You are here: / Third Department

Tag Archive for: Third Department

,

THE NOTICE OF TERMINATION OF A LEASE DID NOT COMPLY WITH THE HUD REGULATION REQUIRING THAT THE REASONS FOR TERMINATION BE STATED WITH ENOUGH SPECIFICITY TO ALLOW THE TENANT TO MOUNT A DEFENSE; EVICTION ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Lynch, determined the landlord did not comply with the HUD regulation requiring that a notice of termination of a lease state the reasons for the termination with enough specificity to allow the tenant to mount a defense. The issue was raised by respondent-tenant’s oral general denial:

In our view, the notice of termination was deficient, as it did not set forth the factual predicates underlying the alleged violation of the lease terms, instead merely paraphrasing the lease and the underlying regulation … . No specific incident is described in the notice, nor are any specific facts. The regulatory standard of requiring “enough specificity so as to enable the tenant to prepare a defense” demands more detail as to the nature of the asserted misconduct (24 CFR 247.4 [a] [2]). Matter of Metro Plaza Apts., Inc. v Buchanan, 2022 NY Slip Op 01087, Third Dept 2-17-22

 

THE BOARD ACCEPTED ONE EXPERT’S OPINION AND REJECTED THE OTHER BASED ON AN ISSUE THE EXPERTS WERE NEVER ASKED ABOUT; DECISION REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board relied on an issue the experts were never asked about. One expert (Katz) found that claimant lost 3.3% of his hearing and the other (Alleva) found claimant had lost 45.3% of his hearing. The Board rejected Alleva’s opinion and adopted Katz’s concluding claimant had not explained how he could have done his job with a 50% hearing loss, an issue not discussed by the experts:

Although ‘[t]he Board’s authority in assessing the credibility of witnesses includes the power to selectively adopt or reject portions of a medical expert’s opinion, . . . as with any administrative determination, the Board’s decision in this regard must be supported by substantial evidence” … . There is no evidence in the record that Alleva was asked to explain how claimant was able to work with a 45.3% loss of hearing. Nor is there any evidence in the record that the issue of whether claimant’s hearing loss would have affected his job performance was ever raised by either party or their medical experts before the Workers’ Compensation Law Judge. In light of the dearth of evidence supporting the conclusions reached by the Board, we cannot say that its decision was supported by substantial evidence in the record. Matter of Mogilevsky v New York City Tr. Auth., 2022 NY Slip Op 01088, Third Dept 2-17-22

 

,

ALLOWING THE PEOPLE’S INVESTIGATOR TO GO INTO THE JURY ROOM DURING DELIBERATIONS TO SHOW THE JURORS HOW TO OPERATE A DIGITAL RECORDER WAS A MODE OF PROCEEDINGS ERROR THAT REQUIRED REVERSAL, DESPITE THE DEFENDANT’S CONSENT TO THE PROCEDURE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined the People’s investigator should not have been allowed to go into the jury room during deliberations to show the jurors how to operate a digital recorder. Although the defendant consented to the procedure, the Third Department decided the error was a “mode of proceedings” error which did not require preservation:

Pursuant to CPL 310.10 (1), a deliberating jury must be “under the supervision of a court officer” or “an appropriate public servant” and, “[e]xcept when so authorized by the court or when performing administerial duties with respect to the jurors, such court officer[] or public servant[] . . . may not speak to or communicate with [the jurors] or permit any other person to do so” … . Certainly, the People’s investigator cannot be said to be an appropriate public servant to interact with the jury in the deliberation room. Also troubling is the lack of a record of what occurred while the investigator was in the deliberation room. Indeed, the “right to a trial by jury in criminal cases is ‘fundamental to the American scheme of justice’ and essential to a fair trial. At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors” … . Given that the procedure that occurred here, allowing a representative of the People to interfere in the jury’s secret deliberations, goes “to the essential validity of the process and [is] so fundamental that the entire trial is irreparably tainted”… , we must reverse and remit for a new trial.  People v Jones, 2022 NY Slip Op 01069, Third Dept 2-17-22

 

,

DEFENDANT SHOULD NOT HAVE BEEN RESENTENCED ON THE ORIGINAL CHARGE PURSUANT TO CPL 420.10 FOR FAILURE TO PAY RESTITUTION; THE JUDGE DID NOT MAKE THE STATUTORILY REQUIRED FINDINGS FOR RESENTENCING UNDER THAT STATUTE; RESENTENCE VACATED (THIRD DEPT).

The Third Department, reversing County Court, vacated defendant’s resentence. Once a defendant is sentenced, the court no longer has jurisdiction over the matter. Here, after it was determined defendant had willfully failed to pay the ordered restitution, defendant was resentenced to prison on the original conviction. By statute a defendant may be resentenced for failure pay restitution, but only after the court makes a finding the defendant is unable to pay due to indigency. No such finding was made here:

CPL 420.10 (3) provides that, when a court imposes restitution as part of a defendant’s sentence, the court can imprison the defendant if he or she fails to pay restitution; such provision authorizing imprisonment for failure to pay restitution can be set forth at the time of sentencing or may be added “at any later date while the . . . restitution . . . or any part thereof remains unpaid” (CPL 420.10 [3]). Although County Court therefore retained jurisdiction under the auspices of this statute, it erred in resentencing defendant pursuant to CPL 420.10 (5). As relevant here, CPL 420.10 (5) provides that, “[i]n any case where the defendant is unable to pay a fine, restitution or reparation imposed by the court, he [or she] may at any time apply to the court for resentence.” Resentencing is authorized “if the court is satisfied that the defendant is unable to pay the fine, restitution or reparation” (CPL 420.10 [5]). Here, there was no finding by the court that defendant was unable to pay the restitution due to indigency … . … [W]e refuse to equate defendant’s acceptance of the global agreement [agreeing to 81/2 to 25 years in prison including time served] with the application necessary to resentence him under CPL 420.10 (5) … . County Court could have sentenced defendant to a year in prison for his failure to pay under CPL 420.10 (3) and (4), but it did not. As it erred in utilizing CPL 420.10 (5), the resentence must be vacated. People v Marone, 2022 NY Slip Op 01070, Third Dept 2-17-22

 

, , ,

THE 3RD DEPARTMENT, JOINING THE 2ND, HOLDS THAT A DEFENDANT HAS A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT A SORA RISK-LEVEL PROCEEDING, DESPITE ITS CIVIL NATURE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE; THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Garry, determined: (1) defendant was entitled to and did not receive effective assistance of counsel at the SORA risk-level proceeding (which is civil in nature). despite his decision not to appear; and (2) the SORA judge did not make the required findings of fact and conclusions of law, requiring remittal:

Despite SORA proceedings being civil in nature, not criminal … , we now join the Second Department in explicitly holding that SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings (see Correction Law § 168-n [3]) would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest … .

… Although defendant waived his right to be present at the SORA hearing, he did not waive his right to contest the Board’s risk level recommendation or the People’s arguments and proof … . Counsel — who acknowledged at the hearing that he had “had no contact” with defendant — made no arguments, essentially agreed to the Board’s recommendation, and failed to require the People to admit any proof at the hearing or County Court to provide any reasoning for its determination. … The record … reveals that counsel, who did not communicate with his client at all and “failed to litigate any aspect of the adjudication,” did not provide effective representation … . As defendant was deprived of the effective assistance of counsel, upon remittal he is entitled to a new hearing with different assigned counsel. People v VonRapacki, 2022 NY Slip Op 01071, Third Dept 2-17-22

 

, ,

COUNTY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT FOR DEFENDANT’S REQUEST FOR A DOWNWARD DEPARTURE IN THIS SORA RISK LEVEL PROCEEDING; ORDER REVERSED AND MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court failed to make the required findings of fact for defendant’s request for a downward departure:

Defendant … argues that County Court erred in denying his request for a downward departure. Although the court did expressly deny this request in the order, it did not detail the factual findings in support of its conclusion. Thus, we are unable to ascertain the court’s reasoning for denying defendant’s request. Consequently, we reverse and remit for County Court to set forth its findings of fact for denying [*2]defendant’s request for a downward departure as required … . People v Harvey, 2022 NY Slip Op 01073, Third Dept 2-17-22

 

,

PLAINTIFF’S ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS FALL FROM A MAKESHIFT PLATFORM ON A LULL (FORKLIFT) USED TO REACH ELEVATED AREAS; PLAINTIFF’S MOTION FOR A DIRECTED VERDICT ON HIS LABOR LAW 240(1) CAUSE OF ACTION AGAINST THE HOMEOWNER WHO LEASED THE LULL AND DIRECTED PLAINTIFF’S WORK SHOULD HAVE BEEN GRANTED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff’s motion for a directed verdict on his Labor law 241(6) cause of action should have been granted. Plaintiff fell from a makeshift platform he placed on a lull (forklift) to reach elevated areas of a house he was wrapping with an insulation material (Tyvek). The central question was whether plaintiff’s own actions were the sole proximate cause of his fall and injuries:

… [I]t is beyond dispute that the lull was not an adequate safety device for the elevated work being performed by plaintiff at the time of his fall … . This conclusion is not changed by defendant’s provision of harnesses incompatible with the lull … . Plaintiff’s accident was plainly the direct result of the makeshift lull setup failing, and the parties are therefore in agreement that, unless plaintiff’s choice not to use other available safety devices when installing the Tyvek was the sole proximate cause of his own injuries, plaintiff has established his Labor Law § 240 (1) claim.

Plaintiff indeed brought extension ladders and scaffolding with him to the job site, and it appears that defendant provided some ladders as well. …[T]here is simply no trial evidence to suggest that plaintiff knew he was expected to use a ladder or scaffolding to wrap the front of the house with Tyvek. It is uncontroverted that use of the lull with a makeshift platform had become commonplace at the job site in the weeks preceding plaintiff’s accident, that the scaffolding was set up at the rear of the house specifically because the lull could not traverse the terrain there and that defendant’s only affirmative safety-related instructions to plaintiff regarding the subject elevated work were to either use a harness or construct a platform, both of which involved use of the lull. As proof of the foregoing element is lacking, there is no rational process by which a jury could conclude that plaintiff was the sole proximate cause of his own injuries … . DeGraff v Colontonio, 2022 NY Slip Op 01074, Third Dept 2-17-22

 

, ,

DEFENDANT, BASED ON ITS STATUS AS BAILOR OF THE MACHINE WHICH ALLEGEDLY INJURED PLAINTIFF, MAY BE LIABLE UNDER BREACH OF WARRANTY AND STRICT PRODUCTS LIABILITY CAUSES OF ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decisions addressing many issues not summarized here, noted that breach of warranty and strict products liability causes of action can arise from a bailment. Here plaintiff alleged she was injured by a machine (called a “table”) and defendant was the “owner” of the table by virtue of its status as bailor:

In light of … material issues of fact as to whether defendant owned and/or was bailor of the table, we find that Supreme Court erred in granting defendant’s motion for summary judgment as to the breach of implied warranty cause of action. As “[t]here is, in fact, no substantive distinction between [the theories of breach of implied warranty and strict products liability] in the context of this case” … , we reach this same conclusion as to the strict products liability cause of action. Reese v Raymond Corp., 2022 NY Slip Op 01077, Third Dept 2-17-22

 

, ,

ALTHOUGH THE PETITIONER, COUNTY COMMISSIONER OF SOCIAL SERVICES, WAS PROPERLY TERMINATED FROM HER EMPLOYMENT FOR OTHER REASONS, THE FACT THAT SHE TESTIFIED IN FAMILY COURT ABOUT THE PROPER PLACEMENT OF A JUVENILE WHICH WAS NOT AS SEVERE AS THE PLACEMENT ADVOCATED BY THE COUNTY ATTORNEY AND THE PROBATION DEPARTMENT DID NOT CONSTITUTE A BREACH OF LOYALTY (THIRD DEPT).

The Third Department, in this Article 78 action, affirmed the county’s decision to terminate the employment of petitioner, who was Commissioner of Social Services for the county. The allegations of misconduct are too detailed to be summarized here. But the Third Department noted that the fact that the petitioner disagreed with the county attorney and the probation department about the appropriate placement of a juvenile, and so testified in Family Court, was not actionable misconduct:

… [P]etitioner, the Director of Probation and the County Attorney each had defined statutory roles in the Family Court proceeding … . That petitioner opted to promote a less stringent measure than her counterparts does not, as charged by respondents, constitute a breach of loyalty owed to either the County Attorney or the Director of Probation, or vice versa. … [T]o the extent that the Board relied, at all, on the Hearing Officer’s findings with respect to [the relevant] charge … , its determination is not supported by substantial evidence. It therefore follows that so much of the Board’s determination as sustained said specifications are annulled. Matter of Scuderi-Hunter v County of Del., 2022 NY Slip Op 01078, Third Dept 2-17-22

 

, ,

ALTHOUGH THE PLANS FOR THE EXPANSION OF A HOSPITAL WERE NOT YET FINALIZED, IT WAS CLEAR THAT SUCH AN EXPANSION WAS AN ANTICIPATED RESULT OF THE PROPOSED ZONING CHANGE; THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) PROHIBITION OF “SEGMENTATION” REQUIRED CONSIDERATION OF THE EXPANSION AS PART OF THE “HARD LOOK” AT THE CONSEQUENCES OF THE ZONING CHANGE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the respondents (city) did not take the requisite “hard look,” required by the State Environmental Quality Review Act (SEQRA), at the environmental consequences before approving a zoning change that would allow an expansion of a hospital. Although there were no finalized plans to expand the hospital, it was clear that the zoning change was a first step in an expected expansion. Failure consider the expansion constituted a prohibited form of “segmentation:”

As to the segmentation claim, although the City Council was not presented with any impending, specific development proposals, rezoning parcel 1 was the “first step” in the process of eventually developing parcel 1 … . In essence, before Saratoga Hospital could move forward with any development and expansion, it needed to acquire the “right” to do so … . The zoning map amendment for parcel 1 provided just that; it would be the green light to reignite development plans. … [T]he potential development of the parcel here was not so attenuated from the zoning map amendment that reviewing an expansion of the hospital constituted permissible segmentation … . Thus, the City Council was “obligated to consider the impacts to be expected from such future development at the time of rezoning, even absent a specific site plan for the project proposal” … . Matter of Evans v City of Saratoga Springs, 2022 NY Slip Op 01079, Third Dept 2-17-22​

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy