You are here: / Third Department

Tag Archive for: Third Department

,

COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN.

The Third Department noted that it was improper for County Court to require defendant to waive his right to appeal because there was no agreement associated with his guilty plea:

… [I]it was improper for County Court to require defendant to waive his right to appeal, as the record establishes that “there was no promise, plea agreement, reduced charge, or any other bargain or consideration given to . . . defendant in exchange for his plea” … . As such, defendant’s challenge to the sentence is not precluded. People v Tarver, 2017 NY Slip Op 03079, 3rd Dept 4-20-17

CRIMINAL LAW (COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/APPEALS (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/WAIVER OF APPEAL (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)

,

ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES.

The Third Department determined plaintiff was entitled a judgment based upon a note with was not negotiable but which was enforceable as a contract. Although the note did not specify when the money was to be paid back, payback in a reasonable time could be implied:

​

Defendant asserts that the note was unenforceable as a matter of law. Although the note did not constitute a negotiable instrument, it may still be enforceable under traditional principles of contract law … . As Supreme Court found, the note “memorialize[d] a debt between the parties and by signing same . . . defendant has acknowledged that debt and his obligation to pay same.” And, while the note stated that the money was to be repaid at a time “[t]o be agreed upon” by the parties, “[w]hen a contract does not specify time of performance, the law implies a reasonable time” … ; here, plaintiff testified that there was an expectation that he would be repaid within two years. Shlang v Inbar, 2017 NY Slip Op 03107, 3rd Dept 4-20-17

CONTRACT LAW (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)/DEBTOR-CREDITOR  (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)/NOTES (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)

TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING ITS ORIGINAL JURISDICTION.

The Third Department determined a 2-2 tie vote by the zoning board of appeals on a special use permit was not a default denial because the board was exercising its original, not appellate, jurisdiction. Therefore a subsequent 3-2 vote in favor of the permit (after a new member was appointed) was valid:

​

Supreme Court accurately set forth the 2002 legislative amendments to Town Law § 267-a, aptly observed the impact of those amendments in relation to Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington (97 NY2d 86 [2001]) and correctly determined that a tie vote of a zoning board of appeals only results in a default denial when, among other things, it is exercising its appellate jurisdiction … . Inasmuch as it is undisputed that the ZBA was exercising its original jurisdiction here … , we agree with Supreme Court that the September 2014 tie vote did not result in a default denial. Matter of Alper Rest. Inc. v Town of Copake Zoning Bd. of Appeals, 2017 NY Slip Op 02871, 3rd Dept 4-13-17

ZONING (TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING IT ORIGINAL JURISDICTION)/ZONING BOARD OF APPEALS (TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING IT ORIGINAL JURISDICTION)

,

CONTRACTOR OWED A DUTY OF CARE TO PLAINTIFF OVER AND ABOVE THE OBLIGATIONS IN THE CONTRACT BETWEEN THEM.

The Third Department determined defendant contractor owed a duty to plaintiff crane operator over and above any obligation running from a contract between them. The court further found there was a question of fact whether defendant was negligent in finding and setting up a staging area for the crane (the crane sank and fell into the pond):

​

In a case such as this one where the parties’ relationship stems from a contract, a “duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … . “In determining the scope of duty, courts examine, among other factors, whether the injury-producing occurrence is one that could have been anticipated” … . Whether a duty exists in the first instance is a question of law for the courts … .

Here, neither the price quote nor the work order — the documents embodying the contractual relationship between plaintiff and defendant — contained terms regarding site safety or the placement of cranes at the site. The record nonetheless reveals that Daniel Morin, defendant’s president, scouted an area by the pond where the dredging would take place in order to construct a “staging area” that was to be used for daily activities and access for construction equipment. Southern Tier Crane Servs., Inc. v Dakksco Pipeline Corp., 2017 NY Slip Op 02859, 3rd Dept 4-13-17

 

NEGLIGENCE (CONTRACTOR OWED A DUTY OF CARE TO PLAINTIFF OVER AND ABOVE THE OBLIGATIONS IN THE CONTRACT BETWEEN THEM)/CONTRACT LAW (NEGLIGENCE, CONTRACTOR OWED A DUTY OF CARE TO PLAINTIFF OVER AND ABOVE THE OBLIGATIONS IN THE CONTRACT BETWEEN THEM)

QUESTIONS OF FACT WHETHER HOMEOWNER’S EXEMPTION APPLIED (LABOR LAW 240 (1)) AND WHETHER DEFENDANT CREATED THE DANGEROUS CONDITION (LABOR LAW 200).

The Third Department determined there were questions of fact whether defendant intended to reside in the two-family home plaintiff was working on (thereby triggering the homeowner’s exemption from Labor Law liability) and whether defendant created a dangerous condition by providing a ladder that was too short. Therefore defendant’s motions for summary judgment on the Labor Law 240 (1) and 200 causes of action were properly denied:

​

“Although Labor Law §§ 240 (1) and 241 each ‘impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities . . .[,] the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work'”… . The exemption stems from the legislative determination “that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection”… . The exemption does not “encompass homeowners who use their one or two-family premises entirely and solely for commercial purposes”… . In this regard, “renovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose” … . The relevant inquiry is “‘the homeowners’ intentions at the time of the injury underlying the action'” … .

Despite defendant’s submissions indicating that he intended to use the house, at least in part, as his own residence, defendant also submitted the deposition of plaintiff, who testified that defendant had told him that he planned to rent both halves of the two-family home. Thus, defendant’s submissions, when viewed in the light most favorable to the nonmoving party, failed to meet his prima facie burden of establishing his entitlement to the homeowner’s exemption … . …

​

Where, as here, the injured worker contends that the underlying “accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability for a violation of Labor Law § 200 and common-law negligence will be imposed if the property owner created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time”…  . According to plaintiff’s deposition testimony, defendant created the dangerous condition that caused his fall and failed to remedy it despite plaintiff’s complaints. More specifically, and according to plaintiff, defendant supplied plaintiff with a ladder that was too short for the fascia project that defendant had asked him to complete and, despite plaintiff voicing his concerns about the ladder, defendant told plaintiff that the project needed to be completed before plaintiff left that day. Plaintiff further testified that defendant thereafter held the same ladder that plaintiff had indicated was too short while plaintiff climbed it and then reached to attempt the fascia work before falling. Vogler v Perrault, 2017 NY Slip Op 02857, 3rd Dept 4-13-17

 

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER HOMEOWNER’S EXEMPTION APPLIED (LABOR LAW 240 (1)) AND WHETHER DEFENDANT CREATED THE DANGEROUS CONDITION (LABOR LAW 200))/HOMEOWNER’S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER HOMEOWNER’S EXEMPTION APPLIED (LABOR LAW 240 (1)) AND WHETHER DEFENDANT CREATED THE DANGEROUS CONDITION (LABOR LAW 200))/LADDERS (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER HOMEOWNER’S EXEMPTION APPLIED (LABOR LAW 240 (1)) AND WHETHER DEFENDANT CREATED THE DANGEROUS CONDITION (LABOR LAW 200))

PETITIONER LACKED STANDING TO CONTEST BAN ON FRACKING.

The Third Department determined petitioner lacked standing to challenge the statewide ban on fracking:

​

In 2010, then Governor David Paterson issued an executive order prohibiting respondent Department of Environmental Conservation (hereinafter DEC) from issuing permits for the use of high volume hydraulic fracturing (hereinafter HVHF) for the stimulation of oil and gas wells pending the completion of a supplemental generic environmental impact statement under the State Environmental Quality Review Act (see ECL art 8). That order was extended by Governor Andrew Cuomo in 2011 and remained in effect when petitioner, in December 2014, first wrote to respondent Commissioner of Environmental Conservation seeking permission to conduct HVHF on his properties in Allegany and Monroe Counties. …

​

We agree with Supreme Court that petitioner lacked standing to challenge the statewide prohibition on HVHF. “Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria” … . In order to have standing in a land use matter, petitioner must demonstrate, among other things, that he “would suffer direct harm, injury that is in some way different from that of the public at large” … .

At the time of commencement of this proceeding, petitioner had not applied for a permit nor offered any proof that he met any of the requirements to obtain a permit. He offered no proof of any plans to move forward with the process and conceded that any plans would necessarily involve commitments by oil and gas exploration companies, of which he had none. Petitioner’s standing at the time of filing was no different than that of any landowner in the state; thus he lacked standing to challenge the determination … . Matter of Morabito v Martens, 2017 NY Slip Op 02863, 3rd Dept 4-13-17

ENVIRONMENTAL LAW (PETITIONER LACKED STANDING TO CONTEST BAN ON FRACKING)/FRACKING (PETITIONER LACKED STANDING TO CONTEST BAN ON FRACKING)

,

COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL.

The Third Department determined County Count did not have the authority to amend a defective conspiracy count by allowing the People to add an overt act. The court entertained the issue even though it was not preserved and it was not raised on appeal. The Third Department had made the same ruling in the codefendant’s (Placido’s) appeal:

​

In connection with Placido’s appeal, this Court has held that count 2 of the indictment was jurisdictionally defective and that County Court lacked the authority to grant the People’s motion to amend that count … ). In light of the fact that count 2 of the indictment was identical in respect to Placido and defendant, it necessarily follows that this Court’s holding in People v Placido … applies with equal force to defendant. Accordingly, notwithstanding the fact that defendant did not raise this issue before County Court and does not raise it on appeal, we exercise our interest of justice jurisdiction and reverse defendant’s conviction for conspiracy in the fourth degree. People v Deleon, 2017 NY Slip Op 02848, 3rd Dept 4-13-17

CRIMINAL LAW (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/APPEALS (CRIMINAL LAW, COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/INDICTMENTS (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)

SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT.

The Third Department, over a two-justice dissent, determined a recorded option agreement allowing plaintiff to buy back a portion of the parcel of land sold by the plaintiff was enforceable against subsequent purchasers of the parcel, even though the deed to the option property could not be recorded at the time the option was exercised (subdivision approval would be necessary to record the deed). The court held that because only transfer of the deed, not the recording of the deed, was required under the option agreement, the agreement could be enforced by an action for specific performance (which requires that the buyer be ready, willing and able to purchase the property when the option is exercised):

​

… “[N]othing within the four corners of the option agreement requires plaintiff to obtain subdivision approval prior to exercising its option with respect to the 3.5-acre parcel, nor does the option agreement provide that the failure to obtain such approval renders the underlying agreement null and void” … . Further, as Supreme Court correctly noted, Real Property Law § 291 does not compel plaintiff to actually record the reconveyance deed for the subject parcel, as “recording is not required in order to transfer title to real property” (… see Real Property Law § 291). Rather, title to property vests upon the execution and delivery of the deed (see Real Property Law § 244…), and the fact that the deed may not be recorded until a later date — or at all — does not affect the validity of the conveyance … . While it is true that, generally speaking, prudence would suggest that a grantee record his or her deed, there is no requirement that he or she do so. More to the point, we do not interpret the option agreement before us as requiring plaintiff to record the deed obtained subsequent to exercising its rights relative to the 3.5-acre parcel — only a provision that, if it elects to do so, it be at its expense.  Tomhannock, LLC v Roustabout Resources, LLC, 2017 NY Slip Op 02712, 3rd Dept 4-6-17

REAL PROPERTY (SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)/SPECIFIC PERFORMANCE (REAL PROPERTY, SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)/DEEDS  (SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)/OPTION AGREEMENTS (REAL PROPERTY, SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)

RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT IN THIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED.

The Third Department vacated Family Court’s order of disposition in the PINS matter finding that respondent had violated the terms of his probation. Respondent was never informed of his right to remain silent:

​

“Family Court Act § 741 (a) requires that at a respondent’s initial appearance in a proceeding and at the commencement of any hearing under Family Court Act article 7, the respondent and his or her parent or other person legally responsible for his or her care be advised of the respondent’s right to remain silent” … . … Respondent … argues that Family Court did not comply with Family Ct Act § 741 in this proceeding, … and our review confirms that Family Court failed to apprise him of his right to remain silent at either the initial appearance or fact-finding hearing. As a result, the appealed-from order of disposition must be vacated … . Matter of Daniel XX., 2017 NY Slip Op 02717, 3rd Dept 4-6-17

FAMILY LAW (RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT INT HIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED)/PINS (RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT INT HIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED)

DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING.

The Third Department determined Family Court should not have dismissed the paternity petition based solely on the presumption of legitimacy and should have held a best interests hearing:

​

We agree with petitioner that, as he made the requisite threshold showing of “a nonfrivolous controversy as to paternity” … , his request for genetic testing should not have been denied in the absence of a best interests finding.

In enacting the statutory provisions, the Legislature plainly anticipated that cases involving the presumption of legitimacy may present themselves in which, based upon all of the circumstances, it will not be in a child’s best interests to order genetic testing… . Although respondents ask us to find that this is such a case, we are unable to exercise our broad power of review to render the best interests determination upon the present record. The limited testimony that was taken at the hearing failed to address many of the factors that have been recognized in similar proceedings as relevant to the issue of the child’s best interests. These include such factors as the child’s interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing … . * * *

​

Accordingly, the matter must be remitted for a hearing and a determination as to whether, based upon all of the circumstances, including the presumption of legitimacy, genetic testing would be in the child’s best interests … . Matter of Mario WW. v Kristin XX., 2017 NY Slip Op 02715, 3rd Dept 4-6-17

 

FAMILY LAW (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/PATERNITY (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/LEGITIMACY, PRESUMPTION OF  (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)

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