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THERE WAS SUFFICIENT EVIDENCE, INCLUDING EXPERT EVIDENCE, OF DEFENDANT’S INTOXICATION TO RAISE A DOUBT WHETHER DEFENDANT FORMULATED THE INTENT TO COMMIT ASSAULT SECOND; THE REQUEST FOR THE INTOXICATION JURY CHARGE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined there was sufficient evidence of defendant’s intoxication to warrant the jury charge on intoxication. There was enough evidence of intoxication to support a doubt whether defendant was able to formulate the requisite intent to commit assault second:

“To warrant the submission of an intoxication charge to a jury, there must be sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . When making the determination as to whether an intoxication charge is warranted, the evidence must be viewed “in the light most favorable to the defendant” … . “[A]lthough a relatively low threshold exists to demonstrate entitlement to an intoxication charge” … , “[e]vidence of intoxication, even under this standard, requires more than a bare assertion by a defendant that he [or she] was intoxicated” … . * * *

Here, in proving assault in the second degree, the People had the burden of establishing that defendant possessed the intent to “cause serious physical injury to another person” … . Although there was testimony that defendant was loud and obnoxious and was arguing with the bartender about the benefit poster just prior to the altercation, there was no testimony regarding interactions between the victim and defendant just prior to the altercation, which could have left a question in the jurors’ minds as to defendant’s intent and how things escalated as quickly as they did … . The testimony at trial regarding defendant entering the bar with a beer, consuming two more drinks prior to being refused service, coupled with the surveillance footage, established that the suspect consumed multiple alcoholic beverages within a short period of time prior to the assault … . Moreover … the surveillance footage revealed that someone looking strikingly similar to defendant consumed several alcoholic beverages hours before the assault and that, upon returning to the bar, exhibited markedly different behavior from earlier in the evening. Additionally, … the People’s expert witness testified that consumption of alcohol in excess can alter one’s personality, which supported his theory of voluntary intoxication. People v Adrian, 2022 NY Slip Op 05896, Third Dept 10-20-22

Practice Point: Here there was sufficient evidence, including expert evidence, of defendant’s intoxication to raise a doubt about whether defendant formulated the intent to commit assault second. Defendant’s request for the intoxication jury charge should have been granted.

 

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WHETHER A PRIVATE COLLEGE ACTED IRRATIONALLY OR ARBITRARILY AND CAPRICIOUSLY IN ELIMINATING FACULTY POSITIONS IN RESPONSE TO A BUDGET SHORTFALL IS PROPERLY DETERMINED IN AN ARTICLE 78 PROCEEDING; HERE THE COLLEGE FOLLOWED THE RELEVANT RULES IN THE COLLEGE MANUAL; SUPREME COURT SHOULD NOT HAVE RULED THE COLLEGE ACTED ARBITRARILY AND CAPRICIOUSLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent private college followed the relevant provisions of the college manual in determining what programs and faculty positions to eliminate in response to a budget shortfall. Petitioners, members of the music department faculty whose positions were eliminated, did not demonstrate the respondents’ decisions were irrational or arbitrary and capricious:

A private college, “having accepted a charter and having thus become a quasi-governmental body, can be compelled in a[ CPLR] article 78 proceeding to fulfill not only obligations imposed upon them by State or municipal statutes but also those imposed by their internal rules” …  Thus, a CPLR article 78 proceeding is the appropriate vehicle for judicial review of matters involving a determination of a professor’s benefits and privileges of his or her academic tenure … .

As “the administrative decisions of educational institutions involve the exercise of highly specialized professional judgment and these institutions are, for the most part, better suited to make relatively final decisions concerning wholly internal matters” … . Deference should be accorded to a college’s determination, “and judicial review is circumscribed to whether the [college] failed to substantially comply with its internal rules and whether its decision was arbitrary [and] capricious or made in bad faith … . ….

… [T]he record confirms … there were no procedural rule violations. …

… [T]he record confirms that Supreme Court did not give appropriate deference to respondents’ interpretation of the termination preference — as set forth in chapter 2, § E (1) (1.6) of the manual …  — and that Supreme Court improperly concluded that respondents’ determination was arbitrary and capricious.  Matter of Hansbrough v College of St. Rose, 2022 NY Slip Op 05915, Third Dept 10-20-22

Practice Point: A court’s Article 78 review of a private college’s elimination of faculty positions in response to a budget shortfall is limited to a determination whether the college acted irrationally or arbitrarily and capriciously. Here the record indicated the college followed the relevant rules in the college manual, i.e.,  the college acted rationally.

 

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DISNEY WAS DEDUCTING ROYALTY PAYMENTS MADE BY AFFILIATES WHICH DID NOT PAY NEW YORK TAXES; THE TAX LAW WAS DESIGNED TO PLUG THAT “LOOPHOLE” AND THE DEDUCTIONS WERE PROPERLY DISALLOWED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined the Tax Law did not permit petitioner to deduct royalty payments made by affiliates organized under the law of foreign countries pursuant to intellectual-property licensing agreements. The opinion is too detailed and comprehensive to be fairly summarized here: Essentially, the petitioner was deemed to be taking advantage of a “loophole” to avoid paying franchise taxes which had been addressed and closed by the Tax Law:

At the hearing, the Department’s employees testified that petitioner was denied the royalty deduction because the foreign affiliates it had received payments from were not New York taxpayers. The ALJ [Administrative Law Judge] found that “[t]he addback and exclusion provisions contained in Tax Law [§ 208 former] (9) (o) work in tandem to ensure that royalty transactions between related members are taxed only once” and do “not escape taxation altogether.” In determining that petitioner’s interpretation of the statute effectively allowed it to avoid taxation on that income, which went against the Legislature’s intent in enacting the statute, the ALJ concluded that the Department’s interpretation of the statute was rational and therefore petitioner was not permitted to deduct royalty payments from its income. When the Tribunal affirmed the findings of the ALJ, it added that “the [L]egislature did not intend for a taxpayer to gain the benefit of the income exclusion . . . without the corresponding cost to a related member of the add back.”  Matter of Walt Disney Co. & Consol. Subsidiaries v Tax Appeals Trib. of the State of N.Y., 2022 NY Slip Op 05898, Third Dept 10-20-22

Practice Point: Disney was deducting royalty payments made by affiliates which did not pay New York taxes. The Third Department determined the Tax Law did not allow the deductions.

 

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DESPITE THE DRIVER’S FAILURE TO USE A TURN SIGNAL AS THE JUSTIFICATION FOR THE TRAFFIC STOP, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THE STOP WAS ACTUALLY BASED UPON RACIAL PROFILING; IN THE FIRST DEPARTMENT THE “TURN SIGNAL” GROUND FOR THE STOP WOULD BE ENOUGH, EVEN IF THE STOP WAS ACTUALLY MOTIVATED BY DISCRIMINATION; NOT SO IN THE THIRD DEPARTMENT (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Lynch, disagreeing with the First Department, determined defendant was entitled to a hearing on his motion to vacate his conviction on the ground the traffic stop was motivated by racial profiling. The traffic stop was justified by the driver’s failure to use a turn signal. In the First Department, that is good enough, even if racial profiling was the real reason for the stop. Not so in the Third Department:

… [Defendant] asserted a violation of his constitutional rights … based on the allegedly discriminatory police stop. Defendant, who is black, supported this claim with sworn affidavits from himself and the vehicle’s driver. The driver — a white woman — averred in her affidavit that, during the police encounter, the investigator who initiated the stop chided her, saying “you stupid little white b****, you think this black guy cares about you, but he’s just using you to run drugs.” .* * *

… [W]e are mindful that both the majority and dissent in Robinson rejected as unworkable the “primary motivation” subjective test for a traffic stop (see People v Robinson, 97 NY2d at 353; id. at 371 …). We abide by that conclusion. Whether a traffic stop was premised on racial profiling must be assessed objectively with reference to the facts and circumstances of the encounter. Such considerations may include, for example, whether the arresting officers were involved in a plausible investigation prior to executing the vehicle stop. Also important — and certainly most relevant here — is consideration of the officers’ actions and comments during the encounter. …

Defendant [submitted] the sworn affidavit of the driver of the vehicle, who … recounted a highly concerning racist statement ostensibly made by the investigator conducting the stop. … [T]he People neither controverted the driver’s statement nor included an affidavit from the investigator doing so … . Having demonstrated his right to a hearing (see CPL 440.30 [5]), defendant bears the burden of proving his claims by a preponderance of the evidence … . In resolving the motion, the court should undertake an objective analysis of the facts and circumstances of the entire police encounter. People v Jones, 2022 NY Slip Op 05892, Third Dept 10-20-22

Practice Point: In the Third Department, even if there exists a valid reason for a vehicle stop, here the failure to use a turn signal, the stop may still be deemed invalid if it was motivated by racial profiling. In the First Department, the turn-signal violation would be enough, even if the actual motivation was discriminatory.

 

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NYC DEPARTMENT OF EDUCATION’S (DOE’S) DENIALS OF PETITIONERS’ APPLICATIONS FOR ADMISSION TO THE CITY’S SPECIALIZED HIGH SCHOOLS (SHS’S) WERE NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, determined the NYC Department of Education’s (DOE’s) denials of petitioners’ applications for admission to NYC’s Specialized High Schools (SHS’s) were not arbitrary and capricious. The opinion includes a detailed history of the SHS’s and detailed explanations of the criteria for admission of students deemed to be disadvantaged within meaning of the SHS’s Discovery program. The petitioners were not disadvantaged students. It is difficult to discern the precise nature of the petitioners’ claims from the opinion, but it appears petitioners were questioning the propriety of the implementation of the Discovery program for disadvantaged students. Matter of C.K. v Tahoe, 2022 NY Slip Op 05899, Third Dept 10-20-22

Practice Point: In this Article 78 proceeding the petitioners were students who were denied admission to NYC’s Specialized High Schools (SHS’s), The petitioners, who were not disadvantaged within the meaning the SHS’s Discovery program, apparently questioned the propriety of the implementation of the Discovery program for disadvantaged students. The Third Department held that the Department of Education’s denials of the petitioners’ applications for admission were not arbitrary and capricious.

 

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THE EVIDENCE DID NOT DEMONSTRATE A CHANGE IN CIRCUMSTANCES WARRANTING A MODIFICATION OF THE CUSTODY ARRANGEMENT, FAMILY COURT REVERSED (THIRD DEPT). ​

The Third Department, revering Family Court, determined the evidence did not demonstrate a change in circumstances sufficient to warrant a modification of the custody arrangement:

The father’s primary contention was that the change in his work schedule constituted a sufficient change in circumstances. In that regard, at the time that the 2016 order was entered, the father was working weekday night shifts. When the father filed the instant petition, his work schedule was such that he was working a continuous four-day-on, four-day-off schedule. However, in the midst of the hearing, the father revealed that his work schedule had again changed, this time to Monday through Thursday from 4:00 p.m. to 2:00 a.m., which aligned much more closely with his schedule as of the 2016 order. In our view, this does not constitute a sufficient change in circumstances to trigger a best interests analysis. As for the other factors relied upon by Family Court, there was no showing that the mother’s new job, the parties’ new residences, their new relationships, or the introduction of half-siblings and a stepsibling into the child’s life “constitute[d] changed circumstances evidencing any infirmity in the present custody arrangement” … . Accordingly, the father failed to meet his burden of establishing the necessary change in circumstances, and the petition should have been dismissed. Matter of Kenneth N. v Elizabeth O., 2022 NY Slip Op 05904, Third Dept 10-20-22

Practice Point: Here the evidence relied on by Family Court did not amount to a change in circumstances warranting a modification of custody. The evidence included: mother’s new job, the parties’ new residences, the parties’ new relationships, and more children.

 

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THE EVIDENCE DID NOT SUPPORT FAMILY COURT’S SUA SPONTE FINDING THERE HAD BEEN A CHANGE IN CIRCUMSTANCES, I.E., A BREAKDOWN IN COMMUNICATION BETWEEN MOTHER AND FATHER, WARRANTING A MODIFICATION OF THE CUSTODY ARRANGEMENT AND AWARDING SOLE CUSTODY TO MOTHER (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should not have, sua sponte, found there had been a change in circumstances, i.e., a breakdown in communication between mother and father,  justifying awarding sole custody to mother. The evidence did not support the finding that communication had broken down:

… Family Court erred in determining that the parties being unwilling or unable to cooperatively raise the child constituted a change in circumstances and sua sponte modifying the prior order. … Initially, the parties did provide some evidence as to how each has failed to properly communicate with respect to the child, such as the father being unresponsive to the mother’s messages regarding child support payments and the mother failing to inform him that she had unenrolled the child from daycare. However, the mother acknowledged that the father has been able to communicate with her via the TalkingParents app to discuss issues regarding the child, such as custodial exchange dates. The father similarly stated that he has been able to communicate with the mother via email. Thus, although their communication is strained at times, partially as a result of these proceedings, the record does not establish that it has completely broken down … . Indeed, “[t]he record establishes that the parties’ relationship was no more antagonistic during [the relevant time] period than it was at the time of the entry of the original order” … , which, in this case, was only two months prior to the filing of the father’s petition. Accordingly, Family Court should not have proceeded to a best interest analysis and, instead, should have continued the joint legal custody arrangement reflected in the prior order … .Matter of Karl II. v Maurica JJ., 2022 NY Slip Op 05905, Third Dept 10-20-22

Practice Point: Here the evidence did not support the Family Court judge’s sua sponte finding that communication between mother and father had broken down warranting a modification of the custody arrangement.

 

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THE PLEADINGS ALLEGED THE NEGLIGENCE OF THE HOSPITAL’S “AGENTS AND EMPLOYEES” AND PLAINTIFF’S EXPERT POINTED TO THE ALLEGED NEGLIGENCE OF THE EMERGENCY ROOM PHYSICIAN WHO TREATED PLAINTIFF’S DECEDENT; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE HOSPITAL WOULD BE VICARIOUSLY LIABLE FOR THE EMERGENCY ROOM PHYSICIAN’S ACTS OR OMISSIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether the defendant hospital was vicariously liable for the acts or omissions of the emergency room doctor, Vaugeois, who treated plaintiff’s decedent. Although the complaint did not name Vaugeois as a defendant, the pleadings alleged the negligence of defendant’s agents and employees:

… [Plaintiff’s expert] points to Vaugeois, the hospitalist who admitted and initially rendered care to decedent, as the negligent party. … [P]laintiff’s bill of particulars speaks to defendant’s “agents and employees, specifically including” Smithem and Dey [who had been dropped from the suit]. The word “including” is not exclusive, leaving open the prospect that vicarious liability was premised on the negligence of other providers. “A hospital is responsible for the malpractice of . . . a professional whom it holds out as performing the services it offers, even though in fact he or she is an independent contractor” … . At the very least, a question of fact is presented as to whether liability may be imposed against the hospital based on an apparent authority theory … . “Pursuant to that theory, under the emergency room doctrine, ‘a hospital may be held vicariously liable for the acts of an independent physician if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician'” … . Fasce v Catskill Regional Med. Ctr., 2022 NY Slip Op 05906, Third Dept 10-20-22

Practice Point: The pleadings alleged negligence on the part of defendant hospital’s “agents and employees.” Plaintiff’s expert alleged the emergency room physician was negligent. Therefore, there was a question of fact whether the hospital would be vicariously liable for the acts or omissions of the emergency room physician.

 

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THE PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT TO CURE THE OMISSION OF THE “PRIOR WRITTEN NOTICE” REQUIREMENT IN THIS SIDEWALK SLIP AND FALL CASE; THE AMENDMENT WAS NOT PALPABLY DEVOID OF MERIT AND WOULD NOT PREJUDICE THE CITY DEFENDANT; PLAINTIFF DID NOT NEED TO PRESENT ANY PROOF ON THE ISSUE; THEREFORE THE AMENDMENT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROOF SUBMITTED WAS INSUFFICIENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff should have been allowed to amend the complaint to cure a pleading omission in this slip and fall case. The complaint did not allege the defendant city had written notice of the sidewalk condition which allegedly caused plaintiff’s fall. The amendment sought to cure the omission. The Third Department explained that plaintiff did not need to present any proof at this pre-discovery stage. As long as the amendment is not palpably devoid of merit and does not prejudice the defendant  it should have been allowed. Therefore Supreme Court should not have considered plaintiff’s “written notice” proof and denied the amendment on the ground the proof did not demonstrate the defendant city had written notice of the condition:

As it is undisputed that plaintiff timely filed a notice of claim concerning her fall and the City and plaintiff thereafter participated in a 50-h hearing (see General Municipal Law§ 50-h), the City cannot allege prejudice or surprise. Moreover, as demonstrated by her proposed amended complaint, plaintiff is not changing her theory of causation, but merely curing her pleading omission. Although Supreme Court correctly determined that the proposed amended complaint cured the pleading omission, its attendant conclusion that “[plaintiff’s] claim is belied by the documentary evidence” and subsequent dismissal of the action on that basis was error.

At this stage of the litigation, where discovery has not yet even commenced, plaintiff has no burden to submit any proof. As such, the documents that she did submit are of no moment, and do not provide a basis upon which to dismiss her action … .. … [C]ontrary to the City’s assertion that the proposed amended complaint contains bare legal conclusions, plaintiff need not establish the merits of the proposed amendments … . Inasmuch as the proposed amendments were not palpably insufficient or patently meritless, and the City cannot allege surprise or prejudice as the proposed amended complaint otherwise contains facts formerly pleaded and previously known to it, leave should have been granted to amend the complaint … . Mohammed v New York State Professional Fire Fighters Assn., Inc., 2022 NY Slip Op 05909, Third Dept 10-20-22

Practice Point: Here plaintiff’s motion seeking leave to amend the slip and fall complaint by curing the omission of the “written notice” allegation should have been granted. Plaintiff did not need to present proof that the city actually had written notice. The only issues before the court were whether the amendment was palpably devoid of merit or the amendment would prejudice the city. Therefore Supreme Court erred by considering the “written notice” evidence presented by the plaintiff and denying the amendment because that evidence did not prove the city had written notice of the sidewalk condition.

 

PETITIONER, AN ADMINISTRATIVE LAW JUDGE, WAS INJURED WHEN A HEAVY SELF-CLOSING DOOR CLOSED ON HER AS SHE LEFT THE HEARING ROOM; THE INCIDENT WAS AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW ENTITLING PETITIONER TO DISABILTIY BENEFITS (THIRD DEPT).

The Third Department, reversing the finding that petitioner was not injured in an “accident,” determined petitioner was entitled to disability benefits. Petitioner, an administrative law judge, was injured leaving a hearing room when a heavy door closed on her:

… [P]etitioner bears the burden of establishing that the disability was the result of an accident, which is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” … . “Under this standard, petitioner was required to demonstrate that [her] injuries were caused by a precipitating event that was sudden, unexpected and not a risk inherent in [her] ordinary job duties” … . …

Although petitioner was aware of the hazard posed by the heavy, self-closing door, she reasonably expected that the supervisor, who was holding the door open, would continue to do so as petitioner walked through. Thus, petitioner demonstrated that her injuries were caused by a “sudden [and] unexpected” precipitating event — the supervisor letting go of the heavy, self-closing door while petitioner walked through it — which was not a risk inherent in her job duties …. Matter of Campbell v DiNapoli, 2022 NY Slip Op 05911, Third Dept 10-20-22

Practice Point: Here a heavy self-closing door closed on the petitioner, an administrative law judge, as she left the hearing room. The incident was “sudden, unexpected and not a risk inherent in her ordinary job duties.” Therefore the incident was an “accident” under the Retirement and Social Security Law, entitling petitioner to disability benefits.

 

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