You are here: / Third Department

Tag Archive for: Third Department

UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s negligent homicide conviction, determined there was no valid line of reasoning that could have led to the verdict in this hunting accident case. The facts were stipulated in this nonjury trial. The victim, who was in the defendant’s hunting party, was in an area all had agreed was off limits and there was evidence defendant reasonably mistook the victim for a deer:

Viewing the evidence in the light most favorable to the People … , there is no valid line of reasoning that could have led County Court to conclude that defendant engaged in any “blameworthy conduct” that created or contributed to a substantial and unjustifiable risk of death … . As stipulated to by the parties, … defendant had “no reason to believe [that] any of his three companions would be in the area where he was shooting.” Defendant’s hunting party was not engaged in the hunting practice of “driving” the deer … , and they had instead agreed to hunt from separate, stationary tree stands that had been specifically positioned prior to the hunt “in such a way that no one would be shooting in the direction of another hunter.” Additionally, … defendant and the property owner had specifically advised the victim that, should he decide to again leave his designated stand before the hunt was over, he should take a specific route … that was outside of the hunters’ respective lines of fire. Moreover, there was no evidence that defendant had consumed any alcohol or drugs prior to the hunt, and he was unaware that the victim had cocaine and opiates in his system. While defendant made the tragic and deadly error of mistaking the camouflage-dressed victim for a buck, we cannot say — under the stipulated set of facts — that his actions rose to the level of criminal negligence … . People v Gerbino, 2018 NY Slip Op 03179, Third Dept 5-3-18

​CRIMINAL LAW (UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT))/NEGLIGENT HOMICIDE  (UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT))/HUNTING ACCIDENT (NEGLIGENT HOMICIDE, (UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT))

, ,

WORKER’S COMPENSATION TRUST DEEMED TO OWE THE WORKERS’ COMPENSATION BOARD $220 MILLION, ATTEMPTS TO AMEND THE COMPLAINT TO ADD CAUSES OF ACTION AFTER THE STATUTE OF LIMITATIONS HAD RUN FAILED, CRITERIA EXPLAINED, CRITERIA FOR A GENERAL BUSINESS LAW 35O CAUSE OF ACTION AND PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT).

The Third Department determined the relation-back doctrine did not apply to the attempts to amend the complaint in this Worker’s Compensation trust action. The trust was formed as self-insurance for Workers’ Compensation claims, but was determined to owe the Workers’ Compensation Board $220 million. The decision is too complex to fairly summarize here.  It comprehensively addresses the criteria for amending complaints, the relation-back doctrine, the General Business Law section 350 cause of action, and the corporate alter ego (piercing the corporate veil) pleading requirements:

“[T]he rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . A claim is palpably insufficient or patently devoid of merit where it would be barred by the applicable statute of limitations. …

Where the issue is whether a claim may be interposed against a defendant who was named as a party before the statute of limitations expired, the query is limited to whether the earlier complaint “gave notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading” … . …

“The relation back doctrine permits a [plaintiff] to amend a [complaint] to add a [defendant] even though the statute of limitations has expired at the time of amendment so long as the [plaintiff] can demonstrate three things: (1) that the claims arose out of the same occurrence, (2) that the later-added [defendant] is united in interest with a previously named [defendant], and (3) that the later-added [defendant] knew or should have known that, but for a mistake by [plaintiff] as to the later-added [defendant’s] identity, the [action] would have also been brought against him or her” … . …

The corporate veil will be pierced and liability imposed when either (1) there is complete domination of a corporation by an individual or another corporation with respect to the transaction being attacked that resulted in a fraud or wrong against the complaining party, or (2) “when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego” … . Here, the proposed complaint alleges only that [the two entities] had common owners, officers and directors and that they shared the same office space, addresses and telephone numbers. Such allegations, standing alone, are insufficient to plead the elements required to establish alter ego liability … . Belair Care Ctr., Inc. v Cool Insuring Agency, Inc., 2018 NY Slip Op 03196, Third Dept 5-3-18

​CIVIL PROCEDURE (COMPLAINTS, WORKER’S COMPENSATION TRUST DEEMED TO OWE THE WORKERS’ COMPENSATION BOARD $220 MILLION, ATTEMPTS TO AMEND THE COMPLAINT TO ADD CAUSES OF ACTION AFTER THE STATUTE OF LIMITATIONS HAD RUN FAILED, CRITERIA EXPLAINED, CRITERIA FOR A GENERAL BUSINESS LAW 35O CAUSE OF ACTION AND PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT))/AMENDMENT OF COMPLAINTS (WORKER’S COMPENSATION TRUST DEEMED TO OWE THE WORKERS’ COMPENSATION BOARD $220 MILLION, ATTEMPTS TO AMEND THE COMPLAINT TO ADD CAUSES OF ACTION AFTER THE STATUTE OF LIMITATIONS HAD RUN FAILED, CRITERIA EXPLAINED, CRITERIA FOR A GENERAL BUSINESS LAW 35O CAUSE OF ACTION AND PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT))/RELATION BACK DOCTRINE (AMENDMENT OF COMPLAINTS, WORKER’S COMPENSATION TRUST DEEMED TO OWE THE WORKERS’ COMPENSATION BOARD $220 MILLION, ATTEMPTS TO AMEND THE COMPLAINT TO ADD CAUSES OF ACTION AFTER THE STATUTE OF LIMITATIONS HAD RUN FAILED, CRITERIA EXPLAINED, CRITERIA FOR A GENERAL BUSINESS LAW 35O CAUSE OF ACTION AND PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT))/COMPLAINTS (AMENDMENT, WORKER’S COMPENSATION TRUST DEEMED TO OWE THE WORKERS’ COMPENSATION BOARD $220 MILLION, ATTEMPTS TO AMEND THE COMPLAINT TO ADD CAUSES OF ACTION AFTER THE STATUTE OF LIMITATIONS HAD RUN FAILED, CRITERIA EXPLAINED, CRITERIA FOR A GENERAL BUSINESS LAW 35O CAUSE OF ACTION AND PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT))/CORPORATION LAW (PLEADING, ALTER EGO, PIERCING THE CORPORATE VEIL, CRITERIA FOR PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT))/ALTER EGO (CORPORATION LAW, CRITERIA FOR PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT))/CORPORATE VEIL, PIERCING (PLEADING,  CRITERIA FOR PLEADING AN ALTER EGO THEORY ADDRESSED (THIRD DEPT))/GENERAL BUSINESS LAW 350 (PLEADING REQUIREMENTS FOR GENERAL BUSINESS LAW 350 CAUSE OF ACTION (THIRD DEPT))

CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AND SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, over a partial dissent, took pains to explain the current law distinguishing between a nonactionable misstep from an actionable slip and fall in the context of a police officer’s application for accidental disability retirement benefits. The officer fell descending stone steps which he had used without incident a couple days before. The officer testified there was a slimy or icy substance on the step which he did not notice until after the fall. The Third Department couldn’t discern the precise grounds for the state comptroller’s denial of the benefits and sent the matter back for findings and conclusions based upon the law as explained in the opinion (which is too detailed to be fully described here):

… [T]he controlling standard for determining whether an injury was caused by an accident for purposes of the Retirement and Social Security Law remains whether the precipitating event was sudden, unexpected and not a risk of the work ordinarily performed … . In considering whether a particular petitioner has met that standard, courts should not rely on whether a condition was readily observable. Denial of benefits continues to be appropriate where the injury was caused by the employee’s misstep. Whether the employee’s inattention caused an accidental injury depends on the circumstances — i.e., was it essentially a misstep, without more, or was it based on the failure to notice something that was readily observable — and presents a factual issue. Similarly, when determining whether a precipitating event was unexpected, respondent and courts may continue to consider whether the injured person had direct knowledge of the hazard prior to the incident or whether the hazard could have been reasonably anticipated, so long as such a factual finding is based upon substantial evidence in the record. Stancarone v DiNapoli, 2018 NY Slip Op 02844, Third Dept 4-26-18

​RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/RETIREMENT BENEFITS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/SLIP AND FALL  (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))

,

VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT).

The Third Department determined plaintiff’s motion to set aside the defense verdict in this pedestrian-car accident case (exonerating defendant driver from any comparative fault) should have been granted. Defendant testified she saw persons in the road about 100 yards ahead but did not slow down. When she realized she was going to hit someone she swerved to the left, apparently striking plaintiff at that point:

As a general matter, a motorist has a duty to maintain a proper lookout under the driving circumstances presented and to maintain a reasonably safe rate of speed… . A motorist is further “required to keep a reasonably careful look out for pedestrians, to see what was there to be seen, to sound the horn when a reasonably prudent person would have done so to warn a pedestrian of danger and to operate the car with reasonable care to avoid hitting any pedestrian on the roadway” … . These principles in mind, defendant testified that she first observed three people at the edge of Route 9N in front of the Algonquin restaurant heading across the road toward the parking lot on the west side. She estimated being “[p]robably about a football field” away when she first saw the pedestrians. She also estimated her speed at 30 miles per hour and acknowledged that she did not slow down. Explaining how the accident occurred, defendant testified as follows: “As I got closer to the people, who I thought were crossing the road, they were not moving and I knew that if I continued I would hit them so I severely twisted my wheel of the car thinking I could get around them.” She stated that, as she turned her wheel to the right, the pedestrians were on her left. She did not decrease her speed prior to swerving and could not remember sounding her horn.

Defendant’s version of the accident places Blanchard in the roadway, while Blanchard testified that she was in the west shoulder area at the time of impact. Even accepting defendant’s version, her testimony confirms that Blanchard was within her view for a distance of about 100 yards and defendant was aware that Blanchard was crossing the road, and yet, defendant did not slow down or sound her horn. Defendant’s own account confirms that she failed to take any evasive action until the last moment. In our view, defendant’s failure to take reasonable measures to avoid hitting Blanchard gives rise to some degree of comparative fault for this accident. As the jury’s verdict exonerating defendant could not have been reached on any fair interpretation of this evidence, a new trial is in order. Blanchard v Chambers, 2018 NY Slip Op 02852, Third Dept 4-26-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/VERDICT, MOTION TO SET ASIDE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))

,

THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, reversing County Court, determined that prison personnel violated defendant’s Fourth Amendment rights in the manner a body cavity search was conducted. A packet of cocaine was removed from defendant’s buttocks-area during a strip search. Apparently the package could be seen but did not fall out on its own:

Here, there was probable cause, but no showing or claim of an emergency … . Considering that defendant was lying face down, naked and handcuffed, it is evident that the officers could keep him under full surveillance without any concern that the wrapped drugs would be absorbed into his body while efforts were made to procure a warrant … . Nor was any attempt made to seek the assistance of medical personnel to secure the contraband in a safe, hygienic manner… . Also, the record is unclear as to whether [the officer] was wearing gloves. Under the second Bell factor [Bell v Wolfish, 441 US 520], the manner in which this search was conducted was not reasonable. Given the above, we conclude that the search was conducted in violation of the Fourth Amendment and that the recovered drugs should have been suppressed. People v Holton, 2018 NY Slip Op 02836, Third Deptp 4-26-18

​CRIMINAL LAW (BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/BODY CAVITY SEARCH (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))

, ,

ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a dissent, determined it could not reach a constitutional issue, regarding whether the authority to prosecute the defendant had been properly delegated to the Special Prosecutor for the Justice Center for the Protection of People with Special Needs, because it was not raised below. The dissent argued the court could exercise its interest of justice jurisdiction and send the case back for a factual determination of the issue (delegation of authority to prosecute):

Defendant first argues that the statute authorizing creation of the Justice Center (see Executive Law § 552 [2]) violates the State Constitution because the statute permits an appointed special prosecutor to conduct prosecutions, thereby usurping the constitutional responsibilities and power of the local District Attorney and the Attorney General, both of whom are elected officials. In the alternative, defendant argues that the statute can be viewed as constitutional only if the District Attorney grants the special prosecutor authority to prosecute and retains oversight and ultimate responsibility for the prosecution, but that these conditions were not met in this case. Thus, defendant argues, the indictment must be dismissed because the Justice Center lacked the authority to prosecute him. * * *

This Court is permitted only to reverse or modify in the interest of justice … . But a full review of the issue would be impossible without remittal, so, at this point, we do not now know if we would ultimately reverse, modify or affirm. Because we do not know what the outcome would be, and since it is possible that the outcome could be to affirm, we find no authority that would permit us to take corrective action with respect to this issue in the interest of justice. People v Cubero, 2018 NY Slip Op 02839, Third Dept 4-26-18

​CRIMINAL LAW (APPEALS, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))/INTEREST OF JUSTICE JURISDICTION (CRIMINAL LAW, APPEALS, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, AUTHORITY TO PROSECUTE, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))

, ,

COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT).

The Third Department determined the complaint stated causes of action in negligence against the town. Plaintiffs operated and owned property on which they were placing fill. The town issued a permit allowing the filling. The fill caused a substantial landslide. The Third Department found that the complaint alleged a special relationship between the town and plaintiffs, and further alleged that the town engineer did not have the discretion to issue the truncated permit which was issued. Therefore the complaint sufficiently alleged governmental immunity could not be invoked:

Plaintiffs alleged that the Town Engineer directly stated to them that he can “override” the requirements of the Town Code “if [he] is confident that the fill will ‘increase stability’ of the slope” and that, on this basis, he did not require plaintiffs to submit all of the mandated components of a fill permit application. The complaint also alleged that defendant was aware of prior landslides along the same creek and that, after the incident on plaintiffs’ property, the Town Engineer cited a recent study indicating that the local soil was prone to landslides but, regardless of this knowledge, he had suggested to third parties that they dispose of fill at the property. …

Alternatively, plaintiffs have alleged sufficient facts to show that a special relationship existed because defendant assumed positive direction and control in the face of a known, blatant and dangerous safety violation. Plaintiffs alleged that the filling activities at the property “created a blatant risk of catastrophic failure of the bank,” that defendant “had been made aware of this blatant risk when it intervened at the [p]roperty” and that defendant demonstrated control over the property by directing plaintiffs to cease filling activities and obtain a fill permit and referring third parties to the property to dispose of fill. … * * *

The complaint alleges that the Town Code requires that a full application be submitted for a fill permit, the Town Code mandates that the Town Engineer require that all application components be submitted and that, as regards plaintiffs, the Town Engineer did not require submission of a completed application. Considering these Town Code requirements, the Town Engineer did not have the authority to make a discretionary determination to either grant or deny a fill permit until he had received a completed application, which never occurred here because he told plaintiffs that they did not need to submit some of the components of the application that are required under the Town Code … . Normanskill Cr., LLC v Town of Bethlehem, 2018 NY Slip Op 02697, Third Dept 4-19-18

​NEGLIGENCE (MUNICIPAL LAW, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/GOVERNMENTAL IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/SPECIAL RELATIONSHIP (NEGLIGENCE, MUNICIPAL LAW, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT).

The Third Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Defendant’s employee had recently mopped the area to clean up dog feces and then placed caution signs in the area. There was evidence the floor was extremely wet. The placement of the warning signs did not eliminate all questions of fact about defendant’s negligence:

Defendant’s submissions establish that approximately 20 minutes prior to plaintiff’s fall, defendant’s employee mopped the area where plaintiff fell due to dog feces having been tracked into the store. After the employee mopped the area, he placed two 3½-foot-tall yellow caution signs, one in close proximity to the entrance door, which plaintiff walked directly by when she entered the store. Deposition testimony of several witnesses and a surveillance video established that the floor was extremely wet. One witness, who assisted plaintiff after her fall, stated that the floor was so wet that plaintiff could not get enough traction to get up off the floor. This witness asked for paper towels to dry the floor around plaintiff and only after doing so was plaintiff able to get off the floor. This testimony expressly contradicted the affidavit of the employee who completed the mopping. Therefore, issues of material fact were raised as to whether defendant kept the entrance in a reasonably safe condition, created the condition or had actual or constructive notice of the condition … . Further, the presence of the warning signs does not prima facie establish entitlement to summary judgment as there is a question of fact as to the adequacy of the warning, particularly given the otherwise dry conditions outside, the placement and height of the signs and the heavy customer traffic where the signs were set … . Firment v Dick’s Sporting Goods, Inc., 2018 NY Slip Op 02700, Third Dept 4-19-18

​NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT))/SLIP AND FALL (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT))/WARNING SIGNS (NEGLIGENCE, SLIP AND FALL, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE.,RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT))

,

SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT).

The Third Department determined substantial evidence supported the Department of Health’s (DOH’s) determination that loans, notes and mortgages were transfers for less than market value in an attempt to qualify for Medicaid payments for nursing home care. Therefore a penalty period of ineligibility was properly imposed:

Assets conveyed through a note or a mortgage during the look-back period are considered to be transfers for full market value when the underlying loan is actuarially sound based upon the lender’s life expectancy, provides for equal payments throughout the life of the loan — with no deferrals or balloon payments — and includes a provision prohibiting cancellation upon the lender’s death … . Here, the mortgage was not actuarially sound, as its 30-year repayment term significantly exceeded the anticipated life expectancy of the spouse, who was 76 years old at the time of the transfer. After the rejection of petitioner’s Medicaid application, the spouse executed an amended mortgage that reduced the repayment term to five years. However, this amended mortgage provided for the same monthly payment as had the original document, with a balloon payment at the end of the five-year term; it thus did not comply with the separate requirement for equal payments throughout the life of the loan. Moreover, neither the original nor the amended version of the mortgage included the required provision prohibiting cancellation upon the spouse’s death; the 2010 note likewise included no such provision. Accordingly, substantial evidence supports DOH’s determination that neither transaction was made for fair market value … . Matter of Wellner v Jablonka, 2018 NY Slip Op 02701, Third Dept 4-19-18

MEDICAID (SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT))/MORTGAGES (MEDICAID, SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT))/NURSING HOMES (MEDICAID, SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT))

,

NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that husband did not present sufficient proof to warrant a change in the support provisions of the settlement agreement, as opposed to a child support order. No child support order was in effect at the time the husband sought to reduce the support obligation described in the settlement agreement:

“The case law distinguishes between modification of a separation agreement and that of a divorce decree. A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law. Indeed, courts of this [s]tate enjoy only limited authority to disturb the terms of a separation agreement” … . The husband sought modification of the terms of the agreement with respect to his child support and maintenance obligations, by motion, on the ground that his loss of employment constituted a change in circumstances that warranted modification — a standard that applies to modification of orders and judgments … — but he made no argument that the settlement agreement was invalid. Supreme Court may, upon a proper showing establishing a change in circumstances, modify an order or judgment of divorce that incorporates a settlement agreement. However, the court had no authority under the present circumstances to grant the husband’s motion by modifying the settlement agreement. Abdelrahman v Mahdi, 2018 NY Slip Op 02698, Third Dept 4-19-18

​FAMILY LAW (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CHILD SUPPORT  (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/SETTLEMENT AGREEMENT (FAMILY LAW, CHILD SUPPORT, MAINTENANCE, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/MAINTENANCE (FAMILY LAW, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, SETTLEMENT AGREEMENT, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy