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ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the state was properly found liable for the actions of corrections officers who conducted a strip search of claimant prisoner. The strip search protocol includes having a male inmate lift his testicles and spread his cheeks. Here the corrections officers repeatedly made claimant touch his genitals and then run his fingers along his gums. The officers made claimant do the same after inserting his finger in his anus. Although the officers were committing intentional torts, their actions were deemed to be within the scope of their employment, making the state vicariously liable:

The law is well established that intentional torts may still fall within the scope of employment, and the motivation for such conduct is not dispositive as to defendant’s liability; rather, that factor is but one of several for our consideration pertaining to whether such acts were foreseeable as “a natural incident of the employment” … . Said differently, “where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment”… . Although the correction officers’ actions may have been motivated in part by an intent to humiliate claimant, we disagree with defendant’s assertion that such intent was the sole motivation for each of the commands and that such actions were undertaken without any furtherance of defendant’s business .. . In this respect, the preponderance of the acts performed during the strip frisk and placement into observation did not significantly deviate from the mandates of the directive and were in fact required prior to claimant’s confinement in one-on-one observation. What rendered the incident demeaning, and the reason that claimant has a viable claim, is the product of the sequence in which those acts occurred. Moreover, the potential for such conduct is precisely that which was foreseen in the warnings contained in the directives, which instructed those officers conducting a strip frisk to be mindful of the sensitive nature of the search and to conduct themselves “in a manner least degrading to all involved.” M.K. v State of New York, 2023 NY Slip Op 03268, Third Dept 6-15-23

Practice Point: An employer can be vicariously liable for the intentional torts of employees if the employees were acting within the scope of their employment. Here corrections officers were conducting a required strip search of the claimant prisoner, but they did so in a mean-spirited and deliberately and profoundly degrading manner. The state was deemed vicariously liable for the officers’ intentional torts.

Practice Point: The decision does not specify the intentional torts for which the state was found liable. There is a public policy prohibiting “intentional infliction of emotional distress” claims against governmental entities, so that cause of action may not have been a basis for the state’s liability in this case. The Digest does not have a general “Intentional Torts” category. This decision was placed in the “Intentional Infliction of Emotional Distress” category only because it seems closest to the facts.

 

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THE EMAIL EXCHANGES BETWEEN ATTORNEYS DID NOT CONSTITUTE A VALID SETTLEMENT AGREEMENT AND DID NOT MEET THE STATUTORY REQUIREMENTS OF A STIPULATION OF SETTLEMENT; THE DISSENTERS ARGUED THE EMAIL EXCHANGES EVINCED AN ENFORCEABLE AGREEMENT (THIRD DEPT).

​The Third Department, reversing Surrogate’s Court, determined: (1) the email exchanges between the parties’ attorneys did not constitute a settlement agreement; and (2) to be valid any stipulation of settlement must be placed on the record in open court, reduced to a court order and contained in a writing subscribed by the parties or counsel (not done here). The case concerns a dispute over the distribution of the estate of the deceased between the deceased’s daughter and wife. There was a two-justice dissent which argued a valid settlement agreement had been reached. The dissent made no mention of the statutory requirements for a stipulation of settlement:

Surrogate’s Court erred in finding that a binding agreement was formed, as the parties did not mutually assent to all material terms. To the extent that the daughter’s counsel asserts that the initial email set out an overview of the material terms to which the parties agreed during the ADR session, we note that such verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement (see CPLR 2104 …). The initial email and the subsequent correspondence also fail to establish that the parties reached an agreement. * * *

We also remind the parties that, to be enforceable, stipulations of settlement require more than just an agreement among the parties. Once the parties to an active litigation reach an agreement, they must (1) place the material terms of such agreement on the record in open court, (2) reduce them to a court order which is then signed and entered or (3) contain them in a writing subscribed by the parties or their counsel (see CPLR 2104 …). Matter of Eckert, 2023 NY Slip Op 03270, Third Dept 6-15-23

Practice Point: Here there was a question whether email exchanges between the parties’ attorneys after a settlement conference formed an enforceable settlement agreement. The majority said “no” and the two dissenters said “yes.” Although the issue does not seem to be determinative in this decision, the majority noted that the statutory requirements for a stipulation of settlement were not met (open court, reduced to an order, writing signed by the parties or counsel).

 

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A SUMMARY JUDGMENT MOTION BROUGHT BEFORE ISSUE IS JOINED IS PREMATURE AND SHOULD NOT BE CONSIDERED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, noted that a summary judgment motion brought before issue is joined should not be considered:

Initially, we discern no error with Supreme Court treating plaintiff’s order to show cause, filed two days after commencement of the action, essentially as a motion for summary judgment seeking ultimate relief … . However, “[a] motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” … . “Particularly in an action for declaratory judgment, all of the material facts and circumstances should be fully developed before the respective rights of the parties may be adjudicated” … . Accordingly, rather than reaching the merits, Supreme Court should have determined that plaintiff was barred from seeking summary judgment at the time and denied the motion as premature … . That defendant answered and issue was joined prior to the return date of the order to show cause does not change this determination … . Sackett v State Farm Mut. Auto. Ins. Co., 2023 NY Slip Op 03274, Third Dept 6-15-23

Practice Point: A summary judgment motion is premature if brought before issue is joined and should not be considered by the court.

 

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IN THIS DOG-BITE CASE, DEFENDANT DEMONSTRATED SHE WAS NOT AWARE OF HER DOG’S VICIOUS PROPENSITIES; PLAINTIFF’S ALLEGATIONS IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DID NOT RAISE A QUESTION OF FACT ON THAT ISSUE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant dog-owner’s motion for summary judgment in this dog-bite case should have been granted. Defendant made a prima facie showing she was not aware of the dog’s vicious propensities. Plaintiff did not raise a question of fact on that issue:

Even when viewing the evidence in the light most favorable to plaintiff, as we must, we find that plaintiff failed to raise an issue so as to defeat the motion. As to the statement that the dogs were play fighting, the child admitted that she was unfamiliar with dogs and that she assumed because they were growling that they were fighting or at least unhappy with “what’s [going on] around them.” However, “[n]o court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities” … . Growling and barking during play activities among dogs is consistent with normal canine behavior … . Even if the growling could be considered some indication of vicious propensities, the child never identified the dog that bit her as being the dog that she heard growling. As to the statement that the dog dislikes males, the child testified that defendant’s son told me “something about [the dogs] not liking guys, but as a joke.” This is not proof of an aggressive behavior and, in any event, does not relate to the child because she is a female … . The mere fact that defendant kenneled the dog, and kept the dog in her bedroom when she was absent from her residence, does not support an inference that defendant was aware the dog might pose a danger, since there was no evidence that this was done due to a concern that the dog would harm someone … ; instead defendant’s son stated that the dogs were kenneled because the puppies might escape. Additionally, it is undisputed that the dog was not confined, gated or tethered while the child was at the residence and in fact the child encouraged the dog to jump up on the bed next to her so she could pet it … . J.S. v Mott, 2023 NY Slip Op 03276, Third Dept 6-15-23

Practice Point: This is a fact-based dog-bite case. Plaintiff’s allegations in opposition to defendant dog-owner’s summary judgment motion did not raise a question of fact about whether defendant was aware of her dog’s vicious propensities.

 

THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT).

The Third Department determined the inclusory concurrent counts must dismissed and the related sentences vacated:

Modification of the judgment is required due to defendant’s conviction of inclusory concurrent charges. ” ‘With respect to inclusory concurrent counts, a verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted’ ” (… CPL 300.40 [3] [b]). We agree with defendant, and the People correctly concede, that criminal sexual act in the first degree (two counts) must be reversed and dismissed as inclusory concurrent counts of predatory sexual assault against a child … . Defendant’s contention that incest in the third degree must be dismissed as an inclusory concurrent count of incest in the first degree is moot, as this Court has now dismissed the latter count. People v Sharlow, 2023 NY Slip Op 03260, Third Dept 6-15-23

Practice Point: Where a defendant is convicted of inclusory concurrent counts, those counts must be dismissed and the related sentences vacated.

 

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​THE EMPLOYEE RESTRICTIVE COVENANTS (NONSOLICITATION AGREEMENTS) WERE PROPERLY ENFORCED; NINE OF DEFENDANT INSURANCE COMPANY’S CUSTOMERS FOLLOWED PLAINITFFS AFTER THEIR TERMIINATION; TWO-JUSTICE DISSENT (THIRD DEPT). ​

The Third Department, over a two-justice partial dissent, determined the defendant insurance company’s motion for summary judgment enforcing the nonsolicitation agreements were properly granted. Nine of defendant’s former customers followed plaintiffs after their termination from defendant’s employ:

… “[T]he application of the test of reasonableness of employee restrictive covenants focuses on the particular facts and circumstances giving context to the agreement” … . While such agreements are generally not favored, they can be “justified by the employer’s need to protect itself from unfair competition by former employees” … . “The employer has a legitimate interest in preventing former employees from exploiting or appropriating the goodwill of a client or customer, which had been created and maintained at the employer’s expense, to the employer’s competitive detriment” … . Here, when plaintiffs joined defendant’s insurance agency, neither had any prior experience in the insurance field, they were not licensed agents, nor did they have any clients or books of business of their own. As to the clients in question here, they were solicited, developed and serviced by defendant. As such, the accounts and clients are the product of defendant’s efforts, financial expenditures and goodwill, all of which defendant has a legitimate interest in protecting. Davis v Marshall & Sterling, Inc., 2023 NY Slip Op 03050, Third Dept 6-8-23

Practice Point: Here nine of the employer’s customers followed plaintiffs after their termination. Supreme Court properly enforced the nonsolicitation agreements. There was a two-justice dissent.

 

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​FAMILY COURT SHOULD HAVE HELD A LINCOLN HEARING TO DETERMINE THE WISHES OF THE CHILD, WHO WAS ABOUT TO TURN 16, IN THIS CUSTODY MODIFICATION PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the court should have held a Lincoln hearing in this modification of custody proceeding:

We find that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes … . At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. “[A] Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision” …  . The wishes of this soon-to-be 16-year-old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent …  . It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns” … . Matter of Samantha WW. v Malek XX., 2023 NY Slip Op 03052, Third Dept 6-8-23

Practice Point: Here it was an abuse of discretion to fail to hold a Lincoln hearing to determine the wishes of the child, who was nearly 16, in this custody modification proceeding.

 

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​ALTHOUGH A PURPOSE OF THE WATERSHED CORPORATION WAS TO ENSURE CLEAN DRINKING WATER FOR NEW YORK CITY; OTHER PURPOSES INCLUDED FOSTERING DEVELOPMENT; THEREFORE THE UPSTATE PROPERTY OWNED BY THE CORPORATION WAS NOT ENTITLED TO A CHARITABLE OR PUBLIC USE TAX EXEMPTION PURSUANT TO REAL PROPERTY TAX LAW 420-A (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the upstate property owned by the Catskill Watershed Corporation (petitioner) was not entitled to a charitable or public purpose exemption from the town’s property tax. Although a purpose of the corporation was to ensure clean drinking water for New York City, the fact that the purposes included economic development precluded the charitable or public purpose tax exemption pursuant to Real Property Tax Law (RPTL) 420-a:

… [P]etitioner’s certificate of incorporation expressly provides that it is formed for, among other things, “the exclusively charitable or public purposes of . . . aiding that part of the . . . [community in the Watershed] by attracting new commerce and industry to such area and by encouraging the development of, or retention of, commerce and industry in such area, and lessening the burdens of government and acting in the public interest.” These near-identical reasons were rejected by the Court of Appeals, which acknowledged that, even though a property may very well provide a laudable “public benefit,” where the overall use is “to further economic development and lessen the burdens of government, [such use] cannot be deemed ‘charitable’ within the meaning of section 420-a (1) (a)” … . Nor do we find convincing petitioner’s federal tax-exempt status, as “evidence of an organization’s section 501 (c) (3) status, by itself, does not create a presumption that the entity is entitled to a tax exemption under [RPTL 420-a]” — particularly given that the “IRS’s definition of what constitutes an exempt ‘charitable purpose’ is exceedingly broad” … . Matter of Catskill Watershed Corp. v Assessor of the Town of Middletown, 2023 NY Slip Op 03055, Third Dept 6-8-23

Practice Point: Even if a purpose of a corporation is to benefit the public (here the protection of drinking water), where other purposes are designed to foster development, the property owned by the corporation is not entitled to a charitable or public purpose exemption from property tax pursuant to RPTL 420-a.

 

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MOTHER’S PETITION FOR PERMISSION TO RELOCATE TO FLORIDA WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for permission to relocate to Florida with the children should have been granted:

“Taken as a whole, the mother’s testimony demonstrated . . . that the mother’s reasons for wanting to relocate were familial and economic and that the proposed relocation would likely enhance the lives of the mother and the child[ren] economically and emotionally” … . * * *

Although we recognize the importance of an ongoing relationship between the father and the children, the … proof reflects that the mother is, by far, the more involved parent and the primary caregiver, that the lives of the mother and the children would be enhanced by the relocation to Florida, that the children want to make that move, and that the mother is willing to facilitate significant visitation between the children and the father if it occurs. As such, Family Court’s determination denying the mother’s relocation request is not supported by a sound and substantial basis in the record … . Matter of Amber GG. v Eric HH., 2023 NY Slip Op 03059, Third Dept 6-8-23

Practice Point: Mother demonstrated she was the more involved parent and that she and her children would be better off financially and emotionally if she moved near her relatives in Florida. She further demonstrated she is willing to facilitate significant visitation with father. Her petition to relocate should have been granted.

 

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IN THIS MURDER TRIAL, THE PROSECUTOR REPEATEDLY BROUGHT UP UNCHARGED CRIMES WHICH WERE NOT MENTIONED IN THE PRETRIAL SANDOVAL PROCEEDINGS; THE JUDGE DID NOT INTERVENE; THE DEFENSE DID NOT OBJECT; CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s murder and weapons convictions, determined prosecutorial misconduct and the judge’s failure to intervene (there were no defense objections) required a new trial. The prosecutor repeatedly mentioned uncharged crimes which were not brought up in the Sandoval proceedings:

During their direct case, however, the People elicited testimony from three different witnesses about a prior bad act that had not been included in their Sandoval/Molineux proffer.  * * *

The prosecutor asked defendant whether the incident, which had occurred approximately a decade earlier, involved him shooting a rifle toward another person. Defendant denied this, and he was then questioned as to whether he tried to reload the rifle but was stopped by bystanders, which he also denied. The prosecutor then asked, “is that how you handle your confrontations, you grab a gun and just fire away?” The prosecutor continued the questioning in this vein by asking defendant whether it was “[k]ind of like . . . … [when] you just fired a warning shot out the window, correct?” The prosecutor subsequently cross-examined defendant relative to the incident involving him shooting someone off a motorcycle — which … was not included in the People’s Sandoval/Molineux motion. … [T]he prosecutor inquired as to whether defendant had stated in a recorded jail call that another inmate had urinated in his bed and that, if he caught who did it, he would stab that person in the neck with a pencil. * * *

… [T]he magnitude of the prosecutor’s misconduct was the fact that County Court made no effort to intervene or otherwise attempt to minimize or alleviate the prejudice being caused to defendant…. . People v Nellis, 2023 NY Slip Op 03046, Third Dept 5-8-23

Practice Point: Although the convictions were not against the weight of the evidence, prosecutorial misconduct and the judge’s failure to intervene warranted a new trial. The prosecutor repeatedly brought up uncharged crimes which were not ruled upon in the Sandoval proceedings.

 

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