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QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this traffic accident case. Plaintiff’s decedent apparently backed into defendant’s lane of traffic from the median. There was conflicting evidence about defendant’s speed and the distance between decedent’s car and defendant (i.e., there was conflicting evidence about the applicability of the emergency doctrine):

Given the conflicting accounts about the distance and the elapsed time between when decedent’s vehicle moved into defendant’s lane and the collision and defendant’s speed prior to the accident, we conclude that triable issues of fact exist as to whether defendant’s actions, when confronted with an emergency situation, were reasonable and whether he could have taken evasive action to avoid decedent’s vehicle … . We further conclude that there are issues of fact as to whether decedent’s actions, under the circumstances of this case, were not the sole proximate cause of the accident. Accordingly, viewing the evidence in the light most favorable to plaintiff, Supreme Court should have denied defendant’s motion for summary judgment … . Brust v McDaniel, 2018 NY Slip Op 04069, Third Dept 6-7-18

NEGLIGENCE (QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/TRAFFIC ACCIDENTS  (QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s action against the municipality was timely commenced. The one-year-and-ninety-day statute of limitations was tolled when plaintiff filed a successful motion for leave to file a late notice of claim:

Pursuant to General Municipal Law, a plaintiff must first serve a notice of claim against a municipality within 90 days after the claim arises … and commence any subsequent tort action against the municipality within one year and 90 days after the claim arises (see General Municipal Law § 50-i). Because plaintiff’s claims against defendants, if any, arise from the fire that occurred on February 18, 2014, he was therefore required to file and serve a notice of claim by May 19, 2014 and commence any subsequent tort action by May 19, 2015. Having failed to file and serve his notice of claim by May 19, 2014, plaintiff was permitted to, and did, commence a special proceeding seeking leave to file a late notice of claim. While the applicable one year and 90-day statute of limitations began to run on February 18, 2014, upon plaintiff’s commencement of the proceeding, the provisions of CPLR 204 (a) operated to toll the remainder of the statute of limitations until the date that the court granted the requested relief, at which point the statute began to run once again … . To put it in mathematical terms, when plaintiff commenced the proceeding seeking leave to serve a late notice of claim on November 14, 2014, he had 186 days remaining in order to timely commence this action within the applicable statute of limitations. As of that date, the statute of limitations stopped running and did not resume until May 27, 2015, when Supreme Court issued its order granting plaintiff’s application. Thus, plaintiff had 186 days running from May 27, 2015 or until November 29, 2015 to timely commence this action. Since plaintiff commenced this action on October 20, 2015, it was timely commenced and may now proceed to a determination as to whether it has any merit. Kulon v Liberty Fire Dist., 2018 NY Slip Op 04062, Third Dept 6-7-18

MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, NOTICE OF CLAIM,, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/STATUTE OF LIMITATIONS (MUNICIPAL LAW, NEGLIGENCE, NOTICE OF CLAIM, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))

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PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was no special relationship between the town and the plaintiffs. The town had allowed fill to be dumped near a stream (Normanskill) by issuing a permit to the property owner, 165 Salisbury Road LLC. A landslide occurred which caused flooding on plaintiffs’ property:

To establish that a municipality created a special relationship by voluntarily assuming a duty, a plaintiff must show: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) the party’s justifiable reliance on the municipality’s affirmative undertaking”… . Plaintiffs failed to allege any assumption by the Town to act on their behalf, any direct contact between them and any agent of the Town or any justifiable reliance by plaintiffs … .

As for the third way of forming a special relationship, the municipality must not only assume positive direction or control when a known, blatant and dangerous safety violation exists, but must “affirmatively act to place the plaintiff in harm’s way,” through words or conduct that “induc[e] the plaintiff to embark on a dangerous course he or she would otherwise have avoided” … . Although we recently held that Normanskill and 165 Salisbury Road alleged a special relationship with the Town on this basis … , the alleged safety violation existed on property owned or leased by those parties. They were in a markedly different position than plaintiffs.

Plaintiffs are removed from the Normanskill property that was directly affected by the fill and permit activities, and the complaint contains no allegations that plaintiffs were even aware of, or had contact with any of the parties involved in, those activities. The allegations provide no indication of how plaintiffs could have been induced by the Town to embark on any course of action, let alone a dangerous one that they would otherwise have avoided … . Szydlowski v Town of Bethlehem, 2018 NY Slip Op 04066, Third Dept 6-7-18

MUNICIPAL LAW (NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/LANDSLIDES (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/FLOODING  (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))

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DATE OF LOSS DEEMED TO BE DATE THE CLAIM FOR A STOLEN CAR WAS DENIED, NOT THE DATE THE CAR WAS STOLEN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the term “date of loss” in the policy referred to the date the insurer disclaimed coverage, not the date the car was stolen. Therefore plaintiff’s action for breach of contract was timely. The contract properly shortened the applicable statute of limitations to one year:

In our view, the generic “date of loss” language employed here, in the context of the policy as a whole, does not evince an unmistakable intention that the one-year limitations period be measured from the occurrence of the underlying event … . Significantly, in shortening the limitations period, the insurance policy did not use the term of art “inception of loss” or other similarly specific language indicating that the limitations period was to be measured from the event giving rise to the claim … . Moreover, although “date of loss” could be reasonably interpreted to mean the date of theft, as defendant contends, ambiguities in an insurance policy must be construed against the insurer … . In view of the foregoing, we hold that the one-year limitations period set forth in the insurance policy began to run on the date that defendant denied the claim for coverage … . Mercedes-Benz Fin. Servs. USA, LLC v Allstate Ins. Co., 2018 NY Slip Op 04064, Third Dept 6-7-18

INSURANCE LAW (DATE OF LOSS DEEMED TO BE DATE THE CLAIM FOR A STOLEN CAR WAS DENIED, NOT THE DATE THE CAR WAS STOLEN (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, DATE OF LOSS DEEMED TO BE DATE THE CLAIM FOR A STOLEN CAR WAS DENIED, NOT THE DATE THE CAR WAS STOLEN (THIRD DEPT))

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CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT).

The Third Department, in a custody proceeding, determined out of court statements by a child about abuse by the stepfather were properly deemed admissible because they were sufficiently corroborated:

… [T]he older child’s out-of-court statements concerning the sexual abuse perpetrated upon her by the stepfather did not constitute impermissible hearsay. Where, as here, a child’s out-of-court statements relate to abuse or neglect, such statements are admissible in a Family Ct Act article 6 proceeding so long as they are sufficiently corroborated … . “The relatively low degree of required corroboration may be provided by ‘[a]ny other evidence tending to support the reliability of the [child’s] statements'”… . While the mere repetition of an accusation does not, by itself, provide sufficient corroboration … , “some degree of corroboration can be found in the consistency of the out-of-court repetitions” … . Proof of the abuse of another child can also provide the requisite corroboration … . The sufficiency and “reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record” … .​

The maternal aunt testified that, while babysitting the children … , the older child disclosed that the stepfather comes into her room in the middle of the night and “touches in [her] butt.” The child also revealed the sexual abuse to the father, specifically stating that, while she was locked in her room, the stepfather would pull back the covers and reach into her underwear. The maternal aunt described changes in the older child’s behavior that coincided with the time frame in which the alleged sexual abuse occurred, explaining that the child, who used to be happy and playful, became “unsociable” and “scared,” as if something was bothering her. A therapist whom the older child began seeing following the disclosures testified that the child was “very distant,” “detached” and “withdrawn” during their interactions and opined that the child exhibited behavior that was consistent with that of a four-year-old who may have experienced trauma. Further, a woman whose father had previously lived with the stepfather provided detailed and graphic testimony of her own sexual abuse at the hands of the stepfather when she was a young girl. During interviews with the State Police, both this woman as well as her sister confirmed that they had been sexually abused by the stepfather when they were younger. In view of this proof, and according due deference to Family Court’s factual findings and credibility assessments, we conclude that the older child’s statements were adequately corroborated … . Matter of Cory O. v Katie P., 2018 NY Slip Op 04046, Third Dept 6-7-18

FAMILY LAW (EVIDENCE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/HEARSAY (FAMILY LAW, ABUSE, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/CORROBORATION (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))

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MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT). ​

The Third Department, reversing Family Court, determined mother had demonstrated that father’s violation of the separation agreement was willful, entitling mother to attorney’s fees:

Family Court’s determination that the mother failed to prove a willful violation is not supported by the record or the law. The mother’s testimonial and documentary submissions were amply sufficient to make a prima facie showing that the father’s delays and failures to satisfy his obligations were willful violations, thus shifting the burden to him to demonstrate his inability to pay … . In response, the father made no effort to show that he could not meet his obligations; indeed, he admitted that he did not make the orthodontic payment or turn over the tax information until he was ordered to do so. Accordingly, he failed to satisfy his burden… . Family Court thus erred in dismissing the mother’s objections. Contrary to the court’s determination, the fact that the father had paid his obligations by the time of the hearing — at least in part, because he was ordered to do so — does not negate the evidence that he repeatedly delayed in fulfilling some of his responsibilities and completely avoided others, forcing the mother to make repeated efforts to obtain his compliance and, finally, to commence this proceeding. Matter of Shkaf v Shkaf, 2018 NY Slip Op 04052, Third Dept 6-7-18

FAMILY LAW (SEPARATION AGREEMENTS, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/ATTORNEYS (FAMILY LAW, (SEPARATION AGREEMENTS, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/ATTORNEY’S FEES (FAMILY LAW, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/SEPARATION AGREEMENTS (VIOLATION, ATTORNEY’S FEES,  MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, SEPARATION AGREEMENTS, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))

SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined a suspended judgment should not have been revoked without a hearing:

… [R]espondent consented to an order confirming the Support Magistrate’s finding that he willfully violated his child support obligation. Family Court suspended judgment on the condition that respondent make certain minimum payments. After respondent failed to make the requisite payments, petitioner, in November 2015, filed a violation petition against him. Following an appearance in April 2016, it was revealed that respondent had been recently employed and the child support payments had been made. As a consequence, Family Court continued to suspend judgment and the matter was adjourned. At a November 2016 appearance, petitioner advised Family Court that, although it had been receiving payments directly from respondent’s employer, such payments had ceased in early October 2016. Inasmuch as respondent failed to personally appear in November 2016, a warrant was issued for his arrest. At an appearance on January 4, 2017, respondent’s counsel requested a hearing to call respondent’s employer as a witness to determine why payments were not being made to petitioner. Respondent’s counsel inquired whether he should subpoena the employer and, although Family Court did not explicitly respond to this inquiry, the court noted that a hearing “could at least start.” At the January 17, 2017 appearance, Family Court refused to let respondent call the subpoenaed witness. Family Court noted that a hearing was unnecessary because respondent did not dispute that payments had not been made and, therefore, good cause existed to revoke the suspended judgment. Family Court sentenced respondent to a 90-day jail term and imposed a purge amount of $3,507.50. …

Family Court erred in revoking the suspended judgment without first conducting an evidentiary hearing … . Given respondent’s liberty interest at stake … , he was entitled to present witnesses on the issue of whether good cause existed to revoke the suspended judgment … . Matter of Madison County Support Collection Unit v Campbell, 2018 NY Slip Op 04049, Third Dept 6-7-18

FAMILY LAW (SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT))/CHILD SUPPORT (SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT))/SUSPENDED JUDGMENT (FAMILY LAW, CHILD SUPPORT, SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT))

DURATION OF ORDERS OF PROTECTION FOR A BIOLOGICAL GRANDFATHER AND A STEPGRANDFATHER EXPLAINED (THIRD DEPT).

The Third Department discussed the allowed duration of orders of protection for a biological grandfather and a stepgrandfather:

Family Ct Act § 1056 (4) provides that “[t]he court may enter an order of protection[,] independently of any other order made under this part, against a person who was a member of the child’s household or a person legally responsible . . . and who is no longer a member of such household at the time of the disposition and who is not related by blood or marriage to the child or a member of the child’s household. [Such] order of protection . . . may be for any period of time up to the child’s eighteenth birthday.” Because Harold J. is the biological grandfather of Annabella and Caleb J., the orders of protection as to these children must be modified to reflect an expiration date … one year from disposition of the matter … .​

The familial relationship between Makayla and Harold J. warrants slightly more analysis as Harold J. is not Makayla’s biological grandfather, but rather is related to her through his son’s marriage to Makayla’s mother. This raises the issue of whether a stepgrandparent is related to a stepgrandchild by marriage for the purposes of Family Ct Act § 1056 (4). We conclude that they are not. This conclusion is supported by the specific language in the statute, “related by . . . marriage” … , rather than the broader and more inclusive concept of “affinity,” which is used elsewhere in the Family Ct Act … . Further, a stepgrandparent has no enforceable legal right to have contact with a stepgrandchild as a stepgrandparent lacks standing to pursue visitation … . Thus, although Family Ct Act § 1056 (4) limits the duration of orders of protection against a stepparent who is related to a child by and through his or her own marriage to the child’s mother or father, these limitations do not apply to a stepgrandparent, whose relationship to the child is attenuated. Therefore, because Harold J.’s relationship to Makayla is not established by his own marriage, but rather through his son’s marriage, it was statutorily permissible, in this regard, for Family Court to issue an order of protection until Makayla’s eighteenth birthday. Our analysis does not end here, however, as Family Ct Act § 1056 (4) prohibits orders of protection until a child’s eighteenth birthday if the order is against someone who is related by blood or marriage to a member of the child’s household. Therefore, if, at the time of disposition, Makayla resided in the same household as Annabella and Caleb J., the order of protection as to Makayla could not exceed one year … . Inasmuch as we cannot discern from the record whether this is the case, the matter must be remitted for the purpose of making this determination. Matter of Makayla I. (Caleb K.), 2018 NY Slip Op 04047, Third Dept 6-7-18

FAMILY LAW (ORDERS OF PROTECTION, DURATION OF ORDERS OF PROTECTION FOR A BIOLOGICAL GRANDFATHER AND A STEPGRANDFATHER EXPLAINED (THIRD DEPT))/ORDERS OF PROTECTION (FAMILY LAW, DURATION OF ORDERS OF PROTECTION FOR A BIOLOGICAL GRANDFATHER AND A STEPGRANDFATHER EXPLAINED (THIRD DEPT))

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PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT).

The Third Department, in a complex decision not fully summarized here, determined the provision of the Education Law which allows the appointment of a receiver to take over allegedly failing schools does not violate the Contract Clause of the US Constitution:

… [W]here a statute or regulation impairs a private contract, courts will defer to a legislature’s rationale with regard to its necessity … . Less deference is warranted where the statute or regulation “is self-serving and impairs the obligations of [the state’s] own contracts” because “a [s]tate is not completely free to consider impairing the obligations of its own contracts on a par with other policy alternatives” … . Less deference may be warranted even where, as here, the state is not a party to an impaired public contract … . “[F]or an impairment to be reasonable and necessary under less deference scrutiny, it must be shown that the state did not (1) consider impairing the contracts on par with other policy alternatives or (2) impose a drastic impairment when an evident and more moderate course would serve its purpose equally well nor (3) act unreasonably in light of the surrounding circumstances” … .

Assuming without deciding that the less deferential standard applies, we find that Education Law § 211-f (8) is reasonable and necessary both on its face and as applied. In context, the receivership agreement was necessary in order to implement available methods to address the immediate issues that were facing the struggling or persistent struggling schools. The statute provides that the Superintendent must act in accordance with the existing CBA [collective bargaining agreement], and, where, as here, a receivership agreement is requested, the statute limits the scope of the agreement — and impairment. No modification or impairment can be unilaterally imposed but instead must be negotiated. As applied, although an agreement was not reached with regard to all issues, the modifications imposed were applicable to the affected schools only for the time limited by the statute. In sum, because the statute and the agreements apply prospectively and limit the scope, application and duration of any modifications to existing agreements, while prohibiting any adverse financial impact, we find that it was reasonably designed and necessary to further the goal of helping students to succeed … . Matter of Buffalo Teachers Fedn., Inc. v Elia, 2018 NY Slip Op 04061, Third Dept 6-7-18

EDUCATION-SCHOOL LAW (PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/CONTRACT LAW (EDUCATION-SCHOOL LAW, CONSTITUTIONAL LAW, PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/CONSTITUTIONAL LAW (EDUCATION-SCHOOL LAW, CONTRACT LAW, PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/FAILING SCHOOLS (PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/RECEIVERS (FAILING SCHOOLS, (PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))

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DEFAMATION AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ELEMENTS EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff had stated causes of action for malicious prosecution and defamation   Defendant, Goyer, was the town deputy clerk and plaintiff was the town supervisor.  Goyer had filed a harassment complaint against plaintiff alleging he physically prevented her from entering a conference room at the town hall. Plaintiff was acquitted and then brought this lawsuit:

Accepting plaintiff’s allegations as true, as we must, the complaint adequately alleges that Goyer “knowingly provided false information to the police” and such allegations are “sufficient to state that the complainant initiated the proceeding by playing an active role in the other party’s arrest and prosecution” … .  …

The incident report — which was attached to and incorporated into the complaint — indicates that, on the evening in question, Goyer attempted to enter a conference room at the Town Hall when plaintiff stepped to the side and blocked her from entering. Goyer indicated that, when she attempted to then go around him, plaintiff “put his arm up in front of [her] to block [her]” and “reached in front of [her,] grabbed [certain office supplies and] tried to pull them out of [her] hand” while screaming “[g]et out” and “[y]ou can’t come in here.” The statements contained in the information, supporting deposition and incident report were thereafter “published and/or republished to the press.” Inasmuch as these statements provide allegations of fact indicating that plaintiff subjected Goyer to unwanted physical contact while at the Town Hall, on the night of a Town Board meeting, at a time when plaintiff was acting in his official capacity as Town Supervisor, they provide “more than a general reflection upon [plaintiff]’s character or qualities” … . Higgins v Goyer, 2018 NY Slip Op 04067, Third Dept 6-7-18

DEFAMATION (DEFAMATION AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ELEMENTS EXPLAINED (THIRD DEPT))/MALICIOUS PROSECUTION (DEFAMATION AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ELEMENTS EXPLAINED (THIRD DEPT))

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