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Parol Evidence Demonstrated What Appeared to Be a Contract Was Not—There Was No Meeting of the Minds Re: the Consideration for the Contract

The Third Department, over a dissent, reversing Supreme Court, determined extrinsic evidence should have been considered on the issue whether a contract was ever formed, i.e., whether there was a “meeting of the minds.” Based upon that extrinsic evidence, the breach of contract complaint was dismissed by the Third Department. The defendant argued that the contract was premised upon the understanding plaintiff would execute a power of attorney, which plaintiff refused to do. The parol evidence, emails, demonstrated that defendant agreed to the terms of the contract in return for the power of attorney executed by the plaintiff.  The power of attorney was the consideration for the contract. Therefore, the parol evidence demonstrated no contract was ever formed:

In order “‘[t]o create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms’ and consideration” … . Defendant is not arguing that a valid agreement between the parties included an unstated commitment by plaintiff to execute the power of attorney; instead, she is asserting that she proposed an agreement upon that understanding, but that there was never a meeting of the minds on the issue sufficient to give rise to a valid agreement. Accordingly, she was entitled to use parol evidence “to show that what appears to be a contractual obligation is, in fact, no obligation at all”… . Libasci v Singares, 2015 NY Slip Op 04357, 3rd Dept 5-21-15

 

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Driver of Street Sweeper Which Struck Plaintiff’s Car Entitled to Statutory Immunity

The Third Department determined the driver of a street sweeper was engaged in highway work (re: Vehicle and Traffic Law 1103) at the time the sweeper collided with plaintiff’s vehicle.  Therefore the “reckless disregard for the safety of others” standard of care applied to the sweeper driver. The driver was working on a highway and had to make several passes to clean up spilled gravel.  Because it was a divided highway, the sweeper driver had to make a u-turn and return on the opposite side of highway to make another pass.  The immunity afforded by Vehicle and Traffic Law 1103 applies only when actual work on the highway is being done, not when a worker is driving to or from the work site. The Third Department held that the statutory immunity was available here, even though the accident did not occur as the sweeper was engaged, because the driver was forced to use a circuitous route to complete the assigned task:

With exceptions not applicable here, the safety rules and regulations set forth in the Vehicle and Traffic Law do “not apply to persons . . . while actually engaged in work on a highway nor . . . to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation” (Vehicle and Traffic Law § 1103 [b]…). If the person is “actually engaged” in work or a hazardous operation, the applicable standard of care is “reckless disregard for the safety of others,” but the exception does not apply where the person is traveling to or from the hazardous operation … . Matsch v Chemung County Dept. of Pub. Works, 2015 NY Slip Op 04374, 3rd Dept 5-21-15

 

Documents Relevant to a Civil Investigation by the Department of Taxation and Finance Were Not Protected from FOIL Disclosure by a Statute which Specifically Relates to Criminal Investigations

The Third Department affirmed Supreme Court’s determination that documents which were pertinent to a civil, as opposed to a criminal, investigation, were not shielded from disclosure by Public Officers Law 87(2)(e)(iv).  The petitioners were notified they were subject to an “interrogation” by the Department of Taxation and Finance about job-related expense deductions. Under a FOIL request, the petitioners sought documents which included “interrogation” questions.  Because Public Officers Law 87(2)(e)(iv) protects such documents from disclosure only if they are part of a criminal investigation, Supreme Court properly held the documents should be disclosed:

“Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law § 87 (2)” … . In this regard, “[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access” … .

Here, in denying access to the 68 pages of proposed interrogation questions, respondents relied exclusively upon Public Officers Law § 87 (2) (e) (iv), which exempts from disclosure “records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures.” The statute — on its face — references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution … . Matter of Aurigemma v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 04356, 3rd Dept 5-21-15

 

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Town Planning Board’s Approval of the Installation of Wind Turbines Should Not Have Been Reversed—Board Properly Considered All the Factors Mandated by the Land Use Ordinance and Supreme Court Did Not Have the Authority to Substitute Its Judgment for the Board’s

The Third Department, reversing Supreme Court, determined that the town planning board had properly issued a special use permit for the installation of wind turbines. The court noted that the burden of proof on the owner for seeking a special exception (special use permit) is lower than the burden for seeking a variance.  The court held that all of the analytical factors mandated by the land use ordinance had been properly considered by the board and Supreme Court did not have the authority to substitute its own judgment for the board’s:

The Land Use Ordinance permits specified uses in the area where the project is to be built and allows “[a]ll other uses” for which a special use permit is obtained. Contrary to petitioners’ assertion, while the project is not allowed as of right in the district, the fact that it is “permitted . . . is ‘tantamount to a legislative finding that [it] is in harmony with the general zoning plan and will not adversely affect the neighborhood'” … . As such, “the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance, [with] the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use” … . The determination of the Board that those conditions had been met here will be upheld if it “has a rational basis and is supported by substantial evidence in the record” … .

The parties do not dispute upon this appeal, and we agree with Supreme Court, that the Board’s findings with regard to six of the eight conditions enumerated in the Land Use Ordinance are supported by substantial evidence. The first of the remaining two conditions requires that the “[l]ocation, use and size of structure, nature and intensity of operations involved, size of site in relation to it, and location of site with respect to existing or future streets giving access, are such that it will be in harmony with orderly development of the district.” The second requires that the “[l]ocation, nature and height of buildings, walls, fences and signs will not discourage the appropriate development and use of adjacent land and buildings or impair their value.”

With regard to those two conditions, the wind turbines are almost 500 feet tall when the rotor blades are fully vertical [FN2]. Notwithstanding their size, the Board pointed out that the turbines are located in an area where high-voltage electric transmission lines have already altered the landscape, and noted that other factors minimized the impact of the project upon the viewshed. The project will have minimal impact upon traffic after construction is completed and, given the economic benefits that will accrue to participating landowners, the Board found that it would help to preserve existing uses of the surrounding properties. Moreover, the Board cited a study in the record finding that property values would not be impacted by the project. The Board also pointed to proof that the applicant had entered into setback agreements with nonparticipating landowners who resided within 2,000 feet of the turbines, further ensuring that the project would not impair the use of nearby parcels or development in the zoning district. Supreme Court pointed to conflicting evidence submitted by petitioners with regard to both conditions but, even if that evidence was properly considered, “a court may not substitute its own judgment” where substantial evidence supports the determination of the Board … . Matter of Frigault v Town of Richfield Planning Bd., 2015 NY Slip Op 04355, 3rd Dept 5-21-15

 

Alterations to Easement Okay—They Did Not Interfere With the Easement-Holder’s Right of Passage

The Third Department determined the alterations made to an ingress and egress easement along a private road, including the installation of a gate, were not actionable because they did not interfere with the easement holder’s right of passage:

It is well settled that “[t]he extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties” … . Here, the easement specifically granted plaintiff and defendants the right of “ingress and egress and for electric, gas, water, sewer and similar services over, under and along [the] farm road” on the McLean property. Importantly then, “[a] right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed” … . In the absence of a demonstrated intent to provide otherwise, an easement of ingress and egress may be narrowed, covered, gated or fenced off, “‘so long as the easement holder’s right of passage is not impaired'”… . Boice v Hirschbihl, 2015 NY Slip Op 04191, 3rd Dept 5-14-15

 

Confinement in Special Housing Unit Was Harsh and Excessive Punishment—No Showing Petitioner Was a Threat to Institutional Safety

The Third Department determined petitioner posed no threat to institutional safety and, therefore, his confinement in a special housing unit constituted harsh and excessive punishment:

… [B]ecause neither the charges of which he is guilty nor the evidence presented at the hearing establishes that petitioner’s conduct was a threat to institutional safety and security, we find that the imposition of confinement in the special housing unit is harsh and excessive … . Matter of Kim v Annucci, 2015 NY Slip Op 04178, 3rd Dept 5-14-15

 

Claimant Did Not Demonstrate a Compelling Reason to Close His Business—Unemployment Insurance Benefits Denied

The Third Department determined a business owner who voluntarily closed his business was not entitled to unemployment insurance benefits because a compelling reason for the closure was not demonstrated:

“When a claimant closes an operating business, the issue of whether he or she is qualified to receive benefits turns upon whether there was a compelling reason to close the business” … . Here, claimant testified that, beginning in 2009, his business began to decline and that, between 2009 and 2012, there was a 50% drop-off of catering contracts. The corporation’s tax returns reflect, however, gross receipts of $297,167 in 2009, with a net income of $2,522, gross receipts of $281,397 in 2010, with a net income of $4,997, and gross receipts of $279,755 in 2011, with a net income of $764. Claimant’s individual tax returns reveal that he was paid a moderate salary in each of these three years. At the time he closed the business at the end of August 2012, claimant estimated corporate gross receipts of $220,970 for the year to date, with a net income of $26,620, after payment of claimant’s salary, in a sum that was lower than the prior years, but was not an extreme departure from his prior earnings. Although the decline in business had required claimant to reduce personnel, there was no proof that the business was otherwise unable to meet its financial obligations. Claimant owned the building where he ran the business, and there was no mortgage; the premises were rented to the business for favorable tax treatment. Although claimant testified that, at the time he closed the business he had no bookings for October 2012 to December 2012, he also testified that his business was seasonal and that this was generally a slow time. In our view, the record thus establishes that this was a viable business, and the Board’s decision is supported by substantial evidence … . Matter of O’Connell (Commissioner of Labor), 2015 NY Slip Op 04176, 3rd Dept 5-14-15

 

Cell Phone In Possession of Inmate Met the Definition of “Dangerous Contraband” in the Context of a “Promoting Prison Contraband” Charge

The Third Department, in a full-fledged opinion by Justice Egan, determined that a cell phone constituted “dangerous contraband” within the meaning of “promoting prison contraband in the first degree.”  The testimony of the supervising superintendent about the protections put in place concerning the recording and restrictions on inmate phone calls were sufficient to demonstrate the cell phone met the definition of “dangerous contraband:”

In this regard, the Court of Appeals has instructed that “the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . Notably, “the distinction between contraband and dangerous contraband” does not turn upon “whether an item is legal or illegal outside of prison . . . [as] [i]t is obvious that an item, such as a razor, may be perfectly legal outside prison and yet constitute dangerous contraband when introduced into that unpredictable environment” … . Similarly, as our case law makes clear, the item in question need not be inherently dangerous in order to qualify as dangerous contraband. Indeed, although weapons are perhaps the most commonly recognized source of dangerous contraband in a prison setting … , courts have — applying the Finley test — reached the very same conclusion with respect to other items made, obtained or possessed by prison inmates, including illegal quantities of drugs …, a disposable Bic lighter …  and hand-drawn maps or knotted links of wire that could be used to facilitate an escape …. Although the majority in Finley did not expressly address this issue, Judge Pigott opined in his concurrence/dissent that, “[i]f the contraband at issue is not inherently dangerous . . . , the People must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility” … . As a cell phone admittedly is not an inherently dangerous item, the question is whether the People adduced sufficient proof to establish the cell phone’s potential to be used in such a pernicious manner as to elevate it to the level of dangerous contraband. People v Green, 2014 NY Slip Op 03303, 3rd Dept 5-8-14

 

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

 

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