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THERE WAS INSUFFICIENT EVIDENCE DEFENDANT PARTICIPATED IN THE MUGGING, INSUFFICIENT EVIDENCE THE VICTIM SUFFERED PHYSICAL INJURY, AND INSUFFICENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED THE VICTIM’S WALLET AND CELL PHONE (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the convictions were not supported by legally sufficient evidence and were against the weight of the evidence. The victim said he was mugged by three men and his wallet and cell phone were stolen. The police were able to track the cell phone and, based on the tracking device, stopped a car 30 to 40 minutes after the mugging. There were four men, including defendant, in the car. The other three men in the car pled guilty. The wallet and cell phone were found in the car. The evidence that defendant participated in the mugging was insufficient, the evidence the victim suffered physical injury was insufficient, and the evidence defendant constructively possessed the wallet and cell phone was insufficient:

… [W]e find that the People failed to prove, beyond a reasonable doubt, defendant’s identity as one of the perpetrators of the robbery and assault.  * * *

Given the paucity of proof regarding the victim’s injuries, we agree with defendant that the evidence fails to establish that the victim suffered a physical injury within the meaning of Penal Law § 10.00 (9) … . * * *

… [T]he … circumstantial evidence falls short of proving, beyond a reasonable doubt, that defendant constructively possessed the wallet and the credit and debit cards contained therein or that any such possession was knowing. Although the testimony demonstrated that the wallet was found somewhere in the back seat, there was no other evidence connecting defendant to the stolen property or demonstrating his awareness of its presence inside the vehicle. … [T]he victim asserted that there were three black males involved in the robbery and assault and there were four black males in the vehicle when it was stopped some 30 to 40 minutes afterward, leaving open the possibility that one of the passengers entered the vehicle after the robbery and assault … . People v Green, 2021 NY Slip Op 02841, Third Dept 5-6-21

 

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CLAIMANT-INMATE’S ACTION AGAINST THE STATE ALLEGING HE WAS BEATEN BY CORRECTIONS OFFICERS SHOULD NOT HAVE BEEN DISMISSED; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE OFFICERS WERE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AT THE TIME OF THE BEATING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing the Court of Claims, over a two-justice dissent, determined the claimant-inmate’s action alleging claimant was beaten by corrections officers after lodging a complaint against one of the officers (Poupore) should not have been dismissed. The Court of Claims ruled the state could not be liable for the beating because the officers were not acting within the scope of their employment:

… [T]he undisputed evidence demonstrated that the incident took place at Clinton Correctional Facility, that the correction officers involved were on duty and that claimant’s encounter with Poupore by the stairway was occasioned by claimant having been called downstairs for an interview with Wood [Poupre’s supervisor] … . … [T]estimony from defendant’s witnesses demonstrated that pat frisks are routinely conducted prior to inmate interviews and that Poupore was instructed to pat frisk claimant prior to his interview. Accepting claimant’s version of events as true, Poupore struck claimant during the course of that employer-sanctioned pat frisk, which then led to the involvement of additional correction officers. If claimant’s account is credited, Poupore’s intentional tortious act of punching claimant in the head was not so divorced from the performance of his pat-frisk duties so as to preclude a finding that he was acting within the scope of employment. Nor can we conclude as a matter of law that the ensuing altercation was wholly outside the scope of the additional correction officers’ duties. Galloway v State of N.Y., 2021 NY Slip Op 02855, Third Dept 5-6-21

 

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ALTHOUGH THE RESPONDENT-SEX-OFFENDER WAS PROPERLY ALLOWED TO REPRESENT HIMSELF IN THE CIVIL COMMITMENT PROCEEDING, HE SHOULD NOT BE ALLOWED TO CROSS-EXAMINE THE WITNESSES WHO WERE VICTIMS OF HIS SEX OFFENSES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined the respondent-sex-offender in this civil commitment proceeding, who was properly allowed to represent himself with a Mental Hygiene Legal Service (MHLS) attorney as stand-by counsel, should not be allowed to cross-examine the witnesses who had been victims of the respondent’s offenses. The cross-examination should be done by stand-by counsel:

… [A]llowing respondent to personally conduct the cross-examinations of the victim witnesses could thwart or impair petitioner’s ability to sustain its burden of proof by causing the witnesses to back out of testifying or by causing a “chilling effect” on their testimony. Moreover, petitioner has a compelling interest in protecting the victim witnesses from any possible retraumatization resulting from respondent personally conducting cross-examinations of them.

Upon balancing the foregoing Mathews factors, we find that, to the extent that respondent has a due process right to self-representation, such right does not entitle him to personally conduct the cross-examinations of the victim witnesses whom he was adjudicated or alleged to have victimized. Thus, notwithstanding respondent’s pro se status, the cross-examinations of the victim witnesses must be conducted by respondent’s standby counsel (MHLS) or, should respondent prefer, other court-appointed counsel. Matter of State of N.Y. v John T., 2021 NY Slip Op 02862, Third Dept 5-6-21

 

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OWNERS OF BUSINESSES IN THE VICINITY OF THE PROPOSED CONSTRUCTION ALLEGED DECREASED PARKING SPACES, INCREASED TRAFFIC CONGESTION AND THE BLOCKING OF SCENIC VIEWS AS REASONS FOR OVERTURNING THE SEQRA NEGATIVE DECLARATION ALLOWING THE CONSTRUCTION; THE BUSINESS OWNERS DID NOT HAVE STANDING TO CONTEST THE DECLARATION (THIRD DEPT).

The Third Department upheld the negative SEQRA (State Environmental Quality Review Act) declaration approving the construction of a mixed use structure which would reduce the number of parking spaces available in Oneonta. The fact that the petitioners owned businesses in the vicinity of the new construction did not confer standing to contest the negative declaration:

Although petitioners have established that their businesses are within close proximity to the project site, that fact alone does not confer automatic standing in the SEQRA context … . Petitioners’ allegations largely hinged on economic business concerns occasioned by an alleged decrease in available parking … , and their claim relating to traffic impacts “fail[s] to demonstrate an environmental injury different from that suffered by the public at large” … . Although the obstruction of a scenic view may constitute an environmental injury within the zone of interests sought to be protected by SEQRA … , the concerns espoused by certain petitioners regarding potential adverse scenic impacts to their businesses were undeveloped and otherwise too speculative to establish standing in these circumstances … . We also note that the project site is located in a “mixed use” district (MU-1) — which permits the type of development contemplated — and, according to the full environmental assessment form, there are no officially designated scenic or aesthetic resources located within five miles … . Matter of Peachin v City of Oneonta, 2021 NY Slip Op 02863, Third Detp 5-6-21

 

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ALTHOUGH THE VICTIM WAS SHOT AND THE BULLET PASSED THROUGH HIS LEG, THE PROOF REQUIREMENTS FOR SERIOUS PHYSICAL INJURY WERE NOT MET; ASSAULT SECOND CONVICTIONS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department determined that although the victim had been shot, the evidence of serious physical injury was insufficient. The court reduced the assault second convictions to assault third:

The victim asserted that the bullet entered through the back of the leg just below the kneecap and exited through the front of the leg just above the kneecap. * * *

There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim’s injuries caused a substantial risk of death or were life threatening” … . Similarly, the evidence failed to show “that the victim suffered from a protracted impairment of health or protracted loss or impairment of the function of a bodily organ” … . Although there was testimony regarding the long-term effects of the gunshot wound, no corresponding medical documentation was submitted as proof of the link between the impairment and the initial injury … . Further, although the victim testified that he had two circular scars from the bullet, this testimony alone is not sufficient to support a finding of serious disfigurement … . To prove that the victim’s scars were a serious disfigurement would have required the People to make a record of it, via either a photograph or a detailed description; here, however, the testimony establishes “no more than that the victim had two scars” … .

Although the evidence “falls short of satisfying the statutory definition of serious ‘physical injury'” … , there is no dispute that the victim sustained a “physical injury” (Penal Law § 10.00 [9]). People v Smith, 2021 NY Slip Op 02564, Third Dept 4-29-21

 

VEHICULAR MANSLAUGHTER AND ASSAULT CONVICTIONS DISMISSED AS INCLUSORY CONCURRENT COUNTS OF AGGRAVATED VEHICULAR HOMICIDE AND AGGRAVATED VEHICULAR ASSAULT (THIRD DEPT).

The Third Department determined several counts should have been dismissed as inclusory concurrent counts in this vehicular homicide prosecution:

… [D]efendant’s convictions for vehicular manslaughter in the first degree, reckless driving and driving while intoxicated under counts 7, 12, 13 and 14 of the indictment must be dismissed as inclusory concurrent counts of his convictions for aggravated vehicular homicide (see CPL 300.30 [4]; 300.40 [3] [b]; Penal Law §§ 125.13 [3]; 125.14 [3], [5]; Vehicle and Traffic Law §§ 1212, 1192 [2], [3] … ). Similarly, defendant’s conviction for vehicular assault in the first degree under count 9 of the indictment must be dismissed as an inclusory concurrent count of aggravated vehicular assault (see CPL 300.30 [4]; 300.40 [3] [b]; Penal Law §§ 120.04 [3]; 120.04-a [3] …). People v Ferguson, 2021 NY Slip Op 02563, Third Dept 4-29-21

 

THE PROCESS SERVER DID NOT TIMELY FILE PROOF OF SERVICE; THEREFORE SERVICE ON DEFENDANT WAS NEVER COMPLETE AND THE DEFAULT JUDGMENT IS A NULLITY; SUPREME COURT CAN CURE THE NONJURISDICTIONAL DEFECT BY ORDERING DEFENDANT TO BE SERVED AND THE DEFENDANT MAY THEN INTERPOSE AN ANSWER (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the default judgment was a nullity because the process server did not timely file the affidavit of service. The defect is not jurisdictional and can be cured. But the default judgment cannot be reinstated retroactively. Once properly served the defendant may submit an answer:

… [P]laintiff’s process server effectuated service by delivery and mail (see CPLR 308 [2]) on November 17, 2017. Plaintiff’s proof of service, however, was not filed with the clerk of the court until December 11, 2017, more than 20 days after the delivery and mailing. Accordingly, the filing was untimely and, as such, service of process was never completed (see CPLR 308 [2] …).

… [F]ailure to timely file proof of service is only a procedural irregularity, as opposed to a jurisdictional defect, and a court may, sua sponte, issue an order curing said irregularity (see CPLR 2001, 2004 … ). “A court may not, however, make that relief retroactive to a defendant’s prejudice by placing the defendant in default as of a date prior to the order, nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur” … . Here, no such curative order was ever sought from or issued by Supreme Court and, therefore, defendant’s time to answer never began to run such that the resulting default judgment was a nullity requiring vacatur … . Miller Greenberg Mgt. Group, LLC v Couture, 2021 NY Slip Op 02566, Third Dept 4-29-21

 

QUESTION OF FACT WHETHER DEFENDANT HAD A GOOD FAITH BELIEF THAT HE OWNED THE LAND WHERE TREES WERE HARVESTED; THEREFORE THE ISSUE WHETHER THE TREBLE DAMAGES ASPECT OF RPAPL 861 APPLIES MUST BE DETERMINED AT TRIAL (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant had a good faith belief that the land on which trees were harvested was his own property. Therefore whether plaintiff was entitled to treble damages pursuant to Real Property Actions and Proceedings Law (RPAPL) 861 must be determined at trial:

“[T]he current version of RPAPL 861 was enacted . . . in an effort to deter the illegal taking of timber by increasing the potential damages for that activity” … . If a person violates RPAPL 861 by cutting another person’s trees without the other’s consent, or by causing such cutting to occur, “an action may be maintained against such person for treble the stumpage value of the tree or timber or [$250] per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation” … . However, if a defendant in such an action “establishes[,] by clear and convincing evidence, that when the defendant committed the violation, he or she had cause to believe the land was his or her own, . . . then he or she shall be liable for the stumpage value or [$250] per tree, or both” … . Thus, “a trespasser’s good faith belief in a legal right to harvest timber does not insulate that person from the imposition of statutory damages, but merely saves him or her from having to pay the plaintiff treble damages” … . “Whether treble damages pursuant to RPAPL 861 are warranted is generally a factual determination” … . Although Gregory Miller testified that he intended to remove trees only from his own property, the record reflects that he did not have a survey of the property and relied on a determination of the boundary lines based on his own measurements. We conclude that a factual question exists, as Gregory Miller has failed at this stage of the proceedings to prove by clear and convincing evidence that he had a good faith belief that he owned the land at issue … . Holser v Geerholt, 2021 NY Slip Op 02578, Third Dept 4-29-21

 

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THE MILD PENALTY IMPOSED BY THE ARBITRATOR ON AN EMPLOYEE WHO SEXUALLY HARASSED A FELLOW EMPLOYEE VIOLATED PUBLIC POLICY; MATTER REMITTED FOR IMPOSITION OF A PENALTY BY A NEW ARBITRATOR (THIRD DEPT).

The Third Department determined the mild penalty imposed by the arbitrator in this place-of-employment sexual harassment case violated public policy. The matter was remitted for imposition of a penalty by a different arbitrator. The employee, Dominie, committed several egregious acts of sexual harassment targeting another employee which led to his pleading guilty to harassment second degree. The arbitrator reinstated Dominie’s employment without conditions:

… [T]he situation here does not involve a single act of misconduct as in Barnard College. In defined contrast, we have a series of four separate, escalating and outrageous sexual harassment incidents. The events are particularly troublesome considering that Dominie engaged in annual sexual harassment training since 2013 and, when confronted by his supervisors after the two January 2017 incidents, promised not to re-offend. The events that followed were even more egregious and rise to the level of criminal conduct, as memorialized in Dominie’s guilty plea to the harassment charge. Given the extremely inappropriate nature of Dominie’s conduct, we conclude that the arbitrator’s decision violates public policy. The award fails to account for the rights of other employees to a non-hostile work environment and conflicts with the employer’s obligation to eliminate sexual harassment in the workplace … . The fact that the victimized coworker no longer worked in the office is hardly a mitigating factor. Nor is the penalty consistent with the arbitrator’s “significant concern” that Dominie failed to acknowledge his own wrongdoing. As such, we find that Supreme Court properly vacated the award as violative of the public policy prohibiting sexual harassment. We also conclude that the court was authorized to remit the matter to a different arbitrator for the imposition of a new penalty (see CPLR 7511 [d]). Matter of New York Off. for People with Dev.al Disabilities (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO), Third Dept 4-29-21

 

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THE ACTION CONTESTING THE AMENDMENT TO THE BY-LAWS OF A NOT-FOR-PROFIT CORPORATION WHICH OWNS RECREATIONAL LAND AND COLLECTS DUES FROM LOT OWNERS MUST BE BROUGHT AS AN ARTICLE 78 PROCEEDING, NOT AN ACTION FOR A DECLARATORY JUDGMENT; THE ACTION IS THEREFORE TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the amendment to the by-laws defendant not-for-profit corporation which owns land underneath a man-made lake must be contested in an Article 78 action, not a declaratory judgment action. Therefore the four-month Article 78 statute of limitations applied and the action was time-barred. The underlying dispute involved the assessment of annual dues for lots which had been exempt from dues. Plaintiffs are the owners of those lots:

Supreme Court concluded that the action being challenged was a legislative act, which cannot be challenged in a CPLR article 78 proceeding but must be maintained in a declaratory judgment action. However, the cases addressing legislative acts deal with challenges to “governmental activity,” rather than the activity of nonpublic corporations … . This is an important distinction as the rule prohibiting the use of CPLR article 78 proceedings to challenge acts of legislative bodies “is derived from the separation-of-powers doctrine,” and so “has no application to the quasi-legislative acts of administrative agencies” … . Similarly, it does not apply to the actions or decisions of nonpublic corporations. * * *

Whether defendant’s alleged interest in plaintiffs’ property is based on the imposition of restrictive covenants or the possibility of a lien if plaintiffs fail to pay dues on multiple lots, any such alleged interest would be based on the amended bylaws. Accordingly, though all of plaintiffs’ causes of action are couched in declaratory judgment language, they can be distilled to challenges to defendant’s enactment of the amended bylaws that could have been raised in a CPLR article 78 proceeding and are therefore subject to a four-month statute of limitations … . Indeed, other courts have held that a challenge to a corporation’s amendment of its bylaws must be raised via a CPLR article 78 proceeding commenced within four months of such amendment … . Doyle v Goodnow Flow Assn., Inc., 2021 NY Slip Op 02580, Third Dept 4-29-21

 

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