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Doctrine of Judicial Estoppel Precluded Plaintiff from Taking a Position Contrary to the Position Plaintiff Took In Two Prior Successful Actions

The Third Department determined the position taken by plaintiff in prior successful actions, i.e., that defendant was the owner of certain lots, precluded plaintiff, under the doctrine of judicial estoppel, from taking the position defendant was not the owner of those lots in the instant proceeding:

Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, “if a party assumes a position in one legal proceeding and prevails in maintaining that position, that party will not be permitted to assume a contrary position in another proceeding simply because the party’s interests have changed” … . “The doctrine rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise” …. . Green Harbour Homeowners Assn., Inc. v Ermiger, 2015 NY Slip Op 03899, 3rd Dept 5-7-15

 

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Revocation of Empire-Zone-Business Certifications Upheld in 9 of 11 Instances

The Third Department, in a full-fledged opinion by Justice Lynch, considered the Empire Zone Designation Board’s revocation of petitioners’ certifications as empire zone businesses. The Department of Economic Development (DED) was directed, in 2009, to conduct a review of all certified businesses to determine whether decertification was warranted on one of two grounds: “First, DED could decertify a business enterprise if it was a “shirt-changer,” that is, if the enterprise was certified prior to August 1, 2002, and it “caused individuals to transfer from existing employment with another business enterprise with similar ownership . . . to similar employment with [the enterprise] or if the enterprise acquired, purchased, leased, or had transferred to it real property previously owned by an entity with similar ownership, regardless of form of incorporation or ownership” (General Municipal § 959 [a] [v] [5]; see 5 NYCRR 11.9…). Second, DED could decertify a business enterprise if it failed to meet the 1:1 benefit-cost test … . The latter test required decertification where it was determined that the enterprise “has submitted at least three years of business annual reports [and it] has failed to provide economic returns to the [s]tate in the form of total remuneration to its employees (i.e., wages and benefits) and investments in its facility that add to a greater value than the tax benefits the business enterprise used and had refunded to it” … . Applying the standard criteria for review of administrative determinations, the Third Department upheld all but two of the 11 decertifications, but also determined retroactive decertifications were improper. Matter of Lyell Mt. Read Bus. Ctr. LLC v Empire Zone Designation Bd., 2015 NY Slip Op 03906, 3rd Dept 5-7-15

 

Late Notice of the Accident by the Insured (in Violation of the “Prompt Notice Condition), Coupled with the Injured Plaintiff’s Failure to Make Reasonable Efforts to Identify and Notify the Insurer, Relieved the Insurer of Any Obligation to Defend or Indemnify the Insured

Plaintiff was injured while skiing at a ski resort (Nevele’s). The Third Department determined Nevele failed to give timely notice of the accident/injury to its insurer, Lexington.   Nevele did not inform Lexington for ten months. The policy included a “prompt notice condition.” The court noted that, because the injured party can also notify the insurer of an accident, late notice will be excused if the injured party is unable to identify the insurer after making reasonable efforts.  Here the plaintiffs sent a letter to Nevele asking Nevele to notify its insurer, but did nothing further to learn the identity of or notify the insurer.  Plaintiffs’ efforts were not sufficient to excuse the late notice:

Because an injured party is allowed by law to provide notice to an insurance company (see Insurance Law § 3420 [a] [3]), he or she is also generally held to any prompt notice condition precedent of a policy … . However, such an injured party can overcome an insurance company’s failure to receive timely notice — which would otherwise vitiate coverage — by a demonstration that he or she did not know the insurer’s identity despite his or her reasonably diligent efforts to obtain such information … .

As proof of their reasonably diligent efforts, plaintiffs submitted two letters that they had sent to Nevele with an attached questionnaire. The letters provided notice of the contemplated personal injury action, requested that Nevele complete the questionnaire and requested that Nevele either kindly refer the letter to Nevele’s insurance company or inform plaintiffs if Nevele was not insured. The attached questionnaire requested insurance carrier information. However, despite the fact that [plaintiff’s] accident did not involve any automobile, that questionnaire only specifically requested insurance information regarding Nevele’s automobile insurer. Nevele responded to the second correspondence, but it did not respond to the question relating to insurance coverage. The record is devoid of evidence that plaintiffs took any further efforts to ascertain Lexington’s identity.

* * * Given the combination of plaintiffs’ initial failure to specifically ask for the relevant insurance information, their failure to ask for such information after Nevele’s communication and their failure to promptly follow up in any other manner, plaintiffs failed to raise a triable issue of fact as to their reasonable efforts to ascertain Lexington’s identity … . Kleinberg v Nevele Hotel, LLC, 2015 NY Slip Op 03891, 3rd Dept 5-7-15

 

Family Court Should Not Have Denied Nonparent’s Petition for Custody of a Child, and Awarded Custody to the Father and Mother, in the Absence of an Evidentiary Hearing

The Third Department determined there were questions of fact whether non-parent petitioner could show extraordinary circumstances warranting the award of custody of a child petitioner cared for for years.  Family Court had awarded custody to the father and mother without a hearing:

Under settled law, “a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” … , and the nonparent bears the “heavy burden of establishing extraordinary circumstances to overcome the [parent’s] superior right to custody” … . “The pertinent factors to be considered in determining whether extraordinary circumstances exist include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” …, as well as “the child’s psychological bonding and attachments, the prior disruption of the parent[‘s] custody, separation from siblings and potential harm to the child” and other relevant factors … . A “consent order, standing alone, does not constitute a judicial finding [or an admission] of . . . extraordinary circumstances” … . However, we have stressed that, “with few exceptions, an evidentiary hearing is necessary to determine whether extraordinary circumstances exist” … . Matter of Liz WW. v Shakeria XX., 2015 NY Slip Op 03888, 3rd Dept 5-7-15

 

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There Is No Blanket Prohibition Against Relying on the Doctrine of Res Ipsa Loquitur in a Medical Malpractice Case

In affirming the denial of summary judgment to the defendant in a medical malpractice case, the Third Department noted that plaintiff is not precluded from relying on the doctrine of res ipsa loquitur in a medical malpractice action.  Here it is was alleged the improper insertion of an IV damaged a nerve: “While the proof adduced at trial ultimately may be insufficient to establish the required elements of res ipsa loquitur …, thereby rendering the submission of such a charge to the jury unwarranted …, there is no blanket prohibition upon invoking this doctrine in the context of a medical malpractice action … .  Weeks v St. Peter’s Hosp., 2015 NY Slip Op 03909, 3rd Dept 5-7-15

 

Where One Resident Consents to a Search and Another Resident Does Not Consent, the Search Can Not Be Executed—However, the Refusal to Consent Is Only Operative As Long As the Objecting Resident Is Physically Present

The Third Department explained that where one resident consents to a search of the premises, but another resident does not consent, the search can not be conducted.  However, a resident’s refusal to consent is operative for only as long as the resident is present at the premises.  Here the objecting resident left the premises and the police properly executed the search with the consent of the remaining resident:

Even in the absence of a warrant, police may lawfully search a residence where an inhabitant with apparent authority to consent to the search freely and voluntarily does so … . However, where one resident consents to a search and another refuses, “[the] warrantless search of [the] shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him [or her] on the basis of consent given to the police by another resident” … . Notably, however, the objecting resident’s refusal operates to counteract the other resident’s consent only so long as the objecting resident is physically present on the premises … . People v Grillo, 2015 NY Slip Op 03880, 3rd Dept 5-7-15

 

Nondomiciliary’s Presence In New York State for Part of a Day Constitutes Presence for a “Day” for Income Tax Purposes

The Third Department determined presence in New York State for part of a day constitutes presence for a “day” when calculating the number of days a nondomiciliary resides in New York State for income tax purposes:

The Administrative Law Judge determined that, as per 20 NYCRR 105.20 (c), each of the 26 partial days constituted a day in New York under the statute, bringing Zanetti's total days in New York over 183 and, thus, resulting in petitioners being residents of this state for income tax purposes (see Tax Law § 605 [b] [1] [B]). …

The residency classification can have significant consequences since New York residents pay income tax on their worldwide income whereas nonresidents are taxed only on their New York source income (see Tax Law §§ 612, 631…). A nondomiciliary may be considered a New York resident for income tax purposes if he or she maintains a permanent place of abode in this state and spends in excess of 183 days of the year here (see Tax Law § 605 [b] [1] [B]…). The permanent place of abode element is not at issue here. With regard to days in New York, the pertinent regulation of respondent Commissioner of Taxation and Finance provides that, with certain exceptions not relevant in this proceeding, “presence within New York State for any part of a calendar day constitutes a day spent within New York State” (20 NYCRR 105.20 [c]). Matter of Zanetti v New York State Tax Appeals Trib., 2015 NY Slip Op 03894, 3rd Dept 5-7-15

 

Failure to Interview Witnesses Justified Annulment of the Determination

The Third Department determined the failure of the employee assistant to interview the witnesses identified by the petitioner and the hearing officer’s direction that witnesses not be interviewed required annulment of the determination:

We agree with petitioner that he was deprived of meaningful employee assistance. The record establishes that when petitioner complained of inadequate assistance, the hearing was adjourned to provide petitioner with additional employee assistance. Upon reconvening, petitioner again complained that, although the employee assistant interviewed the four witnesses he requested, the employee assistant failed to speak with the other 15 identified inmates involved in the incident. In response, the Hearing Officer stated that he, in fact, had instructed the employee assistant not to speak with those 15 inmates as the information petitioner was seeking was irrelevant to the determination. Under these circumstances, the employee assistant should have interviewed the inmates involved and reported back to petitioner with the results in order to assist petitioner in preparing an adequate defense … . Moreover, under these circumstances, we find that the Hearing Officer improperly interfered with and deprived petitioner of his right to employee assistance by directing the assistant not to contact 15 inmates involved in the incident on the basis that he considered the information requested to be irrelevant. Accordingly, the determination must be annulled. Matter of Williams v Fischer, 2015 NY Slip Op 03901, 3rd Dept 5-7-15

 

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“Agreement to Agree” Insufficient to Sever a Joint Tenancy

The Third Department noted that a joint tenancy with right of survivorship can be severed by written agreement, but determined the email correspondence, which evinced the parties’ intent to sever the joint tenancy, did not accomplish the severance because material terms, including price, were not addressed: “Real Property Law § 240-c (3) (a) allows for the severance of a joint tenancy “pursuant to a written agreement of all joint tenants.” However, “a contract must be definite in its material terms in order to be enforceable” … . For this reason, an agreement to agree, where such terms are left to future negotiations, is unenforceable …”. Matter of Wyman (Riddle), 2015 NY Slip Op 03908, 3rd Dept 5-7-15

 

“Mystery Shopper” Not an Employee

The Third Department determined claimant, a mystery shopper, was not an employee entitled to unemployment benefits because the employer, Confero, exercised minimal control over claimant’s work:

Here, claimant testified that, when a new mystery shopping event became available, he was notified via email by a scheduling company and then was able to view the assignment on Confero’s website. Claimant had the liberty of choosing what assignments, if any, he wanted to perform and, after he accepted an assignment, Confero did not even require that claimant perform the assignment himself. Rather, claimant had the discretion to send a substitute in his place so long as he provided notification to the scheduling company to ensure that the substitute was not overexposed at a given location. Although each assignment came with certain tasks that claimant had to perform, the manner in which he performed those tasks was fully within his discretion. Significantly, Confero did not require that claimant perform any minimum number of assignments, request that he seek permission for time off or set forth a particular work schedule. According to Confero’s president, claimant was free to work as little or as much as he wanted. For each assignment that he completed, claimant was paid a nonnegotiable fixed fee that was set by Confero’s client. Further evidencing a lack of control, Confero did not provide claimant with any training, supply him with any equipment or require him to attend any meetings, and it fully permitted him to work for competing companies, which he did regularly. Matter of Chan (Confero Consulting Assoc., Inc.–Commissioner of Labor), 2015 NY Slip Op 03890, 3rd Dept 5-7-15

 

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