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THE PETITIONS FOR A PERMISSIVE REFERENDUM ON THE BONDS TO BE ISSUED FOR THE CONSTRUCTION OF CERTAIN TOWN BUILDINGS WERE NOT REJECTED WITHIN THE MEANING OF THE CONTROLLING STATUTES; THEREFORE THE TOWN WAS REQUIRED TO SET UP THE PERMISSIVE REFERENDUM FOR NOVEMBER 2023 (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the Town Clerk did follow the statutory procedure for rejecting the petitions for a permissive referendum on bonds to be issued to fund the construction of certain Town road-maintenance buildings. Therefore the town was obligated to set up the permissive referendum:

We need not … decide whether the Town Clerk acted beyond the scope of her authority in rejecting the referendum petitions prior to their filing because, contrary to respondents’ contentions, the subject referendum petitions were received and accepted for filing by the Town Clerk on October 11, 2022 … . The record contains a receipt of filing stating that the Town Clerk “received from [petitioner] three petitions” which were identified by name in the receipt. The receipt issued by the Town Clerk also bears both a signature and a date stamp indicating that the petitions were received for filing … . The receipt issued and signed by the Town Clerk did not constitute a legal rejection of the petition within the contemplation of Town Law § 91 and, as a matter of fact, was not so intended by her to be a rejection since she stated in her own affidavit that she subsequently reviewed the filed petitions with both the Association of Towns of the State of New York and the town attorney and consulted with them regarding the petitions’ handling. Matter of Long v Town of Caroga, 2023 NY Slip Op 04352, Third Dept 8-17-23

Practice Point: Here the statutory requirements for the rejection of petitions for a permissive referendum on bonds to be issued for the construction of town buildings were not met. To the contrary, the Town Clerk accepted the petitions, and the town must set up the permissive referendum for November 2023.

 

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THE FACT THAT THE CONTAMINATED AREA WHERE THE NEW CONSTRUCTION WAS TO BE LOCATED HAD BEEN REMEDIATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) WAS NOT ENOUGH TO ENSURE SAFETY WHEN THE SOIL IS DISTURBED FOR CONSTRUCTION; THE SEQRA REVIEW DID NOT TAKE THE REQUISITE HARD LOOK AT THE EFFECTS OF DISTURBING THE SOIL (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the Plattsburgh Common Council, the lead agency responsible for review of a construction project pursuant to the State Environmental Quality Review Act (SEQRA), did not take the requisite hard look at the potential danger associated with disturbing the contaminated soil which had been cleaned up and declared remediated by the Department of Environmental Conservation (DEC):

… Supreme Court correctly determined that, although the soil contamination was addressed, the ZBA (Zoning Board of Appeals) and Planning Board failed to take a hard look at this issue … . More specifically, the failure in providing mitigation measures for this environmental concern did not comply with the mandates of SEQRA … . Preliminarily, the Common Council, and thereafter the Planning Board and ZBA, properly relied on DEC correspondence in determining that the project site in its current form did not present adverse environmental impacts … . Here, however, it was inappropriate to determine that there would be no adverse environmental impacts when it was known that the contemplated site plan would necessarily disturb the contaminated soil … . * * * The fact that the brownfield remediation was successful at the time does not discharge the involved agency’s duty to take a hard look relative to the project … . Indeed, the citizens who may be impacted have the right to insist that the construction be done in an environmentally safe manner in accordance with SEQRA.  Matter of Boise v City of Plattsburgh, 2023 NY Slip Op 04338, Third Dept 8-17-23

Practice Point: Here the construction area had been contaminated and was successfully remediated by the DEC. But the SEQRA review required a hard look at the effects of disturbing the soil n the remediated area during construction. The review could not simply rely on the remediation-conclusions of the DEC.

 

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THE APPEAL WAIVER WAS INVALID; ALTHOUGH DEFENDANT WAS SUFFERING FROM MENTAL ILLNESS AND WAS APPARENTLY ATTEMPTING TO COMMIT SUICIDE WHEN HE CAUSED THE TRAFFIC ACCIDENT RESULTING IN THE ASSAULT CHARGE, THE MAJORITY CONCLUDED THE SEVEN-YEAR SENTENCE FOR ASSAULT (THE MAXIMUM) SHOULD NOT BE REDUCED; A TWO-JUSTICE DISSENT ARGUED THE SENTENCE SHOULD BE REDUCED; A CONCURRENCE ARGUED THE APPEAL WAIVER WAS VALID (THIRD DEPT). ​

The Third Department, over a two-justice dissent and a concurrence, determined (1) the waiver of appeal was invalid, and (2) the sentence was not harsh and excessive. The dissenters argued defendant exhibited signs of mental illness and the traffic accident which was the basis of the assault charge was a suicide attempt, warranting a lesser sentence and rehabilitative measures. The concurrence argued the appeal waiver was valid:

The written appeal waiver executed by defendant during the plea allocution is overly broad in several respects, as it purported to create an absolute bar to a direct appeal by indicating that the appeal waiver “mark[s] the end of [his] case” and precludes him from pursuing collateral relief “in any state or federal court” … . Although County Court’s brief oral allocution advised defendant that certain appellate rights survive the waiver, this was not sufficient to cure the defects in the written waiver … and did not establish that he understood that some collateral and federal review survives the waiver …  Consequently, defendant did not knowingly, intelligently and voluntarily waive the right to appeal … .

From the dissent:

… [I]t is evident that defendant’s criminal conduct was not borne of a malicious intent nor of a conscious choice to act with reckless disregard for the lives of others; rather, the entirety of his conduct appears attributable to his profound mental illness, which was no longer adequately controlled at the time of the incident and casts serious doubt on the level of his culpability. Moreover, the record reveals that, at the time of the incident, defendant was 26 years of age, had no history of prior unlawful conduct and had been a productive member of society, as demonstrated by, among other things, his participation in a reserve officer training corps program while attending college … . Under these circumstances, we find that the societal benefits of deterrence and punishment achieved through a seven-year term of imprisonment, which is the maximum legal sentence for his conviction, are minimal and, more importantly, they are far outweighed by the rehabilitative considerations that support reducing this specific defendant’s sentence … . People v Appiah, 2023 NY Slip Op 03955, Third Dept 7-27-23

Practice Point: The appeal waiver was deemed invalid because it intimated all appellate issues were precluded.

Practice Point: Although defendant was suffering from mental illness and was apparently attempting to commit suicide when he caused the traffic accident (the basis of his assault conviction), the majority concluded his seven-year sentence should not be reduced. A two-justice dissent disagreed.

 

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DEFENDANTS’ EXPERTS’ CLAIMS THAT DEFENDANTS PROVIDED PROPER CARE AND ADVICE IN THIS MEDICAL MALPRACTICE ACTION WERE BELIED BY THE MEDICAL RECORDS AS EXPLAINED BY PLAINTIFF’S EXPERTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s experts in this medical malpractice action raised questions of fact about the negligence of each defendant. The decision is fact-specific and far too detailed to fairly summarize, but it provides insight into when expert affidavits are deemed sufficiently substantive to raise questions of fact:

… [W]hen viewed in a light most favorable to plaintiff, we find that the record raises several questions of fact as to whether each defendant satisfied the standard of care applicable to him or it … . Despite that each defendant and their respective experts opined that decedent was not presenting with the signs or symptoms of a stroke, this is belied by the medical record, which establishes that decedent was experiencing a stroke and/or vertebral artery dissection during the relevant time period that they treated decedent and presented with the “classic” symptoms associated with a stroke. At a minimum, these differing opinions create a question of fact, which plaintiff’s experts highlighted in so far that each defendant deviated from the standard of care by failing to refer decedent to a specialist or neurologist … . McCarthy v Town of Massena, N.Y. (Massena Mem. Hosp.)2023 NY Slip Op 03959, Third Dept 7-27-23

Practice Point: Here the medical records as explained by plaintiff’s experts raised questions of fact about whether plaintiff’s decedent was exhibiting symptoms of a stroke at the time defendants treated him, a diagnosis defendants allegedly failed to make.

 

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ALTHOUGH PETITIONER’S USING HIS CELL PHONE WHILE ON DUTY TO SEND EXPLICIT MESSAGES VIOLATED THE EMPLOYEE’S MANUAL AND WARRANTED PUNISHMENT, TERMINATION WAS TOO SEVERE A PENALTY (THIRD DEPT).

The Third Department, modifying Supreme Court, over a dissent, determined that petitioner, a civil service employee, was properly found to have violated the Employee’s Manual by using his cell phone while on duty to send explicit messages. However, termination was deemed too severe a penalty and the matter was remitted. The dissent argued termination was proper:

“Judicial review of an administrative penalty is limited to whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one’s sense of fairness” … . Petitioner was employed by respondent for 21 years at the time of the hearing and had a generally unremarkable disciplinary history….  Further, there is no indication that the messages were disseminated to any of his colleagues or subordinates or that there was a significant impact on the performance of his duties. To the contrary, the record establishes that petitioner consistently received strong evaluations for his work performance. Further, the record establishes that petitioner expressed remorse to respondent’s investigators, noting that he was not proud of his conduct, which he characterized as “unprofessional and even inappropriate.” Under these circumstances, we find that the penalty of termination “is so disproportionate to the offense and shockingly unfair as to constitute an abuse of discretion as a matter of law” and, accordingly, we remit the matter for consideration of a less severe penalty … . Matter of Brooks v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 03962, Third Dept 7-27-23

Practice Point: A civil service employee’s violation of general provisions of the Employee’s Manual, here the employee’s use of his cell phone to send explicit messages while on duty, warranted punishment . But termination was deemed too severe.

 

PETITIONER SEX OFFENDER’S ABSCONDING FROM SUPERVISION IS A NON-TECHNICAL VIOLATION OF PAROLE AUTHORIZING REINCARCERATION FOR 30 MONTHS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner committed a non-technical violation of his parole (absconding from supervision) for which he could be incarcerated for 30 months. Supreme Court had determined petitioner had committed a technical violation for which he could be incarcerated for only 15 days:

… [P]etitioner was released to postrelease supervision on August 4, 2020. On August 11, 2020, petitioner was charged with violating various conditions of release, including that he not abscond from supervision, and a parole warrant was issued. In March 2021, the Department of Corrections and Community Supervision (hereinafter DOCCS) was advised that petitioner had been arrested and charged with assault. DOCCS then issued a supplemental parole violation notice that included various new violation charges, including that petitioner had committed an assault while on release. In April 2021, a final parole revocation hearing was held during which petitioner pleaded guilty to the charge of absconding from supervision in satisfaction of all the violations with which he was charged. Pursuant to the terms of the agreement, the Administrative Law Judge (hereinafter ALJ) ordered that petitioner be held for 30 months. * * *

… [P]etitioner’s condition of parole prohibiting him from absconding — that he admitted to violating, prescribing petitioner from “intentionally avoiding supervision by failing to maintain contact with my [p]arole [o]fficer and failing to reside at my approved residence” — is in line with the Legislature’s concerns regarding sex offenders released on parole and is also reasonably related to petitioner’s sex offense and efforts to protect the public from the commission of a repeat of that offense so as to warrant classifying him as a non-technical offender under Executive Law § 259 (7) (b). People ex rel. Marrero v Stanford, 2023 NY Slip Op 03964, Third Dept 7-27-23

Practice Point: Under the Less is More Act DOCCS must determine whether a parole violation is technical, allowing only minimal reincarceration, or non-technical, allowing reincarceration up to the balance of the period of post-release supervision. Here the sex offender’s absconding from supervision was deemed a non-technical violation allowing reincarceration for 30 months.

 

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THE NEGLIGENCE AND NEGLIGENT SUPERVISION AND HIRING CAUSES OF ACTION AGAINST THE WARREN COUNTY DEFENDANTS IN THIS CHILD VICTIMS ACT CASE ALLEGING ABUSE IN FOSTER CARE SHOULD HAVE BEEN DISMISSED; THE COMPLAINT DID NOT ADEQUATELY ALLEGE THE WARREN COUNTY DEFENDANTS WERE AWARE OF THE DANGER POSED BY PLAINTIFF’S FOSTER FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the negligence and negligent supervision causes of action against the Warren County defendants in this Child Victims Act case should have been dismissed. The complaint did not adequately allege the Warren County defendants were aware of the danger posed by plaintiff’s foster father:

… [W]e agree with the Warren County defendants that Supreme Court should have dismissed the negligence and negligent hiring, retention, supervision and/or direction causes of action as they relate to the conduct in Warren County. The complaint alleged that, in approximately 1979, plaintiff was placed in a foster home in Warren County, where he was sexually abused by his foster father on numerous occasions. Although we are cognizant that pleadings alleging negligent hiring, retention and supervision need not be pleaded with specificity … , the complaint merely asserts that the Warren County defendants “knew or, in the exercise of reasonable care, should have known” that the foster father “had the propensity to engage in sexual abuse of children.” Unlike in the counties of Albany and Cayuga — where plaintiff alleges that he reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition — the complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm. Because plaintiff failed to sufficiently plead that the Warren County defendants were provided notice of a dangerous condition present in the Warren County foster home, that claim could not survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) … , and Supreme Court should have dismissed those claims against the Warren County defendants. Easterbrooks v Schenectady County, 2023 NY Slip Op 03889, Third Dept 7-20-23

Practice Point: In order to adequately plead a county was negligent in placing plaintiff in a foster-care situation where plaintiff was abused, the complaint must allege facts demonstrating the county was aware of the danger posed by the foster parent.

 

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DEFENDANT DID NOT PROVE THE EXISTENCE OF A PRESCRIPTIVE EASEMENT OVER PLAINTIFF’S LAND; PLAINTIFF DID NOT PROVE THE DAMAGES ELEMENT OF TRESPASS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the requirements for a prescriptive easement over plaintiff’s property were not met and plaintiff did not prove the damages element of the trespass action. Plaintiff, however, was entitled to nominal damages for trespass:

… [O]ur independent review of the trial evidence reflects that defendant did not establish that the adverse use of the road continued for the requisite 10-year period. It follows that defendant’s counterclaim for a prescriptive easement must be dismissed and that, in the absence of that easement, [defendant] committed a trespass when he entered upon plaintiff’s property in 2004 … . * * *

… [P]laintiff failed to meet her burden of proving “[t]he lesser of the diminution in value of the property or the cost to repair” that would be the ordinary measure of damages for a trespass … or, for that matter, the loss of a specific number of trees for purposes of RPAPL 861 … . She was accordingly not entitled to an award of actual damages. Nevertheless, because “nominal damages can be presumed in an action for trespass to real property,” dismissal of her trespass claim was not warranted upon that basis … . Mastbeth v Shiel, 2023 NY Slip Op 03895, Third Dept 7-20-23

Practice Point: Here defendant did not prove 10 years of hostile use of plaintiff’s property and therefore did not demonstrate a prescriptive easement. Plaintiff did not prove the damages element of trespass and therefore was entitled only to nominal damages.

 

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ALTHOUGH THE PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS, PRECLUSION OF EXPERT EVIDENCE IN THIS MEDICAL MALPRACTICE CASE WAS TOO SEVERE A SANCTION; PLAINTIFF’S ATTORNEY FINED $5000 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined preclusion of evidence in this medical malpractice case as a sanction for failure to provide discovery was too severe a sanction. The appellate court imposed a monetary sanction on plaintiff’s attorney:

Supreme Court found that plaintiff’s trial counsel engaged in willful and contumacious conduct which delayed resolution of this case, and the record supports such a finding. Defense counsel requested an amended bill of particulars in May 2019 and an amended expert disclosure in October 2019. Despite a plethora of emails and letters from defense counsel, various conferences, scheduling orders and an order compelling compliance with discovery, plaintiff’s trial counsel failed to correct the deficiencies in the discovery disclosure prior to defendant filing a motion for sanctions. Under these circumstances, we agree with Supreme Court that the conduct exhibited by plaintiff’s trial counsel was willful and contumacious and that, upon such finding, the drastic sanction of preclusion was available … . * * *

Having considered the record as a whole, including the supplemental discovery disclosures, the affidavit of merit, the lack of prejudice to defendant and the nature and root of the misconduct, we vacate the August 2022 order that precluded plaintiff from proffering certain evidence and expert witnesses. Exercising our discretion, and given the strong public policy favoring resolution of actions on the merits, we accept the late amended bill of particulars as responsive to the outstanding demand … .. However, the willful and contumacious misconduct by plaintiff’s trial counsel cannot be condoned, as disregard of court orders hinders the efficient resolution of cases … . To dissuade this conduct from repeating, we impose a monetary sanction on plaintiff’s trial counsel in the amount of $5,000 … . M.F. v Albany Med. Ctr., 2023 NY Slip Op 03896, Third Dept 7-20-23

Practice Point: Here the appellate court determined the preclusion of evidence, including expert evidence, in this medical malpractice action was too severe a sanction for disobeying discovery orders. The attorney was fined $5000 for willful and contumacious conduct.

 

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DEFENDANT WAS OUTSIDE HIS RESIDENCE WHEN HE WAS ARRESTED AND A PROTECTIVE SWEEP WAS CONDUCTED INSIDE DEFENDANT’S RESIDENCE; ITEMS OBSERVED IN THE RESIDENCE WERE LATER SEIZED PURSUANT TO A SEARCH WARRANT; BECAUSE THE POLICE HAD NO REASON TO SUSPECT OTHERS WERE PRESENT IN THE RESIDENCE, THE PROTECTIVE SWEEP OF THE RESIDENCE WAS NOT JUSTIFIED AND THE OBSERVED ITEMS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department held that items observed by the police during a “protective sweep” of his residence should have been suppressed. At the time of defendant’s arrest and the protective sweep defendant was outside of his residence. The police had no reason to believe others were inside the residence:

Upon a lawful arrest, the police may conduct a limited protective sweep of the premises, but this ‘is justified only when the police have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene’ … . The purported protective sweep conducted here was improper, as there were no articulable facts supporting a belief that any other person was present inside the trailer, let alone a person who could pose a threat to those on the scene … . Neither the search warrant nor the suppression hearing testimony reflected that anyone other than defendant was ever observed or believed to be inside the trailer, and there was nothing referenced that would serve to indicate that there was any lingering threat. People v Hadlock, 2023 NY Slip Op 03819, Third Dept 7-13-23

Practice Point: The defendant was arrested outside his residence and the police conducted a protective sweep of the residence which led to the seizure of contraband observed during the sweep. Because the police had no reason to believe anyone else was present, the sweep of the residence was not justified and the observed items should have been suppressed.

 

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