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Police Officer’s Convictions for “Criminal Diversion” (Obtaining Another’s Prescription Medication), and “Official Misconduct” Not Supported by Legally Sufficient Evidence

The Third Department reversed defendant’s convictions for criminal diversion and official misconduct because the offenses were not supported by legally sufficient evidence.  The defendant, a police officer, was accused of obtaining someone’s prescription drugs in exchange for something of pecuniary value (criminal diversion).  She was also accused of flashing her badge to a pharmacist and asking the pharmacist to hurry up with a prescription drug (official misconduct).  The Third Department determined the “criminal diversion” charge was not supported by evidence the drug involved (a muscle relaxant) was a “prescription medication.”  And, in the absence of evidence the defendant knew that flashing her badge constituted an unauthorized exercise of her official functions, there was not sufficient evidence to support the “official misconduct” charge. People v Barnes, 2014 NY Slip Op 03310, 3rd Dept 5-8-14

 

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Division of Parole’s Mistake Which Resulted in the Incarceration of the Claimant Was Privileged—Claimant’s Action for False Imprisonment Properly Dismissed

The Third Department, in a full-fledged opinion by Justice Peters, determined a mistake made by the Division of Parole, which resulted in claimant’s prosecution and imprisonment for a violation of parole at a time when his parole had been terminated, was privileged.  Therefore, the claimant’s action for false imprisonment was properly dismissed:

To establish a claim of false imprisonment, claimant must demonstrate, among other things, that the confinement was not privileged … . “To that end, it is settled that ‘[a]n otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction or parole authorities'” … . Here, there is no dispute that claimant’s confinement was pursuant to parole violation warrants that were valid on their face. Yet, according to claimant, because his sentence should have terminated by law on March 10, 2005, the Division acted without jurisdiction when it commenced the April 2005 parole revocation proceeding, revoked his parole and thereafter subjected him to various periods of incarceration.

“‘There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not'” … .

While the [Division of Parole’s] ….interpretation of Executive Law former § 259-j (3-a) may well have been mistaken, any such “error in judgment neither negates nor defeats defendant’s claim of privilege” … . The statute vested the Division with the authority to grant a termination of sentence under certain described circumstances, and interpreting the provisions that implement such power is a legitimate part of the Division’s function .. . The Division made a reasoned judgment …[which] was neither inconsistent with nor contrary to extant judicial authority … . Thus, at most, the Division “acted in excess of its jurisdiction, not in the complete absence [thereof], and its conduct therefore was privileged”… . Marsh v State of New York, 2014 NY Slip Op 03320, 3rd Dept 5-8-14

 

Unexplained Collapse of Worker on the Job Properly Presumed to Arise Out of Employment

The Third Department determined the worker’s death was compensable.  The worker, who had an enlarged heart, collapsed on the job and later died. There was evidence that the heart arrhythmia which may have caused death may have been work-related:

“‘Unexplained or unwitnessed accidents which occur in the course of employment are presumed, pursuant to Workers’ Compensation Law § 21 (1), to arise out of such employment'” … . In order to rebut the presumption, the employer was required to come forward with substantial evidence demonstrating that decedent’s death was not work-related … .

The employer relies on the autopsy report and an independent medical report by Stephen Nash, a cardiologist who reviewed the records on the employer’s behalf. Nash opined that decedent’s death was caused by a cardiac arrhythmia superimposed on the underlying condition of his enlarged heart. Nash attributed evidence of decedent’s lack of sleep as a contributory factor, but did not rule out decedent’s work as playing a role in his death. Although decedent’s coworkers witnessed the accident and the autopsy report lists the enlarged heart as the cause of death, the Board appropriately invoked the presumption of compensability inasmuch as “the cause of decedent’s fatal arrhythmia remains unexplained” … . Matter of Estate of Moody v Quality Structures Inc, 2014 NY Slip Op 03313, 3rd Dept 5-8-14

 

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Attorney Discharged without Cause Entitled to Fee as an Account Stated

The Third Department determined an attorney had been discharged without cause and was entitled to a charging lien and a retaining lien.  The client had signed a retainer agreement and had not expressed any objection to the detailed itemized bill submitted by the attorney.  The amount of the bill was therefore deemed an account stated.  In explaining the options available to an attorney who has been discharged without cause, the court wrote:

…[A]n attorney who has been discharged without cause may pursue the following cumulative remedies: (1) a charging lien, (2) a retaining lien, and/or (3) a plenary action in quantum meruit … . A charging lien is a statutory remedy — codified in Judiciary Law § 475 — that grants the attorney “a security interest in the favorable result of [the] litigation” … . A retaining lien, on the other hand, permits the discharged attorney to retain the contents of the client’s file until such time as the attorney has been paid or “the client has otherwise posted adequate security ensuring [the] payment [there]of” … . With respect to either lien, a hearing may be required to determine the amount of compensation due and owing to the discharged attorney. Here, however, we have no quarrel with Supreme Court’s finding that the firm was entitled to an award of $10,884.14 based upon an account stated. Roe v Roe, 2014 NY Slip 03317, 3rd Dept 5-8-14

 

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Village’s Opting to Remove Petitioner’s Land from the Land Available for Purchase by New York City to Maintain the City’s Drinking-Water Watershed Was Not a Regulatory Taking

The Third Department determined the village had acted appropriately when it opted to exclude portions of land within the village from New York City’s watershed acquisition program.  Petitioner was attempting to sell an easement for her land to the City.  When the village opted to exclude petitioner’s land from the City’s acquisition program, the petitioner brought an action claiming the village had exceeded its authority by improperly restricting the ownership and transferability of her property. Petitioner further argued that the village’s action constituted a de facto regulatory taking of her property for which she was entitled to compensation:

Through voluntary agreement and accepting DEC [Department of Environmental Conservation] conditions, the City consented not to be a potential purchaser of some upstate property if the local municipalities opted to exclude the property from land acquisition by the City. This was part of a delicate balance designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities … . It was not an improper attempt by a local municipality to regulate who owns or occupies property … , but, in essence, the withdrawal of one potential purchaser who received a significant benefit. * * *

Where, as here, “the contested [resolution] falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including ‘the [resolution’s] economic effect on the landowner, the extent to which the [resolution] interferes with reasonable investment-backed expectations, and the character of the government action'” … . The resolution’s result was that one potential purchaser — who had not made any offer during the years when an easement on petitioner’s farm could have been purchased — no longer remained a potential purchaser. Petitioner has since found another willing purchaser. The resolution did not hinder the use that was being made of the property as a farming operation. The purpose of the resolution was to protect the Town’s potential for growth and economic sustainability, which was one of the many goals of the various parties involved … and consistent with an overriding purpose of maintaining a safe, ample and relatively inexpensive drinking water supply for the City. Petitioner “did not meet [her] heavy burden of showing that the [resolution] resulted in a regulatory taking”… .  Matter of Nelson v City of New York, 2014 NY Slip Op 03319, 3rd Dept 5-8-14

 

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Motion to Dismiss In Which Documentary Evidence Was Submitted—Court’s Role Is to Determine Whether Plaintiff Has a Cause of Action, Not Whether Plaintiff Has Stated a Cause of Action—Although the Complaint Alleged Interference With a Competitive Bidding Process Involving Public Entities, the Case Fit an Exception to the Rule that Competitive Bidding Issues Be Determined in an Article 78 Proceeding—It Was Alleged a Private Party (Defendant) Interfered with the Competitive Bidding Process

Reversing Supreme Court, the Third Department determined plaintiff had adequately pled a cause of action for tortious interference with contract. The plaintiff alleged that defendant subverted a bidding process for the installation of artificial turf at state and local schools. Usually competitive bidding cases are brought in an Article 78 proceeding against the relevant public entity. This case fit an exception to that rule because it was brought against a private party working with the public entities. There was also some question whether the proceeding was a motion to dismiss for failure to state a cause of action or a motion for summary judgment.  Because documentary evidence was submitted, the court’s role was to determine whether the plaintiff has a cause of action, not whether plaintiff has stated one:

…[S]ince the motion (made shortly after serving the answer and before disclosure) argued an absence of any legal viability of the alleged causes of action, Supreme Court did not err in treating the motion as a narrowly framed post-answer CPLR 3211 (a) (7) ground asserted in a summary judgment motion … . When dismissal is sought for failure to state a cause of action and, as here, plaintiff submits affidavits, “a court may freely consider [those] affidavits . . . and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one'” … .

Turning to the merits of the motion, “the laws requiring competitive bidding were designed to benefit taxpayers rather than corporate bidders and, thus, should be construed and administered with sole reference to the public interest” … . Therefore, the remedy for an alleged violation of the competitive bidding statutes typically involves a timely CPLR article 78 proceeding challenging the bidding process … . However, a narrow exception to the limited remedy may exist where a plaintiff does not seek relief from the public entity, but brings an action against someone working on behalf of the public entity in the competitive bidding process who allegedly engaged in egregious conduct unknown to the public entity aimed at intentionally subverting a fair process … . Allegations of restricting competition to artificial turf manufactured by A-Turf could be part of a cognizable claim under the narrow exception … . Chenango Contr., Inc. v Hughes Assoc., 2015 NY Slip Op 03903, 3rd Dept 5-7-15

 

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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