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QUESTION OF FACT WHETHER PARTIAL PERFORMANCE TOOK ORAL AGREEMENT OUT OF THE STATUTE OF FRAUDS.

The Third Department determined a question of fact had been raised about whether an oral agreement to extend a mining lease was enforceable because partial performance took the contract out of the statute of frauds. An amendment to extend the mining lease for 20 years was never executed. However, the agreement was mentioned in a 20-year sublease which was subsequently entered:

Defendants’ statute of frauds argument is governed by General Obligations Law § 5-703, which, as relevant here, provides that an interest in real property can be created or conveyed only by a signed writing. While plaintiff concedes that a signed copy of the amendment does not exist, he contends that the statute of frauds is inapplicable, as the parties’ course of conduct constitutes partial performance of an oral contract to extend the term of the lease (see General Obligations Law § 5-703 [4]…). “[P]artial performance of an alleged oral contract will be deemed sufficient to take such contract out of the [s]tatute of [f]rauds only if it can be demonstrated that the acts constituting partial performance are ‘unequivocally referable’ to said contract” … .

Here, plaintiff raised triable issues of fact as to whether the partial-performance exception to the statute of frauds applies. Evidence of such performance can be found in the parties’ mutual decision to execute the 20-year sublease agreement, which explicitly referred to the amendment and acknowledged that plaintiff and [defendant] were parties to it. Indeed, if the parties did not have an understanding that the mining lease was to be extended to 20 years, then [defendant sublessee’s] willingness to enter into a 20-year sublease with plaintiff — despite the fact that plaintiff had only a five-year lease with [defendant] and [defendant’s] express consent to the creation of these incongruous interests in his property — would appear to be “‘unintelligible or at least extraordinary,’ explainable only with reference to the oral agreement” …. . Bowers v Hurley, 2015 NY Slip Op 08884, 3rd Dept 12-3-15

REAL PROPERTY (PARTIAL PERFORMANCE OF ORAL AGREEMENT, STATUTE OF FRAUDS)/CONTRACT LAW (PARTIAL PERFORMANCE OF ORAL AGREEMENT, STATUTE OF FRAUDS)/STATUTE OF FRAUDS (PARTIAL PERFORMANCE OF ORAL AGREEMENT)

SPECIAL EDUCATION PROVIDER NOT AN EMPLOYEE.

The Third Department determined claimant, a provider of special education services, was not an employee of Mid Island, which was under contract with the New York City Department of Education (NYCDOE) to provide such services:

Although Mid Island would contact claimant to let her know whether a student in her geographic area needed special education services, Mid Island did not assign students to claimant; she was free to accept or reject a referral from Mid Island … . Mid Island also did not control the scheduling of services, which would be arranged between the student’s parents and claimant … , and did not dictate the type, location or manner of delivery of the services that were to be provided, which would be specified in the student’s individualized education program … . Once services were provided, any parental complaints were handled by NYCDOE, not Mid Island, and if a teacher needed to be replaced, NYCDOE would direct Mid Island to do so. Mid Island never performed any type of performance evaluation of claimant … . The reporting requirements governing submission of session and progress notes also came from NYCDOE, and such notes were neither required nor reviewed by Mid Island … .

Claimant was required under the parties’ agreement to maintain her own malpractice insurance and cover her own expenses, and she was not provided with any supplies or benefits … . The rate of payment was established by NYCDOE, and, if Mid Island did not receive payment from NYCDOE, it was not obliged to remit payment to claimant for services provided to a student… . Matter of Wright (Mid Is. Therapy Assoc. LLC–Commissioner of Labor), 2015 NY Slip Op 08897, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (SPECIAL EDUCATION PROVIDER)

IT CONSULTANT WAS EMPLOYEE.

The Third Department determined claimant, who had her own IT consultant business, was an employee of Geneva, despite the contractual “independent contractor” designation. The court, however, sent the matter back for a determination whether claimant was totally unemployed. With respect to the employee status, the court wrote:

The evidence at the hearing demonstrated that claimant, who runs her own consulting business, Jessica Consultant LLC, responded to an advertisement placed by Geneva that listed the job requirements and necessary IT background for a position with its client; Geneva screened her and forwarded her credentials to its client, which interviewed and approved of claimant. Geneva required that claimant sign a contract that designated her as the consultant assigned to perform the IT services for the client, and labeled her as an independent contractor. Geneva employed approximately 35 people as consultants who received benefits and designated another 15 consultants as independent contractors who were required to be in business for themselves and to obtain, among other things, their own liability insurance, but Geneva’s chief financial officer conceded that both groups provided the “same services” and had the “same skills.” Geneva contracted with its client to provide claimant’s services and charged the client for those services, and Geneva paid claimant a negotiated daily rate. Claimant worked a full-time schedule set by the client and performed services in the client’s office where she was provided a desk, computer, supplies and support staff. Claimant reported regularly to the client’s manager, who instructed her on the client’s needs and expectations, trained her on the client’s systems, gave her assignments, set her deadlines and approved her time sheets, which were submitted to Geneva for payment. Claimant could not provide substitutes or refuse assigned work and needed the client’s approval to take time off from work. Matter of Thomas (Geneva Consulting Group–Commissioner of Labor), 2015 NY Slip Op 08889, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (IT CONSULTANT)

MEDICAL COURIERS WERE EMPLOYEES.

The Third Department determined couriers were employees of Dynamex entitled to unemployment insurance benefits:

… [T]he record contains evidence that claimants were required to wear uniforms identifying themselves as being contracted through Dynamex. Claimants were also issued Dynamex identification cards. Further, claimants were bound by a one-year noncompetition restriction following their termination with Dynamex. Claimants would advise Dynamex when they were available to work and Dynamex would then assign pickups and deliveries to them within their general geographic location. Claimants were required to complete their assignments the same day and provide Dynamex with proof of delivery. Dynamex handled customer complaints and would bill its customers and pay claimants weekly, based upon commissions for the services performed, even if the customer did not pay Dynamex. Matter of Voisin (Dynamex Operations E., Inc.–Commissioner of Labor), 2015 NY Slip Op 08881, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (MEDICAL COURIERS)

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTOR’S REFERENCES TO STRICKEN TESTIMONY CONSTITUTED INEFFECTIVE ASSISTANCE REQUIRING REVERSAL.

The Third Department determined defense counsel’s failure to object to the prosecutor’s references to stricken testimony in summation amounted to ineffective assistance of counsel requiring reversal. The defendant was accused of running over his girlfriend with a pickup truck:

Here, during direct examination by the People, the witness testified that he heard defendant yell, “I hope you f***ing die, bitch.” Finding that this testimony went to defendant’s state of mind, County Court overruled counsel’s objection and permitted the statement into evidence. The witness then testified that he assumed defendant was directing such comment toward [the victim]. Upon defendant’s further objection, County Court held that the witness could not speculate as to whom defendant had directed his comment, and the witness’s testimony in that regard was stricken from the record. Despite this evidentiary ruling, during summation, the People twice made improper references to the stricken testimony and twice those references went without objection from defense counsel or curative instructions from the court. Specifically, at one point during closing argument the prosecutor stated, “If this was some sort of an accident, then why would the defendant scream at [the victim], I hope you f***ing die, bitch? Is that consistent with an accident or is that consistent with an intent to injure? If you accidentally just ran over your significant other, is that what you would say to them?” … . People v Ramsey, 2015 NY Slip Op 08874, 3rd Dept 12-3-15

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO OBJECT TO REFERENCES TO STRICKEN TESTIMONY)/INEFFECTIVE ASSISTANCE (FAILURE TO OBJECT TO REFERENCES TO STRICKEN TESTIMONY)

DESPITE FLORIDA DIVORCE, NEW YORK HAD JURISDICTION OVER THE CUSTODY/VISITATION MATTERS BASED UPON THE PARTIES’ PRESENCE IN NEW YORK.

Reversing Family Court, the Third Department determined New York had jurisdiction over the custody/visitation matters, despite the Florida divorce. The parties had subsequently moved from Florida to New York and there was no indication the relocation was temporary. The criteria for New York’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has nothing to do with the legal residence of the parties. The court further determined that the relevant provisions of the UCCJEA did not conflict with the Parental Kidnapping Prevention Act (PKPA) and was therefore not preempted by the PKPA. With respect to New York’s juriisdiction, the court wrote:

Consistent with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA), which is codified in Domestic Relations Law article 5-A, “a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial custody determination under [Domestic Relations Law § 76 (1) (a) or (b)]” and, insofar as is relevant here, “[a] court of this state . . . determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state” (Domestic Relations Law § 76-b [2]). As to the first criteria, jurisdiction to render an initial custody determination may be predicated upon, among other things, a finding that “this state is the home state of the child on the date of the commencement of the proceeding” (Domestic Relations Law § 76 [1] [a]). A child’s home state, in turn, is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a [7]…). A child custody proceeding includes a proceeding in which visitation with the child is at issue (see Domestic Relations Law § 75-a [4]), and the commencement of a proceeding “means the filing of the first pleading in a proceeding” (Domestic Relations Law § 75-a [5] … ). Matter of Lewis v Martin, 2015 NY Slip Op 08879, 3rd Dept 12-3-15

FAMILY LAW (JURISDICTION OVER CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/JURISDICTION (CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) (JURISDICTION OF NEW YORK DESPITE FLORIDA DIVORCE)/PARENTAL KIDNAPPING PREVENTION ACT (PKPA) (NO CONFLICT WITH UCCJEA)

TOWN’S WITHDRAWAL FROM A COORDINATED ASSESSMENT PROGRAM (CAP) DOES NOT TERMINATE TOWN ASSESSOR’S TERM.

The Third Department, in a matter of first impression, determined petitioner, a town assessor who was removed when the town withdrew from the coordinated assessment program (CAP), was entitled to finish out his six-year term. Under the CAP, the petitioner served three towns.  When one of those towns withdrew from the CAP, that town appointed its own town assessor. The Third Department held that petitioner was entitled to finish out his term as assessor for that town:

… [W]e find it telling that RPTL 579 was amended in 2009 to, among other things, clarify that an assessor appointed in a CAP receives a six-year term and to shorten the notice period for a member to withdraw (see L 2009, ch 46, §§ 1-3 [eff May 29, 2009]). The adoption of these companion provisions leads us to conclude that the Legislature intended an assessor’s six-year term to remain intact, even where a CAP member opts to withdraw. Insofar as the assessor is concerned, the effect of withdrawal is merely delayed until the assessor’s term expires, at which time the assessing unit is free to choose a new assessor, without approval from any other assessing unit. Matter of Rubeor v Town of Wright, 2015 NY Slip Op 08895, 3rd Dept 12-3-15

MUNICIPAL LAW (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM COORDINATED ASSESSMENT PROGRAM [CAP])/TOWN LAW (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM COORDINATED ASSESSMENT PROGRAM [CAP])/REAL PROPERTY TAX LAW (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM COORDINATED ASSESSMENT PROGRAM [CAP])/COORDINATED ASSESSMENT PROGRAM (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM)

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BECAUSE THE GAS WELL TO WHICH PLAINTIFFS OBJECTED MAY NEVER BE CONSTRUCTED, THE DECLARATORY JUDGMENT ACTION DID NOT PRESENT A JUSTICIABLE CONTROVERSY.

The Third Department determined plaintiff coalition’s declaratory judgment action against the New York Department of Environmental Conservation (DEC) was properly dismissed. The action contended that the DEC’s response to a comment submitted by plaintiff coalition (re; a gas-well permit under State Environmental Quality Review Act [SEQRA] review) constituted an unlawful extension of the common law rule of capture and effectuated a trespass on the land owned by a coalition member. The Third Department determined, because the comment period for the relevant rule-making had passed and the relevant rules had not been adopted, and because whether or not the gas-well permit will be issued has not been determined, the declaratory judgment action did not raise a  justiciable controversy:

Assuming, without deciding, that the statewide ban on hydrofracking does not render all of plaintiffs’ claims moot and, further, that plaintiffs each have standing to maintain this declaratory judgment action, Supreme Court nonetheless properly granted defendant’s motion to dismiss the complaint. As this Court recently reiterated, “[i]n order to warrant a determination of the merits of a cause of action, the party requesting relief must state a justiciable claim — one that is capable of review and redress by the courts at the time it is brought for review. A claim is justiciable, in turn, when two requirements are met: first, that the plaintiff has an interest sufficient to constitute standing to maintain the action and, second, that the underlying controversy involves present, rather than hypothetical, contingent or remote, prejudice to the plaintiff” … . Again, even assuming that plaintiffs have satisfied the standing element of this equation, the fact remains that their entire complaint is predicated upon either (1) defendant’s allegedly improper response to a comment made by the Coalition regarding proposed draft regulations that ultimately were not adopted, or (2) the theoretical consequences of a well bore or fluid fracture penetrating the subsurface of [a plaintiff’s] property. Community Watersheds Clear Water Coalition, Inc. v New York State Dept. of Envtl. Conservation, 2015 NY Slip Op 08890, 3rd Dept 12-3-15

ENVIRONMENTAL LAW (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/CIVIL PROCEDURE (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/HYDROFRACKING BAN (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/NATURAL GAS (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)

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DEFENSE OPENED THE DOOR TO ALLOW EVIDENCE OF OTHERWISE INADMISSIBLE TESTIMONIAL HEARSAY STATEMENTS MADE TO A POLICE INVESTIGATOR

The Third Department determined testimonial statements made by a co-defendant, Denno, to a police investigator were properly allowed in evidence because the defense “opened the door” by questioning the investigator about one of the statements:

Although testimonial statements by a nontestifying witness are inadmissible as violative of the Confrontation Clause, “a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause” … . Denno, a witness to and participant in the crimes, gave three statements to the investigator, and Denno invoked his Fifth Amendment right not to testify at defendant’s trial. Defendant called the investigator as a witness to elicit information about Denno’s second statement, which was favorable to defendant. This opened the door for the People to cross-examine the investigator about the content of the two other Denno statements, which provided context and were less favorable to defendant. People v Taylor, 2015 NY Slip Op 08873, 3rd Dept 12-3-15

CRIMINAL LAW (TESTIMONIAL HEARSAY STATEMENTS PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)/EVIDENCE (TESTIMONIAL HEARSAY STATEMENTS PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)/TESTIMONIAL HEARSAY STATEMENTS (PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)

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USE OF MOTION TO REARGUE TO RAISE NEW ISSUES REQUIRED REVERSAL.

The Third Department reversed based upon the improper use of a motion to reargue, despite the defendants’ failure to raise the issue. The motion was improperly based upon a theory not raised in the original motion:

 “[A] motion to reargue is not available to advance a new theory of liability, or to present arguments different from those originally asserted” … , but plaintiffs did just that in their motion for reargument, arguing that the installation of the original “[s]ewer [l]ine was no longer an issue” and that the alleged trespass caused by the new sewer line justified a grant of summary judgment. Supreme Court accordingly abused its discretion in granting reargument based upon the presence of the new sewer line, a claim that was not raised by plaintiffs in either their original motion for summary judgment or their complaint … . Wasson v Bond, 2015 NY Slip Op 08900, 3rd Dept 12-3-15

CIVIL PROCEDURE (MOTION TO REARGUE, IMPROPER USE OF MOTION REQUIRED REVERSAL)/REARGUE, MOTION TO (IMPROPER USE OF MOTION TO REARGUE REQUIRED REVERSAL)/APPEALS (IMPROPER USE OF MOTION TO REARGUE REQUIRED REVERSAL DESPITE FAILURE TO RAISE THE ISSUE)

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