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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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FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the Macy’s defendants did not eliminate all triable issues of fact concerning whether Macy’s sold the plaintiff’s skirt which caught fire from a heater. Although plaintiff could not identify the store where the skirt was purchased, Macy’s could not rely on the gaps in plaintiff’s proof as the basis for summary judgment. There was testimony from a buyer which indicated the skirt could have been purchased at a Macy’s store:

The Macy defendants failed to meet their initial burden of establishing that they did not sell the skirt at issue … . The Macy defendants correctly note that neither plaintiff nor her mother could identify the specific store from which the skirt was purchased. Merely pointing to gaps in plaintiff’s proof, however, does not suffice for the Macy defendants to meet their threshold burden … .

Furthermore, plaintiff testified that the skirt had an “Angie” label on it. Although a product director employed by the Macy defendants, who was previously a buyer, testified that she purchased Angie-labeled skirts from Star of India and that the Macy defendants sold skirts that were purchased from Star of India, her testimony was equivocal as to whether the type of skirt at issue was ever sold by the Macy defendants. In view of the foregoing evidence, the Macy defendants failed to eliminate all triable issues of fact as to whether they sold the skirt and, therefore, their motion should have been denied regardless of the sufficiency of the [other] defendants’ opposition … . Palmatier v Mr. Heater Corp., 2018 NY Slip Op 02382, Third Dept 4-5-18

​PRODUCTS LIABILITY (FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, PRODUCTS LIABILITY, FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))/SUMMARY JUDGMENT (PRODUCTS LIABILITY, FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))/EVIDENCE (SUMMARY JUDGMENT, PRODUCTS LIABILITY, FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))

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ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff was not entitled to discover the reports of other accidents involving defendant bus driver. Plaintiff’s children were injured after getting off the bus. Both the driver (Morin) and his employer (CDTA) were sued. Although the bill of particulars mentioned negligent hiring and retention, the complaint did not. Therefore there were no grounds for the discovery of the reports of prior accidents:

The allegations of negligence set forth in the complaint, as they relate to Morin and CDTA, pertain solely to Morin’s operation of the bus on the day of the incident … . Specifically, the complaint alleges that, after discharging the infant passengers, Morin “negligently remained in that position for a considerable period of time, causing the bus to obstruct the path of travel for other vehicles in violation of the Vehicle and Traffic Law[].” It further alleges that Morin was “negligent, careless and reckless” in failing to illuminate his hazard lights or any other signal to alert drivers of the presence of the bus during that time. Critically absent from the complaint is any allegation of direct negligence on the part of CDTA. Thus, the complaint “gives not the slightest indication of a theory of liability of negligent supervision[, hiring or retention]”… . Although plaintiff alleged a theory of negligent hiring and retention in his bill of particulars, “[i]t is well settled that a bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial . . . [, and it] may not be used to allege a new theory not originally asserted in the complaint” … . Schonbrun v DeLuke, 2018 NY Slip Op 02386, Third Dept 4-5-18

​NEGLIGENCE (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/BUSES (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/TRAFFIC ACCIDENTS (BUSES, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT)/CIVIL PROCEDURE (COMPLAINTS, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/COMPLAINTS (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/BILL OF PARTICULARS (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/DISCOVERY (ACCIDENT REPORTS, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/ACCIDENT REPORTS (NEGLIGENT HIRING AND RETENTION, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/EMPLOYMENT LAW (NEGLIGENT HIRING AND RETENTION, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/NEGLIGENT HIRING AND RETENTION (ACCIDENT REPORTS, DISCOVERY , ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))

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TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the town’s Site Plan Review Law was a valid substitute for zoning ordinances and explained the difference. The court also explained the meaning of a “comprehensive plan” in this context. In the underlying action the petitioners contested certain conditions placed upon the storage and sale of firewood imposed by the town planning board and argued that the planning board did not have the authority, under the Site Plan Review Law, to impose the conditions:

The primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town’s available land” … . In contrast, site plan review reflects “public interest in environmental and aesthetic considerations, the need to increase the attractiveness of commercial and industrial areas in order to invite economic investment, and the traditional impulse for controls that might preserve the character and value of neighboring residential areas” … . Site plan review furthers those ends by “permit[ting] municipalities to regulate the development and improvement of individual parcels in a manner not covered under the usual provisions of building and zoning codes which establish specific standards for construction of buildings, provide for specific limitations on use, and fix definite numerical criteria for density, building set backs and frontage and height requirements” … .

There is no statutory directive that a municipality employ both zoning and site plan review as mechanisms of land-use control. …

The trial court … relied upon the absence of zoning or other land use policies to determine that the Site Plan Review Law ran afoul of the requirement that “[a]ll town land use regulations must be in accordance with a comprehensive plan” … . A comprehensive plan “need not be contained in a single document; indeed, it need not be written at all”… . Rather, “[t]he court may satisfy itself that the municipality has a [comprehensive] plan and that authorities are acting in the public interest to further it by examining all available and relevant evidence of the municipality’s land use policies” … . Matter of Bovee v Town of Hadley Planning Bd., 2018 NY Slip Op 02387, Third Dept 4-5-18

​MUNICIPAL LAW (LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/LAND USE ( TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/ENVIRONMENTAL LAW (LAND USE, OWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/ZONING (TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/SITE PLAN REVIEW LAW (LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/COMPREHENSIVE PLAN (MUNICIPAL LAW, LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))

, ,

RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT).

The Third Department, reversing County Court (which had affirmed Town Court), determined that the tenant-respondent’s defenses in this eviction proceeding should have been considered:

“When a landlord-tenant relationship exists, the landlord may maintain a special proceeding to remove a tenant if, as relevant here, ‘[t]he tenant continues in possession of any portion of the premises after the expiration of his [or her] term'” … . The tenant is free, however, to raise “any legal or equitable defense, or counterclaim” in answering the allegations in the petition … .

In that regard, respondent asserted a defense of retaliatory eviction, which includes the scenario wherein a landlord terminates a tenancy “to punish the tenant for complaining to government authorities and then . . . brings a holdover proceeding to evict the tenant” … . Respondent made “[a] good faith complaint . . . to a governmental authority of the landlord’s violation of any health or safety law, regulation, code, or ordinance” within the six months prior to the commencement of this proceeding … . …

​Town Court further failed to grapple with the defenses of constructive eviction and breach of the implied warranty of habitability raised by respondent. County Court correctly observed that these defenses cannot forestall an eviction in a holdover proceeding, but overlooked that they are viable “defense[s] to the recovery of rent” in such proceeding ,,, , Matter of Kirkview Assoc. LP v Amrock, 2018 NY Slip Op 02389, Third Dept 4-5-18

​LANDLORD-TENANT (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/RETALIATORY EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/CONSTRUCTIVE EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/HABITABILITY, WARRANTY OF (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (EVICTION,  (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY LAW (EVICTION,  (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))

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