in CPLR 308 constitutes personal service, and is sufficient here for notice of an application to punish for contempt … . Koyachman v Paige Mgt & Consulting LLC, 2014 NY Slip Op -7130, 2nd Dept 10-22-14

 

Criteria for Causes of Action Under Labor Law 200 and Common Law Negligence (Where the Methods or Materials of the Work Are Alleged to Be the Cause of the Injury) Explained

In finding that the Labor Law 200 and common law negligence causes of action should have been dismissed, the Second Department explained the criteria for those causes of action when they are based on the manner in which work is performed, as opposed to dangerous or defective conditions on the premises:

A cause of action alleging a violation of Labor Law § 200 or common-law negligence may arise from either dangerous or defective premises conditions at a work site or the manner in which the work is performed … . Where, as here, a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work … . A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed … . Rodriguez v Trades Constr Servs Corp, 2014 NY Slip Op 07141, 2nd Dept 10-22-14

 

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Denial of Property Tax Refunds by Director of Tax Commission Was Not Final—Article 78 Claims Not Ripe for Judicial Review

The Second Department determined the Article 78 proceedings seeking property tax refunds were not ripe for judicial review because the denial of the refunds by the Director of the county Tax Commission was not final:

…[T]he Supreme Court properly determined that his claims seeking CPLR article 78 relief relating to his tax refund applications were not ripe for judicial review. Administrative determinations may only be challenged via CPLR article 78 review after the determination is final (see CPLR 7801[1]). “For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate” … . Moreover, a matter is not ripe where the claimed harm may be prevented or significantly ameliorated by further administrative action … . Here, the issuance of written recommendations by the Executive Director of the Westchester County Tax Commission was not a final approval or denial of the appellant’s tax refund applications (see RPTL 5565])… . Matter of Greenberg v Assessor of Town of Scarsdale, 2014 NY Slip Op 07160, 2nd Dept 10-22-14

 

Unexcused Failure to Comply with Discovery Orders Warranted Striking of the Pleadings

The Second Department determined plaintiff’s failure to facilitate an independent medical examination was willful and contumacious warranting the striking of the pleadings:

“The determination whether to strike a pleading for failure to comply with [*2]court-ordered disclosure lies within the sound discretion of the trial court” … . “However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time” … . Specifically, contrary to the plaintiff’s contention, dismissal of the complaint is warranted where a party repeatedly fails to appear at scheduled IMEs without adequate excuse …. It is undisputed that the plaintiff not only missed the scheduled IMEs without any excuse, but also missed the rescheduled IMEs without offering any reasonable excuse. In addition, the plaintiff failed to provide documents reflecting her prior accidents, despite being obligated to do so pursuant to a so-ordered stipulation. Mangione v Jacobs, 2014 NY Slip Op 07133, 2nd Dept 10-22-14

 

Injury While Trying to Prevent a Ladder (Used by a Co-worker) from Falling Is Covered Under Labor Law 240 (1)

The Second Department determined plaintiff’s accident was covered under Labor Law 240(1).  Plaintiff (Passantino) was steadying an unsecured ladder used by a co-worker.  When he let go of the ladder to pick up some cable, the ladder started to slip.  Plaintiff was injured while trying to prevent the ladder from falling:

Contrary to the defendant’s contention, the hazard presented here is one contemplated by Labor Law § 240(1) … . Indeed, the harm to Passantino was “the direct consequence of the application of the force of gravity” to the ladder … . The plaintiffs met their prima facie burden of establishing their entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1) by demonstrating that the defendant failed to provide Passantino with a safety device, and that this violation was a proximate cause of his injuries… . Passantino v Made Realty Corp, 2014 NY Slip Op 07136, 2nd Dept 10-22-14

 

In the Absence of a Showing of Possible Fraud, Income Tax Returns Not Discoverable

In an action alleging a breach of an insurance policy, defendant sought discovery of plaintiff’s income tax returns.  In affirming Supreme Court’s refusal to compel production of the returns, the Second Department explained:

Tax returns generally are not discoverable in the absence of a strong showing that the information is indispensable to a claim or defense and cannot be obtained from other sources …. Here, the defendants failed to make such a showing. Contrary to their contention, the defendants did not make a sufficiently strong showing to warrant disclosure of the plaintiff’s tax returns, such as indicia of fraud … . Katz v Castlepoint Ins Co, 2014 NY Slip Op 07128, 2nd Dept 10-22-14

 

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