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QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT.

The Third Department, reversing Supreme Court, determined there were questions of fact whether plaintiff was a resident of the home where the fire occurred within the meaning of the policy language. Although plaintiff had moved to a house 10 minutes away and plaintiff’s daughter lived in the damaged house, there was evidence that plaintiff never completely moved and frequented the house to care for her grandchildren:

The policy at issue defines the “insured location” as the “resident premises.” Relevant here, the term “resident premises” is defined as “[t]he one family dwelling where [the insured] reside[s].” As the party seeking to disclaim coverage, defendant bore the burden of “establishing that the exclusions or exemptions apply . . . and that they are subject to no other reasonable interpretation”… . If a term is ambiguous, it should be construed against the insurer … . * * *

In our view, it is “arguable that the reasonable expectation of the average insured” is that plaintiff’s occupancy of the premises, coupled with her claim that she never fully left the premises, was enough to permit coverage pursuant to the terms of the policy … . We do not agree that plaintiff’s evidence constituted a feigned attempt to create a question of fact … . We are mindful that she signed a statement prepared by the adjuster on the morning of the fire that destroyed the home she had built with her husband for their family. That statement confirmed that she resided [in another home], but did not deny that she also resided at the premises for purposes of insurance coverage. Craft v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 05655, 3rd Dept 7-13-17

INSURANCE LAW (QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT)/CONTRACT LAW (INSURANCE POLICY, QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT)

SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT.

The Third Department, reversing Supreme Court, reinstated the petitioner as a student at Skidmore College and expunged from his school record any reference to the sexual misconduct allegations and findings which led to his expulsion. The court noted that, as a private college, the due process requirements imposed upon a state school were not applicable. However, the Third Department concluded the school’s failure to follow its own procedures severely prejudiced petitioner. The decision is too detailed to fully summarize here. The following quotation illustrates the nature of the court’s criticism of the way the college handled this matter:

Petitioner … contends that respondent failed to follow its own procedures in implementing the disciplinary process. Where, as here, no hearing is required by law, a court reviewing a private university’s disciplinary determination must determine “whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious” … . The determination must be annulled only where there has been a lack of substantial compliance, or where the determination lacks a rational basis … . Perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance … . Nevertheless, we find that there were multiple failures that here, taken together, demonstrated a lack of substantial compliance.

Respondent’s first such failure occurred at the outset of the investigation. Section XI of respondent’s 2015-2016 policy provides that an accused student must be given notice through a “[f]ormal [c]omplaint,” which must “includ[e] the date, time, location and factual allegations concerning a violation” … . The complaint provided to petitioner stated the date, time and location of the incident, but included no factual allegations identifying the specific actions that were alleged to be policy violations. Instead, it merely provided the text of the two policy provisions that petitioner was accused of violating — and nothing more. Thus, the complaint provided petitioner with no notice of the specific conduct that formed the basis of the alleged violations. Contrary to respondent’s argument, this failure was not remedied by the fact that the complaint recited the text of the provisions. Both provisions include such a broad range of actions that it would be impossible for an accused student to discern what particular conduct he or she was alleged to have committed. Matter of Doe v Skidmore Coll., 2017 NY Slip Op 05654, 3rd Dept 7-13-17

EDUCATION-SCHOOL LAW (SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/COLLEGES AND UNIVERSITIES (SEXUAL MISCONDUCT INVESTIGATIONS, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/SEXUAL MISCONDUCT INVESTIGATIONS (COLLEGES AND UNIVERSITIES, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)

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INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.

The Third Department determined there was insufficient proof of defendant’s criminal possession of a weapon under an accessorial liability theory:

… [A]s for defendant’s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost [co-defendants] in their unlawful possession of weapons is against the weight of the evidence … . There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged or intentionally aided Anderson or Bost in their possession of the handguns … .. Accordingly, as “there was no evidence that . . . defendant solicited, requested, commanded, importuned, or intentionally aided another individual to possess the firearm” … , we reverse defendant’s convictions of counts 3 and 4 of the indictment for criminal possession of a weapon in the second degree and dismiss said counts. People v Spencer, 2017 NY Slip Op 05631, 3rd Dept 7-13-17

CRIMINAL LAW (INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)/EVIDENCE (CRIMINAL LAW, INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)

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COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated” … . People v Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Aarons, determined, because of a change in the Civil Procedure Law and Rules (CPLR), the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be corrected if there is no prejudice:

CPLR 2001 was amended in 2007 to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition… . Indeed, the purpose behind amending CPLR 2001 was “to allow courts to correct or disregard technical defects, occurring at the commencement of an action [or proceeding], that do not prejudice the opposing party” and “to fully foreclose dismissal of actions for technical, non-prejudicial defects”… . In view of the amendment of CPLR 2001, the rule articulated in our prior decisions — a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001 — is no longer tenable.

… [A] court may allow a petitioner to correct any mistake, omission, defect or irregularity in the filing process upon such terms as may be just … . CPLR 2001 also states that the court shall disregard any such mistake, omission, defect or irregularity if the right of a party is not substantially prejudiced. “[T]he primary purpose of a petition is to give notice to the respondent that the petitioner seeks a judgment against [a] respondent so that it may take such steps as may be advisable to defend the claim” … . A return date accomplishes this purpose by notifying the responding party when responsive papers must be served and when the petition will be heard … .

Here, the record reflects that respondents had sufficient notice of the petition. Indeed, respondents’ counsel conceded at oral argument before Supreme Court that they had “plenty of time to respond” and, on appeal, they do not contend that they suffered any prejudice. As such, the omission of a return date should have been disregarded as a mere technical infirmity … . Matter of Oneida Pub. Lib. Dist. v Town Bd. of The Town of Verona, 2017 NY Slip Op 05659, 3rd Dept 7-13-17

CIVIL PROCEDURE (FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/NOTICE OF PETITION (RETURN DATE, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT

EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT.

The Third Department determined claimant’s employer was not entitled to relief from the special disability fund. Claimant had work-related injuries. In order to recover from the fund, the employer was required to demonstrate the claimant: (1) had a preexisting disability (which affected her employability); and (2), the preexisting condition combined with the work-related injuries constituted a permanent disability greater than that caused by the work-related injuries alone:

“In order to be entitled to receive reimbursement from the Fund pursuant to Workers’ Compensation Law § 15 (8) (d), the employer must demonstrate that the claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone”… . “The question with regard to the first requirement is not whether the preexisting condition is an obstacle or handicap to the claimant’s particular employment but, rather, whether it would be a hindrance to the claimant’s general employability” … .

We agree with the Board that the employer did not demonstrate that claimant’s preexisting asthma condition hindered, or was likely to hinder, her employability. The record reflects that, although claimant suffered from asthma since at least 1999, she was taking medication, including the use of an inhaler. The record contains no evidence that claimant was under any restrictions because of her asthma, that her asthma affected her ability to perform her job or that it hindered her employability. Notably, “preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability” … . Matter of Murphy v Newburgh Enlarged City Sch. Dist., 2017 NY Slip Op 05500, 3rd Dept 7-6-17

 

WORKERS’ COMPENSATION LAW (EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)/SPECIAL DISABILITY FUND (WORKERS’ COMPENSATION LAW, EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)

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DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing this asbestos-related products liability action should not have been granted. Defendants merely pointed to gaps in plaintiffs’ proof and did not submit prima facie proof demonstrating their products were not the source of asbestos exposure. Therefore summary judgment should have been denied without any reference to the opposing papers:

In February 2015, plaintiff Eileen A. O’Connor was diagnosed with pleural mesothelioma. Alleging that her illness stemmed from exposure to equipment containing asbestos while working at the Westchester County Department of Labs and Research (hereinafter WCDLR) from approximately 1975 to 1979, O’Connor, along with her husband, derivatively, commenced this personal injury action in 2015 against, among others, defendants Fisher Scientific Company, LLC, Thomas Scientific, Inc. and VWR International, LLC (hereinafter collectively referred to as defendants) … . * * *

… [T]he proof submitted by defendants, respectively, failed to establish that they did not sell asbestos-containing products to WCDLR during the time that O’Connor was employed or that O’Connor was not exposed to any such products … . * * *

… [D]efendants failed to establish, prima facie, that they could not have caused O’Connor’s asbestos-related illness… . Fisher Scientific’s lack of documentation from the 1970s does not establish that it did not sell asbestos-containing products to WCDLR. Otherwise, defendants, respectively, “merely pointed to perceived gaps in plaintiff[s’] proof, rather than submitting evidence showing why [plaintiffs’] claims fail” … . O’Connor v Aerco Intl., Inc., 2017 NY Slip Op 05487, 3rd Dept 7-6-17

PRODUCTS LIABILITY (DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/SUMMARY JUDGMENT (PRODUCTS LIABILITY, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EVIDENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/NEGLIGENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

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PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Egan, determined that the Interstate Compact on the Placement of Children (ICPC) does not allow the placement of a child in another state absent that state’s permission, even when the placement is with a relative (custody, Family Ct Act article 6) and does not involve placement in foster care (neglect, Family Ct Act article 10). Here the grandmother, who lives in North Carolina, sought custody of the child with mother’s consent. The North Carolina authorities, however, determined placement with grandmother would not be appropriate because she was caring for three other children:

Here, DSS argues that the pending Family Ct Act article 10 proceeding against the child’s mother mandated that DSS, as the child’s custodian, comply with the ICPC in the first instance; therefore, the argument continues, absent approval from the appropriate authorities in North Carolina, Family Court was statutorily barred from placing the child with the grandmother in that state. The grandmother, on the other hand, contends the ICPC does not apply at all because custody of the subject child is being sought in the context of a Family Ct Act article 6 proceeding (rather than in conjunction with the related Family Ct Act article 10 neglect proceeding against the mother). Specifically, the grandmother argues that the statute — on its face — is limited to foster care situations or other similar instances in which the receiving state would bear some responsibility for providing aid or services to the subject child. Asserting that she is fully prepared to assume financial responsibility for the child, the grandmother contends that the statutory goals/concerns are not implicated and, therefore, notwithstanding the fact that North Carolina did not recommend the requested placement, the ICPC should not bar placement of the child with her.

The case law interpreting the ICPC is limited and is complicated by both the interplay between related and often (as is the case here) contemporaneous proceedings brought under Family Ct Act articles 6 and 10 … and the overarching desire to effectuate an appropriate placement for a child — particularly in those situations where the relevant statutory scheme may be more of an impediment than an aid in achieving a placement that is consistent with the child’s best interests. Here, although there is no question that the grandmother’s efforts to seek custody of the child were well-intentioned, the fact remains that, at the time that the grandmother’s custody petition was filed, DSS had custody of the child in the context of the then-pending Family Ct Act article 10 proceeding … . To that end, “[w]here the custody of a child who is under the supervision of [DSS] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply” … — even where, as here, there is a pending Family Ct Act article 6 petition for custody … . Matter of Dawn N. v Schenectady County Dept. of Social Servs., 2017 NY Slip Op 05482, 3rd Dept 7-6-17

 

FAMILY LAW (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/CUSTODY (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/NEGLECT (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)

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COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT.

The Third Department, reversing Supreme Court, determined the Commissioner of Corrections and Community Supervision and the Central Office Review Committee (hereinafter CORC) were not necessary parties to this review of a disciplinary proceeding and other grievances:

“CPLR 1001 (a) states that an individual or entity is a necessary party to litigation ‘if complete relief is to be accorded between the persons who are parties to the action’ or if the entity [or individual] ‘might be inequitably affected by a judgment in the action [or proceeding]'” … . Here, respondent maintains that the Commissioner and CORC are necessary parties to this action because complete relief cannot be accorded in their absence. Although respondent correctly notes that the Commissioner is the individual who renders the final determination in tier III disciplinary proceedings … and CORC is the entity having the final decision on whether to grant or deny an inmate grievance … , the failure to name either the Commissioner or CORC as a party has never before inequitably affected them or prevented this Court from according complete relief in similar proceedings… . Moreover, in light of the fact that respondent, the Commissioner and CORC are integrally related inasmuch as they each fall under the umbrella of the Department of Corrections and Community Supervision, we find that the Commissioner and CORC are at no risk of prejudice and would not be “inequitably affected by a judgment” if they were not joined in this proceeding … . Under these circumstances, we conclude that the Commissioner and CORC are not necessary parties, and the failure to name them in proceedings such as this can be ignored. Matter of Green v Uhler, 2017 NY Slip Op 05491, 3rd Dept 7-6-17

DISCIPLINARY HEARINGS (INMATES) (COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT)/CIVIL PROCEDURE (DISCIPLINARY HEARINGS (INMATES) COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT)/NECESSARY PARTIES (CIVIL PROCEDURE, DISCIPLINARY HEARINGS (INMATES) COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT)

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HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Peters, determined County Court should not have dismissed two hate crimes (attempted murder and assault) upon reading the grand jury minutes. Defendant, who is white, shot the victim, who is black, after a tirade of racial slurs:

Viewed most favorably to the People, the evidence before the grand jury provided a prima facie case of the hate crimes of attempted murder in the first degree and assault in the first degree. The foregoing testimony established that defendant repeatedly hurled several denigrating, racial slurs at the victim alone, whom he did not know, from the outset of the confrontation until the moment before he shot the victim at point blank range. Racial animosity and the use of epithets relating to a protected attribute, such as race, are probative of a defendant’s motive and intent for purposes of proving a hate crime … . The grand jury could have rationally inferred from this evidence — as well as the testimony that defendant had, just a half hour earlier, openly stated to another bar patron that he “hate[d] black people” — that the acts constituting the crimes at issue were motivated “in whole or in substantial part” by the victim’s race (Penal Law § 485.05 [1] [b…). Because the grand jury could have rationally drawn the inference of guilt from this proof, the fact “‘[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant'”… . Accordingly, we modify the judgment and reinstate counts 1 and 2 of the indictment. People v Spratley, 2017 NY Slip Op 05478, 3rd Dept 7-6-17

CRIMINAL LAW (EVIDENCE, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)/EVIDENCE (GRAND JURY, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)/GRAND JURY (EVIDENCE, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)/HATE CRIMES (GRAND JURY, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)

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