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Attesting Witnesses Did Not See Decedent’s Signature on the Will and One Attesting Witness Did Not Know the Document Was a Will—The Will Was Not Duly Executed and the Petition for Probate Was Properly Dismissed

The Third Department determined the petition seeking probate of a will was properly dismissed because the attesting witnesses did not know whether the decedent had signed the will.  One attesting witness was approached by decedent in the hallway of the assisted living facility where the witness worked and saw only the page of the document which he signed.  Another attesting witness, also approached in the hallway by the decedent, was not aware she was signing a will and did not see decedent’s signature on the document. The court explained that an attestation clause, standing alone, will not demonstrate due execution of a will. “…[T]he testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator’s will (see EPTL 3-2.1 [a]).” Here, two of the three attesting witnesses did not sign the will in conformity with the statutory requirements:

To be duly executed, a will must be subscribed by the testator in the presence of at least two attesting witnesses, or the testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator’s will (see EPTL 3-2.1 [a]). Here, the subject will contains an attestation clause. However, Surrogate’s Court must nonetheless examine the attendant circumstances to determine the validity of the will, and it is well established that the attestation clause standing alone will not suffice to meet the proponent’s burden of demonstrating due execution by a preponderance of the evidence if affirmative proof reveals that the required elements were lacking … . In this analysis, “the testimony of the attesting witnesses is entitled to great weight” … . Matter of Yen, 2015 NY Slip Op 03228, 3rd Dept 4-16-15

 

Although a “Fundamental” Error Requiring Reversal If Preserved, Failure to Administer the Oath of Truthfulness to Potential Jurors is Not a “Mode of Proceedings” Error

The Third Department determined that defendant was not entitled to reversal based on the trial judge’s failure to administer the oath of truthfulness to potential jurors (Criminal Procedure Law 270.15(1)(a))  because the error, although fundamental, was not preserved for appeal by objection. It was not a “mode of proceedings” error (which would not need to be preserved by objection to require reversal). Had the error been preserved, reversal would have been mandatory. People v Chancey, 2015 NY Slip Op 03197, 3rd Dept 4-16-15

 

Claimant Delivery Driver Was an Employee of Partsfleet Despite Fact that Claimant Was Paid by Another Company (SCI) With Which Partsfleet Had a Contract

The Third Department determined the employer, Partsfleet, exercised sufficient control over the claimant, a delivery driver, to support the finding that the driver was an employee, even though the employer had a contract with another company, SCI, which issued claimant’s paycheck. SCI had no involvement with the duties performed by the claimant. “Claimant was retained as a delivery driver following a short interview with a Partsfleet representative and a check of his motor vehicle record. Partsfleet trained him on the operation of a scanner used to schedule and track customer deliveries, and briefed him on the requirements of the customers. The delivery schedule was set by Partsfleet based upon customer requests, and it monitored deliveries via the scanner. Claimant was paid based on the particular delivery route that he had completed at a rate that Partsfleet set with its customer, and claimant was paid if he completed the route regardless of whether the customer paid Partsfleet. Claimant worked out of a warehouse that belonged to one of Partfleet’s customers and that is where he left his completed route sheets, which were then collected by a Partsfleet representative. Any problems with deliveries were generally handled by a Partsfleet representative. Although claimant could work for other companies and find replacements if he could not work a particular route, the replacements had to be approved by Partsfleet. The foregoing establishes that Partsfleet maintained control over important aspects of claimant’s work as was necessary to insure that its customers’ needs were satisfied…” Matter of Watson (Commissioner of Labor), 2015 NY Slip Op 03224, 3rd Dept 4-16-15

 

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“Head Waiter” with Substantial Managerial Duties and “Wine Steward” Whose Duties Did Not Include Serving Customers Were Not Entitled to Share in the Servers’ and Bus Boys’ Tip Pool

The Third Department affirmed the NYS Industrial Board of Appeals’ determination that two senior restaurant employees were not entitled to share in the servers’ and bus boys’ tip pool based upon the nature of their duties—one, the “head waiter,” had substantial managerial duties, and the other, the “wine steward,” had computer-programming duties, assisted customers with the wine list, and had little to do with serving customers.  Labor Law 196-d, as interpreted by the Court of Appeals, looks at the actual duties of employees, as opposed to their titles.  Those who exercise substantial managerial responsibilities, and those who cannot be characterized as “food service workers,” cannot participate in the tip pool:

The governing statute, Labor Law § 196-d, provides that “[n]o employer or his [or her] agent . . . shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. . . . Nothing in this subdivision shall be construed as affecting . . . the sharing of tips by a waiter with a busboy or similar employee.” Recently, the Court of Appeals clarified that eligibility to participate in a tip pool “‘shall be based upon duties and not titles'” (Barenboim v Starbucks Corp., 21 NY3d 460, 471 [2013], quoting 12 NYCRR 146-2.14 [e]), and the Court held that “employer-mandated tip splitting should be limited to employees who, like waiters and busboys, are ordinarily engaged in personal customer service, a rule that comports with the ‘expectation[s] of the reasonable customer'” (Barenboim v Starbucks Corp., 21 NY3d at 471-472, quoting Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]; see 12 NYCRR 146-2.16 [b]; 146-3.4 [a]). Consistent with longstanding DOL policy, the Court further observed that “employees who regularly provide direct service to patrons remain tip-pool eligible even if they exercise a limited degree of supervisory responsibility” (Barenboim v Starbucks Corp., 21 NY3d at 472). The Court concluded, however, “that there comes a point at which the degree of managerial responsibility becomes so substantial that the individual can no longer fairly be characterized as an employee similar to general wait staff within the meaning of Labor Law § 196-d” (id. at 473). The Court determined that “the line should be drawn at meaningful or significant authority or control over subordinates” (id.). The Court explained that “[m]eaningful authority might include the ability to discipline subordinates, assist in performance evaluations or participate in the process of hiring or terminating employees, as well as having input in the creation of employee work schedules, thereby directly influencing the number and timing of hours worked by staff as well as their compensation” (id.). Matter of Marzovilla v New York State Indus. Bd. of Appeals, 2015 NY Slip Op 03219, 3rd Dept 4-16-15

 

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Where It Was Not Clear that Grand Jury Proceedings in Which a County Employee Was Directed to Appear Involved a Criminal Matter, as Opposed to Civil Misconduct or Neglect, the County Was Required to Pay for the Employee’s Defense Pursuant to Public Officers Law Section 18

The Third Department affirmed Supreme Court’s ruling that petitioner, a county employee, was entitled to attorney’s fees pursuant to Public Officers Law section 18 in connection his appearances in grand jury proceedings.  The county argued that the statute only requires payment for the defense of an employee “in [a] civil action or proceeding” and a grand jury proceeding is criminal in nature.  The Third Department noted that the district attorney would not divulge the nature of the grand jury proceedings and grand juries can be convened to consider noncriminal misconduct or neglect by public employees.  Therefore the employee was entitled to attorney’s fees for his defense:

Respondent failed to demonstrate what the object of the grand jury proceeding was, readily admitting that the District Attorney had not made his “intentions [known] in relation to the potential for criminal charges.” While grand juries may indict a person for a criminal offense (see CPL 1.20 [18]; 190.60 [1]), they are also empowered “to make presentments as to noncriminal misconduct or neglect by public officers and employees” … . Thus, because there is no indication that criminal charges are [*3]actually being contemplated, Supreme Court properly “reject[ed] respondent’s claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against petitioner, the proceeding[s] [were] not civil in nature” … . “Any other holding would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment” … . Matter of Mossman v County of Columbia, 2015 NY Slip Op 03005, 3rd Dept 4-9-15

 

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Venue Was Not Proper—However, Because the Party Seeking the Change of Venue Did Not Comply With the Statutory Procedure, Whether to Grant a Change of Venue Was Discretionary—In the Exercise of Discretion, Change of Venue Was Properly Denied

Respondent law firm filed a default judgment prematurely (re: attorney’s fees) and immediately took steps freeze petitioner’s assets. Petitioner started the instant proceeding in Ulster County pursuant to CPLR 5240 seeking a protective order and vacation of all the enforcement devices used by the law firm.  The law firm made a cross-motion for a change of venue. Supreme Court denied the cross-motion, found that the law firm had engaged in frivolous conduct, directed the law firm to pay petitioner costs and counsel fees, and ordered the managing attorney of the law firm to complete eight hours of continuing legal education (CLE) in civil practice.  The Third Department affirmed Supreme Court, with the exception of the CLE sanction, which Supreme Court did not have the authority to order. The bulk of the decision is devoted to a discussion of the law surrounding a change of venue.  Supreme Court denied the change of venue cross-motion “as of right,” finding that Ulster County was the proper venue for the CPLR 5240 proceeding brought by the petitioner.  The Third Department disagreed, ruling that Ulster County was not the proper venue because the law firm, the respondent in the proceeding, did not have an office in Ulster County as required by the relevant provisions of the CPLR. But, after an extensive analysis, the Third Department concluded the cross-motion to change venue was properly denied as an exercise of discretion. Because the respondent did not follow the statutory procedure (CPLR 511) for seeking a change of venue (no demand for such relief was served before the cross-motion was made), the cross-motion was addressed to Supreme Court’s discretion. CPLR 510 allows a change of venue where “(1) the designated county is not a proper county, (2) “there is reason to believe that an impartial trial cannot be had in the proper county” or (3) “the convenience of material witnesses and the ends of justice will be promoted by the change”… .  Although the first criterium was met, the other two were not. Denial of the cross-motion was a proper exercise of discretion:

By failing to comply with the statutory procedure for changing venue, respondent was not entitled to a change of venue as of right. Where a respondent believes that a petitioner has chosen an improper venue, the respondent shall serve, with or before service of the answer, a written demand on the petitioner that venue be changed to a county that the respondent specifies as proper (see CPLR 511 [a], [b]). The petitioner has five days after service of the demand to serve a written consent to change venue (see CPLR 511 [b]). If no such consent is served by the petitioner, the respondent must move to change venue within 15 days of service of the demand (see CPLR 511 [b]). If a respondent fails to comply with these procedures and time limits, the respondent is not entitled to have the motion granted as of right, even if the venue was improper; the motion instead becomes one addressed to the court’s discretion… ). Here, respondent served a cross motion seeking to change venue without having first served a demand for such relief. Accordingly, the motion was addressed to Supreme Court’s discretion… . * * *

Petitioners commenced this proceeding in Ulster County pursuant to CPLR 5240, which provides that “[t]he court may at any time, on . . . the motion of any interested person, . . . make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.” If a judgment that is sought to be enforced was entered in Supreme Court anywhere in New York, “a special proceeding authorized by [CPLR article 52] shall be commenced, either in the supreme court or a county court, in a county in which the respondent resides or is regularly employed or has a place for the regular transaction of business in person,” if such a county exists in the state (CPLR 5221 [a] [4]). CPLR 5240 is found within CPLR article 52, and the Court of Appeals has stated that a request for court action under CPLR 5240 is properly commenced as a “special proceeding” … . Respondent, by its very designation in the caption, is the “respondent” as mentioned in CPLR 5221 (a). Respondent is a law firm with its main office in Oswego County, which is considered its residence (see CPLR 503 [c]), and no office or place of business in Ulster County. Under a plain reading of CPLR 5221 (a), the instant special proceeding was required to be commenced in Oswego County (or another county in New York where respondent has an office where it regularly transacts business), rather than Ulster County.* * *

Thus, as Oswego County, rather than Ulster County, is the proper venue under either subdivision of CPLR 5221, the first ground under CPLR 510 could support respondent’s discretionary motion to change venue.

The second ground for discretionary change of venue does not support a change, as the record contains no information that an impartial trial would be difficult to obtain in Oswego County. As for the third ground, petitioners asserted that they are residents of Ulster County and the banks that were served the restraining notices and information subpoenas are all in or around Ulster County, so numerous material witnesses appear to be located in that county. Additionally, it appears that the ends of justice would not be promoted by changing venue. In sum, the first ground would support changing venue, while the second and third grounds do not. Although Supreme Court erred in denying respondent’s cross motion as of right, in the exercise of our discretion we reach the same conclusion. Matter of Aaron v The Steele Law Firm, P.C., 2015 NY Slip Op 03018, 3rd Dept 4-9-15

 

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The Breach of Contract Cause of Action Which Was Based Upon Clauses Which Merely Stated the Common Law Standard of Care for Professionals Was Duplicative of the Professional Malpractice Cause of Action and Should Have Been Dismissed/Proper Measure of Damages for Negligent/Defective Building Design Is the Cost of Remediation

Plaintiff hospital alleged that the seismic retrofit of one of the hospital buildings would not operate as intended and sued the architectural firm which designed the retrofit under breach of contract and professional malpractice theories.  Plaintiff prevailed on both causes of action in a non-jury trial. The Third Department determined Supreme Court should have dismissed the breach of contract cause of action because it was duplicative of the professional malpractice cause of action. The only relevant clauses in the contract held the architectural firm to the common law standard for professionals.  Breach of those clauses, therefore, duplicated the professional malpractice cause of action. The Third Department affirmed the professional malpractice verdict and the award of damages, 1.7 million, which reflected the cost of remediation:

The contract does contain two clauses regarding defendant’s performance. They provide that defendant’s “services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the [w]ork,” and “shall be provided . . . in a manner consistent with the standards of care and skill exhibited in its profession for projects of this nature, type and degree of difficulty.” These provisions simply incorporate into the contract the common-law standard of care for a professional. “Making such ordinary obligations express terms of an agreement does not remove the issue [of a violation thereof] from the realm of negligence . . ., nor can it convert a malpractice action into a breach of contract action” … . Inasmuch as a breach of contract cause of action based on the violation of these particular contract provisions would be duplicative of a professional malpractice cause of action, Supreme Court should have dismissed plaintiff’s breach of contract cause of action. * * *

We reject defendant’s contention that plaintiff’s proposed amount of damages constitutes economic waste. The proper measure of damages due to the defective design of a building is the cost to remedy the defect, unless such amount is “grossly and unfairly out of proportion to the good to be attained” by fixing the building … . The defects here were not trivial, but were substantial as to the seismic function of the building, such that plaintiff was entitled to damages in the amount necessary to remediate the defects … . Mary Imogene Bassett Hosp. v Cannon Design, Inc., 2015 NY Slip Op 03016, 3rd Dept 4-9-15

 

Determination Annulled and Expunged—Hearing Officer Did Not Take Any Steps to Confirm the Reliability of the Confidential Information Upon Which the Determination Was Based

The Third Department annulled and expunged the determination that petitioner was properly placed in involuntary protective custody (IPC), finding that the hearing officer did not conduct the necessary independent investigation into the reliability of the confidential information which provided the basis for the IPC.  The hearing officer did not take any steps to learn the details of the investigation or to confirm that the source of relevant information was reliable:

…[W]e agree with petitioner that the Hearing Officer did not conduct the necessary independent assessment of the reliability of the confidential information that provided the basis for the IPC recommendation. Although the Hearing Officer took testimony from the captain who obtained the confidential information and issued the IPC recommendation, the Hearing Officer did not conduct an in camera interview of the captain to ascertain further details of his investigation, nor did he review any notes or letters that the captain may have received that threatened petitioner’s life … . Notably, the captain acknowledged that the confidential source who initially disclosed the threat would not identify the inmate who made it. Indeed, the only confirmation of this source’s reliability was the captain’s conclusory statement that he believed this individual was reliable based upon past dealings. Under the circumstances presented, we find that this was insufficient and that substantial evidence does not support the determination placing petitioner in IPC … . Matter of Melendez v Commissioner of The Dept. of Corrections & Community Supervision, 2015 NY Slip Op 03011, 3rd Dept 4-9-15

 

Law of the Case Doctrine Should Not Have Been Invoked—Criteria Explained

In a breach of contract action, Supreme Court ruled on a summary judgment motion, finding it premature.  When a second summary judgment motion was made before a different judge, the new judge granted summary judgment to the plaintiff on liability for breach of contract and noted that the first order required the ruling because it was the “law of the case.” Although the Third Department ultimately upheld the breach of contract finding, the appellate court explained that the “law of the case” doctrine did not apply because the first order merely found there were issues of fact concerning the amount owed plaintiff and did not determine there was a breach of contract. The court explained that the doctrine of “law of the case” only applies to a ruling upon a “question of law that is essential to the determination of the matter”… :

…[W]e reject plaintiff’s contention that Supreme Court was required to rule that defendants were liable for breaching the Agreement by the doctrine of the law of the case, which bars courts from reconsidering “pre-judgment rulings made by courts of coordinate jurisdiction” in the same case … . The doctrine applies only when the prior ruling directly passed upon a question of law that is essential to the determination of the matter …. . Here, the only determination made in the 2012 order was that material issues of fact existed as to the amount owed. Although additional remarks were made in that order, these were merely dicta, and did not constitute a legal determination as to whether defendants breached the Agreement by deducting expenses — an issue that was not directly addressed by the 2012 order … . Karol v Polsinello, 2015 NY Slip Op 03024, 3rd Dept 4-9-15

 

Failure to Empanel the First Six Jurors Chosen by the Parties Justified Setting Aside the Verdict

The Third Department upheld Supreme Court’s setting aside the verdict in a medical malpractice case after the jury had found “no cause for action.”  A rule in the Third Judicial District allowed the clerk to randomly select the jurors and alternates.  The plaintiff moved to set aside the verdict because the first six jurors chosen by the parties were not empanelled by the clerk, as required by CPLR 4105.  Under the CPLR jurors 1 through 6 should have constituted the jury and jurors 7 and 8 should have been designated the alternate jurors. The clerk selected jurors 1, 2, 3, 4, 5 and 8.  The Third Department perceived no abuse of discretion in setting aside the verdict:

After having determined that its application of the Third Judicial District rule contravened plaintiff’s substantial right to empanel the first six jurors that had been selected by the parties, pursuant to the “mandatory procedure” set forth in CPLR 4105, Supreme Court exercised its discretion and granted plaintiff’s motion to set aside the verdict and order a new trial in the interest of justice. In the absence of evidence that the court abused such discretion, we will not disturb Supreme Court’s determination in that regard … . Piacente v Bernstein, 2015 NY Slip Op 03009, 3rd Dept 4-9-15

 

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