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Failure to Provide Cover Sheet Fatal to Designating Petition

In reversing Supreme Court and granting the petition to invalidate a designating petition and removing the candidate from the ballot, the Second Department determined that the failure provide a cover sheet for the petition in accordance with the Election Law and regulations was fatal to the petition:

We are mindful that the provisions of Election Law § 6-134 “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” (Election Law § 6-134[10]; see 9 NYCRR 6215.6[a]) in order to avoid the disenfranchisement of voters. However, although certain “[c]over sheet deficiencies may be corrected by the filing of an amended cover sheet” …, a candidate may not “amend” a cover sheet which was never filed in the first place, as was the case here.

“The three-day cure provision for designating petitions (Election Law § 6-134[2]) is available for technical violations of the regulations” …. In the instant case, however, the candidate’s initial failure to file a cover sheet was not a mere technical defect subject to cure pursuant to Election Law § 6-134(2) … . To the contrary, the absence of a cover sheet, especially where, as here, the designating petition contained multiple volumes that were unbound, constituted a complete failure to comply with the requirements set forth in 9 NYCRR 6215.1, which may not be cured pursuant to Election Law § 6-134(2) and 9 NYCRR 6215.6 … . Such failure undermines procedural safeguards against both fraud and confusion … .  Matter of Armwood v McCloy, 2013 NY Slip Op 05654, 2nd Dept, 8-15-17

 

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Counsel Should Have Been Disqualified Based On Conflict of Interest—Criteria Explained

In reversing Supreme Court and determining that counsel representing the town must be disqualified for a conflict of interest, the Second Department explained the operative principles:

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” … . A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish: “(1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” … . “A party’s entitlement to be represented in ongoing litigation by counsel of [its] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted” … . * * *

There is a rebuttable presumption that “where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation” … . That presumption may be rebutted by proof that “any information acquired by the disqualified lawyer is unlikely to be significant or material in the [subject] litigation” … . Proof must also be presented that the law firm properly screened the disqualified lawyer from dissemination and receipt of information subject to the attorney-client privilege … .  Matter of Town of Oyster Bay v 55 Motor Ave Co LLC, 2013 NY Slip Op 05636, 2nd Dept 8-14-13

 

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Employment Contract Deemed Hiring “At Will”—No Fixed Duration

The Second Department affirmed the dismissal of a breach of contract cause of action which alleged defendant breached an employment contract when the position which was the subject of the contract was withdrawn. In finding the agreement described a hiring “at will,” the court described the applicable principles as follows:

“New York adheres to the traditional common-law rule that absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party” … . In support of their motion to dismiss the complaint, the defendants submitted the … employment contract, setting forth the terms of the employment relationship. The … employment contract contained a merger clause reciting that the writing encompassed the entire agreement between the parties. Contrary to the plaintiffs’ contention, the …employment contract did not provide for a fixed or definite term of employment, as it expressly provided that [plaintiff] was to be employed “for an indefinite period of time.” Moreover, the …employment contract provided that either party could, without notice, terminate the employment relationship with immediate effect during the first two months after its execution, and thereafter with certain notice. Further, the plaintiffs themselves alleged in the complaint that, pursuant to the … employment contract, [plaintiff’s] employment was “to continue without any specific date for termination.” Thus, [plaintiff] was presumptively an at-will employee …. The plaintiffs failed to allege facts that would rebut the at-will presumption or limit [defendants’] right to freely terminate [plaintiff’s] employment.  Minovici v Belkin BV, 2013 NY Slip Op 05618, 2nd Dept 8-14-13

 

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Choice of Law Criteria Re: Insurance Contracts Explained

The Second Department, in reversing Supreme Court’s finding that New York, not New Jersey, law applied to a disclaimer of insurance coverage based on late notice, explained the relevant choice of law principles:

The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved”…. Here, there is a clear conflict inasmuch as New Jersey law requires insurers asserting a disclaimer based on late notice to show that they were prejudiced by the untimely notice…, while, with respect to an identical disclaimer made under an insurance policy that, like the one in dispute here…, New York law does not ….

In contract cases, the court then applies a “center of gravity” or “grouping of contacts” analysis in order to determine which State has the most significant relationship to the transaction and the parties … . The court considers significant contacts such as the place of contracting, the place of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties … .”In the context of liability insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties’ will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other [jurisdiction] has a more significant relationship’ “…. Where the covered risks are spread over multiple states, “the state of the insured’s domicile should be regarded as a proxy for the principal location of the insured risk” … . Jimenez v Monadnock Constr Inc, 2013 NY Slip Op 05616, 2nd Dept 8-14-13

 

Validating Petition Not Sufficiently Particularized

In determining a proceeding to validate a petition designating a candidate for county executive should have been dismissed, the Second Department wrote:

“A validating petition must specify the individual determinations of a board of elections that the candidate claims were erroneous, including the signatures that the candidate claims were improperly invalidated” … . Here, the validating petition was not sufficiently particularized to give notice of which determinations were claimed to be erroneous or which signatures … were improperly invalidated … . Matter of Lacorte v Cytryn, 2013 NY slip Op 05632, 2nd Dept 8-14-13

 

Mistake in Name of Party Did Not Warrant Striking Candidate’s Name from Ballot

The Second Department reversed Supreme Court’s striking of a candidate’s name from the ballot.  Supreme Court determined the identification of the party as the “Working Family Party” rather than the “Working Families Party” was fatal because the “Working Family Party” is not a registered or recognized political party. The Second Department wrote:

Although it is undisputed that the designating petition contained an error in the naming of the political party …, a petition should not be invalidated where “there is no proof of any intention on the part of the candidate or of those who have solicited signatures on his [or her] behalf to mislead or confuse, and no evidence that the inaccuracy did or would lead or tend to lead to misidentification or confusion on the part of those invited to sign the petition” … . Here, there has been no showing of any intention to mislead or confuse, and no showing that the inaccuracy in the designating petition did or would lead or tend to lead to misidentification or confusion on the part of those invited to sign the petition. Inasmuch as no such showing was made, the designating petition was improperly invalidated… . Matter of  Cohn v Suffolk County Bd of Elections, 2013 NY Slip Op 05625, 2nd Dept 8-14-13

 

Failure to Include Restitution in Plea Negotiations Precluded Imposing Restitution at Sentencing

The Second Department vacated defendant’s sentence because, although restitution was not part of the plea promise, restitution was imposed at sentencing:

At the sentencing proceeding, the defendant did not have a sufficient opportunity to object to the imposition of restitution. The court made a brief reference to “RJOs,” apparently referring to restitution judgment orders. After pronouncing the sentence, the court stated: “With respect to any and all surcharges, given the fact there’s significant restitution judgment order obligations here, I’m going to waive the surcharges.” Under these circumstances, the defendant’s contention will be addressed on the merits … .

Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the pleas of guilty were negotiated with terms that included restitution … . At sentencing, the defendant should have been “given an opportunity either to withdraw his plea[s] or to accept the enhanced sentence[s] that included both restitution and a prison sentence” …, or for the court to impose the sentences agreed upon at the plea proceedings. People v Pettress, 2013 NY Slip Op 05645, 2nd Dept 8-14-13

 

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Child Properly Found to Be a Vulnerable Witness and Properly Allowed to Testify Outside the Presence of the Defendant in a Sexual -Offense Trial

In a full-fledged opinion by Justice Hinds-Radix, the Second Department determined the seven-year-old witness (who was the alleged victim of sexual offenses by the defendant) was properly declared a vulnerable witness pursuant to CPL 65.20 and was properly allowed to testify outside the presence of the defendant over closed circuit television.

…[W]e find that the Supreme Court properly declared the child to be a vulnerable witness. Since the child was seven years old at the time of the trial, she was “particularly young” …. Further, the defendant occupied a position of authority, since he was the child’s great uncle by marriage, the child regarded him as a family member …, he was responsible for the care of the child at the time the crime occurred, and he had frequent contact with her …. Thus, two of the factors set forth in CPL 65.20(10) were established by clear and convincing evidence … . It is also clear from the record that the emotional trauma the child experienced when she attempted to testify in open court about the crime substantially impaired her ability to communicate with the jury. Under all of the circumstances, the Supreme Court’s determination that the child was a vulnerable witness is supported by clear and convincing evidence in the record … .

Furthermore, the child was properly permitted to testify outside of the physical presence of the defendant. The Supreme Court’s observations of the child when she was questioned in the courtroom, and the hearing testimony of the social worker, provided clear and convincing evidence that the cause of the child’s severe emotional upset was the defendant’s presence in the room …. Accordingly, the record supports the requisite specific finding that placing the defendant and the child in the same room during the testimony of the child would contribute to the likelihood that the child would suffer “severe mental or emotional harm” (CPL 65.20[11]).  People v Beltran, 2013 NY Slip Op 05638, 2nd Dept 8-14-13

 

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Although Arbitrator in Statutorily-Required Arbitration Proceeding Properly Found Teacher Engaged in Misconduct, Teacher’s Actions Were Protected by First Amendment

Teachers demonstrated in front of a school while negotiations for a new collective bargaining agreement were on-going.  On a rainy day, some teachers parked their cars in front of the school, displaying signs inside the cars.  Because the teachers were parked where children are usually dropped off by their parents, children were being dropped off in the street. The board of education brought a disciplinary charge against petitioner pursuant to Education Law 3020-a alleging the creation of a health and safety risk.  The matter went to statutorily-required arbitration and the arbitrator found the petitioner had created a health and safety risk.  Petitioner challenged the ruling in this Article 78 proceeding. The Second Department explained the court’s role in reviewing a statutorily-required arbitration, found that the arbitrator’s ruling was supported by the evidence, but determined petitioner’s activity was protected by the First Amendment:

Where, as here, arbitration is statutorily required, “judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record” … . “The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78” … . “Due process of law requires . . . that the [arbitrator’s determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]” … . … In this proceeding… the evidence at the hearing provided a rational basis for the arbitrator’s decision, and the award was not arbitrary and capricious … .Nonetheless, we hold …that the petition should have been granted. The petitioner’s expressive activity regarding collective bargaining issues indisputably addressed matters of public concern …, and the District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline… .  Matter of Lucia v Board of Educ of E Meadow Union Free Sch Dist, 2013 NY Slip Op 05633, 2nd Dept 8-14-13

 

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“Missing Witness Rule” Properly Applied in Bench-Trial Proceeding to Determine Whether Antipsychotic Medication Should Be Administered to Involuntarily Committed Patient Over Patient’s Objection—Treating Psychiatrist Not Called by Facility

In a full-fledged opinion by Justice Angiolillo, the Second Department determined the “missing witness rule” was properly applied in a civil, bench-trial proceeding for permission to administer antipsychotic medication to an involuntarily committed patient over his objection. The psychiatric center which brought the proceeding did not call the treating psychiatrist as a witness and relied exclusively upon the testimony of a psychiatrist who had reviewed the records. The trial court determined the failure to call the treating psychiatrist gave rise to an inference adverse to the position of the psychiatric center and, under the facts which indicated there may have been disagreement with the reviewing psychiatrist’s findings, the dismissal of the psychiatric center’s petition was warranted.  In explaining the relevant procedures and the applicability of the “missing witness rule,” the Second Department wrote:

The procedures for administering treatment over the objection of an involuntarily committed patient are set forth in detailed regulations promulgated by the Commissioner of the New York State Office of Mental Health, pursuant to Mental Hygiene Law § 7.09(b) (see 14 NYCRR 501.1[a], 501.2[b]). A facility must follow stringent procedures prior to filing a petition seeking court authorization to administer the treatment (see 14 NYCRR 527.8[c][4]). The process requires a series of clinical evaluations of the patient, all of which must be completed within 24 hours (see 14 NYCRR 527.8[c][4][ii]).

First, the patient’s treating physician must determine that the treatment is in the patient’s best interests in light of all relevant circumstances, including the risks, benefits, and alternatives to treatment, and that the patient lacks the capacity to make a reasoned decision concerning treatment. The treating physician must forward the evaluation and findings to the clinical director with a request for further review, and notify, in writing, the patient, Mental Hygiene Legal Services (hereinafter MHLS), and any other representative of the patient (see 14 NYCRR 527.8[c][4][ii][a]).

Second, the clinical director must appoint a physician to review the patient’s record, and personally examine the patient, to evaluate whether the proposed treatment is in the patient’s best interests and whether the patient has the capacity to make a reasoned decision concerning treatment. If the reviewing physician determines that treatment over objection is appropriate, the physician must personally inform the patient of that determination (see 14 NYCRR 527.8[c][4][ii][b][1]). Alternatively, if there is a substantial discrepancy between the opinions of the treating physician and the reviewing physician regarding the patient’s capacity or best interests, the clinical director may appoint a third physician to conduct an evaluation (see 14 NYCRR 527.8[c][4][ii][b][2]).

Finally, if, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director must make a determination on behalf of the facility. If the director finds that the patient lacks capacity, and that treatment over objection is in the patient’s best interests, the director may apply for court authorization to administer the treatment and so notify the patient, MHLS, and any other patient representative. However, if the director makes the opposite determination, the patient’s objections must be honored (see 14 NYCRR 527.8[c][4][ii][b][3]). * * *

“A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party” … . Where one or more of these elements is absent, the movant is not entitled to the charge … .Moreover, the missing witness rule may be applied in a nonjury civil trial, where the trial court, as finder of fact, is permitted to draw a negative inference against a party failing to call a witness … .The missing witness rule is related to the broader principle that “[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” … Matter of Adam K, 2013 NY Slip Op 05631, 2nd Dept 8-14-13