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Evidence of Loss Based Upon Interference with Property Owner’s Ability to Extract Gas by Hydrofracking Disallowed as Speculative

The Third Department affirmed Supreme Court’s determination that respondents’ expert would not be allowed to testify at trial in this condemnation proceeding.  Petitioner brought the condemnation proceedings to obtain perpetual easements for underground gas storage in the “Oriskany Sand” beneath the surface of the land owned by the respondents.  The respondents hired a geologist to testify that the easement will interfere with any future attempts to extract gas by hydrofracking and sought compensation for the claimed lost gas-development rights.  The Third Department wrote:

The  extent to which a  condemnation limits a  claimant’s property rights is determined  by  the language  used  in the appropriation and the underlying purpose of the taking, and  “[t]he quantum of the title to be taken will not be extended by implication”….Here, petitioner’s easement  explicitly reserves  to  respondents  “the right to grant oil, gas and other mineral rights to others in formations other than the Oriskany Sand” and limits that reservation of rights only by  precluding respondents  from “grant[ing] or convey[ing] gas  storage rights” (emphasis  added) that interfere with petitioner’s easement. * * *

If …hydrofracking in the Marcellus formation does eventually prove to pose an unacceptable risk to petitioner’s storage space – a claim that petitioner does not now make – it may choose at that time to undertake appropriate measures  to acquire whatever  additional rights may prove to be necessary, and, of course, to compensate the affected landowners   appropriately. As petitioner has not yet made any such acquisition, the court properly precluded respondents from presenting evidence on their claims relative to development rights in the Marcellus formation. Matter of Central N.Y. Oil & Gas Co., L.L.C. (LaDue), 515347, 3rd Dept, 6-13-13

 

 

Inmate’s “Employee Assistant” Did Not Provide Meaningful Assistance in Preparation of Inmate’s Defense

In annulling the determination, the Third Department held that the inmate’s employee assistant did not provide meaningful assistance in the preparation of the inmate’s defense:

We agree with petitioner that meaningful employee assistance was not provided in accordance with 7 NYCRR 251-4.2 in order for him to prepare a defense. Although petitioner requested that 19 potential inmate witnesses be interviewed, the record reveals no effort by  the employee  assistant to interview the potential inmate  witnesses, who  were  not only identified but, according to the misbehavior report, were present during the alleged incident. The employee assistant should have interviewed the witnesses and reported back to petitioner with the results of those efforts (see 7 NYCRR 251-4.2); moreover, the Hearing Officer made no attempt to remedy the inadequacies when petitioner raised the issue at the administrative hearing… . Matter of Canty v Fischer, 515267, 3rd Dept, 6-13-13

 

“Safety Consultant” Liable for Failure to Maintain Safe Work Site

In upholding a jury verdict, the Third Department determined there was sufficient evidence to support the jury’s finding that a safety consultant was liable under Labor Law 241 (6) for failing to maintain a safe work site:

Labor Law § 241 (6) “‘requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor'”…. Although a safety consultant generally is not liable to an injured worker under the Labor Law…,it is not the title that is dispositive, but whether such defendant had sufficient supervision and control over the activity that resulted in the injury….  We have previously stated that “[s]ubcontractors may be liable as agents under Labor Law § 241(6) when they have been specifically contractually delegated the duty or obligation to correct unsafe conditions or maintain work site safety”… .

The contract …set forth that a representative of defendant would be at the work site daily, make inspections, conduct safety meetings and have authority to require “immediate corrective action for imminent danger situations.” Defendant’s representative was continuously at the site throughout the project, and he exercised his power on several occasions prior to the accident by stopping work and requiring defendant to take specific precautions or actions. He was present when the accident occurred.  Leszczynski v Town of Neversink, 514876, 3rd Dept, 6-13-13

 

Husband’s Dissipation of His Separate Property Was a Factor in Increasing Wife’s Maintenance and Equitable Distribution

The Third Department increased the wife’s maintenance and equitable distribution awards based in part upon finding the husband had wasted and dissipated assets that were concededly entirely his separate property.  He had purchased an apartment house in New York City prior to the marriage for $130,000 and sold it during the marriage for $6 million.  The Court determined the husband had grossly mismanaged the proceeds of the sale:

Imputing to the husband the substantial income that he would have earned had he not been so cavalier and wasteful in the manner in which he blatantly risked virtually all of his capital …, and affording the wife more time to prepare for and find suitable employment, we extend the wife’s maintenance award of $2,000 per month  for nine months  to a period of 24 months, for a total of $48,000.  We further modify the award of equitable distribution – taking into account the parties’ assets at the commencement of the action and the husband’s economic fault – to award the wife 50%, rather than 40%, of the appreciation in the value of the marital residence.  Owens v Owens, 514022, 3rd Dept, 6-13-13

 

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Religious Organization Vicariously Liable for Negligence of Volunteer Under Agency Theory

The Third Department affirmed Supreme Court’s finding that a volunteer [Strimling] was an agent of the defendant [Gateway], a corporation hosting a religious event, such that the defendant was vicariously liable with respect to an automobile accident involving the volunteer:

A  principal-agent relationship can  include a volunteer when  the requisite conditions, including control and  acting on  another’s behalf, are shown … .Gateways was  operating a program  where  it expected  700  to 800  attendees, who each paid $700 to attend.  Strimling’s fee to attend was waived  as it had  been  previously and, with his fee waived, he helped with various tasks that had to be accomplished to run the event. Strimling’s responsibilities included  arriving early to help set up, and  he was  supposed to remain after the event to pack up items for the return trip. Strimling referred to his responsibilities as work and  a job, reflecting his understanding of control by Gateways. Although he was not paid directly by Gateways, his $700 fee was waived and one of the individuals from Gateways in charge of the event also gave him $200. There was proof that the accident occurred when an individual who had authorized Strimling’s free attendance realized that two-way radios were needed and Strimling was summoned from his room to go to a store to purchase such items. Strimling was given a Gateways’ credit card and embarked on  a trip to a store solely to purchase the requested items for Gateways when  the accident occurred. He did so despite the fact that the timing of the request created a significant likelihood that Strimling would be put in the difficult position of traveling at a time of the evening that was prohibited by his religious beliefs. The proof sufficiently supports Supreme Court’s decision.  Paterno v Strimling…, 515978, 3rd Dept, 6-13-13

 

Negligence Suit Based Upon Shooting at Shopping Mall Dismissed

The Third Department affirmed the grant of summary judgment to the defendant shopping mall in a negligence suit based upon a shooting at the mall in which plaintiffs were injured.  The Court determined the shooting was not foreseeable and explained the relevant legal principles as follows:

Landowners have a duty to take reasonable precautions to secure their premises from foreseeable harm, including the foreseeable criminal acts of third parties on the premises….    Criminal conduct is foreseeable if it was “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location”….   While the prior criminal activity need not have been “at the exact location where [the] plaintiff was harmed or . . . of the same type of criminal conduct to which [the] plaintiff was subjected,” the inquiry of foreseeability depends upon “the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question”… Haire v Bonelli …, 515494, 3rd Dept, 6-13-13

THIRD PARTY ASSAULT

Criteria for Recovery from Special Fund for Reopened Cases

In remitting the matter for further fact-finding, the Third Department explained the criteria for recovery from the Special Fund for Reopened Cases:

Workers’  Compensation  Law  §  25-a  provides  for the transfer of liability to the Special Fund  “when  an application to reopen a closed case is made  more  than seven years from the date of injury and  more  than three years after the last payment  of compensation…. Advance payments that are made voluntarily during the relevant time frame, in recognition of an employer’s liability, are considered compensation and  will prevent the shifting of liability to  the  Special Fund  ….   Notably, “evidence that a claimant received full wages  despite performing limited or light duties may result in a finding that advance payments [of compensation] have been  made”  …). Whether an advance payment of compensation was  made  to  the claimant is a factual issue for the  Board  to resolve and,  “its determination  . . . , if supported  by substantial evidence  in the  record  as  a  whole,  will not  be disturbed” … .  Matter of Schroeder v US Foodservice…, 515937, 3rd Dept, 6-6-13

 

Residential Health Care Facility’s Medicaid Reimbursement Disallowed with Respect to Certain Operating Costs

The Third Department upheld the determination of the Department of Health’s Office of Inspector General which disallowed certain operating costs of petitioner (a residential health care facility) used to compute Medicaid reimbursement rates.  Matter of Odd Fellow & Rebekah Rehabilitation and Health Care Center, Inc v Commissioner of Health…, 515687, 3rd Dept, 6-6-13

 

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SORA Court’s Failure to Issue Written Findings Required Remittal

The Third Department remitted a SORA proceeding because the court did not set forth in its written order its findings of fact and conclusions of law with respect to defendant’s application for a downward departure and the oral findings were not sufficiently detailed for adequate review.  People v Filkins, 514025, 3rd Dept, 6-6-13

 

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Pat-Down Search After Stop for Traffic Infractions Okay

The Third Department determined the police officer [Negron] properly asked defendant to get out of his car, and properly conducted a pat-down search, after a vehicle-stop for traffic infractions:

…[O]fficers may exercise their discretion to require occupants to exit a vehicle once a lawful traffic stop has been effected, out of a concern for safety and without particularized suspicion….  Furthermore, a pat-down search of a suspect’s outer clothing is reasonable and constitutionally permissible when  an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety… .

Here, the entire encounter took place after dark in an area to which Negron had frequently responded to reports of gang activity, drug sales, fights and  shootings. Negron testified that he was familiar with defendant from his prior criminal activity and that defendant had been violent toward police in the past and had twice been charged with resisting arrest. After defendant exited the vehicle, Negron noticed bulges in the pockets in defendant’s “grabbable” area, which Negron defined as the hot zone that defendant’s hands could access quickly from their normal resting position. Defendant subsequently declined to answer the question as to whether he was in possession of any weapons or drugs, prompting Negron to conduct the pat frisk that ultimately revealed a concealed handgun. Thus, considering the circumstances in their totality, we find that the officer possessed a reasonable basis to perform a pat-down search of defendant for the presence of weapons… .  People v Issac, 104854, 3rd Dept, 6-6-13

SUPPRESSION

 

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