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CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT).

The Third Department determined that municipal code provisions requiring a rental permit and limiting the occupancy of rental units to a “family” as defined in the code were not unconstitutionally vague:

The record therefore reflects that the rental occupancy restriction was enacted to, among other things, serve a legitimate governmental interest in diminishing public nuisances created from the overcrowding of dwelling units occupied by transient residents … . Because the ordinance does not favor certain types of families over others, or restrict the size of unrelated persons living as a functionally equivalent family without also restricting the size of a traditional family, it does not suffer from the same constitutional infirmities as the ordinances in McMinn v Town of Oyster Bay (66 NY2d at 549) or Baer v Town of Brookhaven (73 NY2d 942, 943 [1989]). Moreover, the ordinance here contains objective criteria for rebutting the presumption that four or more persons living together in a single dwelling unit who are unrelated by blood, marriage or legal adoption do not constitute the functional equivalent of a traditional family … , and the occupancy restriction bears a reasonable relationship to the goals sought to be achieved by the ordinance. In light of the foregoing, plaintiffs have not established that the challenged provisions of the ordinance are unconstitutional … . Grodinsky v City of Cortland, 2018 NY Slip Op 05236, Third Dept 7-12-18

MUNICIPAL LAW (LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/LANDLORD-TENANT (MUNICIPAL LAW, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))

FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT).

The Third Department determined defendants’ motion for summary judgment on the “failure to warn” cause of action in this products liability case was properly denied. Plaintiff’s clothing caught fire when she stood near a propane heater manufactured and sold by defendants:

Plaintiff submitted the pertinent ANSI standard for warning labels on unvented propane heaters, which specifies certain language to be used in such warnings and establishes minimum heights for the warning’s lettering and a minimum distance at which the warnings must be legible. Plaintiff further submitted photographs of the warning label on an exemplar heater matching the one at issue here, supported by an affidavit from the professional photographer who took the pictures…. Plaintiff’s counsel asserted in his affirmation that these letter heights are significantly smaller than the ANSI standard’s minimum requirements and are therefore too small and inconspicuous to comply with that standard or to constitute an adequate warning label. * * *

… .[P]laintiff’s testimony that she did not look at the heater immediately before the accident does not establish as a matter of law that she would not have seen and read sufficiently conspicuous warnings on prior occasions and heeded them at the time of the accident. Palmatier v Mr. Heater Corp., 2018 NY Slip Op 05238, Third Dept 7-12-18

PRODUCTS LIABILITY (FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))/FAILURE TO WARN (PRODUCTS LIABILITY, FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))/PROPANE HEATER (PRODUCTS LIABILITY, FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))

WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s plea to a superior court information (SCI), determined the SCI did not contain a charge held for the action of a grand jury or a lesser included offense. Therefore the SCI was jurisdictionally defective:

… [T]he waiver of indictment and SCI were jurisdictionally defective because the crime charged in the SCI was not “an[] offense for which . . . defendant was held for action of a grand jury” … , nor was it a lesser included offense of the crimes charged in the felony complaints. On this latter point, “a defendant may waive indictment and plead guilty to an SCI that names a different offense from that charged in the felony complaint only when the crime named in the SCI is a lesser included offense of the original charge”… . “A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense”… .

Reckless endangerment in the first degree is not a lesser included offense of either menacing a police officer or criminal possession of a weapon in the second degree because it would be entirely possible to possess or display the weapons required to commit either of the greater crimes, i.e., menacing a police officer (see Penal Law § 120.18) or criminal possession of a weapon in the second degree … , without concomitantly “recklessly engag[ing] in conduct [that] creates a grave risk of death to another person” — a required element of reckless endangerment in the first degree … . People v Hulstrunk, 2018 NY Slip Op 05234, Third Dept 7-12-18

CRIMINAL LAW (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/WAIVER OF INDICTMENT (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/SUPERIOR COURT INFORMATION (SCI)  (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/RECKLESS ENDANGERMENT  (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/MENACING A POLICE OFFICER (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))

IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WHICH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT).

The Third Department affirmed defendant’s conviction and noted (1) it is not reversible error if defendant is not present at a sidebar which results in the grant of a peremptory or for cause challenge to a juror, and (2) an order of protection cannot be issued on behalf of someone who did not actually witness the crime (here a shooting):

Even if defendant was erroneously excluded from the sidebar conferences, “the error is not reversible if that potential juror has been excused for cause by the court or as a result of a peremptory challenge by the People”… . Because the record makes clear that juror Nos. 104 and 220 were dismissed for cause, remittal for a reconstruction hearing … or reversal for a new trial is not necessary … . * * *

A court may enter an order of protection for the benefit of a witness “who actually witnessed the offense for which defendant was convicted” (…see generally CPL 530.13 [4] [a]). Although Galaska testified that, on the date in question, he saw people screaming and arguing outside his apartment and the victim taking pictures, he further stated that he did not see who shot the victim and also admitted that he did not recognize any of the individuals who were arguing. Because Galaska did not witness the shooting, the order of protection issued in his favor must be vacated. People v Myers, 2018 NY Slip Op 05225, Third Dept 7-12-18

​CRIMINAL LAW (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/SIDEBARS (CRIMINAL LAW, (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/JURORS (CRIMINAL LAW, (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/ORDERS OF PROTECTION (CRIMINAL LAW, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))

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PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff’s claim for treble damages in this timber trespass claim should not have been dismissed. There was a question of fact whether defendant made adequate efforts to ensure the timber was not taken from plaintiff’s land:

Defendant concedes that it trespassed upon the subject property and cleared trees, rendering it liable (see RPAPL 861 … . Accordingly, in order to avoid an award of treble damages, defendant was obliged to show by clear and convincing evidence that it “had cause to believe . . . [that it had] a legal right to harvest” timber from the subject property (RPAPL 861 [2]…). Defendant endeavored to do so with the deposition of its vice-president, who stated that D’Assy represented that he had obtained permission from plaintiff to remove trees from the subject property. The vice-president acknowledged, however, that no efforts were made to confirm that D’Assy’s account was correct. He further admitted that he did not recall if this conversation with D’Assy occurred before or after the actual trespass. The foregoing proof, particularly in view of the aim of RPAPL 861 to encourage timber harvesters to be more diligent in preventing inadvertent timber trespass … , is not at all clear as to whether defendant had a good faith basis for believing that it had permission from plaintiff to remove timber from the subject property at the time it did so. Defendant therefore failed to meet its initial burden of demonstrating the absence of “factual questions with regard to whether plaintiff is entitled to treble damages pursuant to RPAPL 861” … .

Finally, plaintiff correctly points out that he is entitled not only to “‘the stumpage value or $250 per tree, or both’ for an unlawful taking” … , but also reparations for “any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation” … . Supreme Court, upon remittal, should consider all of those items in calculating its award of damages. DiSanto v D’Assy, 2018 NY Slip Op 05007, Third Dept 7-5-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (TIMBER TRESPASS, PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT))/TIMBER TRESPASS (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT))

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PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court determined plaintiff, who alleged he was punched in the face by defendant bar’s employee (Bonawitz), properly pled causes of action against the bar for negligent hiring and supervision, as well as vicarious liability. Although vicarious liability requires the employee to be acting within the scope of his employment, and a negligent hiring and supervision cause of action requires that the employee act outside the scope of employment, pleading inconsistent theories in the alternative is allowed. The court noted that the “breach of the duty to keep the premises safe” cause of action was properly dismissed because it constituted an attempt to plead vicarious liability for an intentional tort as negligence to avoid the one-year statute of limitations for intentional torts:

The second cause of action alleges that the employer defendants negligently hired and supervised Bonawitz. Supreme Court dismissed this cause of action based on cases holding that, “[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondent superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training” … . The rationale for this rule “is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training” … . As is apparent from these cases, however, this rule applies where the employee is alleged to have acted negligently, not intentionally.

Plaintiff has adequately alleged that the employer defendants negligently hired, supervised and retained Bonawitz even though they knew or should have known of his propensity to assault or intentionally inflict harm on others … . Moreover, the negligence of an employer is not transformed into intentional conduct simply because the employee’s wrongful conduct was intentional … . Thus, plaintiff’s allegations of negligence were timely asserted within the applicable three-year statute of limitations (see CPLR 214 [5] …).

Plaintiff did not directly allege that Bonawitz was acting within the scope of his employment when he punched plaintiff. Even if such allegations were included, allegations of vicarious liability, though incompatible with a claim of negligent hiring and supervision, do not require dismissal because a plaintiff may plead inconsistent theories in the alternative … . McCarthy v Mario Enters., Inc., 2018 NY Slip Op 05006, Third Dept 7-5-18

​NEGLIGENCE (EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/EMPLOYMENT LAW (NEGLIGENCE, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CIVIL PROCEDURE (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CPLR 214 (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/INTENTIONAL TORTS (STATUTE OF LIMITATIONS, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/THIRD PARTY ASSAULTS (NEGLIGENCE, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))

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ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim against her school based upon bullying and harassment should not have been denied. Before plaintiff turned 18, her father made a motion for leave to file a late notice of claim which was denied because of improper service. When plaintiff turned 18 she made the motion on her own behalf. Because the statute of limitations was tolled until plaintiff turned 18 (CPLR 208) her motion was timely. The Third Department determined the school had timely notice of the claim, plaintiff had introduced some evidence the school would not be prejudiced, meeting her burden, and the school’s demonstration of prejudice was speculative and otherwise inadequate:

Here, our review of the record reveals that defendant had actual knowledge of the alleged harassment, intimidation and bullying within a reasonable time … .

… [P]laintiff was initially required to “present some evidence or plausible argument that supports a finding of no substantial prejudice”… . She did so by submitting the … evidence that defendant knew of plaintiff’s claims and was able to investigate at least one of the incidents shortly after it occurred, as well as screen images taken from defendant’s website indicating that relevant school officials were still employed at the time of the motion. …

The burden thus shifted to defendant “to rebut [plaintiff’s] showing with particularized evidence” … . In this regard, defendant’s counsel asserted by affirmation that the incidents were no longer fresh in witnesses’ memories as a result of the passage of time and that any witnesses “would likely be children” who might have graduated or whose memories might have faded … . However, a finding of substantial prejudice “cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence on the record” … . Sherb v Monticello Cent. Sch. Dist., 2018 NY Slip Op 05004, Third Dept 7-5-18

​EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW,  ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CIVIL PROCEDURE (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CPLR 208 (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))

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ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the evidentiary ruling in a prior appeal was not the law of the case and plaintiff’s attempt to introduce the same type of evidence in the subsequent trial should have been considered on the merits:

This matter comes before us for a fourth time … . In our most recent decision, we affirmed that part of an order of Supreme Court which, after granting a mistrial, precluded plaintiff from offering evidence of prior accidents in a second trial … . Thereafter, plaintiff again moved to admit evidence of prior similar accidents or, in the alternative, for a hearing on the application. Supreme Court denied the motion, effectively concluding that our prior decision constitutes law of the case. Plaintiff now appeals.

We reverse. The underlying motion in limine speaks to an evidentiary ruling and the law of the case doctrine generally speaks to questions of law, not discretionary rulings of the court … . That said, we are mindful that “‘[a]n appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court . . . [and] operates to foreclose reexamination of [the] question absent a showing of subsequent evidence or change of law'”… .

Although defendants contend otherwise, our previous decision was not a definitive ruling as to whether the conditions underlying the prior accidents that plaintiff seeks to admit were substantially similar to the accident at issue. To the contrary, we simply determined that the limited offer of proof that plaintiff then made was inadequate … . As such, the subject motion should have been addressed on the merits … . O’Buckley v County of Chemung, 2018 NY Slip Op 05003, Third Dept 7-5-18

​CIVIL PROCEDURE (APPEALS, LAW OF THE CASE, EVIDENCE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))/EVIDENCE (APPEALS, LAW OF THE CASE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))/APPEALS (EVIDENCE, LAW OF THE CASE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))/LAW OF THE CASES (APPEALS, EVIDENCE, ALTHOUGH, ON A PRIOR APPEAL, THE APPEALS COURT FOUND THAT AN OFFER OF PROOF OF PRIOR ACCIDENTS WAS INADEQUATE, AT THE SUBSEQUENT TRIAL THE COURT SHOULD HAVE CONSIDERED THE PLAINTIFF’S OFFER OF EVIDENCE OF PRIOR ACCIDENTS, THE APPELLATE RULING WAS NOT THE LAW OF THE CASE (THIRD DEPT))

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DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT).

The Third Department, over a two-justice dissent, annulled the parole board’s rescission of its decision setting a release date for petitioner. In 1979, when petitioner was 19, he stabbed and killed his 15-year-old friend. The board initially set a release date of August 2016. The victim’s family then submitted two DVDs of statements by family members. Apparently the videos had been submitted before but were never made part of the file. Upon viewing the videos, the board rescinded its decision setting the release date. The Third Department found that the DVDs were not new evidence and therefore the rescission of the release date was not authorized:

Any alleged failure on respondent’s part to consider these materials earlier — not due to a failure to communicate with victims or to offer them opportunities to provide statements, but solely as the apparent result of respondent’s own inefficient filing system — cannot rationally be found to convert materials that had been provided to it 9 and 15 years before into new information that was not previously available or known.

… [O]ther challenges to parole rescission determinations based upon victim impact statements have exclusively involved new factual information that had not previously been known to respondent because the victims either had not provided statements or had not been given opportunities to do so … . Our review of the case law has revealed no other case involving a parole rescission decision that, as here, is based upon additional input from victims or family members who had previously submitted impact statements to respondent — much less multiple submissions of a thorough and extensive nature over many years.

In rescinding petitioner’s parole, respondent did not make the required finding that there was substantial evidence of “significant information” that “was not [previously] known by [respondent]” … . Matter of Duffy v New York State Bd. of Parole, 2018 NY Slip Op 05002, Third Dept 7-5-18

​CRIMINAL LAW (PAROLE, DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PAROLE, DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))/PAROLE (EVIDENCE,  DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))

, ,

ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM WAS LEGALLY SUFFICIENT, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT).

The Third Department determined there was legally sufficient evidence to support defendant’s conviction that he acted as an accomplice in the fatal shooting of the victim by another man, White-Span. In other words, the elements of the charged offense were supported by some credible evidence. Defendant’s conviction was reversed, however, under a weight of the evidence analysis based on the weakness of the evidence that the defendant knew White-Span intended to kill the victim, as opposed to rob or assault the victim:

“Despite the [necessary] elements being supported by some credible evidence, because a different [verdict] would not have been unreasonable, this Court must independently examine the evidence further, viewing it in a neutral light to see if the verdict is against the weight of the evidence”… . Even if we accept that the evidence proved beyond a reasonable doubt that White-Span intentionally caused the victim’s death by shooting him and that defendant intentionally aided White-Span in locating and isolating the victim, the evidence does not prove beyond a reasonable doubt that defendant knew — before the shooting occurred — that White-Span planned to kill the victim, because defendant could have had other equally plausible reasons for wanting access to the victim, such as robbery or assault. …

In light of the People’s failure to establish beyond a reasonable doubt that defendant shared White-Span’s intent to kill the victim, the judgment of conviction must be reversed and the indictment against defendant dismissed … . People v Croley, 2018 NY Slip Op 04984, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/ACCESSORIAL LIABILITY (ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/APPEALS (WEIGHT OF THE EVIDENCE, ACCESSORIAL LIABILITY, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/SHARED INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))

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