You are here: / Third Department

Tag Archive for: Third Department

THE DE BOUR STREET STOP REQUIREMENTS, NOT THE TRAFFIC STOP REQUIREMENTS, APPLY TO THE APPROACH OF A PERSON IN A STATIONARY CAR WITH THE ENGINE RUNNING (THIRD DEPT).

The Third Department noted that a police officer (Meskill) approaching a person in a parked car is subject to the De Bour requirements for a street stop, not a traffic stop:

With respect to the initial encounter, unlike a stop of a moving vehicle — which must be based upon reasonable suspicion of criminal activity … or probable cause to believe that a traffic violation has occurred  … — “[a] police approach to an occupied, stationary vehicle is subject to the first level of the De Bour analysis” and is justified if “supported by an objective, credible reason, not necessarily indicative of criminality” … . There is no dispute here that Meskill was authorized to approach defendant’s vehicle in response to a citizen-requested welfare check upon observing him slumped over with the engine running. People v Spradlin, 2020 NY Slip Op 06982, Third Dept 11-25-20

 

A DEFENDANT MAY PLEAD GUILTY TO A CRIME WHICH IS A LEGAL IMPOSSIBILITY OR FOR WHICH THERE IS NO FACTUAL BASIS AS LONG AS IT IS SUBJECT TO A LESSER PENALTY THAN THE CHARGED OFFENSE(S) (THIRD DEPT).

The Third Department noted that a defendant may plead guilty to a crime which is a legal impossibility and for which there is no factual basis, as long as it is a reduced charge:

Assuming without deciding that defendant is correct in claiming that his incarceration rendered any attempt to possess the pills recovered from his residence a legal impossibility, that was no bar to him “plead[ing] guilty to a nonexistent crime in satisfaction of an [accusatory instrument] charging a crime for which a greater penalty may be imposed” … . To the extent that defendant’s argument may also be construed as a claim that it was factually impossible for him to commit the crime, and assuming that such an argument survives his appeal waiver … , a factual basis is not required for a guilty plea to a reduced charge … . People v Bonacci, 2020 NY Slip Op 06980, Third Dept 11-25-20

 

, ,

PETITIONER IS ENTITLED TO DISCOVERY IN THE ARTICLE 78 PROCEEDING CONTESTING SUNY ALBANY’S FINDING PETITIONER VIOLATED THE CODE OF CONDUCT BY HAVING NONCONSENSUAL SEX; THE ALLEGED VICTIM HAS NO MEMORY OF THE INCIDENT; PETITIONER ALLEGED BIAS ON THE PART OF THE SCHOOL’S TITLE IX INVESTIGATOR (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined petitioner was entitled to discovery in petitioner’s Article 78 proceeding contesting SUNY Albany’s finding petitioner violated the school’s code of conduct. The student was accused of sexual misconduct, but the alleged victim had no memory of the incident. The investigation was conducted by respondent Chantelle Cleary, the Title IX coordinator at the school:

We agree with petitioner that Supreme Court erred in denying his motion for discovery. In a special proceeding such as this, discovery is available only by leave of court (see CPLR 408 …). “Among the factors weighed are whether the party seeking disclosure has established that the requested information is material and necessary, whether the request is carefully tailored to obtain the necessary information and whether undue delay will result from the request” … . Petitioner’s motion requested the disclosure of, among other things, “[r]ecordings of all meetings and interviews” between petitioner and the Title IX investigators, as well as “[r]ecordings of all interviews of all witnesses” conducted in furtherance of the investigation. Petitioner cited the alleged bias of Cleary, and the attendant bias on his guarantee of an impartial investigation, as the reason the requested discovery was “material and necessary”; respondents did not argue that the requested discovery was overbroad or would cause undue delay. Thus, we find that petitioner met the requirements for discovery … . …

Here, where the nonconsensual nature of the sexual activity was not predicated on the reporting individual’s verbal and physical manifestation of nonconsent — but on her ability to knowingly consent due to excessive inebriation — and the reporting individual avers no memory of the activity, the Board’s determination was necessarily heavily reliant on that part of the referral report that contained a summary of statements of persons who had observed the reporting individual during Friday evening, prior to her sexual encounter with petitioner. Notably, these are not sworn affidavits of the witnesses, but rather statements collected and compiled by the Title IX investigators. Matter of Alexander M. v Cleary, 2020 NY Slip Op 06987, Third Dept 11-25-20

 

,

SUPREME COURT PROPERLY DENIED PLAINTIFF BANK’S MOTION TO EXTEND THE TIME TO SERVE DEFENDANT IN THIS FORECLOSURE ACTION, TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined Supreme Court properly denied plaintiff bank’s motion to extend the time to serve defendant in the interest of justice:

… [A] court may, in the interest of justice, extend the time in which a plaintiff may effectuate proper service upon a defendant (see CPLR 306-b) … . Whether to grant an extension of time for service in the interest of justice is a discretionary determination, requiring the trial court to engage in “a careful judicial analysis of the factual setting of the case” and balance competing interests … . The trial court’s determination is guided by various factors and circumstances that may be taken into consideration, including the plaintiff’s diligence (or lack thereof), the expiration of the statute of limitations, whether the underlying cause of action is meritorious, the length in delay of service, whether the plaintiff promptly sought the extension of time and any prejudice that may be borne by the defendant … . This Court should not disturb the trial court’s discretionary determination unless such determination constitutes an abuse of discretion … . …

The statute of limitations had expired prior to plaintiff making its extension motion — a factor that weighs in favor of granting the extension motion. However, plaintiff engaged in a pattern of dilatory conduct throughout the action’s pendency over nearly a decade. Indeed, it took plaintiff roughly three years after commencing the action to file a request for judicial intervention and the case was administratively closed by Supreme Court on at least one occasion. Additionally, despite having been made aware of the service issue in April 2016, plaintiff did not ultimately move for an extension to serve the complaint until November 2018, roughly 2½ years later. Further, as Supreme Court recognized, the mortgage contains a significant error, which raises real concerns as to plaintiff’s ability to prevail upon the merits. In our view, Supreme Court weighed the appropriate factors and reasonably concluded that they did not militate in favor of plaintiff … . JPMorgan Chase Bank N.A. v Kelleher, 2020 NY Slip Op 06990, Third Dept 11-25-20

 

,

FATHER HAD BROUGHT HIS CHILD SUPPORT PAYMENTS CURRENT; FAMILY COURT DID NOT HAVE THE AUTHORITY TO IMPOSE A SUSPENDED JAIL SENTENCE CONDITIONED ON PAYMENT OF FUTURE CHILD SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined that once father had paid the child support arrears the court did not have the authority to impose a suspended jail sentence:

… [T]he father … is aggrieved by … the order suspending [the jail] sentence upon the condition that he comply with the support order for three years. A jail sentence imposed for a party’s civil contempt in failing to comply with an order — such as the father’s willful failure to pay support as ordered — is not punitive and only serves “the remedial purpose of compelling compliance” with the order … . There was “no remedial purpose to be served by continued confinement” or the threat thereof once the father had brought his support payments current … and, indeed, the order of commitment should not have been issued because the father had already “complie[d] completely with the underlying support order” … . Family Court accordingly erred in suspending the sentence and was obliged to discharge it without condition. Matter of Dupuis v Costello, 2020 NY Slip Op 06992, Third Dept 11-25-20

 

, , , ,

MUNICIPALITIES AND FIRE DEPARTMENTS PROTECTED BY GOVERNMENTAL IMMUNITY IN THIS WATER- DAMAGE LAWSUIT STEMMING FROM EXTINGUISHING A FIRE; NUISANCE AND TRESPASS ALSO PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the negligence, nuisance and trespass action against the municipalities and the municipal fire departments were properly dismissed. A fire in defendant paper mill was probably the result of arson. In the course of putting out the fire, the fire department returned water to a canal using a deck gun which shot a stream of water over plaintiff’s building. Apparently water seeped into the building causing damage. The negligence cause of action was precluded by governmental immunity, the nuisance action was precluded by the lack of evidence of intent, and firefighters doing their jobs are not deemed trespassers. With regard to governmental immunity, the court wrote:

To address the claims against the fire department defendants first, even accepting that questions of fact exist as to whether they had a special relationship with plaintiff that would give rise to a claim for negligence … , they are nevertheless protected by the governmental immunity doctrine, which “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” … . Under the doctrine, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . There is no question that fire protection, and obtaining the water necessary to provide it, is a purely governmental function … . The key issue is therefore whether the fire department defendants’ purportedly negligent acts — choosing to use the deck gun and aim it in a direction that caused a rain to fall around the powerhouse — were discretionary in that they arose from “the exercise of reasoned judgment which could typically produce different acceptable results” … . Stevens & Thompson Paper Co. Inc. v Middle Falls Fire Dept., Inc., 2020 NY Slip Op 06996, Third Dept 11-25-20

 

, ,

AS NO PETITION WAS BEFORE THE COURT, FAMILY COURT LACKED SUBJECT MATTER JURISDICTION AND THEREFORE DID NOT HAVE THE AUTHORITY TO ORDER A FORENSIC EVALUATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court did not have subject matter jurisdiction when it issued a forensic evaluation because no petition was before the court:

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2004 and 2006). In July 2018, the parties stipulated in open court to a settlement of the father’s modification of custody petition and violation petitions then pending in Family Court. The parties stipulated to, among other things, suspension of the collection of accrued child support arrears and, as relevant here, agreed to engage in family counseling and to a protocol for the selection of a therapist. The transcript of the parties’ stipulation of settlement was incorporated by reference into a consent order entered in March 2019. Thereafter, the parties failed to agree on the selection of a therapist, prompting the father to request that the court appoint as a therapist a licensed psychiatrist versed in parental alienation. In June 2019, the court appointed a psychologist, but the psychologist declined to provide counseling services. By letter, the father then, among other things, requested that the court order a forensic evaluation by a different licensed psychologist. After converting the father’s request to an application for a court-ordered forensic evaluation, the court ordered a forensic evaluation over the mother’s objection. The mother appealed from that order, and we granted the mother’s subsequent motion for a stay of Family Court’s order pending resolution of this appeal … . * * *

Less than one year after the stipulation was incorporated by reference into a consent order, Family Court … ordered a forensic evaluation, citing the “unusual situation” whereby the parties stipulated to — and the court ordered — counseling and all efforts failed. This was error, as no petition had been filed by the father since the March 2019 consent order was entered, and no proceedings were therefore pending to provide Family Court with jurisdiction to render the appealed-from order directing a forensic evaluation (see Family Ct Act §§ 154-a, 251 [a] … ). Indeed, as is the case here, an expectation of finality derives from a stipulation of settlement entered into by those with legal capacity to negotiate … . Accordingly, we find that Family Court lacked subject matter jurisdiction to order a forensic evaluation. Matter of James R. v Jennifer S., 2020 NY Slip Op 06997, Third Dept 11-25-20

 

WORKERS’ COMPENSATION LAW 35 PROVIDES A SAFETY NET FOR WORKERS WHO HAVE REACHED THE LIMIT OF WEEKS OF INDEMNITY PAYMENTS PURSUANT TO WORKERS’ COMPENSATION LAW 15 (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined Workers’ Compensation Law 35 provides a safety net for workers who have reached the  limit of weeks of indemnity payments pursuant to Workers’ Compensation Law 15:

As part of the comprehensive reforms of the Workers’ Compensation Law in 2007, the Legislature amended Workers’ Compensation Law § 15 (3) (w) … . “The amendment, in a concession to insurance carriers, capped the number of weeks that a person is eligible to receive benefits for a non-schedule permanent partial disability” … . …

The 2007 legislative reforms also included the enactment of Workers’ Compensation Law § 35 … , which is “intended to create a possible safety net for claimants who sustain a permanent partial disability and have not returned to work after they have reached their limit on weeks of indemnity payments” … . Pursuant to Workers’ Compensation Law § 35 (2), “[n]o provision of this article shall in any way be read to derogate or impair current or future claimants’ existing rights to apply at any time to obtain the status of total industrial disability under current case law.” Given the plain language of this statute that a claimant’s right to seek total industrial disability status at any time remains, notwithstanding other statutory provisions of article two of the Workers’ Compensation Law, as well as the clear legislative intent of Workers’ Compensation Law § 35 “to establish a safety net for permanent partial disability claimants who surpass their number of maximum benefit weeks” … . Matter of Minichiello v New York City Dept. of Homeless Servs., 2020 NY Slip Op 06433, First Dept 11-12-20

 

,

THE APPEAL WAS MOOT BECAUSE THE PETITION SOUGHT TO HALT THE CONSTRUCTION OF A MINING SHAFT APPROVED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE SHAFT HAD BEEN COMPLETED AT THE TIME OF THE APPEAL (THIRD DEPT).

The Third Department determined the appeal was moot because the action sought to halt the construction of a mining shaft approved by the Department of Environmental Conservation (DEC) but the shaft had already been constructed at the time of the appeal:

“[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” … . Whether the controversy has become moot requires the consideration of various factors, including how far the construction work has progressed towards completion, whether the work was undertaken in bad faith or without authority and whether the substantially completed work cannot be readily undone without substantial hardship … . A chief consideration to be assessed is whether the challenger to the construction work “fail[ed] to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” … .

This Court has been advised that, during the pendency of the underlying proceeding and this appeal, the construction of the surface shaft has been completed to the point that it cannot be safely halted and that substantial construction costs have been incurred. Furthermore, there is no indication that petitioners promptly sought injunctive relief to maintain the status quo … or that [respondent] proceeded with the construction in bad faith or without the authority to do so … . Based on the foregoing, petitioners’ appeal is moot … . Matter of City of Ithaca v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 06322, Third Dept 11-5-20

 

, , ,

SUBPOENA SEEKING 1099 FORMS SHOWING THE INSURER’S PAYMENTS TO TWO DOCTORS WHO PERFORM MEDICAL EXAMS FOR THE INSURER IN PERSONAL INJURY CASES SHOULD NOT HAVE BEEN QUASHED; WITH RESPECT TO THE SUBPOENA FOR THE MEDICAL RECORDS ASSOCIATED WITH THE EXAMS, THAT ISSUE WAS NOT ADDRESSED BY SUPREME COURT AND CAN NOT, THEREFORE, BE ADDRESSED ON APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry addressing a matter of first impression in the Third Department, determined the plaintiffs’ subpoena seeking 1099 forms (encompassing several years) issued by the insurer to the two doctors (Seigel and Hughes) who performed the medical examination of the plaintiff in this traffic accident case should not have been quashed. The payment records may provide information relevant to the doctors’ bias in favor of denying coverage. However the subpoena for the medical records for the examinations conducted by the two doctors was not addressed by the motion court and therefore could not be addressed on appeal:

The CPLR extends “full disclosure of all matters material and necessary in the prosecution or defense of an action” to nonparties (CPLR 3101 [a] [4] …). “The words, ‘material and necessary,’ are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … . “A subpoena will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry” … . …

… [T]he 1099 forms that plaintiffs seek would disclose the amount of compensation that Siegel and Hughes received for performing evaluations on defendant’s behalf and, with questioning, may reveal a financial incentive that the physicians have in testifying. A financial incentive is a relevant consideration in “ascertain[ing] any possible bias or interest on the part of [the physicians]” … . Given the liberal interpretation afforded the terms “material and … necessary” used in the CPLR … , and the general acceptance of testing a witness for bias and interest , we thus find that the financial records are discoverable … . Loiselle v Progressive Cas. Ins. Co., 2020 NY Slip Op 06325, Third Dept 11-5-20

 

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