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THE STATEMENTS MADE ABOUT PLAINTIFF WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF WAS UNABLE TO SHOW THE STATEMENTS WERE MOTIVATED SOLELY BY MALICE; THE DEFAMATION ACTION WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined plaintiff’s defamation action was properly dismissed. Plaintiff was accused by a fellow library board member, Hoag, of misappropriating over $20,000 in library funds. A criminal investigation uncovered no wrongdoing and plaintiff brought the defamation suit. The defamatory statements were protected by a qualified privilege because Hoag had an interest in the subject matter and the statements were made to a person with a corresponding interest. Therefore the statements were actionable only if Hoag was motivated solely by malice. The court held the statements were made in good faith, despite evidence that Hoag disliked plaintiff:

“Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether” … . Those communications include ones protected by the qualified privilege that attaches to a person’s good faith communication “upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and . . . made to a person with a corresponding interest” … . …

Defendants … came forward with proof that Hoag made the communication in good faith, with Hoag and other Board members averring that their review of financial records, as well as plaintiff’s refusal to provide requested documentation, caused them to believe that plaintiff had made numerous questionable, unauthorized and/or undocumented expenditures of library funds. …

Inasmuch as the proof reflects that the inquiry into library spending by Hoag and other Board members was at least part of what led Hoag to accuse plaintiff of misappropriating funds, “even if [Hoag] disliked plaintiff or possessed some ill will towards her, plaintiff has failed to make an evidentiary showing that [Hoag was] motivated by malice alone in making the statement[]” … . Macumber v South New Berlin Lib., 2020 NY Slip Op 05113, Third Dept 9-24-20

 

MISBEHAVIOR CHARGES BASED UPON ITEMS ALLEGEDLY FOUND DURING A SEARCH OF PETITIONER’S CELL CONDUCTED WHEN THE PETITIONER WAS NOT PRESENT ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department annulled the findings of guilt on possessing a weapon and possessing an altered item because defendant was not present during all of the search of his cell before the weapon was discovered:

… [W]ith respect to the charges of possessing a weapon and possessing an altered item, the Attorney General concedes, and we agree, that the findings of guilt as to those charges should be annulled and all references thereto expunged from petitioner’s institutional record on the ground that petitioner was not present during all of the search of the cell before the weapon was discovered. Matter of Sylvester v Annucci, 2020 NY Slip Op 05109, Third Dept 9-24-20

 

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PETITIONER’S PISTOL PERMIT WAS NOT REVOKED FOR DOMESTIC VIOLENCE; THEREFORE THE FACT THAT THE PERMIT HAD BEEN REVOKED IN THE PAST, STANDING ALONE, WAS NOT “GOOD CAUSE” FOR DENIAL OF THE INSTANT PETITION FOR REINSTATEMENT OF THE PERMIT; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner’s application for reinstatement of his pistol permit should not have been denied simply on the ground it had been revoked before. The matter was remitted:

… [P]etitioner’s application was erroneously denied on the sole ground that his pistol permit had previously been revoked. Although “[a] pistol licensing officer has broad discretion in ruling on permit applications,” denials must be based upon “good cause” … . Penal Law § 400.00 (1) (k) prohibits the issuance of a pistol permit to an individual “who has . . . had a license revoked or who is . . . under a suspension or ineligibility order issued pursuant to the provisions of [CPL 530.14] or [Family Ct Act § 842-a].” This Penal Law statute, however, “was intended to protect victims of domestic violence from individuals who have orders of protection issued against them” and, thus, necessarily bars issuance only where the prior pistol permit was revoked pursuant to one of the cited statutes … .

Here, petitioner’s prior permit was not revoked pursuant to either CPL 530.14 or Family Ct Act § 842-a, but instead upon proof that petitioner made a certain threatening remark and failed to comply with an order directing him to turn in all of his firearms. “Although the revocation of petitioner’s pistol permit and the reasons therefor unquestionably could have some bearing on whether there is good cause to deny his current application,” the prior revocation, alone, was not an adequate basis for the denial (id. at 1114 [internal quotation marks and citation omitted]). As the determination set forth no other ground for denying the permit, it was not based on “good cause” and must be annulled as arbitrary and capricious … . Matter of Gaul v Sober, 2020 NY Slip Op 05013, Third Dept 9-17-20

 

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THE AFFIDAVIT FROM PLAINTIFF’S ACCIDENT RECONSTRUCTION EXPERT WAS ESSENTIALLY THE SOLE BASIS FOR PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS BICYCLE-CAR ACCIDENT CASE; THE AFFIDAVIT, FOR SEVERAL REASONS, DID NOT RISE TO THE LEVEL OF PROOF REQUIRED TO WARRANT SUMMARY JUDGMENT (THIRD DEPT).

The Third Department determined plaintiff’s motion for summary judgment in this bicycle-car accident case, based entirely on the affidavit from plaintiff’s accident reconstruction expert (Witte), was properly denied. The bicyclist died in the accident. The driver, Amyot, and her husband, a passenger, died later:

… [W]e note that Witte does not aver that his opinion is within a reasonable degree of scientific certainty. Although the failure to do so does not de facto render his affidavit invalid … , the affidavit must contain an evidentiary foundation that would support plaintiff’s verdict if offered at trial … . This it failed to do. Witte’s conclusions — which were based on the timing of the accident, i.e., where Amyot should have seen decedent and the precise distances and times averred to by Witte — are not based on facts evident in the record, but rather on the statement that Amyot’s husband made to police that “[a] couple houses past [the] speed zone on the right, I saw [decedent] on his bike coming out of . . . the driveway.” It is unclear from this statement whether Amyot’s husband was located “a couple” of houses past the speed zone when he saw decedent or whether decedent and the driveway from which he was exiting were located “a couple” of houses past the speed zone. Further, one cannot discern what constitutes “a couple.” For these reasons, the factual foundation lacks the probative force adequate to support summary judgment … . …

… [A]part from the supporting depositions, all of the documents that Witte utilized in forming his opinion are unsworn, uncertified and/or unauthenticated. Although the professional reliability exception to the hearsay rule allows “an expert witness to provide opinion evidence based on otherwise inadmissible hearsay,” it must be shown “to be the type of material commonly relied on in the profession” … . Furthermore, even if such reliability is shown, “it may not be the sole basis for the expert’s opinion” … . Delosh v Amyot, 2020 NY Slip Op 05003, Third Dept 9-17-20

 

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MOTHER’S APPLICATION TO CHANGE THE CHILD’S NAME BY ADDING MOTHER’S LAST NAME TO FATHER’S LAST NAME (HYPHENATED) WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined mother’s application to add her last name to the father’s last name for the child (hyphenated) was properly granted. Mother and father are separated and mother has sole custody. Having both last names will facilitate dealing with the child’s medical care:

Pursuant to Civil Rights Law article 6, an application to change a child’s name shall be granted as long as the court is satisfied that the petition is true, there is no reasonable objection to the proposed name change by the opposing party and the child’s interests will be substantially promoted by the change (see Civil Rights Law § 63 …). The evidence at the hearing demonstrated that the mother is the primary legal and physical custodian of the child, with the father having parenting time with the child every other weekend for a four-hour time period. The mother testified that the child suffers from a medical condition that requires frequent visits with medical providers and, because she does not presently share her surname with the child, this fact regularly presents confusion and difficultly when dealing not only with the child’s medical and insurance providers, but also with the child’s school, pharmacy and the various foundations where she has applied for grants pertaining to the child’s diagnosis. Moreover, the child recently started kindergarten, is “very curious” and has asked the mother numerous questions regarding his family, indicating a preference for his name to reflect both the mother’s and father’s family names. To that end, the mother indicated that she is not seeking to eliminate the father’s surname, but simply to add her surname to create a hyphenated last name that includes both the mother’s and the father’s surnames. Matter of Noah ZZ. (Amanda YY.–Ramon ZZ.), 2020 NY Slip Op 05007, Third Dept 9-17-20

 

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THE STATE DIVISION OF HUMAN RIGHTS (SDHR) ADMITTED IT HAD FAILED TO ADEQUATELY INVESTIGATE PETITIONER’S GENDER DISCRIMINATION CLAIMS; REVERSING SUPREME COURT, SDHR’S “NO PROBABLE CAUSE” FINDING WAS ANNULLED AND THE MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the State Division of Human Rights (SDHR) had acted irrationally, arbitrarily and capriciously in finding there was no probable cause to believe petitioner’s gender-discrimination claims:

In its answer, SDHR specifically requested that Supreme Court remand this case so that SDHR could conduct further investigation pursuant to 9 NYCRR 465.20 (a) (2), conceding that it “may have overlooked or not given full consideration” to the issues raised by petitioner. SDHR acknowledged that the final investigation and report … erroneously included information from a wholly unrelated case before it … and conceded that the witnesses identified by petitioner “were not interviewed [by SDHR] during the investigative process.”… Given SDHR’s admissions, Supreme Court was presented with sufficient good cause demonstrating that SDHR’s underlying investigation in this matter was inadequate and/or abbreviated (see 9 NYCRR 465.20 [a] [2]). Accordingly, we find that SDHR’s probable cause determination based thereon should be annulled as irrational, arbitrary and capricious, and this matter remitted to SDHR for further investigation “so that there can be a proper determination as to whether probable cause exists” … . Matter of Schwindt v Niagara Mohawk Power Corp., 2020 NY Slip Op 05009, Third Dept 9-17-20

 

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THE FAILURE TO COMPLY WITH THE SERVICE OF PROCESS REQUIREMENTS OF BUSINESS CORPORATION LAW 307 IS A JURISDICTIONAL DEFECT AND THE FAILURE TO MAKE DILIGENT EFFORTS TO COMPLY WARRANTED DENIAL OF A MOTION TO EXTEND THE TIME FOR SERVICE PURSUANT TO BUSINESS CORPORATION LAW 306-b (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ failure to make diligent efforts to serve defendant in accordance with Business Corporation Law 307 required dismissal of the complaint:

… [B]ecause the failure to strictly comply with the procedures of Business Corporation Law § 307 constitutes a jurisdictional defect, rather than a mere irregularity, the 30-day time period in Business Corporation Law § 307 (c) (2) is not subject to extension under CPLR 2004 … . * * *

… [P]laintiffs did not make reasonably diligent efforts to comply with the procedures of Business Corporation Law § 307. Although plaintiffs personally delivered the summons with notice to an authorized agent of the Secretary of State and sent a copy of the summons with notice by registered mail, return receipt requested, to the address that PLS had registered with the Bureau of Corporations and Charitable Organizations within Pennsylvania’s Department of State … , they made absolutely no effort to thereafter file the affidavit of compliance and the requisite accompanying documents … . Moreover, the excuse provided for plaintiffs’ failure to timely serve PLS in accordance with Business Corporation Law § 307 amounts to law office failure, an excuse that has been held to be insufficient to constitute good cause … . Thus, as plaintiffs did not make the requisite showing, they are not entitled to an extension “upon good cause” under CPLR 306-b. Garrow v Pittsburgh Logistics Sys., Inc., 2020 NY Slip Op 05010, Third Dept 9-17-20

 

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LAW OFFICE FAILURE WARRANTED VACATING THE DISMISSAL OF THE FORECLOSURE ACTION STEMMING FROM PLAINTIFF BANK’S FAILURE TO APPEAR AT A SCHEDULED CONFERENCE (THIRD DEPT).

The Third Department determined Supreme Court properly exercised its discretion and vacated the dismissal of this foreclosure action for plaintiff bank’s failure to appear at a scheduled conference (22 NYCRR 202.27):

“22 NYCRR 202.27 gives a court the discretion to dismiss an action where [a] plaintiff fails to appear at any scheduled call of a calendar or at any conference” … . “To vacate a dismissal under 22 NYCRR 202.27, it [is] incumbent upon [a] plaintiff to provide a reasonable excuse for his [or her] failure to appear and to demonstrate a potentially meritorious cause of action” … . “A motion to vacate a prior judgment or order is addressed to the court’s sound discretion, subject to reversal only where there has been a clear abuse of that discretion” … .

Here, plaintiff’s counsel explained that, due to a scheduling error, the assigned attorney actually appeared in court on the conference date but missed the calendar call. Law office failure may constitute a reasonable excuse for an appearance default …  Given the isolated nature of this nonappearance, we find that Supreme Court acted within its discretion in reconsidering and vacating the default dismissal … . Notably, plaintiff supported its vacatur motion with a duly executed affidavit of merit from its representative. We further recognize that plaintiff has a meritorious cause of action, as we affirmed the award of summary judgment in plaintiff’s favor … . Under the circumstances presented, we conclude that the court acted within its discretion in granting the motion to vacate. Onewest Bank, F.S.B. v Mazzone, 2020 NY Slip Op 05011, Third Dept 9-17-20

 

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THE 1896 DEED FROM THE PLAINTIFF WHICH TRANSFERRED THE PROPERTY TO DEFENDANT DIOCESE WITH THE LIMITATION THAT IT BE USED AS A CHURCH CREATED A POSSIBILITY OF REVERTER WHICH TRANSFERRED THE PROPERTY BACK TO THE PLAINTIFF WHEN THE PROPERTY STOPPED BEING USED AS A CHURCH IN 2015 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the 1896 deed to defendant Catholic diocese, which limited the use of the property to serving as a church, conveyed a fee on limitation with a possibility of reverter, which transferred the property to back to plaintiff when the diocese stopped using the property as a church in 2015:

As plaintiff still held a possibility of reverter, resolution of the RPAPL article 15 action hinges upon whether defendant violated the limitation restricting the use of the property to church purposes. The parties’ joint stipulation of facts includes the 2015 decree from the Bishop of Ogdensburg that relegated the church “to profane but not sordid use,” and indicated that parishioners would be served by a nearby parish. … The stained-glass windows and the altar were later removed, leaving only the pews. Under the canon law of the Roman Catholic Church, “if a church cannot be used in any way for divine worship and there is no possibility of repairing it,” it can be relegated to profane but not sordid use … . “Profane use means use for purposes other than a Roman Catholic worship service,” and “sordid” limits that use, prohibiting any use that is disrespectful to the Catholic Church … . Contrary to defendant’s contentions, we find that defendant’s use of the property for church purposes ceased pursuant to the 2015 decree, thus violating the limitation in the 1896 deed. Accordingly, it reverted to plaintiff, which now owns the property in fee simple. Paul Smith’s Coll. of Arts & Sciences v Roman Catholic Diocese of Ogdensburg, 2020 NY Slip Op 05012, Third Dept 9-17-20

 

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PRISON INMATE’S COMPLAINT ALLEGING DENIAL OF ACCESS TO THE COURTS IN VIOLATION OF 42 USC 1983 DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION; PLAINTIFF ALLEGED THE FAILURE TO PRESERVE CERTAIN VIDEO RECORDINGS BUT DID NOT ALLEGE HOW SAID FAILURE HINDERED HIS ACCESS TO THE COURTS (THIRD DEPT).

The Third Department determined plaintiff, a prison inmate, did not state a cause of action under 42 USC 1983 alleging denial of his right to access to the courts. Defendant had requested video recordings concerning the law library and the delivery of legal mail:

“In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant caused ‘actual injury,’ . . . i.e., took or was responsible for actions that ‘hindered [a plaintiff’s] efforts to pursue a legal claim'” … . In his complaint, plaintiff merely alleges that defendant refused to preserve video recordings of the facility law library on May 2, 2015 and of the mail delivery on May 18, 2015. Plaintiff does not describe what the recordings would show, what legal mail was involved or how defendant’s alleged actions in preventing the preservation of the videos from those two days hindered his opportunity to pursue a legal claim. In light of defendant’s vague and conclusory allegations regarding any actual injury, he has failed to state a cause of action for being denied access to the courts and dismissal of his claim on this ground is proper … . Johnson v Bernier, 2020 NY Slip Op 04894, Third Dept 9-3-20

 

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