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THE PARTIES TO THE CONSTRUCTION CONTRACT DID NOT COMPLY WITH THE FORMAL REQUIREMENTS FOR CHANGE ORDERS; THEREFORE THE FORMAL REQUIREMENTS WERE WAIVED AND THE FAILURE TO COMPLY WAS NOT A BREACH (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the failure to follow the construction contract provisions for change orders was not a breach of contract:

… [T]he parties’ lack of compliance with the change order procedure contained in the contract did not constitute a breach. … [T]he trial evidence established that the parties used informal text messages and emails in furtherance of project changes rather than following the formal, detailed change order process set forth in the contract. … [A] written change order requirement included in a construction contract “is not applicable where, as here, the conduct of the parties demonstrates an indisputable mutual departure from the written agreement and the changes were clearly requested by plaintiff and executed by defendant” …  Thus, the record amply demonstrates that the parties “waived their contractual right to insist upon strict compliance” with the change order condition … . 107 S. Albany St., LLC v Scott, 2022 NY Slip Op 07276, Third Dept 12-22-22

Practice Point: The parities did not comply with the formal change order requirements in the construction contract. Therefore the formal requirements were waived and failure to comply was not a breach of contract.

 

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THE REASONS FOR THE DENIAL OF ATTORNEY’S FEES AFTER PETITIONER’S SUCCESSFUL FOIL REQUEST MERELY PARROTED THE STATUTORY LANGUAGE FOR THE LAW-ENFORCEMENT AND SAFETY EXEMPTIONS WITHOUT ANY SUPPORTING FACTS; THEREFORE ATTORNEY’S FEES SHOULD HAVE BEEN AWARDED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees associated with his ultimately successful FOIL request for the video of the incident which was the basis for the prison disciplinary proceedings. Attorney’s fees were denied on the ground that the respondent had a reasonable basis for denying the request for the video. However the respondent’s reasons for the denial merely parroted the relevant statutory language for the law-enforcement and safety exemptions, which was deemed insufficient:

In denying petitioner’s initial FOIL request and the subsequent administrative appeal, respondent merely quoted the language from the Public Officers Law. It gave no factual explanation or justification for its blanket denial to release the video footage. Although respondent provided an affirmation by its general counsel in this CPLR article 78 proceeding, the affirmation once again merely quoted the statutory language and failed to explain or demonstrate how the footage was compiled for any law enforcement purposes. In a conclusory and speculative fashion, the affirmation referenced some investigations and adjudications, but failed to provide any factual details or explanation of same. Moreover, the affirmation failed to detail how the release of the video footage would affect or interfere with said investigations and adjudications. “[R]espondent[], by merely parroting the statutory language and otherwise failing to provide any adequate sort of harm risked by disclosure, ha[s] failed to meet [its] burden of proving that disclosure of the records would interfere with a pending law enforcement investigation” … .

The affirmation was equally deficient with regard to the safety exemption (see Public Officers Law § 87 [2] [f]), in that it was neither particularized nor specific and failed to articulate an explanation as to how the release of the video footage could potentially endanger or impair the lives of correction officers or their families. Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07277, Third Dept 12-22-22

Practice Point: In order to deny attorney’s fees after a successful FOIL request, the respondent must demonstrate a reasonable basis for the initial denial of the request. Merely parroting the statutory language for the law-enforcement and safety exemptions is not sufficient. The reasons must be fact-based.

 

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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE EMERGENCY DOCTRINE SHOULD HAVE BEEN APPLIED TO DISMISS THE COMPLAINT IN THIS CHAIN-REACTION TRAFFIC ACCIDENT CASE; THE FACT THAT IT WAS SNOWING AND THERE WERE ICY ROAD CONDITIONS DID NOT SUPPORT THE APPLICABILIITY OF THE EMERGENCY DOCTRINE AS A MATTER OF LAW (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this chain-reaction traffic accident case, determined there were questions of fact about the weather (snow and ice) and traffic conditions at the time of the accident. Plaintiff was a passenger in the middle car: Supreme Court had dismissed the complaint pursuant to the emergency doctrine:

Striking a vehicle in the rear is negligence as a matter of law absent a sufficient excuse” … . The excuse proffered by defendants here, and accepted by Supreme Court, was that they were confronted with an emergency in the form of sudden snowfall and icy road conditions such that they could not avoid the respective collisions. “[I]n order for a driver to be entitled to summary judgment based upon the emergency doctrine, he or she must demonstrate, as a matter of law, that the emergency situation with which he or she was confronted was not of his or her own making and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision” … . “Whether [a] defendant was presented with an emergency is generally a question of fact” … . In addition, “the emergency doctrine is inapplicable [where a] defendant driver was aware of . . . icy road conditions and should have accounted for them properly” … . “[A] driver is expected to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with [slowing or] stopped vehicles, taking into account weather and road conditions” … . Williams v Ithaca Dispatch, Inc., 2022 NY Slip Op 07278, Third Dept 12-22-22

Practice Point: Although it was snowing and there were icy road-conditions at the time of this chain-reaction traffic accident, the emergency doctrine should not have been applied to dismiss the complaint as a matter of law.

 

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THE HUSBAND DEMONSTRATED HE WAS ILL WHEN THE DIVORCE TRIAL WAS HELD AND THE WIFE MAY NOT BE ENTITLED TO A PORTION OF HIS WORLD TRADE CENTER ACCIDENTAL DISABILITY RETIREMENT BENEFITS BECAUSE PERSONAL-INJURY BENEFITS CONSTITUTE SEPARATE PROPERTY; THE HUSBAND’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court in this divorce action, determined the husband’s motion to vacate the default judgment should have been granted. The husband demonstrated he missed the trial because of illness and he had a meritorious argument that the World Trade Center accidental disability retirement benefits were personal-injury benefits which constituted his personal property:

Pursuant to CPLR 5015 … a court may vacate an order “upon the ground of excusable default, if such motion is made within one year” after such order … . “[A] party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious . . . defense” to the underlying claim … . Significantly, “in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce” … . * * *

… [I]n support of his motion to vacate the default, the husband proffered an affidavit wherein he averred that on the day of the hearing he was suffering from shingles and, as such, he was in extreme pain, sleep deprived, disoriented and unable to leave his bed. The husband also submitted an affidavit from a physician’s assistant who diagnosed him with, and treated him for, shingles approximately two weeks prior to the date of the trial. She also averred that she saw the husband again the day following the missed trial and that she “observed a noticeable progression of the shingles rash on [the husband’s] body.” … . …

… [T]he husband claims that the wife is not entitled to the portion of his pension that is for World Trade Center accidental disability retirement benefits. “While it is true that the portion of a disability pension which represents compensation for personal injuries is separate property, the party so claiming bears the burden of demonstrating what portion of the pension reflects compensation for personal injuries, as opposed to deferred compensation” … . Zeledon v Zeledon, 2022 NY Slip Op 07279, Third Dept 12-22-22

Practice Point: Here the husband’s illness at the time of trial was a reasonable excuse for his default and the argument that the wife was not entitled to his World Trade Center accidental disability retirement benefits which constituted his separate property (personal-injury benefits) was meritorious. Therefore the husband’s CPLR 5015 motion to vacate the default judgment should have been granted.

 

THE FELONY WHICH WAS THE BASIS FOR DEFENDANT’S SECOND FELONY OFFENDER STATUS DID NOT MEET THE CRITERIA FOR A PREDICATE FELONY (THIRD DEPT). ​

The Third Department, reversing County Court, determined the felony which was the basis of defendant’s second felony offender status did not meet the criteria for a predicate felony:

In order for a prior conviction to constitute a predicate felony, the “sequentiality requirement” must be satisfied, which means “that the ‘sentence upon such prior conviction must have been imposed before commission of the present felony'” … . Defendant was sentenced on the predicate felony forming the basis for her second felony status on the same day that she was sentenced on the instant offense. As such, that felony offense — referenced in the predicate felony information as an August 27, 2020 conviction for criminal sale of a controlled substance in the fifth degree — could not be used to meet the requirements for sentencing defendant as a second felony offender on the instant offense. People v Hayes, 2022 NY Slip Op 06965, Third Dept 12-8-22

Practice Point: In order to meet the criteria for a predicate felony re: second felony offender status, the sentence for the prior conviction must have been imposed before the instant felony was committed.

 

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IN REVIEWING THE GRAND JURY MINUTES, COUNTY COURT SHOULD NOT HAVE DISMISSED THE CONCURRENT INCLUSORY COUNTS; RATHER THOSE COUNTS SHOULD BE SENT TO THE JURY IN THE ALTERNATIVE (THIRD DEPT).

​The Third Department, reversing County Court and reinstating three counts of the indictment, determined that inclusory concurrent counts in an indictment should not be dismissed prior to trial:

… [T]he parties entered a stipulation in lieu of motions authorizing County Court to review the grand jury minutes to determine whether there was legally sufficient evidence, adequate instructions or any defects in the proceedings. The court thereafter dismissed those counts charging criminal sexual act in the first degree as inclusory concurrent counts of the predatory sexual assault counts pursuant to CPL 300.30 (4), occasioning this appeal by the People.

“In assessing whether dismissal of an indictment is warranted under CPL 210.20 (1) (b), a reviewing court must assess whether the People presented legally sufficient evidence to establish the offense or offenses charged” … .. Although asked to review the indictment to ensure that the evidence submitted to the grand jury was legally sufficient, the court dismissed the counts at issue as inclusory. Even if certain counts charged in the indictment are inclusory concurrent counts, that does not require dismissal of those counts prior to trial or, upon trial, bar the submission of both the greater and the lesser counts to the jury for consideration. Rather, “[w]hen inclusory counts are submitted for consideration, they must be submitted in the alternative since a conviction on the greater count is deemed a dismissal of every lesser count” … . People v Provost, 2022 NY Slip Op 06966, Third Dept 12-8-22

Practice Point: Conclusory concurrent counts should be allowed to go to the jury in the alternative.

 

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DEFENDANT IN THIS SORA RISK-ASSESSMENT PROCEEDING REQUESTED A DOWNWARD DEPARTURE WHICH WAS NOT ADDRESSED BY COUNTY COURT; THE ORDER WAS REVERSED AND THE MATTER SENT BACK FOR THE RELEVANT FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant’s request for a downward departure in the SORA risk-assessment proceeding was not addressed by the court. The matter was sent back for the relevant findings of fact and conclusions of law:

County Court failed to address his request for a downward departure. We agree and, inasmuch as County Court did not set forth on the record any findings or conclusions on the request, we are unable to assess the court’s reasoning for the implicit denial thereof. “Consequently, we reverse and remit so that County Court may determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score and to set forth its findings of fact and conclusions of law as required” … . People v Howland, 2022 NY Slip Op 06967, Third Dept 12-8-22

Practice Point: In a SORA risk-assessment proceeding, if the defendant requests a downward departure, the court must address the request and make the relevant findings of fact and conclusions of law.

 

PETITIONER POLICE OFFICER’S SLIP AND FALL WHEN LEAVING A BATHROOM MET THE DEFINITION OF AN “ACCIDENT” IN THE RETIREMENT AND SOCIAL SECURITY LAW; SHE WAS THEREFORE ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, annulling the comptroller’s ruling, determined the police officer’s slip and fall was an accident within the meaning of the Retirement and Social Security Law entitling her to accidental disability retirement benefits:

Petitioner’s slip and fall while exiting the bathroom was sudden and unexpected, and the precipitating event was not a risk of the work performed by her, i.e., was not the result of activity undertaken in the performance of her ordinary employment as a police officer … . Petitioner was not required to demonstrate that the slippery substance was not readily observable … . The Retirement System conceded at the hearing that the 2012 accident rendered petitioner permanently incapacitated and on appeal respondent — in conceding that petitioner was entitled to performance of duty disability retirement based upon the 2012 incident — necessarily conceded causation, i.e. that the 2012 fall caused her permanent incapacitation. Matter of Bucci v DiNapoli, 2022 NY Slip Op 06968, Third Dept 12-8-22

Practice Point: Petitioner police officer slipped and fell when leaving a bathroom. That was an “accident” within the meaning of the Retirement and Social Security Law entitling her to accidental disability retirement benefits.

 

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BOTH PARENTS OPPOSED VISITATION WITH THE GRANDPARENTS AND THERE WAS EVIDENCE VISITATION WITH THE GRANDPARENTS HAD NEGATIVE EFFECTS ON ONE OF THE CHILDREN; IT WAS NOT DEMONSTRATED THAT VISITATION WITH THE GRANDPARENTS WAS IN THE CHILDREN’S BEST INTERESTS; MATTER REMITTED FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (THIRD DEPT). ​

The Third Department, reversing Family Court, determined Family Court’s ruling allowing visitation by the grandparents, which was opposed by both parents, was not demonstrated to be in the best interests of the children. The son is autistic and has frequent “meltdowns” which the grandparents allegedly didn’t handle appropriately. The matter was sent back for a new hearing in front of a different judge:

In granting visitation to the grandparents, Family Court essentially based its determination on its belief that the son would benefit from frequent contact with family members who love him, and that “equity demand[ed]” that the daughter have the same level of visitation. While contact with loving family members is certainly a laudable goal for these and any other children, the record does not support the court’s finding that the children’s best interests would be served by visitation with the grandparents. Indeed, to the contrary, the mother and the father, who were separated as of the time of the hearing but were united in their opposition to the grandparents’ visitation petition, offered testimony detailing the negative effects that visitation with the grandparents had on the son. Matter of Virginia HH. v Elijah II., 2022 NY Slip Op 06970, Third Dept 12-8-22

Practice Point: Here both parents opposed visitation with the grandparents and there was evidence such visitation had negative effects on one of the children, who is autistic. It was not demonstrated visitation with the grandparents was in the children’s best interests. The case was remitted for a new hearing before a different judge.

 

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IN THIS COMPLEX CASE INVOLVING ALLEGED MISUSE OF LAND GIFTED TO THE AUDUBON SOCIETY AS “FOREVER WILD” AND SUBSEQUENTLY SOLD, THE ATTORNEY GENERAL’S ARGUMENT THE DEED WAS VOID AB INITIO AND THEREFORE NEVER TRIGGERD THE STATUTE OF LIMITATIONS WAS REJECTED; THE DEED WAS DEEMED “VOIDABLE” AND THE STATUTE HAD THEREFORE RUN; THE TWO-JUSTICE DISSENT ARGUED THE MAJORITY SHOULD NOT HAVE SENT THE MATTER BACK TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined the deed which was the subject of the action was not void ab initio, but rather was voidable, such that the statute of limitations had run on the action. Had the deed been void ab initio, the statute of limitations would not have run. This complex case, which involves alleged misuse of land gifted to the Audubon Society and subsequently sold is fact-specific and cannot be fairly summarized here. There was a two-justice partial dissent which argued the majority should not have ordered the matter be transferred to a different judge:

… [W]e find that the 2013 conveyance of parcel B, held by the Audubon Society in fee simple absolute, was not void but instead merely voidable for any resultant diversion of the subject gift. The Attorney General’s recission claim was thus required to be brought within the applicable limitations period. It was not. We therefore agree with Supreme Court that this challenge to the validity of the 2013 conveyance is time-barred … .

From the dissent:

According to the majority, when deciding the motions at issue, Supreme Court offered its interpretation of the pertinent gift instruments and made certain findings and, therefore, cannot be impartial in resolving the merits … . In our view, it is premature at this stage to conclude that the court has predetermined and/or already addressed central issues in that action such that it cannot be fair. When the time comes, the parties can offer their competing interpretations of the gift instruments. At that time, the parties may rely on the court’s rationale and findings made in the April 2021 order. Alternatively, the parties might not do so. Regardless, any remaining issues to be resolved concerning the gift instruments will be better developed and briefed for the court to make an informed decision. Given that “every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action” … , it cannot be presumed how the court will decide any remaining issues.

Moreover, no party has requested that a new judge be assigned. There have been no claims of hostility, bias or lack of impartiality by Supreme Court. Nor does the record bear out any such behavior. Accordingly, the parties seemingly have no qualms with the current judge. In view of the foregoing, we see no basis to assign a new judge for the underlying actions. Rockwell v Despart, 2022 NY Slip Op 06971, Thrid Dept 12-8-22

Practice Point: Here, if the deed which was the subject of the action had been void ab initio, the statute of limitations would never have been triggered. But the deed was deemed “voidable” and the statute had therefore run. The two-justice dissent argued the parties were happy with the judge and there was no reason to assume the judge had permanently predetermined any issues. Therefore the majority should not have ordered the matter transferred to a different judge.

 

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