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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

 

THE APPLICATION FOR REVIEW OF THE WORKERS’ COMPENSATION LAW JUDGE’S DECISION WAS PROPERLY DENIED BECAUSE THE APPLICATION DID NOT SPECIFY WHEN THE OBJECTIONS TO THE DECISION WERE MADE (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly refused review of the award of benefits sought by the carrier. The application form (requesting Board review) did not specify when the objections to the contested decision by the Workers’ Compensation Law Judge (WCLJ) were made:

… [B]oth the application (form RB-89) and the instructions in effect at the time that it was filed required the carrier to “specify the objection or exception that was interposed to the ruling, and when the objection or exception was interposed” … . This information was to be supplied by the carrier in question number 15 of the application. In response to this question, the carrier stated, “Objections were noted during the course of the hearing and at the conclusion of the hearing regarding the [WCLJ’s] finding that no additional development of the record was necessary on the issue of attachment to the labor market prior to directing awards based solely on the amendment to [s]ection 15 (3) (w) that took effect 04/10/17.” Significantly, the carrier failed to identify the hearing at which the objection was raised, and the record discloses that there was more than one hearing at which claimant’s labor market attachment was addressed. As the carrier failed to provide the temporal information required by the regulations, we cannot conclude that the Board abused its discretion in finding the application to be incomplete and declining to review the WCLJ’s decision … . Matter of Demarco v Trans Care Ambulance, 2020 NY Slip Op 04895, Third Dept 9-3-20

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING CLAIMANT’S INJURY WAS WORK-RELATED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence that claimant suffered a meniscus tear at work was insufficient:

“The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence” … . Although the medical opinion evidence relied upon by the Board to demonstrate the existence of a causal relationship does not need to be expressed with absolute or reasonable medical certainty, “it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility” … . …

Bruce Greene, claimant’s treating orthopedic surgeon, testified that it was difficult to determine when the meniscus tear occurred. He further testified that there is “a strong possibility [that] there was an acute or chronic tear of [the] meniscus” and that it is “very reasonable that something could have happened at work that exacerbated a chronic [condition].” The Board, finding that the medical testimony expressing that it was “highly possible” that the injury was causally related to work, falls short of the reasonable probability that is required to establish a causal relationship between claimant’s employment and his injury. Matter of Johnson v Borg Warner, Inc., 2020 NY Slip Op 04897, Third Dept 9-3-20

 

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WHETHER MOTHER MOVED MORE THAN 40 MILES WAS AN ISSUE IN THIS MODIFICATION OF CUSTODY ACTION; FAMILY COURT TOOK JUDICIAL NOTICE THAT THE MOVE WAS 39 MILES; THE DISSENT ARGUED FAMILY COURT DID NOT DISCLOSE THE BASIS OF THE JUDICIAL NOTICE WHICH PRECLUDED A CHALLENGE TO THE FINDING (THIRD DEPT).

he Third Department determined Family Court properly found that mother had not moved beyond the 40-mile limit imposed by the settlement agreement. The Family Court judge took judicial notice of the distance involved in the move which was determined to be 39 miles. The dissent argued Family Court erred in not specifying the basis for the judicial notice, thereby making it impossible to challenge:

From the dissent:

Although it is well settled that “‘a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of undisputable accuracy'” … , judicial notice of a fact is improper when it is “from a hearsay source or from unidentifiable or nonindisputable sources outside the record or at a time subsequent to the close of testimony” … . Fundamental fairness thus dictates that a court, before it takes judicial notice of a fact, provide the parties with the basis for its notice and “afford the parties the opportunity to be heard as to the propriety of taking judicial notice in the particular instance” … . Otherwise, the determination of whether such fact is or is not “of common knowledge or determinable by resort to sources of indisputable accuracy” cannot be properly tested or reviewed … .

… .Family Court never disclosed the basis for its 39-mile calculation, and it announced that it was taking judicial notice of that “fact” after testimony had concluded and only in the context of its written decision. As such, the parties never had an opportunity to be heard on this issue or dispute the basis for such judicially noticed finding. Nor does the record reflect that Family Court had a factual basis for its conclusion that the relocation provision of the agreement — which the court itself recognized as ambiguous — required that the 40-mile radius be measured between the outermost borders of Deposit and Clarks Summit, rather than from the parties’ respective residences or some other location, particularly since the language of the agreement requires the mother’s residence for the children, and not the boundary line of Clarks Summit, to be within a 40-mile radius from an undetermined location in Deposit. Indeed, the testimony of both parties contradicts the court’s interpretation … . Matter of Lonny C v Elizabeth C., 2020 NY Slip Op 04620, Third Dept 8-20-20

 

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THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling:

Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that they be allowed to offer proof about instances of verbal and emotional abuse by defendant toward the victim. The court granted the application and permitted the People to elicit such evidence. At trial, however, the niece testified that the victim told her that defendant once grabbed her arm in a store because he did not like who she was talking to and that bruises on her legs were caused by defendant. The niece further testified that she observed defendant kick the victim in the stomach. That said, incidents of physical abuse by defendant were not part of the People’s Molineux application. As such, the niece’s testimony, some of which was hearsay, exceeded the scope of the court’s Molineux ruling and deprived defendant of a fair trial … .

Because the evidence of defendant’s guilt was not overwhelming, there must be a new trial … . We note that defendant did not object to the niece’s testimony and, consequently, failed to preserve this argument . Despite this infirmity, we deem it appropriate under the particular circumstance… s of this case to exercise our interest of justice jurisdiction and reverse the judgment (see CPL 470.15 [6] [a]). People v Callahan, 2020 NY Slip Op 04618, Third Dept 8-20-20

 

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THE STRIP SEARCH OF DEFENDANT WAS JUSTIFIED AND CONDUCTED PROPERLY (THIRD DEPT).

The Third Department determined the strip search of defendant, which resulted in the seizure of cocaine, was proper:

“[I]t is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner” … . The trooper testified at the suppression hearing that the search of the vehicle led to the discovery of 1.1 grams of marihuana in the center console. A K-9 search of the vehicle revealed “hits” at both the center console and the driver’s seat. According to the trooper, during the transport of defendant to the State Police barracks, the smell of marihuana was “overwhelming.” At the barracks, defendant was handcuffed to a bench and the trooper continued to smell marihuana. Each time the trooper asked defendant if he had marihuana on him, he denied it. After defendant was advised that he was to be strip-searched, he was taken to a private interview room and the search was conducted by two male officers. Defendant was asked to remove one article of clothing at a time; when he was down to his underwear, defendant handed over the marihuana, and the cocaine was revealed shortly thereafter. Given this evidence, a reasonable suspicion existed that defendant was concealing evidence and we find that the search was conducted in a reasonable manner … . People v Hightower, 2020 NY Slip Op 04513, Third Dept 8-13-20

 

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