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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County County should have assigned a new attorney after defense counsel took a position adverse to her client’s motion to withdraw his plea:

At sentencing, defense counsel appropriately advised County Court that, although she had counseled defendant regarding the potential consequences of withdrawing his guilty plea, and despite her legal advice to the contrary, defendant nevertheless wished to proceed with such a motion. Defendant thereafter set forth various reasons as to why he believed he was entitled to the requested relief. In response to County Court’s subsequent inquiries, however, defense counsel made comments that, in our view, could be construed as undermining the very arguments that defendant had raised in support of his motion. Accordingly, once defense counsel took a position that was adverse to defendant, County Court should have assigned a new attorney to represent him on his motion to withdraw his plea … . People v Oliver, 2018 NY Slip Op 01221, Third Dept 2-22-18

CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))

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COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County Court failed to place on the record the statutory factors to be weighed in determining youthful offender status. The waiver of appeal did not foreclose the challenge on appeal:

… County Court’s comments regarding defendant’s application for youthful offender status failed to satisfy the statutory mandate of CPL 720.10. An appeal waiver does not foreclose a defendant’s challenge that a court failed to make the requisite on-the-record determinations regarding youthful offender treatment … . Pursuant to CPL 720.10 (3), “a youth who has been convicted of . . . criminal sexual act in the first degree . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Where, as here, the only barrier to youthful offender status is an enumerated sex offense (see CPL 720.10 [2] [a]), “the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)”… . This determination is mandatory, without regard to whether it has been requested or purportedly waived … . People v Martz, 2018 NY Slip Op 01222, Third Dept 2-22-18

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/APPEALS (CRIMINAL LAW, YOUTHFUL OFFENDER, YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/YOUTHFUL OFFENDER (COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/SEX OFFENSES (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))

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DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined that defendant’s plea colloquy negated an essential element of the offense (criminal contempt). An exception to the preservation requirement applied:

“[W]here a pleading defendant’s recitation of the facts of his or her offense clearly casts doubt on his or her guilt and the court makes no further inquiry, the defendant does not have to preserve a claim of fatal error in the allocution because . . . ‘the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized'” … . Here, defendant stated during her plea allocution that she did not intend to violate the underlying order of protection, thus negating an element of criminal contempt in the first degree… . Although County Court promptly responded and afforded defendant an opportunity to again consult with her counsel, further discussion was then held off the record. Thus, we are unable to ascertain from the record whether the court conducted the requisite further inquiry to ensure that defendant understood the elements of the crime to which she was pleading guilty and that the plea was knowing, voluntary and intelligent … . People v Busch-scardino, 2018 NY Slip Op 01218, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/GUILTY PLEA (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/PRESERVATION (CRIMINAL LAW, APPEALS, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))

ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined that the judicial diversion hearing should have been presided over by a judge in the Drug Treatment Court, not County Court:

… County Court was not designated by the Administrative Judge for the Third Judicial District to preside over the drug treatment court in Sullivan County. … Accordingly, while County Court had jurisdiction to hear the subject felony case … , once an alcohol and substance abuse evaluation was ordered for defendant … — for the express purpose of determining whether he was eligible for judicial diversion — the case should have been referred to the designated Superior Court for drug treatment pursuant to 22 NYCRR part 143. Accordingly, under the circumstances presented, we find that County Court was without authority to preside over defendant’s judicial diversion hearing … . People v Lee, 2018 NY Slip Op 01216, Third Dept 2-22-18

CRIMINAL LAW (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/JUDICIAL DIVERSION HEARING (CRIMINAL LAW, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/DRUG TREATMENT COURT  (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/ALCOHOL AND SUBSTANCE ABUSE EVALUATION (CRIMINAL LAW,  ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))

DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s request for a jury instruction on a lesser included offense should have been granted. Defendant shot another hunter and was charged with assault second. Defendant requested a jury instruction on assault third which was denied:

Defendant argued that the jury could reasonably find from the trial proof that he did not act recklessly so as to commit assault in the second degree (see Penal Law § 120.05 [4]), but did behave negligently so as to commit assault in the third degree … . Recklessness and criminal negligence are achingly close to one another; a reckless defendant “perceives the risk, but consciously disregards it,” while a criminally negligent defendant “negligently fails to perceive the risk” altogether … . A jury distinguishes between the two by considering “the evidence . . . relating to the mental state of the defendant at the time of the crime”… .

… [D]efendant knew that the victim had permission to hunt on the property where the shooting occurred, but also told investigators that he had seen no sign of the victim or anyone else in the three weeks that he had been hunting in the area. The victim confirmed that the area was not frequented by hunters, testifying that he had never seen another person in the 30 years that he had hunted there and saw human tracks for the first time the week before he was shot. There was no proof that defendant recalled the advice given at a hunting safety class, which he took 20 years prior, to be certain of his target before opening fire. Even if he did, however, he told investigators that he opened fire after hearing what he thought were deer horns rubbing against branches and watched what he thought was a deer but was, in reality, the stooped-over victim in a camouflage jacket. Viewing this evidence in the light most favorable to defendant … , the jury could have reasonably found that defendant did not disregard, but instead failed to perceive, an unjustifiable risk of injury to the victim when he opened fire without sufficient observation… . County Court therefore erred in refusing to charge the lesser included offense of assault in the third degree … . People v Lavalley, 2018 NY Slip Op 01223, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/ASSAULT (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/HUNTERS (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))

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ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENTS MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that defendants demonstrated the suit against them was a strategic lawsuit against public participation (SLAPP). Therefore plaintiff’s motion to dismiss the defendants’ anti-SLAPP counterclaim was properly denied. Plaintiff operated a yard-waste-related business. Defendants lived on neighboring properties and had made statements about odors and contamination related to the yard waste. Because the court determined this was a SLAPP suit, the complaint against a defendant based upon statements made by the defendant about plaintiff’s yard waste business (alleging defamation, interference with a a business relationship, inter alia) should have been dismissed:

It is undisputed that, in 2007, plaintiffs registered with the Department of Environmental Conservation (hereinafter DEC) as a yard waste composting facility that accepts between 3,000 to 10,000 cubic yards of waste per year … . Lawful operation of plaintiffs’ composting facility requires DEC permission and ongoing compliance with all applicable regulations and is subject to oversight by DEC … . …  In light of the fact that operations pursuant to a registration require DEC permission and are subject to continuing DEC oversight, Supreme Court properly concluded that plaintiffs are public permittees, as defined by Civil Rights Law § 76-a (1) (b) … .

We also conclude that the relevant conduct challenged in this action — defendants’ statements about plaintiffs and the operations conducted at their property — establishes that the action is materially related to plaintiffs’ registered yard composting facility. …

Inasmuch as we have determined that this action involves public petition and participation, to avoid dismissal of the complaint against [defendant] Merced, plaintiffs must demonstrate that any statement they allege she made “was made with knowledge of its falsity or with reckless disregard of whether it was false” (Civil Rights Law § 76-a [2]…) . Plaintiffs failed to meet this burden. Edwards v Martin, 2018 NY Slip Op 01238, Third Dept 2-22-18

CIVIL RIGHTS LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/ENVIRONMENTAL LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/DEFAMATION (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/SLAPP SUITS (ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))

NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT).

The Third Department determined the superior court information (SCI) charging burglary did not need to specify the crime to be committed during the robbery. The court further found that it was error to impose restitution for a burglary which was not charged in SCI:

Defendant further asserts that the SCI is jurisdictionally defective because it did not identify the underlying crime that he intended to commit during the burglary. We are not persuaded. “A charging instrument that incorporates by reference the statutory provisions applicable to the crime charged has been held to allege the material elements of the crime sufficiently to survive a jurisdictional challenge”… . Here, the SCI specifically referenced Penal Law § 140.20, which defines burglary in the third degree. Significantly, the statute does not specify that the underlying crime must be identified (see Penal Law § 140.20), nor has this been held to be a requirement… . Consequently, we find that the SCI validly charged defendant with two counts of burglary in the third degree, to which he pleaded guilty. …

As for the restitution award, the People concede that County Court erroneously included the amount of $31,000 as compensation to the owner of the Halfmoon restaurant when there was no accusatory instrument filed charging defendant with any crimes related thereto. We must agree. “Penal Law § 60.27 permits a trial court to require restitution arising from ‘the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense'” … . People v Suits, 2018 NY Slip Op 01098, Third Dept 2-15-18

CRIMINAL LAW (SUPERIOR COURT INFORMATION, RESTITUTION, NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))/BURGLARY (SUPERIOR COURT INFORMATION, RESTITUTION, NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))/SUPERIOR COURT INFORMATION (SCI) (BURGLARY, NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))/RESTITUTION (BURGLARY, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))

ALTHOUGH DECEDENT, A NEW YORK RESIDENT, WORKED FOR A PENNSYLVANIA COMPANY, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT).

The Third Department determined New York could exercise jurisdiction over an injury that occurred outside New York. Decedent was a New York resident working for a Pennsylvania company:

The Board has jurisdiction over a claim for an injury occurring outside of New York where there are “sufficient significant contacts” between the employment and New York … . A variety of factors must be taken into account in the fact-finding required to assess jurisdiction, “including where the employee resides, where the employee was hired, the location of the employee’s employment and the employer’s offices, whether the employee was expected to return to New York after completing out-of-state work for the employer and the extent to which the employer conducted business in New York” … . The Board’s determination as to the existence of jurisdiction will not be disturbed if it is supported by substantial evidence … .

At the hearing, decedent testified that, while he was living in New York, he was hired by the employer during a phone call and that he thereafter went to Pennsylvania for a four-day orientation before he began driving for the employer. He further explained that he continued to live in New York and that, during the two-year period prior to his accident, he had made 17 deliveries to locations in New York, which was significantly more deliveries than he had made to Pennsylvania. Decedent also described his “home base” as being in New York and testified that the employer would contact him at his home in New York about jobs. After decedent was injured, the employer assisted in securing medical care for him in New York and selecting a doctor for him there. Decedent acknowledged that the dispatcher from whom he received calls was located in Pennsylvania. Decedent further explained that, after he was injured, the employer helped secure him light-duty work in New York for which the employer paid him, and the record contains a letter to decedent explaining that the employer had sought assistance in securing him such a position and that it was “an extension of [his] employment” with the employer. Matter of Galster v Keen Transp., Inc., 2018 NY Slip Op 01105, Second Dept 2-14-18

WORKERS’ COMPENSATION LAW (JURISDICTION, INJURY OUTSIDE NEW YORK, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT))/JURISDICTION (WORKERS’ COMPENSATION LAW, INJURY OUTSIDE NEW YORK, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT))

BACK AND NECK INJURIES PROPERLY RULED AN OCCUPATIONAL DISEASE RESULTING FROM REPETITIVE LIFTING AND CARRYING (THIRD DEPT).

The Third Department determined claimant demonstrated his back and neck injuries constituted an occupational disease related to his lifting and mix heavy containers of compound and applying the compound to walls and ceilings:

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“In order for an occupational disease to be established, the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment”… . Claimant testified that his job required lifting and carrying containers of plastering compound weighing roughly 50 pounds and using the compound to hang sheetrock for eight hours a day, five or six days a week, for over 30 years. Samuel Kim, a neurosurgeon, opined that claimant suffered from chronic neck and back pain and degenerative disc disease in his cervical and lumbar spine and that the condition was consistent with a history of repetitive movement, and Yong Kim, claimant’s treating physician, attributed claimant’s back pain to “repetitive use at work.” In light of the foregoing, and given that no contrary medical opinions were presented, the Board’s determination that claimant suffered from an occupational disease resulting from repetitive stress is supported by substantial evidence and will not be disturbed … . Matter of Garcia v MCI Interiors, Inc., 2018 NY Slip Op 00873, Third Dept 2-8-18

WORKERS’ COMPENSATION LAW (OCCUPATIONAL DISEASE, BACK AND NECK INJURIES PROPERLY RULED AN OCCUPATIONAL DISEASE RESULTING FROM REPETITIVE LIFTING AND CARRYING (THIRD DEPT))/OCCUPATIONAL DISEASE (WORKERS’ COMPENSATION LAW, BACK AND NECK INJURIES PROPERLY RULED AN OCCUPATIONAL DISEASE RESULTING FROM REPETITIVE LIFTING AND CARRYING (THIRD DEPT))

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PLAINTIFF ALLEGED CONTINUING BREACHES OF CONTRACT, AIDING AND ABETTING FRAUD, NEGLIGENT MISREPRESENTATION AND AIDING AND ABETTING BREACH OF FIDUCIARY DUTY FOR THE DURATION OF THE DEBT-RIDDEN WORKERS’ COMPENSATION TRUST, WHICH WAS TERMINATED 25 DAYS BEFORE THE EXPIRATION OF THE SIX YEAR STATUTE OF LIMITATIONS, THOSE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined the causes of action for breach of contract, aiding and abetting fraud and negligent misrepresentation, and aiding and abetting a breach of fiduciary duty should not have been dismissed as time barred. The underlying suit is based on the allegation that defendant insurance broker was on the board of a Workers’ Compensation trust, which plaintiff had joined, and which was $82 million in debt. The Third Department held that the six-year statute of limitations applied to all the (above-described) causes of action and the complaint alleged continuing breaches throughout the period of membership in the trust, which terminated 25 days before the expiration of the statute of limitations (i.e., the six-year period before the suit was brought extended back to March 24, 2008, and the trust was terminated on April 17, 2008):

… [T]he amended complaint alleges continuing contractual obligations on the part of defendant and specifies that the various acts and omissions constituting the breaches occurred “[t]hroughout the entire course of [p]laintiff’s membership in the [t]rust.” Deeming these allegations as true and according them every favorable inference, as we must … , we conclude that defendant failed to make the requisite prima facie showing that plaintiff’s breach of contract claim is time-barred in its entirety … . …

[P]laintiff’s causes of action for negligent misrepresentation and aiding and abetting fraud are timely insofar as they allege conduct occurring [during the 25 day window]. …

… [W]e disagree with Supreme Court’s conclusion that the entirety of plaintiff’s aiding and abetting breach of fiduciary duty claim is governed by a three-year statute of limitations. Because plaintiff does not seek equitable relief, a six-year statute of limitations period applies to a breach of fiduciary duty cause of action if “an allegation of fraud is essential to” such claim … . While a claim of fraud generally requires an affirmative misrepresentation, “fraud may also result from a fiduciary’s failure to disclose material facts when the fiduciary had a duty to disclose and acted with the intent to deceive” … . Krog Corp. v Vanner Group, Inc., 2018 NY Slip Op 00876, Third Dept 2-8-18

 

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