You are here: / Third Department

Tag Archive for: Third Department

CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT).

The Third Department, in a comprehensive decision too detailed to fairly summarize here, determined a club which featured semi-nude dancers was subject to sales tax for the sale of in-house currency (scrips) for access to private-room dances:

​

We find no basis to disturb the Tribunal’s determination that the club’s receipts from the sale of scrip are taxable as admission charges to a place of amusement. As the Tribunal recognizes, the definition of admission charge in Tax Law § 1101 (d) (2), as well as the relevant regulation … , establish that, for the purposes of Tax Law § 1105 (f) (1), an admission charge includes any additional cost for entertainment or amusement that must be paid to gain access to the place of amusement — here, the private room … . * * *

​

… [P]etitioners assert that, even if the sale of scrip is a taxable admission charge under Tax Law § 1105 (f) (1), they are exempt from the amusement tax because the purchase of scrip to pay for private dances qualifies as a charge for admission to a dramatic or musical arts performance. * * *

​

… [W]ith respect to the venue requirement, it was incumbent on petitioners to establish that the private rooms constituted “a theatre, opera house, concert hall or other hall or place of assembly” (Tax Law § 1101 [d] [5]). In our view, the Tribunal properly reasoned that, based on the evidence proffered by petitioners, the private room lacked the common characteristics of the settings described in Tax Law § 1105 (f) (1)  …

​

The Tribunal’s determination that “petitioners have failed to credibly depict the private dance experience in sufficient detail to establish that experience as dramatic or choreographic” is rational and supported by substantial evidence. Matter of HDV Manhattan, LLC v Tax Appeals Trib. of The State of New York, 2017 NY Slip Op 08559, Third Dept 12-7-17

 

TAX LAW (CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/SALES TAX (CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/ADMISSION CHARGES (SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/CABARETS (SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/SCRIPS (IN-HOUSE CURRENCY, SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))

,

STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT).

The Third Department determined the wrongful death action against state police officers who stopped plaintiff’s decedent (for following too closely) but did not issue a traffic ticket was properly dismissed. Decedent told the officers he had had two drinks, was tired and would call his brother to take him home. The officers left decedent on the side of the road. Decedent was later found dead in his car. Although decedent’s blood alcohol content was above the legal limit, the officers testified they did not see any signs of intoxication when they spoke with decedent. The court found there was no special relationship between the decedent and the officers and the state was therefore immune from suit:

​

Where, as here, a claim arises out of the performance of an act undertaken for the protection and safety of the public pursuant to general police powers … , the governmental entity is immune from liability for the negligent performance of that governmental function, unless it owed a special duty to the injured party… . As relevant here, a special duty arises when the governmental entity “voluntarily assumed a duty to the [injured party] beyond what was owed to the public generally” … . To establish a special duty through voluntary assumption, the injured party must demonstrate that the governmental agents assumed, through promises or actions, an affirmative duty to act on behalf of the injured party, that the agents knew that inaction could lead to harm, that there was some form of direct contact between the injured party and the agents and that the injured party justifiably relied on the agents’ affirmative undertaking … . Barnes v State of New York, 2017 NY Slip Op 08564, Third Dept 12-7-17

 

NEGLIGENCE (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/IMMUNITY (STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/GOVERNMENTAL IMMUNITY (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/POLICE  (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/WRONGFUL DEATH (POLICE, GOVERNMENTAL IMMUNITY,  STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/TRAFFIC STOPS (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/DRIVING WHILE INTOXICATED (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))

,

COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).

The Third Department determined that the defendant county’s motion for summary judgment in this road-defect action by an injured motorcyclist was properly denied. Although the county had a written notice requirement as a prerequisite for an action based upon a road defect, the Highway Law also applies and will impose liability if the county had notice of the defect:

​

The general rule is that if a municipality enacts a prior written notice statute, unless such notice is duly furnished, “a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective . . . highway” … . However, where Highway Law § 139 is applicable — in the case of county roads — “[e]ven if a local law exists requiring prior written notice of a defect, a civil action may be commenced absent such notice against a municipality for injuries resulting from a defect in a highway under its care if the ‘defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence'” … . Thus, to establish entitlement to summary judgment, a county must show both that it received no prior written notice of the alleged defect and that it had no actual or constructive notice thereof … . Pasternak v Chenango, 2017 NY Slip Op 08578, Third Dept 12-7-17

 

MUNICIPAL LAW (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, ROAD DEFECTS, WRITTEN NOTICE REQUIREMENT, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))

, ,

TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT).

The Third Department determined plaintiff lessee’s lawsuit against the lessor’s insurance carrier for denial of a claim for water damage was properly dismissed. Under New York law plaintiff could not sue the landlord’s carrier directly unless plaintiff first procured a judgment against the landlord which was not satisfied:

​

… [I]t was well-established under the common law that an injured party has no direct cause of action against the insurer of a tortfeasor … . That is, an injured party, as a stranger to the policy between the insured tortfeasor and its insurer, could not, at common law, bring a claim against the tortfeasor’s insurer due to the lack of privity between the injured party and the insurer, even where the injured party had obtained a judgment against the insured … . As a result of the hardships and inequities this rule created, the Legislature created a “limited statutory cause of action on behalf of injured parties directly against insurers,” which is applicable where the injured party has obtained a judgment against an insured and the judgment has gone unsatisfied for 30 days … . It is undisputed that plaintiff has not obtained a judgment against [the landlord], which is “a condition precedent to a direct action” against [the landlord’s] insurer and, thus, plaintiff cannot avail itself of this limited statutory cause of action … . Thus, even liberally construing the complaint, accepting the facts as alleged as true and affording plaintiff the benefit of every inference, plaintiff has not stated a statutory cause of action against [the insurer]. … . As plaintiff is not a named insured under the policy and did not obtain a judgment against [the landlord], Supreme Court properly granted Cincinnati’s motion dismissing the complaint due to plaintiff’s lack of standing and failure to state a cause of action … . GM Broadcasting, Inc. v Cornelius Enters., LLC, 2017 NY Slip Op 08593, Third Dept 12-7-17

 

INSURANCE LAW (LANDLORD-TENANT, CONTRACT LAW, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/LANDLORD-TENANT (INSURANCE LAW, CONTRACT LAW,  TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, LANDLORD-TENANT, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))

PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT).

The Third Department determined petitioner-inmate’s release on parole was properly rescinded based upon his behavior at the rescission hearing and victim impact statements. The victim’s family had not be notified of the initial parole hearing and therefore had not submitted victim impact statement prior to petitioner’s release:

​

In October 1995, petitioner approached a vehicle at the end of his driveway that contained his friend Steven Sedore and petitioner’s ex-wife, who were there to pick up the daughter of petitioner and his ex-wife. Petitioner shot and killed Sedore as he sat in the vehicle, and viciously attacked his ex-wife, causing serious injuries. Petitioner ultimately pleaded guilty to manslaughter in the first degree and attempted manslaughter in the first degree and was sentenced to an aggregate prison term of 20 to 40 years. …

​

… [W]e disagree with Supreme Court’s finding that respondent improperly relied upon these statements solely because they were submitted after his open release date had been set. The court based this determination upon the Court of Appeals’ decision in Matter of Costello v New York State Bd. of Parole (23 NY3d 1002 [2014]), in which the Court concluded that respondent improperly rescinded a parole release based upon information in victim impact statements that had been submitted after it had set an open release date … . … [W]e do not interpret the Court’s decision as precluding respondent from ever considering victim impact statements submitted after an open release date has been granted in determining whether parole should be rescinded … .

The victim impact statements at issue were submitted by three of Sedore’s sisters and a brother-in-law. One of the sisters had already provided an impact statement at petitioner’s sentencing hearing, but the other family members had not done so. The statements submitted by the other sisters referenced specific threats that petitioner had made to them — including during sentencing where he allegedly pointed his finger at one sister and mouthed the words “you are dead,” and also ran his finger across his throat while looking at the family. One of the sisters also stated that petitioner sent her letters and a get well card from prison when she was in the hospital, which made her feel uncomfortable knowing that “he knew everything that was going on in my life.” These incidents, which had not previously been disclosed, constitute “significant information” and provide substantial evidence supporting respondent’s rescission of parole … . Matter of Thorn v New York State Bd. of Parole, 2017 NY Slip Op 08566, Third Dept 12-7-17

 

CRIMINAL LAW (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/PAROLE (RESCISSION, PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/VICTIM IMPACT STATEMENTS (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))

ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT).

The Third Department, in a comprehensive “offer and acceptance” decision too detailed to fairly summarize here, determined that the defendant’s motion for summary judgment in this breach of a real estate contract action was properly granted on statute of frauds grounds. Although a typed name on an email is the equivalent of a signature, the same is not true for an attachment to an email, which can easily be signed by the sender. Here plaintiff’s breach of contract theory depended upon an attachment to an email sent by the defendant to the plaintiff. Because the attachment was not signed, there was no contract:

​

Under ESRA [Electronic Signatures and Records Act}, plaintiff would have a viable argument that defendant signed the emails she sent, as they are electronic records and she typed her name at the end of each. As confirmed at oral argument, however, plaintiff does not contend that the emails constituted signed documents forming the contract, but that defendant’s typed name at the end of the proposed side letter constituted her signature. That document was separately typed and attached to emails for transmission. Although emails are electronic records, not every attachment to an email qualifies as an electronic record under ESRA. One of the purposes of ESRA is “to promote the use of electronic technology in the everyday lives and transactions” of government entities, businesses and average citizens… . To fulfill this purpose, it was necessary for the Legislature to permit emails to be considered equivalent to signed writings when that was the sender’s intent … , because it was not possible to place a handwritten signature on an email or similar electronic record that was being transmitted electronically.

The same logic does not apply to ordinary typed documents that are scanned and attached to emails, because a party could easily affix a handwritten signature to those documents. Solartech Renewables, LLC v Vitti, 2017 NY Slip Op 08574, Third Dept 12-6-17

 

CONTRACT LAW (STATUTE OF FRAUDS, EMAILS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/STATUTE OF FRAUDS (EMAILS, ATTACHMENTS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/EMAILS (CONTRACT LAW, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/ATTACHMENTS (EMAILS, CONTRACT LAW, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/ELECTRONIC SIGNATURES AND RECORDS ACT (CONTRACT LAW, EMAILS, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))

,

SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, rejected the school’s argument that it was immune from zoning restrictions. The school had erected an electronic sign which violated the zoning code and the zoning board had denied the school’s application for a variance:

​

… [T]he Court of Appeals noted that “… general rules . . . were interpreted by some courts to demand a full exemption from zoning rules for all educational and church uses” — an interpretation that “is mandated neither by the case law of our [s]tate nor common sense” … . The Court clarified that it never intended to “render municipalities powerless in the face of a religious or educational institution’s proposed expansion, no matter how offensive, overpowering or unsafe to a residential neighborhood the use might be,” and renewed its rejection of the existence of “any conclusive presumption of an entitlement to an exemption from zoning ordinances” for schools … . The Court thus concluded that “there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals [and, i]n those instances, the institution may be properly denied” … . Accordingly, the Court held that the presumed beneficial effects of schools and churches “may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like,” because the “inherent beneficial effects . . . must be weighed against their potential for harming the community” … . * * *

​

Because petitioner was not immune from and was, therefore, subject to the Town’s zoning ordinances, we must address whether the ZBA [zoning board of appeals] properly denied petitioner’s application for a variance. The Town and the ZBA did not refuse petitioner the opportunity to install any sign. Rather, the ZBA rejected an application for permission to install an electronic message center sign, which is prohibited in the Town and which also failed to comply with at least three additional size and location requirements of the signage provisions of the Town’s zoning ordinance. The ZBA provided rational reasons for its determination, including a concern for traffic safety due to the sign’s brightness and potential to be more distracting and hazardous to passing motorists than an ordinary sign … . That determination was not arbitrary or capricious. Matter of Ravena- Coeymans-Selkirk Cent. Sch. Dist. v Town of Bethlehem, 2017 NY Slip Op 08428, Third Dept 11-30-17

 

ZONING (SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/EDUCATION-SCHOOL LAW (ZONING, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/VARIANCES (SCHOOLS, SIGNS, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/SIGNS (ZONING, VARIANCES, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))

,

NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT).

The Third Department determined several motions to dismiss were properly denied in this action concerning an insolvent workers’ compensation trust. Defendant Regnier provided actuarial services and prepared certain actuarial reports on an annual basis for the trust. In addition to many other causes of action not summarized here, the Third Department held that the negligence and gross negligence causes of action properly survived:

​

We reject Regnier’s assertion that the negligence and gross negligence claims should have been dismissed in their entirety because plaintiff failed to allege that it owed the trust a duty of care. “[A]n actuary, possessing special knowledge, can be held liable for the negligent performance of its services” … . The second amended complaint alleged that Regnier held itself out as a skilled and competent actuary, that Regnier prepared actuarial reports to the trust, and that Regnier failed to provide competent actuarial services. More critically, the second amended complaint further alleged that Regnier knew that the trust would be relying on the accuracy of such reports and that Regnier was aware that its services were employed to represent the trust’s finances. Under these circumstances and viewing the allegations in a light most favorable to plaintiff, we conclude that there were sufficient allegations of near privity to survive a motion to dismiss with respect to the negligence and gross negligence claims … . New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 2017 NY Slip Op 08426, Third Dept 11-30-17

 

WORKERS’ COMPENSATION LAW (WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/WORKERS’ COMPENSATION TRUSTS (NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/NEGLIGENCE (ACTUARY, WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/ACTUARY (NEGLIGENCE, WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))

HOTEL NOT ENTITLED TO CREDIT FOR SALES TAX FOR CONTINENTAL BREAKFASTS PURCHASED FROM A THIRD PARTY, CONTINENTAL BREAKFASTS WERE INCLUDED IN THE ROOM RENTAL AND WERE NOT PURCHASED FOR RESALE (THIRD DEPT).

The Third Department determined the hotel (Washington Square) which included continental breakfast in its room rental was not entitled to a credit for sales tax paid by the hotel for the purchase of the continental breakfasts (from Cafe C-III):

​

Generally, sales tax must be paid upon the sale of all tangible personal property … . However, “[c]ertain purchases which are made for resale are not subject to sales tax” … . As such, a reseller may claim a tax credit for sales tax it paid upon purchases of personal property that will be resold … . “Where the question is whether certain purchases are entitled to the resale exemption, the purchaser must show, to avoid imposition of the sales tax on the entire transaction, that each of the items was purchased for one and only one purpose: resale” … . * * *

​

We conclude that Washington Square failed to satisfy its burden of establishing its entitlement to the benefit of the resale tax exemption … . According to the hearing testimony of Washington Square’s chief executive officer, Washington Square purchased continental breakfasts from Cafe C-III and such breakfasts were included in the hotel rental fee paid by the guests. Washington Square paid Cafe C-III regardless of whether a guest consumed the continental breakfast. More critically, the chief executive officer also stated that hotel guests would not be separately billed for the continental breakfasts … . …

​

Nor do we find any merit in Washington Square’s equitable estoppel argument. “[T]he doctrine of estoppel does not apply in tax cases unless unusual circumstances support a finding of manifest injustice” … . The fact that Washington Square, in a prior audit, was not imposed an additional tax assessment where it sought the same tax credit as in this case does not rise to the level of a manifest injustice especially in light of the auditor’s testimony that each audit stands on its own and does not bind a future audit … .  Washington Square’s reliance on an audit of Cafe C-III is likewise unavailing. Matter of Washington Sq. Hotel LLC v Tax Appeals Trib. of The State of New York, 2017 NY Slip Op 08422, Third Dept 11-30-17

 

TAX LAW (SALES TAX, HOTEL NOT ENTITLED TO CREDIT FOR SALES TAX FOR CONTINENTAL BREAKFASTS PURCHASED FROM A THIRD PARTY, CONTINENTAL BREAKFASTS WERE INCLUDED IN THE ROOM RENTAL AND WERE NOT PURCHASED FOR RESALE (THIRD DEPT))/SALES TAX (SALES TAX, HOTEL NOT ENTITLED TO CREDIT FOR SALES TAX FOR CONTINENTAL BREAKFASTS PURCHASED FROM A THIRD PARTY, CONTINENTAL BREAKFASTS WERE INCLUDED IN THE ROOM RENTAL AND WERE NOT PURCHASED FOR RESALE (THIRD DEPT))

QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT).

The Third Department determined a question of fact precluded summary judgment in favor of defendant in this truck-car intersection collision case. The defendant truck driver, Head, alleged the driver of the car in which plaintiff was a passenger (Sinclair) made a left turn across the truck’s path and Head did not have time to avoid the collision. However an eyewitness, Fuller, testified there was sufficient time for the truck driver to take evasive action:

​

In this context, Head “was bound to see what[,] by the proper use of [his] senses[,] [he] might have seen” and, if the circumstances were as described by Fuller, and if Head should have observed Sinclair’s car turning left, “then the accident would be a reasonably foreseeable risk and [Head] would have had a duty to avoid striking [Sinclair], if it were possible to do so”… . Fuller’s materially different version of the accident, if credited, could support the conclusion that Head had adequate time and opportunity to observe Sinclair’s turning car and take evasive action … . That is, Head had “a duty to use reasonable care to avoid a collision” and, unless he had “only seconds to react” to Sinclair’s failure to yield the right-of-way, an issue disputed by plaintiff’s evidence, Head may be partly at fault … . Debra F. v New Hope View Farm, 2017 NY Slip Op 08429, Third Dept 11-30-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/TRAFFIC ACCIDENTS (COMPARATIVE FAULT,  QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/RIGHT OF WAY (TRAFFIC ACCIDENTS, COMPARATIVE FAULT, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))

Categories

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

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

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