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PLAINTIFF’S MOTION TO RENEW HIS SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED; NO “NEW FACTS” WERE DEMONSTRATED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this Labor Law 240(1) action, determined plaintiff’s motion to renew his summary judgment motion should not have been granted. Plaintiff was attempting to disassemble a freezer when the freezer roof collapsed and he fell to the floor:

Pursuant to CPLR 2221, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . In his motion for leave to renew and reargue, plaintiff sought to admit a supplemental expert affidavit in which plaintiff’s expert sought to clarify that accessing the freezer’s ceiling was an essential task of disassembly. Plaintiff averred that this information was not proffered before because he was not on notice that he needed to address the different tasks required for disassembly. However, our review of the original motion papers reveals that, not only did the expert’s original affidavit briefly address the need for plaintiff to climb on top of the freezer, but also that [defendant’s] affirmations in opposition were sufficient to put plaintiff on notice that the necessity of plaintiff’s work on the ceiling would be at issue … . Additionally, as plaintiff had already retained an expert, there was nothing preventing plaintiff from submitting additional evidence in reply to [defendant’s] affirmations in opposition, prior to the court’s original determination … .Therefore, Supreme Court improperly granted plaintiff’s motion to renew, and plaintiff’s supplemental expert affidavit should not be considered on summary judgment … . Burgos v Darden Rests., Inc., 2025 NY Slip Op 00009, Third Dept 1-2-25

Practice Point:  A motion to renew a summary judgment motion must be based upon new facts which could not have been addressed in the initial motion, not the case here.

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BEFORE HEARSAY CAN BE RELIED UPON BY THE COURT FOR A SORA RISK-LEVEL ASSESSMENT, THE PEOPLE MUST ESTABLISH A FOUNDATION SUPPORTING THE RELIABILITY OF THE HEARSAY (THIRD DEPT).

The Third Department, reversing County Court and remitting the SORA risk-assessment proceeding, determined County Court should not have relied on hearsay to prove that the adult in a photograph depicting sexual activity between an adult and a child was the defendant. The case was remitted to allow the People the opportunity to establish a foundation for the reliability of the hearsay:

In assessing defendant 25 points under risk factor 2 for sexual contact with the victim, County Court relied upon a contested statement in the case summary made by an assistant district attorney to the author of the case summary. The assistant district attorney stated that defendant had possessed an image depicting him and his female relative engaged in sexual activity. The People concede, and we agree, that County Court improperly relied upon this hearsay, without making an inquiry into its reliability, in assessing 25 points under risk factor 2 for sexual contact with the victim. While the court found that the photographs depicted sexual activity between the child and an adult, it made no finding that defendant was that adult. The People therefore failed to establish by clear and convincing evidence that there was any sexual contact between defendant and the victim … .

Although defendant argues that the remedy for the error is to subtract 25 points from risk factor 2 and, upon doing so, designate him a risk level one sex offender, we agree with the People that the more appropriate course is to remit the matter to the SORA court “to provide the District Attorney an opportunity to establish a foundation” supporting the hearsay’s reliability … . People v Davis, 2024 NY Slip Op 06632, Third Dept 12-26-24

Practice Point: The People must establish a foundation supporting the reliability of any hearsay relied upon by the court in a SORA risk-level assessment proceeding.​

 

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PLAINTIFFS WERE PREJUDICED BY THE JURY SELECTION PROCESS WHICH DID NOT ALTERNATE THE PEREMPTORY CHALLENGES; THE FIRST QUESTION POSED TO THE JURY EFFECTIVELY PRECLUDED THE JURORS FROM CONSIDERING THE APPROPRIATE LEGAL ISSUE, I.E., WHETHER THE PLAINTIFF SUFFERED A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW (THIRD DEPT).

The Third Department, reversing the jury verdict and ordering a new trial in this Insurance Law 5102(d) “serious injury” case, determined the plaintiffs were prejudiced by the jury selection method used the trial judge, and the first question on the verdict sheet was improper because it effectively precluded the jury from considering the relevant question, whether plaintiff suffered a “serious injury:”

The court’s failure to alternate the peremptory challenge process … placed plaintiffs in the untenable position of having to utilize a peremptory challenge for a prospective juror that may not have been necessary had defendants been required to go first. This error compromised the fairness of the jury selection process.

Plaintiffs further contend that Supreme Court erred by including the first question on the verdict sheet — i.e., “[h]ave the plaintiffs . . . established that the incident . . . was a substantial factor in causing [Mormile’s] injuries?” We agree.  The specific issue for the jury to resolve was whether, as a result of the subject accident, Mormile sustained a “serious injury” as set forth in question 2 on the verdict sheet (did Mormile “sustain a significant limitation of use of a body function or system”); question 3 (did Mormile “sustain a permanent consequential limitation of use of a body organ or member”); question 4 (did Mormile “sustain a injury that resulted in a significant disfigurement”); and question 5 (did Mormile “suffer a medically determined injury or impairment of a non-permanent nature . . . that prevented him from performing all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident?”).

The first question effectively only asks whether there was probable cause to establish that Mormile’s injuries resulted from the accident (see PJI 2:70). Having answered “No” to that global question, the jury did not answer questions 2 through 5. In effect, the jury did not resolve the appropriate legal issue, i.e., whether Mormile sustained a “serious injury” in the accident, as defined under each of the four distinct categories at issue … . Mormile v Marshall, 2024 NY Slip Op 06390, Third Dept 12-19-24

Practice Point: Failure to alternate the peremptory challenges compromised the fairness of the jury selection process.

Practice Point: The first question on the verdict sheet effectively precluded the jury from considering the appropriate legal issue, i.e., whether plaintiff suffered a “serious injury” within the meaning of the Insurance Law.

 

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THE FORECLOSURE ACTION WAS TIMELY COMMENCED WHEN THE SUMMONS AND COMPLAINT WERE FILED IN 2013; THE COURT ERRED IN DEEMING THE ACTION COMMENCED WHEN THE SUMMONS AND COMPLAINT WERE SERVED IN 2022 (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the foreclosure action was timely, noting that the time the foreclosure action was commenced was when the summons and complaint were filed, not when they were served:

The sole issue this Court is tasked with addressing is whether the action was timely commenced. “An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213 [4]), which begins to run from the due date of each unpaid installment, from the date the mortgagee is entitled to demand full payment, or from the date the mortgage debt has been accelerated” … . Acceleration occurs when, among other things, a lender demands payment in full by commencing a foreclosure action … . The operative date for determining whether a claim was interposed within the limitations period is the date of commencement, and “an action is commenced upon the filing of the summons and complaint, not service” … .

Supreme Court incorrectly determined that plaintiff’s claim was interposed upon [defendant] Coppola when she was served with process in January 2022, rather than upon the filing of the summons and complaint in September 2013 … . Deutsche Bank Trust Co. Ams. v DiGioia, 2024 NY Slip Op 06403, Third Dept 12-19-24

Practice Point: The foreclosure action was commenced when the summons and complaint were filed in 2013, not when they were served in 2022.

 

PETITIONER CARE FACILITY WAS ENTITLED TO THE UNDERLYING DATA USED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES TO CALCULATE MEDICAID REIMBURSEMENT RATES; MATTER REMITTED FOR RECALCULATION WITH AN EXPLANATION OF THE FACTORS CONSIDERED (THIRD DEPT). ​

The Third Department, reversing the Office for People with Developmental Disabilities, determined petitioner care facility was entitled to the underlying data used by the respondent to calculate the Medicaid reimbursement rate:

… [P]etitioner contends that the acuity factor utilized by respondents in calculating its rate determination is not transparent or verifiable, and that respondents’ refusal to disclose the data necessary to identify the factors in the regression analysis render the rate determination arbitrary and capricious. We agree. * * * The statutes demand empirical data in order to confirm the mathematical validity of the formula produced by the regression analysis in determining these rates, not simply blind reliance on an unknowable formula … .

Moreover, respondents’ wholehearted reliance on the consultant’s regression analysis, without confirmation of empirical data supporting the analysis, is inconsistent with the statutory scheme pertaining to state and federal statutes which require that the methodologies underlying the establishment of the rates and the justification for the rates be provided to petitioner (see 42 USC § 1396a [a] [13] [A]; Public Health Law § 2807 [3]). * * *

[R]espondents are directed to recalculate petitioner’s 2017-2018 and 2020-2021 reimbursement rates with appropriate explanation of the factors considered. Matter of Richmond Children’s Ctr., Inc. v Delaney, 2024 NY Slip Op 06406, Third Dept 12-19-24

Practice Point: Care facilities paid by Medicaid through the Office for People with Developmental Disabilities are entitled to an explanation of the factors considered in calculating the Medicaid reimbursement rate.

 

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THE ZONING BOARD’S DENIAL OF A USE VARIANCE FOR CONSTRUCTION OF A SOLAR ENERGY GENERATION FACILITY WAS “ARBITRARY AND CAPRICIOUS;” MATTER REMITTED FOR ISSUANCE OF THE VARIANCE (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Pritzker, determined petitioners were entitled to a use variance for the construction of a solar energy generation facility, finding the denial of the variance “arbitrary and capricious:”

… [R]espondent erred in failing to afford petitioners a reduced showing relative to their application as a public utility because of the project’s minimal impact … . That the project will have a minimal impact was not only recognized by Supreme Court, but also is fully supported by the evidence in the record, including the unanimous State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) determination which found no significant environmental impacts … . * * *

… [O]ne cannot quarrel with the premise that New York State’s goal of transitioning to renewable energy is designed to benefit the public at large, and this project is in line with that goal … . * * *

… [P]etitioners’ submissions to respondent establish ” ‘that there are compelling reasons, economic or otherwise, which make it more feasible to [grant a use variance]’ ” than to use an alternative site … . Matter of Freepoint Solar LLC v Town of Athens Zoning Bd. of Appeals, 2024 NY Slip Op 06409, Third Dept 12-19-24

Practice Point: Consult this opinion for a rare rejection of an administrative finding as “arbitrary and capricious.” In light of the minimal environmental impact of a solar energy facility and the state policy supporting the transition to clean energy, the zoning board’s reasons for denying the use variance were deemed untenable.

 

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SUBSTITUTE TEACHER NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS FOR THE PERIOD BETWEEN TWO SUCCESSIVE ACADEMIC YEARS DURING THE PANDEMIC BECAUSE HE RECEIVED ASSURANCE OF CONTINUED EMPLOYMENT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined claimant, a substitute teacher, was not entitled to unemployment insurance benefits between two successive academic years (during the COVID pandemic) because he had received assurance of continued employment. The dissenters disagreed with the majority’s conclusion claimant had been assured of continued employment:

“[P]ursuant to Labor Law § 590 (10), a professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period” … . “Notably, the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board’s findings in that regard are supported by substantial evidence, they will not be disturbed” … . Matter of Jensen (Commissioner of Labor), 2024 NY Slip Op 06253, Third Dept 12-12-24

Practice Point: A substitute teacher is not entitled to unemployment insurance benefits during the period between two successive academic years if he or she has received assurance of continued employment.

 

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DEFENDANT’S 140-YEARS-TO-LIFE SENTENCE IN THIS PREDATORY-SEXUAL-ASSAULT-OF-A-CHILD PROSECUTION DEEMED UNDULY HARSH AND SEVERE; THE PEOPLE HAD TWICE OFFERED A 15-20-YEAR SENTENCE; SENTENCE REDUCED TO 20-TO-LIFE (THIRD DEPT).

The Third Department held that defendant’s 140 years-to-life sentence in this predatory-sexual-assault-of-a-child prosecution was unduly harsh and severe. The sentence was reduced to 20 years-to-life:​

We turn to defendant’s aggregate sentence of 140 years to life in prison. As a threshold matter, our determination that the sentences imposed on counts 2 and 15 must run concurrently reduces defendant’s aggregate prison term to 118 years to life. The bulk of that remaining aggregate sentence is still consumed by the consecutive 22-years-to-life prison terms imposed for defendant’s convictions of predatory sexual assault against a child under counts 2 and 15, 4, 5, 6 and 7. Although defendant’s crimes are heinous, the sentences on each of those counts are near the top end of the permissible range notwithstanding defendant’s lack of any prior criminal history (see Penal Law § 70.80 [2] …). We also note that the People advocated for the 140-years-to-life aggregate sentence even though that sentence exceeded by over a century their plea offer of 12 to 15 years in satisfaction of all 15 counts of the indictment — an offer they extended twice.

Accordingly, we find that defendant’s aggregate prison sentence is unduly harsh and severe (see CPL 470.15 [6] [b] …). We modify the sentences, in the interest of justice, by reducing the term of imprisonment imposed on defendant’s convictions on the counts of predatory sexual assault against a child (counts 2, 4, 5, 6, 7 and 15) to 20 years to life, and we direct those sentences to run concurrently with each other. We further modify the sentences imposed on counts 8, 9, 10, 11 and 13 to run concurrently with each other and with the sentences imposed on counts 2 and 15, 4, 5, 6 and 7, resulting in an aggregate prison term of 20 years to life, to be followed by 10 years of postrelease supervision … . People v Mayette, 2024 NY Slip Op 06083, Third Dept 12-5-24

Practice Point: Here the court noted that the People had offered a 15-20-year sentence as part of a plea deal and then advocated for the 140-years-to-life sentence upon conviction, which was imposed. The Third Department reduced the sentence to 20-to-life.​

 

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PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-judge dissent, determined the planning board did not have the power to issue a special use permit and site plan approval for a commercial park:

… [T]he jurisdiction of a zoning board of appeals is appellate in nature (see Town Law § 267-a [4]). Nevertheless, a town possesses the authority to enact a local law or ordinance vesting its zoning board of appeals with original jurisdiction (see Town Law § 267-a [4]), including, for example, to address questions of zoning code interpretation … . Here, the Code of the Town of Thompson expressly provides that the ZBA may pass on matters of interpretation as to whether a proposed use is permitted under the zoning code either “[o]n appeal from a[ ] . . . determination made by an administrative official, or on request by an official, board or agency of the Town” (Code of the Town of Thompson § 250-46 [A] …), the latter option being what was requested by petitioners. * * *

… [I]t is evident that a genuine question exists as to whether the project will fall within a permissible or prohibited use, and the Planning Board improperly resolved this issue on its own. “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … . As such, the issue should have been resolved either by the local code enforcement officer, or by the ZBA upon referral from the Planning Board (see Code of the Town of Thompson §§ 250-41 [C], 250-46 [A] … . Matter of Smith v Town of Thompson Planning Bd., 2024 NY Slip Op 06085, Third Dept 12-5-24

Practice Point: Check the Town Law and the local Town Code to determine whether a Planning Board has the power to act. Here the Planning Board did not have the power to interpret a local zoning law and determine, on its own, that the proposed development is a permissible use of the land.​

 

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NO APPEAL LIES FROM COUNTY COURT’S DISMISSAL WITHOUT PREJUDICE OF DEFENDANT’S APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA). ​

The Third Department, in a full-fledged opinion by Justice Powers, affirming County Court, determined no appeal lies from the dismissal-without-prejudice of defendant’s application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA):

… [County Court] dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, “there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household” as required by CPL 440.47 (2) (c) … . * * *

Where, as here, the Legislature specifically provides for appealability of certain orders but not others, “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . “[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended” … . “Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention … . Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, “the [L]egislature could easily have so stated” … . Rather, the language utilized by the Legislature — specifically that dismissal is without prejudice — mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as “[a]ppeals in criminal cases are strictly limited to those authorized by statute,” this appeal is not properly before this Court and must be dismissed … . People v Melissa OO., 2024 NY Slip Op 05920, Third Dept 11-27-24

Practice Point: Criminal appeals are creatures of statutes. Here the DVSJA did not provide for an appeal of the dismissal-without-prejudice of defendant’s application for resentencing. County Court dismissed the application because defendant did not submit evidence she was a victim of domestic abuse.​

 

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