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AGREEMENT ALLOWING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ “HOME RULE” RIGHTS.

The Third Department, in a full-fledged opinion by Justice Garry, determined the petitioners, the Town of Vernon and the Town of Verona, did not have standing to attack an agreement (ratified by the New York Gaming Economic Development Act of 2013 [UNYGEDA]) allowing the Oneida Nation to implement legalized casino gambling. The towns argued that the agreement violated the towns’ “home rule” rights by removing land from their zoning and environmental authority, as well as preventing the collection of property taxes. The Third Department held that it was the placing of Oneida Nation land in trust (by the federal Department of the Interior) which caused these negative consequences and the trust was created before the agreement at issue:

These negative consequences … did not result from the agreement or from the UNYGEDA, but, instead, from the decision by the Department to place the lands in trust. That decision had already been made when the agreement was executed, and it was unaffected by any State action other than the agreement’s provision that the State and the Counties would discontinue then-pending federal litigation that challenged the Department’s decision. In 2014, the State and Counties did so … . The State has no constitutional obligation to pursue litigation, nor have petitioners established that the litigation would have resulted in the reversal of the Department’s decision to place the lands in trust if it had not been settled. Further, the discontinuance of the State’s claims did not foreclose the Towns from pursuing separate federal litigation that challenged the Department’s action, which they did until the action was dismissed on the merits in 2015 … . Thus, the State’s actions did not cause the harm that forms the basis of the Towns’ claims. Accordingly, the Towns failed to establish that the agreement and the UNYGEDA impinged upon their home rule powers, and Supreme Court properly ruled that they lacked the capacity to bring this action/proceeding. Matter of Town of Verona v Cuomo, 2015 NY Slip Op 09338, 3rd Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

MUNCIPAL LAW (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/HOME RULE (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/GAMBLING (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/ONEIDA NATION (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)

SUPERMARKET EMPLOYEES HAD NO LEGAL DUTY TO AID AN UNCONSCIOUS PERSON IN A CAR IN THE SUPERMARKET PARKING LOT.

The Third Department determined employees of Tops supermarket did not have a duty to come to the aid of decedent, who died in his parked car in the Tops parking lot. Decedent and companions were drinking and doing drugs. When decedent was unconscious, his companions placed him in his own car and allegedly told Tops employees decedent was in need of emergency aid. The court held that the Tops employees did not have a legal duty to aid decedent:

“In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff” … . This is frequently a “difficult task [and,] [d]espite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree” … . Consonant with the premise that a moral duty does not equate with a legal duty … , it is the general rule that “one does not owe a duty to come to the aid of a person in peril” … . Exceptions to the general rule exist, such as, for example, a common carrier’s duty to take reasonable action to protect a passenger who is being assaulted … .

Here, although Tops was open to shoppers, this did not necessarily create an affirmative duty to come to the aid of anyone who was anywhere on its property no matter how unrelated such person’s presence was to Tops’ function as a grocery store. Decedent was not a customer of Tops, neither he nor his companions were on the premises for any activity related in any manner to Tops’ business, Tops’ employees did not participate in any fashion in the conduct of decedent’s companions, it is not alleged that Tops’ employees saw or had any contact with decedent on the premises, and Tops’ employees did not take any actions that put decedent in a worse position than the one in which his companions left him. Daily v Tops Mkts., LLC, 2015 NY Slip Op 09336, 3rd Dept 12-17-15

NEGLIGENCE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)/DUTY OF CARE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)

ADMINISTRATIVE LAW, DRIVER’S LICENSES. COMMISSIONER OF MOTOR VEHICLES HAS THE POWER TO DENY RELICENSING TO DRIVER CONVICTED OF DWI WHO HAD TWO SIX POINT SPEEDING TICKETS DURING THE LOOK-BACK PERIOD.

The Third Department, over a dissent, determined the Commissioner of Motor Vehicles, pursuant to the new DWI relicensing regulations, properly refused to relicense petitioner, who had been convicted of three alcohol-related offenses during ten years, based upon two six point speeding tickets during the look-back period. The question presented was whether two five point speeding tickets could properly constitute a “serious driving offense” justifying a denial of relicensing. The majority concluded the relevant regulation was a valid exercise of the Commissioner’s powers. The court noted that the Commissioner has the discretion to grant a license under unusual, extenuating and compelling circumstances, but petitioner did not make an application under that provision:

In the broadest sense, 15 NYCRR part 136 was promulgated to “establish[] criteria to identify individual problem drivers,” that is, applicants for new licenses that “ha[ve] had a series of convictions, incidents and/or accidents . . . which in the judgment of the [C]ommissioner . . . upon review of the applicant’s entire driving history, establishes that the person would be an unusual and immediate risk upon the highways” (15 NYCRR 136.1 [a], [b] [1]). In developing these regulations, the Commissioner considered empirical data, which indicated that drivers with three or more alcohol- or drug-related driving convictions are involved in a disproportionate number of motor vehicle accidents. Accordingly, the Commissioner rationally determined that such drivers “pose the highest risk to the general population” (NY Reg, Mar. 13, 2013 at 43) and, thus, should not be granted new, unrestricted licenses until after a waiting period of several years (see 15 NYCRR 136.5 [b] [3], [4]). With that in mind, we cannot consider the Commissioner’s decision to subject such recidivist impaired or intoxicated drivers to a longer — or even a presumptively permanent — ban on relicensure to be arbitrary when, like petitioner, such drivers may independently qualify as “problem drivers” because of the presence of speeding or other violations on their driving records (see 15 NYCRR 136.1 [b] [1]; 136.5 [a] [2]; [b] [2]).

As for petitioner’s claim that her two six-point speeding violations during the 25-year look-back period are not serious enough to be expressly defined as a “serious driving offense” (see 15 NYCRR [a] [2] [iii]), we defer to the Commissioner’s determination, as it was made pursuant to her discretionary authority (see Vehicle and Traffic Law § 510 [5], [6]), and it was within the area of expertise of the agency she headds … . Matter of Matsen v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09159, 3rd Dept 12-10-15

 

ADMINISTRATIVE LAW (DRIVER’S LICENSES, COMMISSIONER HAS POWER TO DENY RELICENSING A DRIVER CONVICTED OF DWI BASED UPON TWO FIVE-POINT SPEEDING TICKETS)/DRIVER’S LICENSES (RELICENSING OF DRIVER CONVICTED OF DWI CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)/SPEEDING TICKETS (TWO FIVE POINT SPEEDS CONSTITUTE A SERIOUS DRIVING OFFENSE FOR WHICH RELICENSING CAN BE DENIED TO A DRIVER CONVICTED OF DWI)/RELICENSING OF DRIVERS CONVICTED OF DWI (CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)

COMMISSIONER OF MOTOR VEHICLES HAS THE POWER TO DENY RELICENSING TO DRIVER CONVICTED OF DWI WHO HAD TWO SIX POINT SPEEDING TICKETS DURING THE LOOK-BACK PERIOD.

The Third Department, over a dissent, determined the Commissioner of Motor Vehicles, pursuant to the new DWI relicensing regulations, properly refused to relicense petitioner, who had been convicted of three alcohol-related offenses during ten years, based upon two six point speeding tickets during the look-back period. The question presented was whether two five point speeding tickets could properly constitute a “serious driving offense” justifying a denial of relicensing. The majority concluded the relevant regulation was a valid exercise of the Commissioner’s powers. The court noted that the Commissioner has the discretion to grant a license under unusual, extenuating and compelling circumstances, but petitioner did not make an application under that provision:

In the broadest sense, 15 NYCRR part 136 was promulgated to “establish[] criteria to identify individual problem drivers,” that is, applicants for new licenses that “ha[ve] had a series of convictions, incidents and/or accidents . . . which in the judgment of the [C]ommissioner . . . upon review of the applicant’s entire driving history, establishes that the person would be an unusual and immediate risk upon the highways” (15 NYCRR 136.1 [a], [b] [1]). In developing these regulations, the Commissioner considered empirical data, which indicated that drivers with three or more alcohol- or drug-related driving convictions are involved in a disproportionate number of motor vehicle accidents. Accordingly, the Commissioner rationally determined that such drivers “pose the highest risk to the general population” (NY Reg, Mar. 13, 2013 at 43) and, thus, should not be granted new, unrestricted licenses until after a waiting period of several years (see 15 NYCRR 136.5 [b] [3], [4]). With that in mind, we cannot consider the Commissioner’s decision to subject such recidivist impaired or intoxicated drivers to a longer — or even a presumptively permanent — ban on relicensure to be arbitrary when, like petitioner, such drivers may independently qualify as “problem drivers” because of the presence of speeding or other violations on their driving records (see 15 NYCRR 136.1 [b] [1]; 136.5 [a] [2]; [b] [2]).

As for petitioner’s claim that her two six-point speeding violations during the 25-year look-back period are not serious enough to be expressly defined as a “serious driving offense” (see 15 NYCRR [a] [2] [iii]), we defer to the Commissioner’s determination, as it was made pursuant to her discretionary authority (see Vehicle and Traffic Law § 510 [5], [6]), and it was within the area of expertise of the agency she heads … . Matter of Matsen v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09159, 3rd Dept 12-10-15

ADMINISTRATIVE LAW (DRIVER’S LICENSES, COMMISSIONER HAS POWER TO DENY RELICENSING A DRIVER CONVICTED OF DWI BASED UPON TWO FIVE-POINT SPEEDING TICKETS)/DRIVER’S LICENSES (RELICENSING OF DRIVER CONVICTED OF DWI CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)/SPEEDING TICKETS (TWO FIVE POINT SPEEDS CONSTITUTE A SERIOUS DRIVING OFFENSE FOR WHICH RELICENSING CAN BE DENIED TO A DRIVER CONVICTED OF DWI)/RELICENSING OF DRIVERS CONVICTED OF DWI (CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)

FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION AT THE TIME OF THE PLEA RENDERED THE PLEA INVALID.

he Third Department reversed defendant’s conviction by guilty plea because the defendant was not informed of the period of postrelease supervision at the time of the plea. Defendant was told by the sentencing judge (at the time of the plea) if he violated interim probation (which was to lead to a felony probation) he would be sentenced to four years in prison. No mention was made of postrelease supervision. Defendant violated the terms of the interim probation and was sentenced to four years incarceration plus two years of postrelease supervision:

… [I]t is well settled that, for a defendant’s plea to be knowingly, voluntarily and intelligently entered into, a court must advise him or her of the direct consequences of a plea prior to sentencing, including the existence and duration of any postrelease supervision requirement … . Here, as the People concede, at the time of his plea, defendant was not properly made aware of the postrelease supervision component of his sentence. Accordingly, defendant’s decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed … . People v Binion, 2015 NY Slip Op 09142, 3rd Dept 12-10-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

CRIMINAL LAW (POSTRELEASE SUPERVISION, FAILURE TO INFORM DEFENDANT OF)/SENTENCING (POSTRELEASE SUPERVISION, FAILURE TO INFORM DEFENDANT OF)/POSTRELEASE SUPERVISION (FAILURE TO INFORM DEFENDANT OF)/PLEA (GUILTY PLEA INVOLUNTARY IF DEFENDANT NOT INFORMED OF POSTRELEASE SUPERVISION)

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FAILURE TO CLARIFY WHETHER APPEAL WAIVER WAS PART OF THE PLEA AGREEMENT RENDERED THE WAIVER INVALID.

The Third Department determined defendant’s waiver of appeal was invalid because it was not made clear whether the waiver was part of the plea agreement. The court further determined that the sentence for non-violent offenses committed by the 18-year-old defendant was harsh and excessive. With respect to the invalid waiver of appeal, the court wrote:

Defendant was free to waive his right to appeal as an adjunct to the plea agreement, so long as he made a voluntary, knowing and intelligent decision to do so … . It was accordingly incumbent upon County Court to verify, among other things, that defendant understood he was “intentionally relinquish[ing] or abandon[ing] a known right that would otherwise survive a guilty plea” as a component of the plea agreement … . Defendant expressed his willingness to waive his right to appeal during the plea colloquy, but the record is devoid of any indication that an appeal waiver was actually a component of the plea agreement. An appeal waiver was not mentioned when the terms of the plea agreement were recited and, indeed, the People stated that they did not know if defendant was executing an appeal waiver given the absence of any sentencing commitment. Defense counsel then gratuitously offered to have defendant waive his right to appeal in the spirit of “mak[ing] it as easy on everyone as possible.” As a result of these statements, County Court was obliged to determine whether an appeal waiver was required as a “detail[] of the plea bargain” and, if not, whether defendant understood that he did not have to execute one …. . County Court did neither and, given the absence of proof that defendant waived his right to appeal in return for any consideration, we find that waiver to be invalid … . People v Justiniano, 2015 NY Slip Op 08875, 3rd Dept 12-3-15

CRIMINAL LAW (WAIVER OF APPEAL INVALID)/APPEALS (WAIVER OF APPEAL INVALID)/CRIMINAL LAW (SENTENCE HARSH AND EXCESSIVE)/SENTENCING (HARSH AND EXCESSIVE)

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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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