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Criteria for Downward Departure from SORA Presumptive Risk Level

The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows: 

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines” … . Second, a defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level … .  People v Arroyo, 2013 NY Slip Op 02553, 2010-10108, 2nd Dept, 4-17-13

 

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In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​

After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations.  The defense, however, wanted to continue to verdict with the remaining 11 jurors.  The trial court ordered a mistrial.  The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double jeopardy grounds.  The Second Department, after determining the four-month statute of limitations did not apply, granted the petition, finding the trial judge should not have ordered a mistrial over the defense objection:

Here, the People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals …. Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict …. Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety …. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial, and thus retrial is precluded. Matter of Smith v Brown, 2013 NY Slip Op 02584, 2013-00751, 2nd Dept, 4-17-13

 

“Special Relationship” Between Insured and Broker Allowed Insured to Rely on Broker’s Duty to Advise

The Second Department affirmed the motion court in finding that a question of fact had been raised about whether there was a “special relationship” between the insured and the insurance broker such that the insured could rely on the broker’s expertise and duty to advise:

“While it is certainly better practice for an insured to read its policy, an insured should have the right to look to the expertise of its broker with respect to insurance matters’… . Additionally, where the insured relied on the expertise of the agent, or there was a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on, the agent could be found to have a duty to advise because of a special relationship with the insured … .  South Bay Cardiovascular Assoc, PC v SCS Agency, Inc, 2013 Slip Op 02564, 2012-01964, 2012-05203, Index No 37328/07, 2nd Dept 4-17-13

 

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Proof Requirements for “Breach of Employment Contract” and “Labor Law Article 6” Actions

In reversing the verdict for the defendant in a “breach of an employment contract” and “Labor Law article 6” action, the Second Department explained the proof requirements for both as follows:

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of the contract, and resulting damages …. “The elements of an effective employment contract consist of the identity of the parties, the terms of employment, which include the commencement date, the duration of the contract and the salary'” …. Moreover, where the duration of a contract exceeds one year, in order to satisfy the statute of frauds “a writing must identify the parties, describe the subject matter, state all the essential terms of an agreement, and be signed by the party to be charged” … .  * * *

…”[T]he purpose of Labor Law article 6 is to strengthen and clarify the rights of employees to the payment of wages'” …. To recover under that article, “a plaintiff must first demonstrate that he or she is an employee entitled to its protections” … . Although an independent contractor is not considered an employee for the purposes of Labor Law § 190 …, “[t]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … .  Kausal v Educational Prods Info Exch Inst, 2013 NY Slip Op 02545, 2011-07924, Index No 5953/04, 2nd Dept, 4-17-13

 

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Forum Selection Clause Requiring All Enforcement Actions to be Brought in Surrogate’s Court Enforced 

A forum-selection clause in a stipulation required any action necessary to enforce the terms of the stipulation be brought in Surrogate’s Court, Queens County.  When a proceeding to discharge a mortgage, which was related to the stipulation, was brought in Supreme Court, Queens County, the court dismissed the proceeding with leave to renew in Surrogate’s Court pursuant to the forum-selection clause. In affirming, the Second Department wrote:

 “Although once disfavored by the courts, it is now recognized that parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract” … . “A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court” … . Matter of Chiantella v Lucy Chiantella Revocable Trust of 2002, 2013 NY Slip Op 02575, 2012-01935, Index No 1853/11, 2nd Dept 4-17-13

 

No “Civil Conspiracy” Tort in New York; However Conspiracy-Theory Can Link Participants to Underlying Substantive Tort

The plaintiff sued the defendant alleging the defendant conspired with plaintiff’s former husband to file a false report with the police, resulting in plaintiff’s arrest and criminal prosecution (civil conspiracy).  In determining the motion court should have granted defendant’s motion for summary judgment, the Second Department wrote:

“Although an independent cause of action for civil conspiracy is not recognized in this State, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme” … . “The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives” … . Therefore, under New York law, “[i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement” …. “A bare conclusory allegation of conspiracy is usually held insufficient” … . Faulkner v City of Yonkers, 2013 NY Slip Op 02538, 2011-11173, Index No 20679/08, 2nd Dept 4-17-13

 

No “Special Employee” Relationship

In reinstating a jury verdict which determined a special employment relationship between plaintiff and defendant did not exist, the Second Department wrote:

“Workers’ Compensation Law §§ 11 and 29(6) provide that an employee who is entitled to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained” … . These exclusivity provisions also have been applied to shield from suit persons or entities other than the injured plaintiff’s direct employer …. For purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer, a general employer and a special employer … . The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer … .

In determining whether a special employment relationship exists, “who controls and directs the manner, details and ultimate result of the employee’s work” is a “significant and weighty feature,” but is not determinative of the issue … . Indeed, “[m]any factors are to be considered when deciding whether such a special employment relationship exists and not one factor is decisive” … . Other principal factors to be considered include “who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business” … . General employment will be presumed to continue unless there is a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” ….  Pena v Automatic Data Processing, Inc, 2013 NY Slip Op 02552, 2011-10265, Index No 7894/06, 2nd Dept 4-17-13

 

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“Special Employee” Status Defined

Finding that the defendant company had not demonstrated as a matter of law that plaintiff was a “special employee” within the meaning of the Workers’ Compensation Law, the Second Department explained:

The protection against lawsuits brought by injured workers which is afforded to employers by Workers’ Compensation Law §§ 11 and 29(6) extends to special employers … . Thus, an injured person who elects to receive Workers’ Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer …. “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” …. The determination of special employment status is usually a question of fact and may only be made as a “matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . “Although no one [factor] is decisive,’ the question of who controls and directs the manner, details and ultimate result of the employee’s work’ is a significant and weighty feature’ of the analysis” …. The exclusivity provisions of the Workers’ Compensation Law also extend to entities which are alter egos of the injured worker’s employer ….  Abreu v Wel-Made Enters, Inc, 2013 NY Slip 02524, 2012-03166, Index No 36405/07, 2nd Dept 4-17-13

 

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Denial of Receipt of Service Mandates a Hearing 

In determining the affidavit of service of a complaint in a foreclosure action had been rebutted by the appellant’s sworn denial (requiring a hearing), the Second Department wrote:

Where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence …. In order to warrant a hearing on the issue of service, a defendant must swear to detailed and specific facts to rebut the statements in the process server’s affidavit ….

Here, the Supreme Court erred in determining the motion without first conducting a hearing, as the appellant demonstrated his entitlement to a hearing on the issue of service by his sworn denial, setting forth significant discrepancies between the age and weight of the person allegedly served and the appellant’s actual age and weight at the time of the purported service …. Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to the personal delivery provisions of CPLR 308(1) ….  Emigrant Mtge Co, inc v Westervelt, 2013 NY Slip Op 02536, 2012-08302, Index No 2031/09, 2nd Dept, 4-17-13

 

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Child’s Out-Of-Court Statements Insufficient to Support Abuse Finding

In affirming Family Court’s determination that the child’s out-of-court statements were not sufficiently corroborated to support a finding of abuse by the father, the Second Department wrote:

A child’s out-of-court statements may provide the basis for a finding of abuse if the statements are sufficiently corroborated by other evidence tending to support the reliability of the child’s statements (see Family Ct Act § 1046[a][vi];… . The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated …, and its findings must be accorded deference on appeal where, as here, the Family Court is primarily confronted with issues of credibility … .  Matter of Nicole G, 2013 NY Slip Op 02576, 2012-07263, 2012-07264, 2nd Dept, 4-17-13

 

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