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Standing to Seek Review of Site Plan Approval Based Upon Interest in Protecting the Ecological Health of a Body of Water Adjacent to Petitioner’s Property.

Petitioners had standing to seek review of a planning board’s site plan approval.  Petitioners, who lived one half mile from the site, alleged “direct harm, injury that is in some way different from that of the public at large … .  Their allegations that the approved construction project will harm their regular use, enjoyment, and interest in protecting the ecological health of Stony Brook Harbor, which is adjacent to their property, are sufficient to confer standing …”.  Matter of Shepherd vs Maddaloni, 2011-09750, Index No. 7867/11, Second Dept. 2-27-13

 

Proof of Lack of Constructive Notice Insufficient.

The Second Department explained that “[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” in opposing a motion for summary judgment in a slip and fall case.  Mahoney vs AMC Entertainment, Inc., 2012-00582, Index No. 2258/08, Second Dept. 2-27-13

 

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County Did Not Have the Power to Enact a Local Law to Repeal State Laws Concerning Property Tax.

The Second Department, in a full-fledged opinion by Justice Lott, determined that a local law enacted by Nassau County which purported to repeal portions of state laws concerning property tax violated the New York State Constitution and the Municipal Home Rule Law. Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2013 NY Slip Op 01265 [105 AD3d 113], Second Dept 2-27-13

 

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State Owns Submerged Land Below a Navigable Lake, Municipality Cannot Regulate Construction on Submerged Land (Docks).

The Second Department, in a full-fledged opinion by Justice Angiolillo, determined that where the state owns a navigable lake and the submerged land below the water, the state has the exclusive authority to regulate construction on the submerged land, absent delegation of that authority to the municipality. Town of Carmel v Melchner, 2013 NY Slip Op 01259 [105 AD3d 82], Second Dept 2-27-13

 

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Primary Assumption of Risk Precludes Student’s Sports-Related Lawsuit.

The “primary assumption of risk” doctrine precluded a student baseball player’s lawsuit against his school where the student was struck in the face by a baseball “that had been hit on the ground with a fungo bat.”  O’Connor vs Hewlett-Woodmere Union Free School District, 2-12-04146, Index No. 021556/09, Second Dept. 2-27-13

 

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SORA Hearing Procedure.

In this case, the Second Department clearly laid out the acceptable sources of information, the applicable standards of proof, and the criteria for departure from the presumptive level in a SORA hearing. People vs Lacewell, 2008-07498, Second Dept. 2-20-13

 

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Witness Impeached With Attorney’s Statements.

“The Supreme Court properly permitted the People to impeach the testimony of a defense witness with a statement made by that witness’s former counsel at a plea proceeding… .The statement, which differed from the witness’s trial testimony, reasonably appeared to be attributable to the witness … “.  People vs Davis, 2010-11219, Ind. No. 921/09 Second Dept. 2-20-13

 

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Miranda Violations Mandate Suppression.

A police officer approached defendant who was in a parked car. The officer smelled a “strong odor of unburnt marijuana coming from the defendant’s vehicle’s open window.”  The officer asked if the occupants of the vehicle had “anything illegal.”  The defendant produced a small bag of marijuana.  The officer then told the defendant to get out of the vehicle “as he was now under arrest for unlawful possession of marijuana.”  The officer searched the vehicle and found two bags of marijuana under the driver’s seat.  When he asked the defendant if the bags of marijuana were his, he said “yes.”  A gun was also recovered in the search.  The defendant was taken to the police station where he was read his Miranda rights for the first time and he declined to speak with the detective. Two hours later the arresting officer told the defendant that if no one confessed to owning the gun, everyone in the vehicle would be “equally charged.”  The defendant then asked to speak to the detective.  He was read his Miranda rights again and confessed to owning the gun.  The Second Department suppressed the marijuana and the gun—the marijuana because the defendant was in custody and had not been read his rights at the time he was asked about it—and the gun because defendant had initially refused to speak with the police thereby asserting his right to remain silent.  Subsequent questioning was not proper.  People vs. Jackson, 2011-05745, Ind. No. 10-00130 Second Dept. 2-20-13

DeBour, street stops

Failure to Serve In Manner Stated in Order to Show Cause Is a Jurisdictional Defect.

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with …”.  US Bank National Association vs Feliciano, 2012-0553, Index No. 3540/09 Second Dept. 2-20-13

 

Proof Requirements for Constructive Trust.

In this case the Second Department included a clear discussion of the elements of proof necessary to create a constructive trust: “(1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment…”.  Henning vs Henning, 2011-09955, Index No. 11901/11 Second Dept. 2-20-13

 

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