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SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the trial court erred when it deviated from a stipulation entered into by the parties concerning the measure of damages for trees inadvertently cut and removed from plaintiffs’ property by defendants:

… Supreme Court erred in deviating from their stipulation in rendering the damages award. No grounds have been shown to vacate the parties’ clearly expressed agreement as to the merchantability of the various trees or the methodology to be used in formulating the award. As the parties here were “free to chart their own course [and] fashion the basis upon which [this] particular controversy [would] be resolved” … , Supreme Court was not free to substitute its own judgment for that of the parties … . We must therefore determine, in the exercise of our discretion and in accordance with the parties’ stipulation, the appropriate measure of damages to be awarded as a consequence of defendants’ illegal removal of the 442 trees from plaintiffs’ property. * * *

Considering the facts and circumstances of this case, and mindful of the overriding purpose and intent of RPAPL 861, we find that plaintiffs are entitled to statutory damages of $250 per tree for the 442 trees cut and removed… . We emphasize that our discretionary determination in this regard is narrow and circumscribed by the parties’ stipulation … , which we are bound to honor. Halstead v Fournia, 2018 NY Slip Op 02525, Third Dept 4-12-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/CONTRACT LAW (STIPULATIONS, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/STIPULATIONS (SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/TIMBER (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/TREES (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))

NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT).

The Third Department determined the action for negligent entrustment of a motorcycle properly survived a summary judgment motion. The motorcycle was borrowed by Perkins from Hines. When Zimmer pulled out of his driveway, Perkins, who was operating the motorcycle, swerved and hit a tree. Perkins sued Zimmer and Zimmer sued Hines for negligent entrustment. Perkins had a driving permit but did not have a driver’s license:

… [T]his appeal deals with a negligent entrustment cause of action; the issue is not Perkins’ negligence in operating the motorcycle, but whether Hines should have entrusted the motorcycle to him in the first instance … . Thus, the fact that Perkins did not possess a motorcycle license “is a factor to consider in determining whether” Hines knew or should have known if Perkins was competent to operate her motorcycle. …

We reject Hines’ argument that a negligent entrustment cause of action cannot stand under the present circumstances because the person who was injured (Perkins) was the one to whom a dangerous instrument was allegedly negligently entrusted … . Similarly, it is irrelevant that Zimmer was not physically injured. The injury alleged to him here is “financial harm resulting from potential liability of a ‘concurrent’ tort-feasor” for Perkins’ injuries while using the dangerous instrument … . Zimmer is not precluded from obtaining a recovery from Hines merely because Perkins may not be able to directly recover from Hines based on her negligent entrustment of the motorcycle to him; the situation is analogous to one in which a third-party tortfeasor “may implead for contribution or indemnity the employer of an injured employee, despite the employee’s inability to recover from the employer directly” due to the Workers’ Compensation Law … . Perkins v County of Tompkins, 2018 NY Slip Op 02530, Third Dept 4-12-18

​NEGLIGENCE (MOTORCYCLE, NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))/NEGLIGENT ENTRUSTMENT (MOTORCYCLE, NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))/MOTOCYCLES (NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))/DRIVER’S LICENSE ( (MOTORCYCLE, NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))

DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department determined defendants did not eliminate all trial issues of fact in this ice and snow slip and fall case. The defendants did not demonstrate when the area had last been cleared or inspected. The fact that the fall occurred in a restricted area was not determinative because defendants were aware the area was used by people and there were no signs instructing people not to use it:

Even if we agreed with defendants that they did not create the alleged dangerous condition, we conclude that defendants did not meet their initial moving burden inasmuch as their own proof failed to eliminate all triable issues of fact on the issue of constructive notice… .. In this regard, defendants’ proof, including the photographs, did not suffice to show when they last cleaned or inspected the area in question … . Additionally, even though the area where plaintiff slipped and fell was a restricted area, the record evidence shows that defendants were aware that people would cross through this area and there were no signs instructing people not to do so. Hurley v City of Glens Falls, 2018 NY Slip Op 02529, Third Dept 4-12-18

​NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))/SLIP AND FALL ( DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))/CONSTRUCTIVE NOTICE (NEGLIGENCE, SLIP AND FALL, DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))/ICE AND SNOW (SLIP AND FALL, DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))

QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant municipality and hockey club were negligent in failing to adequately protect the plaintiff, a spectator, from being struck by a hockey puck, The goals had been repositioned in areas where there was no protective netting behind them:

It is well-settled that an owner or operator of an athletic field or facility “is not an insurer of the safety of its spectators” … and that, under the assumption of risk doctrine, consenting “[s]pectators and bystanders . . . assume risks associated with a sporting event or activity, even at times when they are not actively watching the event” … . However, “a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks”… . Notwithstanding a spectator’s assumption of risk, an owner or occupier of land remains under a duty to exercise reasonable care under the circumstances to prevent injury to those who are present on the property … . In the context of hockey rinks, “the owner’s duty owed to spectators is discharged by providing screening around the area behind the hockey goals, where the danger of being struck by a puck is the greatest, as long as the screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire to view the game from behind such screening” … . …

… [P]laintiffs’ proof demonstrating that defendants’ repositioning of the hockey goals along the less protected sides of the rink — “where the danger of being struck by a puck is greatest” …  — was sufficient to show the existence of a triable issue of fact as to whether defendants satisfied their reasonable duty of care owed to the child walking down the ramp behind the repositioned goal. Smero v City of Saratoga Springs, 2018 NY Slip Op 02521, Third Dept 4-12-18

​NEGLIGENCE (HOCKEY RINK, QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))/ASSUMPTION OF THE RISK (HOCKEY RINK, QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))/SPECTATORS (HOCKEY RINK, QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))/HOCKEY (QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))

WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT).

The Third Department determined the insurer’s motion for summary judgment in this property damage case was properly granted. Plaintiff alleged  water damage to its hotel was caused by Hurricane Sandy. There was an exclusion in the policy for “wear and tear.” The insurer’s expert presented evidence that the water damage was due, inter alia, to improper flashing and the absence of proper caulking around the windows:

The dictionary definition of “wear and tear” is “the loss, injury, or stress to which something is subjected by or in the course of use” … . Nothing in the policy language suggests that an average insured would expect the phrase to have another meaning or that the language is subject to any other reasonable interpretation.

As for the application of the exclusion in this case, defendant supported its summary judgment motion with the affidavit and report of an engineer with experience in “structural investigation[s] and failure determinations” who inspected the property several weeks after the hurricane. His examination of the hotel’s exterior walls revealed “improper flashing detail” consisting of failed caulk that had originally been installed to seal the areas where each room’s exterior walls and windows met the hotel’s concrete floors and surrounding masonry walls. According to the engineer, the caulk had separated from these surfaces as a result of age and lack of maintenance, creating spaces through which water could migrate into the walls. The engineer observed significant deterioration in the walls’ internal framing, as well as other indications that water had been seeping into the walls for a long time; in a follow-up inspection several years later, he also found evidence that water continued to enter the walls after the hurricane as a result of the failed caulk, causing new damage to surfaces that had been repaired after the storm. Superhost Hotels Inc. v Selective Ins. Co. of Am., 2018 NY Slip Op 02519, Third Dept 4-12-18

INSURANCE LAW (WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))/WEAR AND TEAR (INSURANCE LAW, WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))/WATER DAMAGE (INSURANCE LAW, WEAR AND TEAR, WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))/EXCLUSIONS (INSURANCE LAW, WEAR AND TEAR, WATER DAMAGE, ALLEGED TO HAVE BEEN CAUSED BY HURRICANE SANDY, WAS DEMONSTRATED TO HAVE RESULTED FROM WEAR AND TEAR AND WAS THEREFORE SUBJECT TO THE POLICY EXCLUSION (THIRD DEPT))

AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, addressing many substantive issues not summarized here, determined the Department of Environmental Conservation (DEC) Commissioner’s rulings approving two development projects in the Catskills were proper. The DEC and the permit applicant were in agreement. Only the petitioners (apparently an alliance of affected property owners) were requesting further review, including a request for the adjudication of “substantive and significant” issues (which was denied). The court explained the criteria for further adjudication in this context:

Where, as here, there is no dispute between DEC staff and the permit applicant, adjudication is required only if the issue is “both substantive and significant” … . “An issue is substantive if there is sufficient doubt about the applicant’s ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry” … . “An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit” … . “The resolution of whether an issue is substantive and significant requiring an adjudicatory hearing is left to the Commissioner and will not be disturbed absent a showing that it is predicated upon an error of law, is arbitrary or capricious, or represents an abuse of discretion” … . Further, where “‘the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference'” … . Matter of Catskill Heritage Alliance, Inc. v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 02516, Third Dept 4-12-18

ENVIRONMENTAL LAW (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/ADJUDICATION, REQUEST FOR (ENVIRONMENTAL LAW, AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))

AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, addressing many substantive issues not summarized here, determined the Department of Environmental Conservation (DEC) Commissioner’s rulings approving two development projects in the Catskills were proper. The DEC and the permit applicant were in agreement. Only the petitioners (apparently an alliance of affected property owners) were requesting further review, including a request for the adjudication of “substantive and significant” issues (which was denied). The court explained the criteria for further adjudication in this context:

Where, as here, there is no dispute between DEC staff and the permit applicant, adjudication is required only if the issue is “both substantive and significant” … . “An issue is substantive if there is sufficient doubt about the applicant’s ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry” … . “An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit” … . “The resolution of whether an issue is substantive and significant requiring an adjudicatory hearing is left to the Commissioner and will not be disturbed absent a showing that it is predicated upon an error of law, is arbitrary or capricious, or represents an abuse of discretion” … . Further, where “‘the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference'” … . Matter of Catskill Heritage Alliance, Inc. v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 02516, Third Dept 4-12-18

ENVIRONMENTAL LAW (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/ADJUDICATION, REQUEST FOR (ENVIRONMENTAL LAW, AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))/DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) (AFTER THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE PERMIT APPLICANT CAME TO AN AGREEMENT, A REQUEST BY AFFECTED PROPERTY OWNERS FOR FURTHER ADJUDICATION OF ISSUES RELATING TO THE APPROVAL OF TWO DEVELOPMENT PROJECTS IN THE CATSKILLS WAS PROPERLY DENIED BY THE DEC COMMISSIONER (THIRD DEPT))

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ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, determined electronic images of election ballots are accessible under the Freedom of Information Law (FOIL) after they have been preserved in accordance with the Election Law:

The dispute before us poses a question of public significance: whether electronic images of ballots cast in an election are accessible under the Freedom of Information Law … . We conclude that, once electronic ballot images have been preserved in accordance with the procedures set forth in Election Law § 3-222 (1), there is no statutory impediment to disclosure and they may be obtained through a FOIL request.

Our analysis is informed by the advent of electronic voting in New York (see generally Election Law § 7-202 [4]). As more fully set forth in the record, upon inserting a ballot into an electronic voting machine, it is scanned and an image of it is stored in a random fashion on portable flash drives, which preserve the secrecy of the ballot. The original ballot is then deposited by the scanner into a secure ballot box under the machine. After the polls close, the machine prints out a tabulated results tape containing the official record of votes cast on that particular machine. One of the flash drives is removed from the machine and returned to the applicable board of elections, while the other remains with the machine and is used during the recanvass process. As is relevant here, the content on the portable flash drives is then copied to permanent electronic storage media, such as a hard drive, after which the temporary storage media may be reused in another election … . Matter of Kosmider v Whitney, 2018 NY Slip Op 02517, Third Dept 4-12-18

​ELECTION LAW (FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/FREEDOM OF INFORMATION LAW (FOIL) (ELECTION LAW, ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/ELECTRONIC VOTING (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))//BALLOTS (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))

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REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT).

The Third Department determined Supreme Court properly denied a DNA-related Frye hearing based on a Frye hearing held in another case, even though that case is on appeal. The hearing was requested concerning a computer program (TrueAllele) which calculates the probability a defendant’s DNA is in a mixture that could not otherwise be definitively tied to the defendant. The original code for the computer program, called the source code, could have been requested by the defendant for a pre-trial analysis by a defense expert. The defense never requested the source code but attempted to have the TrueAllele expert provide the source code during cross-examination. The argument that cross-examination was impeded because the source code was not made available to the defense at trial was rejected. Only an expert could analyze it and there had been no timely request for it by the defense:

…DNA analysis did not definitively tie defendant to the genetic material recovered from the pistol. The People accordingly sought to present proof of a re-analysis conducted with the TrueAllele Casework System (hereinafter TrueAllele), a computer program that subjects a DNA mixture to statistical modeling techniques to infer what DNA profiles contributed to the mixture and calculate the probability that DNA from a known individual contributed to it. Defendant argued that the TrueAllele evidence should be precluded or that the general acceptance of the technique in the scientific community should be assessed via a Frye hearing. Supreme Court denied the application due to the fact that an extensive Frye hearing had been conducted on the issue in another criminal case in the same county and that a determination, issued weeks before the trial in this matter, was rendered finding that the procedure was not novel and was generally accepted by the relevant scientific community … . People v Fields, 2018 NY Slip Op 02503, Third Dept 4-12-18

​CRIMINAL LAW (DNA, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DNA, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/FRYE HEARING (DNA, CRIMINAL LAW, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/TRUEALLELE (DNA, CRIMINAL LAW, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))

QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ (Schwengbers’) motion for summary judgment in this prescriptive easement case should not have been granted. The action concerned a shared driveway and a question of fact was raised whether plaintiffs’ use of the driveway was “hostile:”

“A party claiming a prescriptive easement must show . . . that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” … . Hostility is the only element contested here. Once the other elements of a prescriptive easement are established, “hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive” … . However, permission can be inferred when “the relationship between the parties is one of neighborly cooperation and accommodation,” in which case no presumption of hostility will arise … . Moreover, “where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right” … . “Generally, the question of implied permission is one for the factfinder to resolve” … . …

… Schwengber … made assertions regarding her cordial and cooperative relationship — specifically relative to the driveway — with her neighbors who owned defendant’s parcel from 1974 to 2011. These assertions could be read to infer that plaintiffs had implied permission to use the driveway. Inasmuch as Schwengber’s affidavit contained assertions that supported inferences of both hostility and permissive use, plaintiffs failed to meet their initial burden on their summary judgment motion. Even if plaintiffs had met their burden, defendant submitted evidence indicating that his immediate predecessor-in-interest had an amicable and neighborly arrangement with plaintiffs. Schwengber v Hultenius, 2018 NY Slip Op 02379, Third Dept 4-5-18

​REAL PROPERTY LAW (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/EASEMENTS (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/PRESCRIPTIVE EASEMENTS (QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/HOSTILITY (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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