Plaintiff was catastrophically injured when he fell from a roof he was installing on a newly constructed Lowe’s store.  Among his serious injuries, plaintiff suffered total loss of vision, significant hearing loss, loss of smell and taste, impaired mental functioning, facial disfigurement and chronic bone infection in his leg.  Following trial on plaintiffs’ Labor Law claims, the jury awarded $200,000 for past pain and suffering and $800,000 for future pain & suffering over 32 years.  After plaintiffs’ post-verdict motion, Supreme Court ordered a new trial on plaintiff’s pain and suffering unless defendants stipulated to $1.2 million for past and $2.9 million for future pain and suffering.  On appeal by plaintiffs, the Third Department found some of the awards did not represent reasonable compensation.  Particularly, the Court found the injured plaintiff’s wife, who was thrust into the role of single parent and care-giver to her disable husband, should have been awarded $110,00 (rather than $10,000) for her past and $490,000 (rather than $90,000) for her future loss of consortium given the nature of her husband’s permanent injuries.  Furthermore, given the profound impact of plaintiff’s injuries on his life, the Court felt adequate compensation for plaintiff’s future pain and suffering would be $3.9 million.  The award for future health care costs was also increased due to the Court’s finding that the jury disregarded the cost of home care in their award.

In this single car accident case, the plaintiff sustained a brain injury from striking his head on the windshield frame above his airbag after his vehicle lost control on a very steep and sharply curved road and plunged into a drainage ditch.  Following a jury trial against the County of Schenectady for negligent design and maintenance of the road, the jury awarded plaintiff $1.25 million for future pain and suffering, which the Court recommended increasing to $1.75 million to more adequately represent reasonable compensation for his damages. 

Defendant allegedly lost consciousness while driving his vehicle and collided with plaintiff’s vehicle.  Following plaintiff’s suit against defendant for the injuries she received as a result of the collision, defendant moved for summary judgment dismissing the complaint stating the accident was caused by an unforeseen medical condition of defendant which caused him to loss consciousness.  On appeal from Supreme Court’s denial of defendant’s motion, the Court found due to evidence that defendant had been experiencing dizziness, lightheadedness and weakness in increasing frequency during the month preceding the accident, and felt lightheaded on the day of the accident while driving, issues of fact remained as to whether defendant’s medical emergency was foreseeable.

 In this medical malpractice action, plaintiff’s decedent was receiving care from a nurse practitioner employed by an OB/GYN practice.  Plaintiff’s action alleged failure to timely diagnose decedent’s choriocarcinoma over several months.  Plaintiff sued the nurse practitioner, her two supervising physicians, and the OB/GYN group that employed the NP.  The OB/GYN group also had a third-party indemnification claim against the NP.  Plaintiff settled with the NP before trial and Supreme Court thereafter entered a directed verdict in favor of the physicians during the trial.  The jury subsequently returned a verdict against the NP and awarded plaintiff $1.89 million.  Supreme Court ordered judgment in favor of the OB/GYN group against the NP on the indemnification claim.  The OB/GYN and physician’s insurer, PRI, disclaimed coverage for the verdict, which prompted an action against PRI for failure to defend and indemnify the group and physicians.  PRI subsequently settled with plaintiff for $2.4.  On appeal the Court found OB/GYN’s insurer, PRI, should be barred from receiving common-law indemnification because of its “unclean hands.”  Specifically, the Court found PRI put its own interest before its insureds when it became clear to PRI that their interests were adverse to defendants and PRI failed to inform them of their right to seek counsel of their own choosing at PRI’s expense.  In fact, counsel provided to the OB/GYN group by PRI joined in the directed verdict motion with the physicians even though there was sufficient evidence to oppose it, potentially exposing the OB/GYN group to a multimillion dollar judgment.  PRI’s actions also damaged the NP as the directed verdict in favor of the physicians deprived the NP of any chance of the jury finding the physicians as least partially negligent.  Given these circumstances, the Court found PRI could not seek indemnification in light of their deceptive business practices. 

 On appeal, the Court reversed Supreme Court and granted plaintiff partial summary judgment as to liability on his Labor Law § 240 (1).  Plaintiff was injured while standing on a scissor lift when he was struck in the head by steel panels being lifted by a crane that suddenly accelerated downward in a free-fall, striking plaintiff on the head.  There was evidence presented that there were no tag lines or other devices used to steady the load of steel panels during the hoisting process.  The defendants failed to set forth a triable question of fact regarding liability despite defendant’s proof that the crane may have malfunctioned because that proof did not establish adequate safety devices were provided or that the alleged crane operator error was an intervening superseding cause. 

While an inmate at Ogdensburg Correctional Facility, claimant injured his shoulder after slipping on the floor while playing basketball in the gymnasium at the facility during morning hours.  Immediately after the fall, claimant testified that he saw a wet substance on the floor where he fell.  The case was tried and the court found claimant and defendant equally at fault for plaintiff’s injuries, finding the claimant had a duty to observe the substance on the floor that caused him to slip.  However, as noted on appeal, while defendant asserted a general affirmative defense of comparative fault, defendant never specified that claimants fall was due to the existence of an open and obvious condition that claimant should have seen and avoided.  Regardless, the Court on review found no evidence at trial to establish claimant’s culpability and reversed the lower court’s finding of fault on behalf of claimant.  Specifically, claimant was injured during his first run down the court to make a lay-up shot when he slipped and fell on his shoulder.  The corrections officer in the gymnasium at the time of the accident was on the opposite end of the court and had not been in the location of the fall that day.  However, the officer did testify that defendant used a cleaning solution on the gym floor that could make the floor slippery if too much solution was used and that at times the gym floors were mopped with the solution in the mornings.

Plaintiff was injured during an assault on the streets on the City of Albany, which was purportedly captured on a video camera owned and operated by respondent Philp ‘N Spill, Inc. outside of the bar known as The Bayou Café.  Plaintiff proceeded by order to show cause to preserve the recordings and the lower court ordered respondent to preserve the video recording and provide a copy to plaintiff’s counsel.  Respondent failed to comply, plaintiff moved to hold respondent in contempt, and respondent cross-moved claiming the court lacked jurisdiction due to improper service of process.   Following a traverse hearing, the lower court held jurisdiction was properly obtained over respondent, prompting this appeal.  Plaintiff’s process server testified that he went to respondent’s place of business and served Ronald Lanzetta, who was identified as the person in charge, claimed to be the manager, and told the process server he would give the papers to the owner.  Based upon this showing the Court found respondent had fair notice.         

A slow June at the Appellate Division presents the perfect opportunity to review the Supreme Court's latest Age Discrimination in Employment Act ("ADEA") decision – a decision that places a much higher burden on age discrimination plaintiffs.

In Gross v. FBL Financial Services, Inc., petitioner Jack Gross ("Gross") began working for respondent FBL Financial Group, Inc. (FBL) in 1971.  As of 2001, Gross held the position of claims administration director.  But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator.  At the same time, FBL transferred many of Gross' job responsibilities to a newly created position – claims administration manager.  That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties.  Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL's reallocation of his former job responsibilities to Kneeskern.

In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated ADEA, which makes it unlawful for an employer to take adverse action against an employee "because of such individual's age."  29 U.S.C. § 623(a).  The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age.  FBL defended its decision on the grounds that Gross' reassignment was part of a corporate restructuring, and that Gross' new position was better suited to his skills.

At the close of trial, and over FBL's objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL "demoted [him] to claims projec[t] coordinator" and that his "age was a motivating factor" in FBL's decision to demote him.  The jury was further instructed that Gross' age would qualify as a "'motivating factor,' if [it] played a part or a role in [FBL]'s decision to demote [him]."  The jury was also instructed regarding FBL's burden of proof.  According to the District Court, the "verdict must be for [FBL] . . . if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age."  The jury returned a verdict for Gross, awarding him $46,945 in lost compensation.

FBL appealed to the Eighth Circuit, arguing that the district court improperly allowed Gross to prove that age was a "mitigating factor" by circumstantial, rather than direct evidence.  The Circuit reversed the decision of the district court, and held that plaintiffs in mixed-motive cases must present direct evidence of age discrimination.

In vacating the Circuit's decision, the Supreme Court did not reach the question of whether direct evidence was required to trigger a mixed-motive analysis under ADEA.  Instead, the Court held that mixed-motive cases are simply not available under ADEA.  According to the Court, the plain language of ADEA does not authorize a mixed-motive age discrimination claim.  Thus, under ADEA, the plaintiff retains the burden of persuasion to establish that age was the "but-for" cause of the employer's adverse action.  In other words, unlike Title VII, the burden never shifts to the employer to show that it would have taken the action regardless of plaintiff's age, even where the plaintiff produces evidence that age was one motivating factor in the decision.

The Court's decision in Gross certainly makes it easier for employers to defend against ADEA claims.  It does this by holding that the plaintiff has the burden of proving that the employer subjected him or her to an adverse employment action because of age.  Remember, however, that this holding is limited to ADEA, and does not affect claims advanced under the New York Executive Law

In my March Environmental Update, I discussed the 4^th Department’s ruling in In the Matter of Lighthouse Pointe Property Associates LLC, v. NYS Department of Environmental Conservation, et al.,  61 A.D.3d 88 (4^th Dept., 2009).  In that case, the 4^th Department affirmed the determination of the Department of Environmental Conservation (DEC) which denied petitioner’s application for inclusion in the State’s Brownfield Cleanup Program (BCP).

In the Matter of Destiny USA Development, LLC, et al. v. NYS Department of Environmental Conservation, et al.,  ___ A.D.3d ___,  2009 WL 1570205, 2009 N.Y. Slip Op. 04504 (4^th Dept., 2009), the 4^th Department was once again faced with the issue of the scope of eligibility of certain properties into the BCP pursuant to Article 27, Title 14 of the Environmental Conservation Law (ECL).  In Destiny USA, Destiny USA Development and Pyramid Company of Onondaga commenced an Article 78 proceeding challenging the DEC’s denial of their application for entry into the BCP of 11 of 17 parcels located in Syracuse, New York.  The rejected parcels included two located at the existing Carousel Center (Carousel Parcels), one known at the Clark Containment Cell, a hazardous waste containment area (Clark Parcel) and eight on a former petroleum bulk storage area known as Oil City (Oil City Parcels).   The Supreme Court annulled DEC’s denial and declared the DEC’s self-promulgated BCP  “guidance” and “guide factors” -- upon which DEC had relied -- to be null and void and in violation of the equal protection clause.  Finally, the Supreme Court ordered DEC to include all of the rejected parcels into the BCP.  The DEC appealed. 

The 4^th Department first addressed the issue of whether the DEC’s determination on petitioner’s BCP application was entitled to “great weight and judicial deference” as being within the environmental agency’s special area of expertise.  The Court found that DEC’s decision on this application was simply based on the DEC’s interpretation of the BCP statutory language and on its application of its own internal guidance and “guide factors” and was, therefore, not a factual determination within DEC’s special area of expertise.  Thus, the Court ruled that DEC’s determination was not entitled to the Court’s deference.

Next the Court examined the DEC’s rejection of the Carousel Parcels into the BCP.  Brownfield is defined in the ECL as real property whose redevelopment or reuse is “complicated” by the real or potential presence of contamination.  Noting that the DEC failed to examine the specific complications to redevelopment raised by Destiny USA in its application, the Court found that DEC relied only on its self-promulgated guidance and guide factors in rejecting these parcels. The Court rejected this approach entirely, stating that the DEC’s “categorical application” of the guidance factors as a “precondition to admission into the BCP” conflicted with the intent of the statute and constituted “an impermissible attempt to legislate.”  Accordingly, DEC’s denial of the Carousel Parcels into the BCP was deemed to be arbitrary and capricious.

 Nonetheless, the Court disagreed with the Supreme Court’s declaration that such guidance and guide factors were null and void. The Court also rejected the Supreme Court’s dismissal of the guidance was on constitutional grounds.  Instead, the Court found that the use of such guidance – as with any guidance -- was appropriate as long as it such guidance is not applied by the agency in a fixed manner without regard to other facts relevant to the overall regulatory scheme.  Thus, the Court modified the judgment below to reinstate the guidance and guide factors used by DEC, so long as the DEC used the guidance in the appropriate manner.

 With respect to the eight Oil City Parcels, the Court rejected the DEC’s view that they were ineligible for inclusion into the BCP based upon statutory exclusions in the BCP law.   In opposition to the Petition, DEC relied upon ECL 27-1405(2)(d), which bars properties which are the subject of certain cleanup orders, as the rationale for rejecting these parcels.  This provision, however, includes an exception for property subject to a “stipulation agreement.”  While the DEC had, in fact, entered into consent orders with several petroleum companies with respect to these parcels, it had also entered into a Stipulation Agreement with Destiny USA in 2005.  Indeed, that Stipulation expressly provided that entering into the agreement would not adversely affect the eligibility of the site into the BCP.  The Court found that this 2005 Stipulation superseded the orders on consent and governed the remediation of the parcels.  Thus, the Court concluded that the Oil City Parcels were not subject to this statutory exclusion and were therefore eligible for inclusion into the BCP.

The Court also rejected DEC’s exclusion of the Clark Parcel from the BCP.  In its determination, DEC relied on another statutory exclusion, ECL 27-1405(2)(e) which bars properties subject to “on-going state and federal enforcement” relating to the contamination.   The Court determined that this parcel was actually subject to voluntary cleanup agreements, which the Court found not to be enforcement actions within the meaning of the BCP.  Thus, the Court found that DEC acted in an arbitrary and capricious manner with respect to the Clark Parcel.

Finally, the Court rejected DEC’s position that the Supreme Court erred in “directing” the DEC to grant Destiny USA’s BCP application in its entirety.  The Court found that a court is authorized, in an Article 78 proceeding, to direct or prohibit a specified action.  The Court concluded that in this matter the record was sufficiently developed for the Supreme Court to direct the DEC to include all of the parcels into the BCP.

Though the legal and factual issues in Destiny USA and the Lighthouse Pointe were very similar, the 4th Department reached essentially opposite conclusions.  Significantly, the Court of Appeals recently granted petitioners in Lighthouse Pointe leave to appeal.   Brownfield practitioners will have to anxiously await a decision on that appeal to find out what the Court of Appeals determines to be the scope of DEC’s power to reject or accept properties into the BCP.

verdicts@capitalregionlaw.com

About six months ago we advised the readers of this column that submissions had been “light”- and we issued a call for more.  We were then inundated with a variety of excellent submissions from new contributors (and a few from our regulars).

This month we only had one case to report, and we are again calling on our readers to provide us with more submissions.

To reiterate, this column was set up to provide area litigators with a body of local, recent results (settlements, arbitration awards and verdicts).  Past issues of this column are also online at the ACBA website so that you can access them into the future.  Those of you who read the statewide verdict reporters are aware that they focus on downstate cases- which are of little use when attempting to demonstrate the potential value of a local case to your adversary

The feedback that we have received for this column has been universally excellent- so we know that many people are reading it and, hopefully, using the information to help assess the value of their cases.   

So we again call upon those of you who enjoy this column and find it to be useful to sift through your recent settlements, arbitration awards and verdicts (and not just the ones that were exceptionally favorable for you and your client) and submit them for next month’s column.

Thank you,
Mike and Ryan

Submission forms can be found at www.albanycountybar.com to Verdicts@Capitalregionlaw.com or fax them to Harris, Conway & Donovan, PLLC at 432-1996.  You may also call one of us and we will take down the pertinent information.

Facts/Injuries:                      The 61 year old Plaintiff claims that during a transurethral bladder neck contracture release surgery he sustained an injury to his rectum.  Apparently, during the surgery, the cytoscope passed through the urethra into the rectum.   As a result, the Plaintiff’s urinary bladder was removed and a pouch was placed in his abdomen for the remainder of his life. 

These reports are based upon facts volunteered by the reporting attorney; none of these facts were independently investigated or gathered by the editors of this column.  Opposing counsel is given an opportunity to comment and if they request, or no response is received, their name (s) is/are not published.

In 2006, the Rochester City Council enacted a juvenile curfew law in response to a perceived escalation of violent crime committed by and directed against unsupervised juveniles during the nighttime hours. 1. The new law authorized police officers to approach suspected minors during the prohibited hours and request information. If it was determined that the minor was in violation of the curfew, the officer was permitted to take the minor into custody. A transgression of the curfew was punishable as a violation as defined in the Penal Law.

Shortly after its enactment, the law was challenged by a father and son, claiming a variety of constitutional infirmities. Supreme Court dismissed their action. The Appellate Division reversed with two Justices dissenting, finding the ordinance violated the constitutional rights of both father and son. The Appellate Division further held that the ordinance was inconsistent with the Family Court Act because it allowed for the arrest of a minor for a transgression of the curfew and created criminal responsibility for a “violation” as defined in the Penal Law.

The Court of Appeals affirmed, but on different grounds.2 The Court focused primarily on the substantive due process rights of minors to enjoy freedom of movement and the parental right to control the upbringing of children.

In discussing the appropriate level of scrutiny, the Court observed that “freedom of movement is the very essence of our free society…it often makes all other rights meaningful – knowing, studying, arguing, exploring, conversing, observing and even thinking.” 3 If the curfew applied to adults, it would be subjected to strict scrutiny. However, since “children do not possess the same constitutional rights possessed by their adult counterparts” 4, the Court found that intermediate scrutiny was the proper standard of review. 

Likewise, since the ordinance was not directly aimed at interfering with parental rights, and the reasonable regulation of parental rights has long been recognized, the Court employed intermediate scrutiny to review the father’s claim as well.

Under intermediate scrutiny, it was incumbent upon the City to establish that the curfew was “substantially related” to the realization of an important governmental interest. While the proof need not establish this relationship with any degree of scientific certainty, inaccurate assumptions or opinions will not suffice. Here, the City’s proof fell short.

The crime statistics produced by the City of Rochester showed that minors were suspects or victims in only 10% of the violent crimes committed during curfew hours. Of the three juvenile homicide victims that the City pointed to in support of the curfew, two were killed outside of the curfew hours and the third was already under a curfew requirement as the result of a PINS adjudication. The Court also dismissed studies and statistics compiled by other municipalities as irrelevant to issues facing the City of Rochester.

With respect to the parental claim, the Court found that the ordinance failed to offer parents enough supervisory flexibility and imposed an unconstitutional burden on their substantive due process rights. The Court pointed to other curfew laws that have passed constitutional muster because they contained an exception to the curfew for minors whose parents consented to their being outside during curfew hours.

Writing for the dissent, Judge Pigott opined that “[p]utting aside the Rochester crime statistics…I do not believe that it is the judiciary’s place to decide that protecting even a small number of minors from crime is an unimportant objective. I would have thought that protecting children from becoming the victims or perpetrators of violent crime is one of the most important goals a municipality could try to achieve…” 5  Indeed, with a parental consent provision, the dissenters believed that the Rochester ordinance  might have been a “model city curfew.” In closing, the dissent observed that “[i]t is regrettable that a curfew was determined to be necessary in Rochester; but it is equally regrettable if this Court prevents Rochester from implementing a reasonable plan to protect its youth.” 6

Other municipalities around the country have enacted curfew laws that have survived constitutional challenges7.  Perhaps, if things continue to deteriorate in Rochester, the city elders will go back to the drawing board.

1 Rochester City Code §45-4.
2  Anonymous v. City of Rochester, 2009 NY Slip Op 04697 (decided June 9, 2009).
3 Id. at page 5, citing Aptheker v. Secretary of State, 378 US 500 [1964].
4 Id.
5 Id. at page 18.
6 Id.
7 Anchorage, Alaska; the District of Columbia and Dallas, Texas to name a few.

In one of her last decisions, former Chief Judge Kaye sent the following message to criminal practitioners throughout the State:

"Preservation — or, more precisely, the lack of preservation — frequently accounts for the disposition of criminal cases in this Court.  The issue, therefore, again merits some elaboration, not only to explain the result in the appeals before us but also in the interest of encouraging that a proper record be made in the first instance."
People v. Hawkins, 11 N.Y.3d 484 at 491 (2008).

Analysis of insufficiency preservation begins with our State Constitution's restriction of the jurisdiction of the Court of Appeals to questions of law (NY Const, art VI, § 3; see People v. Beige, 41 N.Y.2d 60 at 62 [1976]).  Among the kinds of determinations of reversal or modification deemed to be "upon the law", CPL §470.15(4)(b) provides that "evidence adduced at a trial resulting in a judgment was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted." 

CPL §470.05(2) further provides that a question of law arises in a criminal proceeding when

". . .a protest thereto was registered, by the party claiming error, at the time of such ruling or  instruction or at any subsequent time when the court  had an opportunity of effectively changing the same.  Such protest need not be in the form of an `exception' but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal."

To preserve for appellate review a challenge to the legal sufficiency of the evidence underlying a conviction, a criminal practitioner must move for a trial order of dismissal, and the argument must be "specifically directed" at the error being urged (People v. Gray, 86 N.Y.2d 10 at 19 [1995]; People v. Hines, 97 N.Y.2d 56 at 62 [2001]).  As the Court of Appeals has repeatedly emphasized — and underscores again in Hawkins, supra — general motions simply do not create questions of law for appellate review (see People v. Finger, 95 N.Y.2d 894 at 895 [2000]; People v. Bynum, 70 N.Y.2d 858 at 859 [1987]; People v. Stahl, 53 N.Y.2d 1048 [1981]; People v. Cona, 49 N.Y.2d 26 at 33 [1979]).

Sound reasons underlie this preservation requirement.  As was stated in Gray, a specific motion brings the claim to the trial court's attention, alerting all parties in a timely fashion to any alleged deficiency in the evidence, thereby advancing both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or non-guilt of an accused (Gray, 86 N.Y.2d at 20-21).  A criminal practitioner's motion for a trial order of dismissal that specifies the alleged infirmity helps to assure that legally insufficient charges will not be submitted for the jury's consideration, and serves the overall interest in an efficient, effective justice system.

Viewing the preservation requirement in the context of an individual trial, it is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client's behalf.  Viewing the preservation requirement systemically, intermediate appellate court review is potentially comprehensive, including not only law questions but also "insufficiency" and "against the weight" factual issues as well as "interest of justice" review unique to the four appellate divisions.  The Court of Appeal's second level of review -- "to authoritatively declare and settle the law uniformly throughout New York" -- is best accomplished when the Court of Appeals determines legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate courts.

The CPL §290.10(1) motion for a trial order of dismissal is the criminal law equivalent of the civil law's motion for a directed verdict (see, CPLR 4401).   As with all legal arguments, the motion is made outside the presence of the jury.  At the end of the prosecution's case-in-chief, defense counsel quite often has to take the initiative to ensure that an adequate record is made since some trial judges do not remind defense counsel of the need to preserve insufficiency issues.  The motion must be made whether it is a jury or a bench trial.

The motion addresses only the issue of legal sufficiency of the evidence:  the trial judge does not have the power to dismiss the case on the basis that the proof was not established beyond a reasonable doubt.  Such a decision usurps the function of the jury (Holtzman v. Bonomo, 93 A.D.2d 574 [2^nd Dept. 1983]).  Nor may the trial court decide that the proof was "against the weight" of the evidence as only the four appellate divisions can decide this issue (CPL §470.15[5]). 

The evidence must be reviewed in the light most favorable to the prosecution (People v. Beecher, 225 A.D.2d 943 [3^rd Dept. 1996]).  The trial court may grant or deny the motion, or may reserve decision until after the verdict.  Many trial courts reserve decision (People v. Key, 45 N.Y.2d 111 [1978]).  If decision is reserved and the jury's verdict is guilty, the trial court must determine the motion as it would have been authorized had it not reserved decision (CPL §290.10[1]).

If the court denies or reserves on the trial order of dismissal motion, counsel must ensure that the defense case at trial does not fill the gap in the prosecution's case-in-chief.  In People v. Hines, 97 N.Y.2d 56 [2001]), the motion for a trial order of dismissal at the end of the prosecution's case was denied.  The accused then put on proof that actually bolstered the prosecution's case.  The accused subsequently moved to reconsider the ruling that had denied the accused's motion for a trial order of dismissal at the end of the prosecution's case, and argued that only the evidence elicited during the prosecution's case-in-chief should be considered (to avoid having to deal with damaging evidence inadvertently elicited during the defense case).  The Court of Appeals held that by choosing to put on evidence, the accused waived his right to have only the prosecution's evidence examined for legal sufficiency, and could not avoid the adverse evidence elicited during the defense case.  Hines stated: "we have held that an accused who does not rest after the court fails to grant a motion to dismiss at the close of the prosecution's case, proceeds with the risk that he will inadvertently supply a deficiency in the prosecution's case.”  Thus, an accused who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the prosecution's case waives subsequent review of that determination.

Later Court of Appeals decisions suggest that the dictum in Hines - - that a challenge to legal sufficiency is not "preserved for review at trial in the absence of a motion to dismiss at the close of all the evidence" – is not the law.  People v. Payne, 3 N.Y.3d 266 at 273 [2004]) read Hines to stand for the limited proposition that "When a trial court denies such a motion at the close of the prosecution's case, an accused who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the prosecution's evidence.   . . . Where, however, the court has reserved decision, the accused has preserved a claim of insufficiency, and the trial court would then rule on the CPL §290.10 motion as if the motion were made at the close of all the evidence.  We decline to expand Hines and elevate preservation to a formality that would bar an appeal even though the trial court, aware that the motion was pending, had a full opportunity to review the issue in question" (People v. Payne, 3 N.Y.3d at 273).

Part of the importance of the trial order of dismissal motion is that, if granted either at trial or on appeal, double jeopardy bars retrial (CPL §470.20[2]; People v. Brown, 40 N.Y.2d 381 [1976]).  But its greater importance relates to preservation: if the defense fails to make the motion at trial, the defense does not have the right to raise the issue of legal sufficiency of the evidence on appeal (see, Gray, supra) and must resort to the appellate division's "interest of justice discretion" to reach this unpreserved issue (CPL §470.15[6][a]; see, e.g., People v. Butler, 273 A.D.2d 613 [3^rd Dept. 2000]).

Given the importance that appellate courts have given the motion, no conceivable reason exists why the motion should not be made in every trial. Failure to make the motion cannot be attributable to "strategy" (Pavel v. Hollins, 261 F.3d 210 at 216-217 [2^nd Cir. 2001]; People v. Lindo, 167 A.D.2d 558 [2^nd Dept. 1990]).  If defense counsel makes a pro forma "the defense moves to dismiss on the grounds that the prosecution has failed to prove a legally sufficient case" without stating the specific failure in the proof, ineffective assistance of counsel will infect all future appellate/post-conviction state and federal remedies. 

Gray was decided more than a decade ago and Hawkins was decided on November 25, 2008.  It behooves all criminal practitioners to heed former Chief Judge Kaye's words of wisdom that "general motions simply do not create questions of law for this court's review" (Hawkins, supra at 492). 

A number of amendments to the Family Court Act, Domestic Relations Law and other related statutes have been enacted recently that impact family court practice.  Listed below are a few of the more noteworthy changes:

Domestic Relations Law and Military Law were recently amended to better protect the rights of parents against permanent determinations related to the custody of their children while they are activated for military service.  Domestic Relations Law § 75-l provides that during the time the parent is activated, deployed, or temporarily assigned to military service and the parent’s ability to continue as the primary caretaker of the child is materially affected as a result of the military service, the court may not issue any permanent orders, modifications or amendments that would affect or change a previous judgment or custody order as it existed on the date of the parent’s activation, deployment or temporary assignment to military service.  The court may enter a temporary order, but only if there is clear and convincing evidence that temporary modification of the previous order is in the child’s best interest.  If possible, the temporary order should provide for contact between the child and parent in military service.  Section 75-l does not apply to assignments to permanent duty stations or permanent changes of station.

If a temporary order is issued and the parent returns from military service, either parent may petition the court for a hearing to determine whether there has been a change of circumstances warranting modification of the custody judgment or order previously in effect. 

Family and Supreme Court are now required to perform multiple record checks before issuing an order in custody and visitation matters.  Prior to issuing any temporary, permanent or successive1 orders of custody or visitation, the court must review (1) the statewide central registry of orders of protection and warrants of arrest (2) the state sex offender registry and (3) related decisions in court proceedings initiated under Family Court Act Article 10 (neglect/abuse).  The records check requirement applies only to custody and visitation proceedings under Article 6 of the Family Court Act.  Custody matters arising in Article 10 (abuse/neglect) or Article 8 (family offense) proceedings are not specifically covered by the legislation.  The attorneys, self-represented parties and the attorney for the child must be given notice of the results of the review before the court may issue its order. 

In emergency situations where the information from the three databases is not available in a timely manner, the court may issue a “temporary emergency order” of custody or visitations “to serve the best interest of the child” 2 pending review of the information within 24 hours.  Once the database information is reviewed, the court may then issue a new temporary or permanent order after notifying the attorneys, self-represented parties and attorney for the child of the results.  

Child custody proceedings (governed by Article 6 of the Family Court Act) and child protective proceedings (governed by Article 10) both can result in a child’s placement outside of his or her home.  But they are two separate causes of action.  Frequently, however, the two proceedings are intertwined.   A neglect or abuse petition may cause a relative or non-related person to file for custody of the child.   Or, the allegations in a custody petition may result in a child protective investigation that culminates in an Article 10 neglect or abuse case.

Article 10 does not permit an order granting permanent custody to a non parent as a dispositional alternative.  This is because the statutory scheme requires that the child be placed for short periods of time, with “permanency” reviews at least every six months, and that rehabilitative services be put into place to help reunify the parent and the child.  Under Article 6, permanent (yet modifiable) custody may be awarded to a non parent, but only upon a finding that “extraordinary circumstances” 3 exist and that such custody arrangement would be in the “best interests” of the child.  Over the last decade, the case law generated over the interplay between Article 6 custody and Article 10 dispositions involving a child’s placement has resulted in a great deal of confusion. 

Two new Article 10 sections were enacted to address the inconsistencies and conflicts in existing case law.  The first, Family Court Act §1055-b, expands the list of dispositional options available on a neglect or abuse adjudication and permits the court to grant an Article 6 order of custody or guardianship to non parents if an Article 6 petition has been filed, the Article 6 placement is in the child’s best interest and the child will be provided with a safe and permanent home.  The parties may agree to this disposition; if not, the court may hold a consolidated dispositional hearing, adjudicating both the Article 6 and Article 10 pending petitions.  When a parent objects, the court must find “extraordinary circumstances” exist before granting the Article 6 petition. 

The second enactment, Family Court Act § 1089-a, provides that where the permanency plan for the child  in an Article 10 proceeding is placement with a fit and willing relative, the court may issue an order of custody or guardianship on an Article 6 petition at the permanency hearing.  If such an order is granted, the Article 6 custody order supersedes and replaces the earlier-issued Article 10 order of placement.  Once again, the parent may consent to the Article 6 custody or guardianship order, but if she does not, the court must find that “extraordinary circumstances” exist and that an award of custody or guardianship to the non parent is in the best interest of the child. 

Two new enactments, Family Court Act § 657 and Domestic Relations Law § 74, relate to the custody of children by non parents.  The new sections clarify the rights and responsibilities of permanent guardians or custodians of a child, something that was not defined in previous statutes and caused significant confusion to parties, schools, health and medical providers, who had differing requirements regarding whether a non parent needed to have custody or guardianship before they could obtain health insurance, school enrollment or medical care and treatment. 

The new sections provide that a permanent guardian of a child has the legal right and responsibility to make decisions, including issuing any necessary consents, regarding the child’s protection, education, care and control, health and medical needs and the physical custody of the person of the child, and may consent to the adoption of the child, unless otherwise provided or limited by the court.  It specifically allows a non parent possessing an order of custody or guardianship to enroll the child in public school in the district where the custodian and the child reside.  It also gives the non parent the same right to enroll and receive coverage for the child in an employer-based health insurance plan and to assert the same legal rights under the plan.

Until last year, New York was the only state that did not permit unrelated persons to obtain a civil order of protection.  While many victims of domestic violence were eligible for services under the 1987 Domestic Violence Prevention Act 4, they were prohibited from obtaining a family court order of protection and/or a family offense criminal court order of protection.  Reports from the State Division of Criminal Justice Services and Office for the Prevention of Domestic Violence suggested that a large proportion of domestic violence victims – non family relationships and most often dating couples – were not protected by New York’s narrow definition of who is a victim of domestic violence.

Family Court Act § 812 and Criminal Procedure Law § 530.11 now have been amended to expand the definition of “member of the same family or household” to encompass unrelated persons who are or who have been in an intimate relationship – regardless of whether the relationship was sexual in nature or whether such persons have lived together.  For purposes of the statutes, neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts is deemed to constitute an ‘intimate relationship’.   

1. A record check is required where more than one month has passed since the previous temporary order was issued.
2.  Domestic Relations law § 240 (1) (a-1) (3).
3.  Matter of Bennett v Jeffreys, 40 NY2d 543, 549 (1976).
4.  Social Services Law Article 6A.

(From the June 2009 Newsletter)

A jury trial was held in Ulster County before Judge Egan for injuries plaintiff sustained in a motor vehicle accident.  At issue was whether plaintiff sustained a serious injury and, if so, the measure of damages.  The jury found plaintiff sustained a significant limitation of use of a body function or system and awarded lost wages and medical expenses but gave no award for past or future pain and suffering.  During voir dire, plaintiff’s counsel objected to the court’s limiting of questioning to 15 minutes for each round.  On appeal the Court found plaintiffs were prejudiced by the short time permitted for voir dire given the issues in the case.  Furthermore, the failure of the jury to make an award for pain and suffering was a material deviation from reasonable compensation after a finding of serious injury was made.  A new trial was ordered.

Defendant Zinssar was operating a snowmobile at night when her snowmobile struck the plaintiff who was riding on a saucer attached by a tow rope to another snowmobile being driven by co-defendant.  In reversing Supreme Court’s grant of summary judgment to Zinssar, the Court stated that Zinssar had a duty to see what by the proper use of her senses she might have seen while operating her snowmobile on the night of the accident.  As there was proof of sufficient illumination from the moon and a sight distance of 200+ yards, Zinssar may have been able to see plaintiff prior to the accident, thereby rendering the accident a reasonably foreseeable risk, to which she would have had a duty to avoid if possible.  The Court also noted the claim was not barred by the primary assumption of the risk doctrine because there were questions of fact regarding whether Zinssar’s conduct unreasonably increased the risk of injury to plaintiff.

Plaintiff was injured in three separate motor vehicle accidents in a two-year period and brought claims in two separate actions against the other drivers.   All defendants moved for summary judgment on the issue of serious injury.  Supreme Court dismissed all of plaintiff’s claims against two defendants but found a question of fact as to the 90/180 day category regarding the claim against one of the drivers, defendant Hand.  On appeal by Hand and plaintiff, the Court granted summary judgment to all of defendants, dismissing plaintiff’s complaints, as plaintiff’s proof failed to set forth the requisite causation needed to survive summary judgment on a serious injury threshold motion.  Plaintiff had a history of neck and lower back problems which preceded the accidents and to which defendant’s experts attributed the plaintiffs complaints alleged in the lawsuits.  Plaintiffs’ experts failed to properly address the defendants’ claimed lack of causation in that plaintiff’s experts did not distinguish plaintiff’s condition from before the accidents with her conditions after each accident or submit any proof regarding exacerbation of pre-existing injuries.

 In this “classic” Labor Law § 240 (1) case, the plaintiff was injured when he fell 30 feet through an opening in a roof that he was working on involving construction of a new building.  Plaintiff moved for summary judgment on liability under Labor Law  § 240 (1), which was granted from the bench without written decision.  On appeal by defendant building owner, the Court affirmed.  There was undisputed evidence that no safety devices were provided to plaintiff while he worked on the roof and that even though other portions of the roof allegedly had protective guardrails, the edge of the roof where plaintiff fell was not protected with any guardrails. There was also no evidence that plaintiff was a recalcitrant worker.  The Court noted that defendant’s compliance with OSHA regulations did not defeat plaintiff’s prima facie showing as Labor Law § 240 (1) contains its own safety measures and, furthermore, OSHA standards would not apply to the defendant building owner.

Supreme Court struck portions of defendant’s answer for willful non-compliance with discovery during a 6 year period.  Throughout discovery, plaintiff demanded that defendant produce for deposition an employee of defendant with knowledge of the events regarding the electric shock plaintiff received while working at a Pizza Hut franchise.  Eventually, defendant identified a Mr. Bradley as an employee of defendant with pertinent knowledge regarding plaintiff’s claims but it became clear during Mr. Bradley’s deposition that he was not employed by defendant and had little to offer in terms of information.  Defendant also failed to comply with a demand for documents.  The appellate court found Supreme Court did not abuse its discretion in finding defendant’s conduct willful and striking portions of the answer as a consequence of such behavior.

Plaintiff was rendered a quadriplegic after being attacked by two individuals who were part of a larger group that allegedly conspired in the assault.  Defendant Cimaomo was part of the larger group and was sued by plaintiff.  Plaintiff took a default judgment as to liability against Cimaomo and defendant appealed.  Because there were viable questions of fact regarding Cimaomo’s alleged participation in the event, demonstrating a potential defense, and evidence that defendant did not intend to abandon her defense but rather misinterpreted deadlines, the court found the brief delay in defendant’s answer did not prejudice plaintiff and the default judgment should not have been granted. 

In this medical malpractice action, defendants each moved for summary judgment dismissing the complaint, which motions were granted.  On appeal, plaintiff’s complaint against defendant Dr. Marshall and his medical group was reinstated as the Court found plaintiff’s proof raised questions of fact as to Marshall’s negligence and whether such negligence was the proximate cause of plaintiff’s decedent’s injuries.  Specifically, plaintiff offered the expert affidavit of a board certified physician who opined that defendant Marshall deviated from good and accepted medical practice in his continued reliance on his initial tentative diagnosis of ischemia without engaging in a differential diagnosis to consider other causes for plaintiff’s complaints and in his failure to refer plaintiff to an appropriate specialist.  Plaintiff’s expert stated that Marshall’s negligence in failing to properly diagnose plaintiff’s decedent’s condition nor refer him to a specialist led to decedent’ preventable death.

Defendant owner of a shopping plaza was granted summary judgment dismissing the complaint of a plaintiff who was injured after slipping on ice and falling in the plaza’s parking lot.  According to plaintiff she fell on an ice-patch that had formed as a result of a melting snow pile that caused water to flow into a depression in the parking lot and re-freeze.  Plaintiff’s proof to defeat summary judgment focused on constructive notice and included photographs of the accident scene taken with an hour of the accident, an affidavit from a meteorologist and an affidavit from an architect.  The meteorologist opined the re-freezing of the melted snow would have occurred 13-15 hours prior to plaintiff’s fall and the architect concluded that the slope of the parking lot would have caused melted snow to travel to the location where plaintiff fell on ice.  The Court found sufficient questions of fact regarding constructive notice to defeat the motion for summary judgment and reversed Supreme Court’s decision. 

Plaintiff was injured when he tripped and fell over a “tool box or tool case” in the aisle of a Sears store while he was walking and glancing at a sale flyer.  Defendant’s motion for summary judgment was denied as Supreme Court found defendant failed to meet its burden to establish it did not create the dangerous condition and plaintiff’s proof was sufficient to create a question of fact regarding whether defendant had constructive notice of the condition prior to plaintiff’s fall.  Defendant failed to produce any testimony from employees who were in charge of arranging merchandise in the aisle in which plaintiff fell or the employees who immediately came to plaintiff’s aid after the fall and were in a position to observe the accident scene.  Furthermore, defendant failed to set forth any proof of regular aisle inspections or maintenance in the area of the fall, which, given plaintiff’s statement that boxes were in the aisle, left a question of fact as to whether the dangerous condition existed for a sufficient period to time to permit defendant to discover and remedy the problem. 

Plaintiff rented an apartment in a house that shared a common driveway with the house next door.  Plaintiff slipped and fell on ice in that common driveway causing her injury.  After commencing a lawsuit against the respective owners of the two houses which shared the common driveway, Supreme Court dismissed the case against defendant Hausler, the owner of the home that plaintiff did not live in, finding such owner did not owe a duty of care to her neighbors tenant.  The negligence action against the owners of the home in which plaintiff rented her apartment proceeded to trial and plaintiff was awarded damages of $6,000 following reduction of the $15,000 award due to plaintiff’s comparative fault.  On appeal from the grant of summary judgment to Hausler and the jury’s determinations at trial, the Appellate Division reversed the award of summary judgment to Hausler and ordered a new trial.  There was proof submitted on summary judgment that Hausler exercised control over the common driveway in sharing responsibility with the other homeowners in the repair, repaving and snow removal of the entire common driveway, evenly splitting the costs for such maintenance.  Furthermore, there was proof that Hausler would apply de-icer to the hilly common driveway, and not just to the side closest to her house.

Plaintiff was injured when she slipped on ice and fell off the porch of the building in which she rented an apartment.  Plaintiff regularly used this porch to enter and exit her apartment.  In an action against the building owner, defendant moved for summary judgment contending a storm was in progress at the time of plaintiff’s fall.  Supreme Court granted the motion and dismissed the complaint.  In affirming Supreme Court’s decision on appeal, the Court noted that the plaintiff’s meteorological expert acknowledged that light snow fell on and off during the day of plaintiff’s fall and plaintiff’s own testimony stated she thought it was snowing lightly when she fell.  Therefore, the Court agreed that a storm was in progress when plaintiff fell, a finding which then required plaintiff to submit proof that the ice she slipped on existed prior to the storm in progress in order for her to survive summary judgment.  Plaintiff failed to meet her burden on this remaining issue as she testified that the ice she fell on resulted from the storm that began the night before the accident.  Furthermore, even though plaintiff used the porch on a regular basis, she failed to submit any evidence that ice was present on the porch prior to the storm in progress at the time of her fall.

In May, the Court handed down Bracci v. NYS Division of Human Rights (506150), a decision that explores a number of important issues under New York's Human Rights Law, including the difference between quid pro quo and hostile work environment sexual harassment.

Petitioner Barbara J. Bracci ("Bracci"), a correction officer formerly employed by the Department of Correctional Services ("DOCS"), filed a complaint with respondent NYS Division of Human Rights ("Division") on November 6, 1996, charging DOCS and her former captain with unlawful discriminatory practices relating to employment, in violation of the Human Rights Law.

The Division found cause and referred the matter for public hearing.  The proceedings were stayed in 2001 due to the fact that Bracci filed a complaint in federal court based on the same facts.  In 2005, the federal court dismissed the federal complaint on statute of limitations grounds, without prejudice to Bracci's claims based on state law.

Bracci then resumed prosecution of the complaint previously filed with the Division.  A public hearing was held in 2007, after which the Administrative Law Judge ("ALJ") recommended a finding that Bracci failed to meet her burden of proof and that her complaint should be dismissed.  The Commissioner thereafter issued a notice and final order adopting the ALJ's recommended findings and dismissing the complaint.  Bracci appealed in accordance with Executive Law § 298.

In confirming the Division's determination, the Appellate Division observed that, in order to prevail against DOCS, Bracci was required to show that she was subjected either to quid pro quo or hostile work environment sexual harassment.  To establish a prima facie case for quid pro quo sexual harassment, Bracci was required to show that she was subjected to unwelcome sexual conduct, and that the reaction to that conduct was then used as a basis for decisions, either actual or threatened, affecting compensation, terms, conditions or privileges of employment.

Here, Bracci alleged that the captain, who was her supervisor, agreed to hold in abeyance a notice of discipline that was pending against her in exchange for sexual relations.  The Court found, however, that the record included evidence that the notice of discipline had already been filed against Bracci before the captain was transferred to her facility, that no specific discussion of the notice of discipline took place between Bracci and the captain until after they began their relationship, and that notices of discipline are handled in DOCS's Labor Relations Office rather than at individual DOCS facilities.  The evidence also established that the captain's ability to control the processing of a notice of discipline, if any, was limited, and that the timing of the processing of Bracci's notice of discipline was controlled by the Labor Relations Office and by the actions of Bracci and her union.  Thus, the Court held that was substantial evidence from which the Division could have found that Bracci did not establish that tangible job benefits were linked to her acceptance or rejection of the captain's sexual advances.

To establish a prima facie case of hostile work environment sexual harassment, Bracci was required to show that her employer knew or should have known that she was subjected to unwelcome sexual harassment, and that the employer failed to take remedial action.  According to the Court, the record evidence revealed that DOCS investigated Bracci's claims against the captain immediately after learning about them in January 1996, and, although it determined that the relationship was consensual, promptly transferred the captain to another facility based on a determination that his ability to command had been compromised.  Moreover, evidence in the record supported the Division's determination that, during the pertinent time period, Bracci was not subjected to comments or innuendo regarding sexually explicit videotapes in which she allegedly appeared.  Thus, the Court held that substantial evidence supported the Division's conclusion that Bracci's workplace was not permeated with discriminatory intimidation, ridicule, and insult.

In concluding its Decision, the Court noted that it is peculiarly within the domain of the Division, which is presumed to have special expertise in the matter, to assess whether the facts and the law support a finding of unlawful discrimination.  "The extremely narrow scope of this Court's review of the Division's determination is limited to whether substantial evidence in the record supports the determination.  This Court may not weigh the evidence or reject the Division's determination where the evidence is conflicting and room for choice exists.  As the Division's determination that Bracci did not establish that she was subjected to sexual harassment has a rational basis and is supported by substantial evidence, the judicial function is exhausted."

Environmental Update – June 2009
By: Gary S. Bowitch, Esq.
bowitchlaw@earthlink.net

Supreme Court Changes the Rules in “Landmark” CERCLA Decision

On May 4, 2009, in a major 8-1 opinion, the United States Supreme Court addressed the scope of “arranger” liability and the basis for apportioning liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  In Burlington Northern & Santa Fe Railway Co., et al. v. United States, et al., the Supreme Court found that the liability of a party which “arranges for disposal” of hazardous substances requires a showing of  “intent.”   The Supreme Court also ruled that apportionment of liability under CERCLA is appropriate where the record provides a “reasonable basis” for such apportionment.

Beginning in 1960, Brown & Bryants, Inc. (B&B) operated an agricultural chemical distribution business on property it owned in Arvin, California.  B&B received deliveries hazardous chemicals which it then stored and distributed to customers.  In 1975, B&B expanded its operations and leased an adjacent one acre parcel which was owned jointly by several railroad companies, now defendants Burlington Northern and Santa Fe Railroad (“the Railroads”). 

Defendant Shell Oil sold a herbicide and two pesticides, including one known as D-D, to B&B.  D-D was first sold and delivered to B&B in 55 gallons drums, but Shell later required B&B to purchase and store D-D in bulk.  D-D was delivered by common carrier, and B&B assumed “stewardship” over the chemicals as soon as the tanker trucks arrived at the Arvin facility.   Spills of D-D occurred during the transfer from the tanker trucks to B&B’s bulk storage tanks.  In the 1970s, Shell -- aware that spills of D-D were commonplace -- encouraged its distributors, including B&B, to make certain improvements to ensure the safe handling of this product and to reduce the likelihood of spills during delivery.

During B&B’s 28 years of operations, D-D and the other pesticide and herbicides contaminated the soil and groundwater at the Arvin facility as a result of spills, equipment failures and tank and truck rinsing activities. In 1983, the California Department of Toxic Substances Control (DTSC) and the United State Environmental Protection Agency (EPA) investigated the site and found significant contamination including a plume of contaminated groundwater that threatened to leak into an adjacent supply of potential drinking water.  By 1989, B&B was insolvent and ceased operations and EPA listed the Arvin site on its National Priorities List.  EPA and DTSC ultimately cleaned up the site, incurring more than $8 million in response costs.  In 1996, they commenced this action under CERCLA against the Shell and the Railroads alleging that they were Potentially Responsible Parties (PRPs) which were jointly and severally liable for all of the cleanup costs incurred by the EPA and DTSC. 

After a 6 week bench trial, the US Eastern District Court of California held that Shell and the Railroads were PRPs.  Shell was found liable as a person which “arranged for” the disposal of hazardous substances due to its sale and delivery of D-D to the Arvin site.  The Railroads were found liable due to their ownership of a portion of this CERCLA site.  Though liability under CERCLA is joint and several, the District Court found that the harm was “divisible” and could be apportioned.  With respect to the Railroads, the District Court used three figures (i.e., the % of the total property owned, the duration of B&Bs lease of the properties and the amount and type of chemicals spilled on the Railroads’ land) to find them liable for 9% of the cleanup costs.  Shell was found 6% liable, based on an estimation of the spills of Shell’s product.  EPA and DTSC appealed and Shell cross-appealed.

The Ninth Circuit Court of Appeals ruled that Shell was liable as an “arranger” even though Shell had not actually contracted with B&B to dispose of a hazardous waste product and had only supplied a new and useful product to B&B.  The Court of Appeals found that Shell fell within the “broader category” of arrangers because the disposal of hazardous waste was a “foreseeable byproduct” of its sale of D-D to B&B, particularly in light of the fact that Shell knew of spills and tried to encourage better product transfer safety procedures.   As to apportionment, the Court of Appeals disagreed with the District Court’s finding that there was a reasonable basis for apportionment and decided that both Shell and the Railroads were jointly and severally liable for the cleanup costs. The Supreme Court granted certiorari on the questions of Shell’s liability as an arranger and whether the liability could be apportioned. 

The Supreme Court first addressed the question of whether the Railroads and Shell were PRPs under CERCLA.  The Supreme Court found that the Railroads qualified as PRPs pursuant to CERCLA §§107(a)(1) and (2), as owners and operators of a “facility” at which hazardous substance were disposed of.  The Supreme Court then looked at whether Shell could be an arranger under CERCLA §107(a)(3), which states that liability attaches to an entity which “arranges for the disposal…of hazardous substances.”

Giving the term “arrange” its ordinary meaning, the Supreme Court stated that “under the plain language of the statute, an entity may qualify as an arranger under [§107(a)(3)] when it takes intentional steps to dispose of a hazardous substance.”  The Supreme Court noted that it would be an error not to recognize the role that “state of mind” plays in determining whether a party arranged for disposal.  Addressing the argument of EPA and DTSC that Shell’s continued supply of D-D to B&B -- despite its knowledge that spills and leaks would result -- the Supreme Court found that “knowledge alone” that a product would spill or leak was insufficient to find that a party “planned for” the disposal, “particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product.”   In order to find Shell liable as an arranger, the Supreme Court opined that Shell would have had to have “entered into the sale of D-D with the intention that at least a portion of the product be disposed of during the transfer process….”   Given that the facts (including Shell’s efforts to encourage distributors to reduce the likelihood of spills) found by District Court didn’t support such a conclusion, the Supreme Court held that Shell was not liable as an arranger under CERCLA.

The Supreme Court next looked at the question of whether the Railroads should be jointly and severally liable for the full cost of the clean up and, if not, whether the District Court’s method of apportioning of liability was appropriate.  After examining the concepts of joint and several liability and divisibility of harm under CERCLA, the Supreme Court opined that “apportionment is proper when ‘there is a reasonable basis for determining the contribution of each cause to a single harm’.”  The Supreme Court affirmed that the burden of showing that such a reasonable basis exists lies with the defendant seeking to avoid joint and several liability.  The Supreme Court, noting that both the District Court and the Court of Appeals agreed that the harm was “theoretically capable of apportionment,” examined whether the record provided the District Court with a reasonable basis to conclude that the Railroad was 9% liable.  After a careful review of the District Court’s method of arriving at the three figures which it used to determine the Railroads’ apportioned share, the Supreme Court concluded that the “facts contained in the record reasonably supported the appointment of liability” decided by the District Court.

The full impact of the Burlington Northern decision will likely be played out in the lower courts for some time to come.  The question of whether an arranger actually “intended” to dispose of hazardous substances will surely be the subject of future litigation.  In addition, while the Supreme Court went to great lengths to uphold the District Court’s basis and method of apportioning liability, it seems clear that the courts will still have to grapple with what exactly is a “reasonable basis” for apportionment.  The CERCLA landscape has definitely changed.  The challenge for practitioners and PRPs alike will be figuring out what this new landscape actually looks like.

Thank you again for the submissions and the continued support that we have been receiving relative to this column.  Please continue to submit the forms - which can be found at www.albanycountybar.com to Verdicts@Capitalregionlaw.com or fax them to Harris, Conway & Donovan, PLLC at 432-1996. 

These reports are based upon facts volunteered by the reporting attorney; none of these facts were independently investigated or gathered by the editors of this column.  Opposing counsel is given an opportunity to comment and, if they request, or if no response is received from them, their name (s) is/are not published.

Caption:                     DeCristofaro v. Undisclosed Defendant

Court:                         Saratoga County Supreme

Judge:                         Hon. Frank B. Williams

Date of Verdict:         April 9, 2009

Plaintiff’s Attorney:  David Taffany, Esq.

Defense Attorney:      Undisclosed

Facts/Injuries:            This action arose out of a collision on the Northway which occurred after the Defendant’s vehicle cut-off the Plaintiff. The Defense conceded liability at trial and contended that the Plaintiff’s injuries did not meet the NYS Serious Injury Threshold.  

Plaintiff maintained that he was asymptomatic before the accident and that, after the accident, he suffered from ongoing severe pain in the neck (which radiates down both shoulders and arms).  The treating physician confirmed that the cause of the pain was the herniated cervical disc. Plaintiff, an Electrician, worked full time prior to the accident and was only able to work 15-20 hours per week post-accident.

Caption:                     Undisclosed Plaintiff v. Undisclosed Defendant

Court:                        Albany County Supreme             

Judge:                         Hon. Michael C. Lynch

Date of Verdict:         September 5, 2008             

Plaintiff’s Attorney:  Andrew Kirby, Esq

Defense Attorneys:    Undisclosed

Facts/Injuries:            While the Plaintiff was staying at the Defendant’s hotel, a plaster ceiling tile fell on her head causing her to stub her fifth toe on a nearby door frame.  The Defendant conceded liability at trial. 

The Plaintiff’s podiatrist testified that the Plaintiff suffered a fracture in the toe.  After the fracture had healed the Plaintiff developed “kissing osteophytes” (bone spurs), which were previously asymptomatic. Surgical intervention was necessary and the Plaintiff missed two weeks of work. According to the IME report by Dr. Bilfield, Plaintiff sustained a contusion to her fifth toe (no fracture), but the contusion made the pre -existing osteophytes symptomatic - and led to the surgery.  At trial, the Defendant unsuccessfully tried to change the opinion of Dr. Bilfield - suggesting that the osteophyte condition was unrelated to the contusion.  The Court upheld the Plaintiff’s objection to the attempted alteration of Dr. Bilfield’s opinion.

Recent Lippman Opinion Calls “Institutional Integrity” of Court into Question

That severe criticism was unleashed by Judge Read in a blistering dissent from the majority opinion in People v. Weaver. 1 At issue in Weaver was the propriety of the warrantless placement of a GPS device on Mr. Weaver’s vehicle. Mr. Weaver was the target of a burglary investigation in Albany County.  Investigators monitored his travels for over 2 months via a GPS device that had been surreptitiously attached to the bumper of his van.  Mr. Weaver unsuccessfully moved to suppress the evidence gathered by the device at trial and was ultimately convicted. With one dissent, the Third Department affirmed his conviction. 2

Writing for a majority of the Court, Judge Lippman found that the placement of the GPS device on Mr. Weaver’s van constituted a search under article I, § 12 of the State Constitution and reversed his conviction. By grounding his decision in the State Constitution, Judge Lippman insulated his opinion from what will most likely be a contrary result once this issue reaches the U. S. Supreme Court.

Federal precedent suggests that the warrantless placement of a GPS device does not offend the Fourth Amendment.  In United States v. Knotts 3, the Supreme Court approved the use of a beeper placed in the cargo of a truck to track the container’s movements, holding that, “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancements as science and technology afforded them in this case”. 4 Basically, if investigators were free to tail the truck as it traveled on public streets, using technology to aid in that endeavor should not alter the constitutional calculus.

Acknowledging that “Knotts does not bode well for Mr. Weaver” 5, Judge Lippman goes on to differentiate the cases based on the technology employed. According to Judge Lippman, GPS is “a vastly different and exponentially more sophisticated and powerful technology” than the humble beeper used in Knotts; with GPS, the “constant, relentless tracking of anything is now not merely possible but entirely practicable.” 6 In discussing the technology, Judge Lippman expresses concern about “what the police may learn, practically effortlessly, from planting a single device…trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” 7

Several states, including Florida, Pennsylvania and Texas have opted to craft legislative solutions to balance the competing interests of privacy and security. Pennsylvania, for example, requires a showing of “reasonable suspicion”, a far less exacting standard, before the technology may be employed. By holding that GPS surveillance constitutes a search under the New York Constitution, Weaver has precluded the possibility of legislation in this area.

Writing in a separate dissent, Judge Smith complains that “[t]he theory that some investigative tools are simply too good to be used without a warrant find no support in any authority interpreting the Federal or New York Constitution.” 8

Whatever the U.S. Supreme Court ultimately decides on this issue, the matter is now settled in New York. 

1  2009 NY Slip Op 03762 (decided May 12, 2009).

2  See the July 2008 ACBA newsletter for a discussion of Judge Stein’s dissent.

3  460 US 276 (1983).

4  Id. at 282.

5  Weaver at p. 5.

6  Id. at p. 6.

7  Id. at p. 7.

8  Id. at p. 14.
 

Workers’ Comp, Social Security Disability And Long Term Disability Committee
By: Raymond Seligman, Esq.
Silverman, Silverman & Seligman, P.C.

No doubt we all spend our spare time reviewing the Robinette decision (Robinette v Arnold Meyer Sign Co, 43 AD2d 458) from years ago. The basics:  Having settled a third party action and having waived its lien, the comp carrier was nonetheless required to continue to pay the claimant without taking advantage of the section 29 holiday? Why? Because in waiving their lien, they did not reserve their rights to apply the offset. Lien; Offset; what’s the difference. Waive one and you waive them all unless you particularly note otherwise. Now defense counsel boilerplate settlement papers always include a reservation of rights under Robinette.

But, what goes around comes around and now it’s the Plaintiff’s turn to get stuck. Recent Board decisions indicate that a claimant will not receive his anticipated payments under Burns following the settlement of a third-party claim if he does not specifically reserved those rights with the comp carrier at the time of settlement. You will recall that the Burns case discusses the obligation of the comp carrier to contribute to the attorney fees and other costs involved in the prosecution of the third-party claim. Depending on the numbers that obligation may continue proportionally notwithstanding the section 29 holidays. Third party attorneys beware: Note the continuing applicability of Burns in both the settlement papers and the carrier consent letter. Or else.

A number of new cases have been decided by the Appellate Division in the Workers’ Compensation forum. Most revisit prior issues.

In Bowersox v. Prime Time Express, the Claimant failed to use a proper cover sheet on his appeal to the Board and it was not accepted. “Too bad for you” says the AD. Rules are rules and the Board did not abuse its discretion.

Littles v. New York State Department of Corrections et al., addressed yet again the going and coming issue. I’m on my way to work and have an accident 10 miles away. Is it covered simply because I was on my way to work? Clearly not. Supposing I am a mile away? Still no. And in this case I am only 10 feet away from arriving at my employer’s place of business when I have an accident. The Court says still no. It is not the distance that controls, but instead whether the location presents "(1) 'a special hazard at the particular off-premises point' and (2) a 'close association of the access route with the premises, so far as going and coming are concerned.”

Robbins v Mesivtha Tifereth Jerusalem et al. reminds us of that which should not require reminding.  When a claimant is shown on videotape to be engaging in activities which he had claimed an inability to do based upon which his doctor and the workers compensation board concluded that he has a permanent total disability, he can expect to be fined $35,000, receive no more payments and be charged with fraud. Don’t do it.

Lastly, the Injured Worker’s Bar Association is heavily supporting a bill in the Senate and Assembly which would create a presumption that anyone found to be totally disabled by the Social Security Administration due to a work related injury should be determined to have a Permanent Total Disability by the Workers’ Compensation Board. It just makes sense.

When one googles “jokes” there are 74,400,000 hits. When one googles “workers compensation jokes” there are 240 and they are all bad.  But it seems the orchestra conductor was filing a claim for stress based on the previous evening’s performance. He was a mediocre conductor of a mediocre orchestra. He had been having problems with the basses; they were the least professional of his musicians. It was the last performance of the season, Beethoven’s 9th Symphony, which required extra effort from the basses at the end. Earlier that evening, he found the basses celebrating one of their birthdays by passing a bottle around. As he was about to cue the basses, he knocked over his music stand. The sheet music scattered. As he stood in front of his orchestra, his worst fear was realized; it was the bottom of the 9th, no score and the basses were loaded.

Relax. Only 239 to go.

When practitioners attempt to impeach witnesses regarding an omission of a crucial fact in a prior statement, the Bornholdt standard (People v. Bornholdt, 33 N.Y.2d 75 at 88 [1973]) and the separate, but related, Savage standard (People v. Savage, 50 N.Y.2d 673 at 679 [1980]), raise issues regarding what foundation must be laid before impeachment by omission will be permitted in the discretion of the trial court (see People v. Duncan, 46 N.Y.2d 74 at 80 [1978]). 

Under Bornholdt, it is well established that a witness may be impeached by proof of a prior statement made by that witness which is inconsistent with the trial testimony.  Direct contradiction is not necessary for a finding of inconsistency.  The witness' silence or omission of information on a prior occasion may be deemed a prior inconsistent statement for impeachment purposes.  However, proof that the witness simply failed to state a fact, or to state that fact more fully at a prior time, is not enough to establish inconsistency.  It need also be shown that, at the prior time, the witness' attention was called to the matter and that he was specifically asked about the facts embraced in the cross-examination questions posed at trial (Bornholdt, 33 N.Y.2d at 88). 

Under Savage, the Court of Appeals articulated a separate, but related, standard for determining whether an omission constitutes a prior inconsistency - - "when given circumstances make it most unnatural to omit certain information from a prior statement, the fact of the omission itself is admissible for purposes of impeachment" (Savage, 50 N.Y.2d at 679). 

Bornholdt and Savage are very rarely cited together when impeachment by omission is the issue.  When defense lawyers attempt to impeach prosecution witnesses on omission of a crucial fact in a prior statement, trial judges instinctively cite Bornholdt to bar such inquiry.  Seven (7) years after deciding Bornholdt, the Court of Appeals permitted prosecutors to impeach an accused by cross-examination of an omission of a key fact from a prior statement, with no mention of Bornholdt.  Thus, prosecutors often cite Savage to uphold cross-examination of accuseds regarding omissions while Bornholdt remains the standard to preclude defense cross-examination of prosecution witnesses notwithstanding critical omissions in prior statements or testimonies. 

Bornholdt and Savage appear to be in irreconcilable conflict.  The only apparent distinction is that cross-examination regarding omission is barred when it is the defense seeking to cast doubt on critically omitted inculpatory facts that surface for the first time at trial while the prosecution is allowed free reign to attack exculpatory defense omissions.  A practitioner is hard-pressed to reconcile how the Bornholdt holding "accords with human experience" while the Savage rationale is an "elementary rule . . . of common sense."  Isn't human experience the basis for common sense?

Attorneys trying criminal cases should be aware of both Bornholdt and Savage and prepare to lay a foundation under either standard and then argue their applicability.  Both trial and appellate/post-conviction counsel might well argue the obverse counterpart when confronting an issue involving impeachment by omission.  Most important, both trial and appellate counsel should press the appeals courts to announce one rule, applicable in all cases, based on both human experience and common sense. 

Regarding tactics, the acronym RAE ([1] Recommit, [2] Accredit, [3] Expose) is a simple but effective methodology for impeaching witnesses regarding omission of a crucial fact never before mentioned in prior statements or testimony.

"R" equals Recommit the witness to the glaring omission which now surfaces for the first time during the trial.  Recommitting the witness to the omitted fact is an exception to the ordinary rule that the cross-examiner should avoid allowing the witness to repeat the damaging portions of the direct examination.  By precisely worded leading questions, summarize and pin-point the glaring omission that will be the focus of your impeachment by omission.  Avoid excess verbiage when recommitting the witness.  Precise means precise, not lawyer-speak.

"A" equals Accredit the circumstances and gravity of the setting surrounding the giving of the prior statement, report or testimony.  Recreate in the courtroom the vignette showing the need for the critically omitted fact to have been included in the prior rendition(s) as a matter of common sense, training and professionalism.  This accreditation phase of RAE should invoke an admission from the witness' lips of the very training and professionalism which supports the common sense conclusion that such an important fact, if true, would never have been omitted.  This Accredit chapter of cross often begins with "You consider yourself a professional" or "You are a thorough police officer."  Many witnesses believe this is a complement and do not understand how their "yes" answer will be used against them to highlight the glaring omission from their report, prior statement or testimony.  In accrediting the making of the prior statement by showing that it was precise, accurate and complete when made, the witness must admit that the prior statement was not negligently made, was proof-read and left no margin for error or room for mistake.

"E" equals Expose the omission in the most persuasive manner that communicates the doubtfulness of the newly included critical fact.  Some situations demand professional gentleness.  Some require handing the document to the witness and asking "Please show us where in your statement (report, deposition, grand jury testimony) you say that .... (Cross-examiner uses the precise words used today but omitted earlier).  The silence in the courtroom becomes deafening.  In the agitation of the moment and off-stride, even the most experienced witnesses must finally admit that the omission is not included in those places and contexts which common sense dictates the omission would logically be found.

As indicated earlier, the question of whether an inconsistency exists is in the discretion of the court (People v. Duncan, 46 N.Y.2d 74 at 80 [1978]).  Even if it is arguable that the witness' attention was not sufficiently drawn to, or that the witness was not specifically asked about, the critical omission, argue that the balance should be struck in favor of admissibility, leaving to the jury the function of determining what weight should be assigned to the critically omitted fact (People v. Wise, 46 N.Y.2d 321 at 327 [1978]).  Always perfect the record by arguing that the right of an accused to present a defense weighs heavily on the side of permitting the impeachment use of the critically omitted fact (Chambers v. Mississippi, 410 U.S. 284 [1973]).

RAE = (1) Recommit; (2) Accredit; (3) Expose.

In April, the Court handed down Regal Entertainment Group v. NYS Division of Human Rights (505659), a decision that explores a number of important issues under New York’s Human Rights Law, including what is means to be "disabled" under the statute.

Doudou B. Janneh ("Janneh") was employed at a movie theater owned by the Regal Entertainment Group ("Regal").  In June 2005, Janneh became ill and failed to report for his scheduled work shifts. Subsequently, Janneh's wife presented a doctor's note to the theater manager, who forwarded the note to Regal's Benefits Administrator for a determination of whether Janneh was eligible for leave under the Family and Medical Leave Act (see, 29 USC § 2601 et seq.).

Determining Janneh to be ineligible, Regal's Benefits Administrator informed him by letter that if he was unable to return to work, he would be considered to have "voluntarily resigned for personal reasons," but he could reapply for employment with Regal at any time.  Janneh thereafter filed a Verified Complaint, which was later amended, with the New York State Division of Human Rights ("SDHR"), charging Regal with, among other things, disability discrimination in violation of Article 15 of the Executive Law.

By way of background, under Article 15, it is unlawful for an employer to discriminate on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics or marital status.  The term "disability" means (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment.

After investigation, SDHR determined that it had jurisdiction, and that there was probable cause to believe that Regal had engaged in an unlawful discriminatory practice. Following a hearing, an Administrative Law Judge determined, as relevant here, that Janneh failed to establish a prima facie case of discrimination, and recommended dismissal of the Complaint. Thereafter, SDHR issued an alternative proposed order, sustaining the Complaint to the extent that it alleged discrimination based upon disability, but finding that Janneh sustained no damages inasmuch as he remains unable to return to work. The Commissioner adopted that order, and Regal thereafter commenced a proceeding seeking to annul the determination.

In reversing the SDHR, the Appellate Division observed that, in order to establish a prima facie case of disability discrimination, a complainant must "demonstrate that he [or she] suffers from a disability, he [or she] was discharged, he [or she] was qualified to hold the position, and the discharge occurred under circumstances giving rise to an inference of discrimination based on his [or her] disability."  Notably, a disability that prevents an employee from performing the job requirements in a reasonable manner is not a protected disability within the meaning of the statute.  More specifically, according to the Court, "the Human Rights Law should not be interpreted to prevent termination of a worker who is unable to perform his or her duties even with reasonable accommodation."

Here, Janneh testified that he was unable to return to work when he was contacted by Regal in June 2005, and that he never sought medical clearance to return to work. Moreover, SDHR's order acknowledged that Janneh remained dependent upon the care of others for all of his needs from the date of his termination through early summer 2006, and that he was unable to return to work through the date of the hearing.

Accordingly, the Court held that Janneh failed to demonstrate a prima facie case of discrimination against Regal.  Thus, it annulled SDHR's determination and dismissed the Complaint in its entirety.

Environmental Update – May 2009
By: Gary S. Bowitch, Esq.
bowitchlaw@earthlink.net

The “Bigger, Better Bottle Bill” Is Now The Law In New York

New York State’s budget process had the usual twists and turns and finger pointing as in past years.  This year, however, after serious lobbying by both sides of the “Bigger, Better Bottle Bill” debate, a new and very substantial change to New York’s returnable beverage container law was incorporated into the 2009 budget bill and signed into law by Governor Paterson.

The original bottle bill, enacted in 1982, regulated only carbonated soft drinks, beer and other similar beverages. Since that time, however, there has been an enormous explosion of the sale of non-carbonated drinks.  For example, water drink sales have grown to almost one quarter of all beverage containers sold in New York.  None of these drinks are sold in returnable containers and, as a result, there has been a glut of plastic and other bottles which are either recycled or simply tossed into the garbage and, ultimately, a landfill.  In addition, under the old law, unredeemed deposits on returnable containers, totaling millions of dollars per year, were kept by beer and soda companies.

The new bottle bill changes this situation completely.  The new law, which amends various sections of Title 10 of Article 27 of the Environmental Conservation Law, now requires deposits on certain water drinks, requires 80% of the unclaimed deposits to be returned to the State’s general fund and sets up bottle bill education and grant programs.

Specifically, the definition of beverage containers sold in New York with a 5 cent deposit now includes those containing water in addition to carbonated soft-drinks and beer.  Water is defined to include flavored water and nutritionally enhanced water but specifically does not include “a type of water to which a sugar has been added.”  As before, it is unlawful to sell any beverage container, including those newly covered under the law, unless a 5 cent deposit is collected at the time of sale and unless the container has a 5 cent refund value clearly marked on it.  Beverage dealers, defined as sellers of beverage containers for off-site consumption, must accept any empty beverage container which is sold or offered for sale by that dealer and pay the 5 cent refund value for each.

The new law also mandates the use of “reverse vending machines” by certain larger chain stores.  A reverse vending machine is an automated machine which uses a laser scanner (or similar technology) to identify UPC bar codes, accept redeemable containers and issue a receipt for their total refund value. Beginning on March 1, 2010, beverage dealers which are part of a chain with ten or more stores in New York must install reverse vending machines.  The larger the square footage of the store, the greater number of reverse vending machines which are required.  Stores which do not meet this definition but are larger than 40,000 square feet and which don’t use reverse vending machines, must have a dedicated area for container redemptions which must be adequately staffed and must post a conspicuous sign describing where the redemption area is located within the store.  Stores under 10,000 square feet will be able to limit returnables to 72 “per visit, per redeemer, per day” if they have a written agreement with a nearby redemption center to accept larger quantities of containers on their behalf, but these stores must also set up two hour periods each day when people can redeem up to 240 containers.

All stores selling returnable containers must post a sign entitled the “New York Bottle Bill of Rights.”  This sign must list consumers’ rights under the new bottle bill including the right to return containers at any store which sells that type of beverage whether it was purchased there or not, the right to a refund without proof of purchase and the right to return containers on any day or hour, except the first and last hour of the store’s business day.

The law also imposes new requirements on “deposit initiators,” which are defined essentially as the original bottlers and any distributor who did not buy the containers from a bottler registered in New York.  Deposit initiators must accept and redeem all containers which it sells from any dealer or operator of a redemption center without any limitation on quantity.  The deposit initiator must pay the dealer or redemption center not only the 5 cent refund value and but also a 3.5 cent handling fee (increased from 2 cents under the old law) for each container.  Bottlers and distributors must also provide stores with sufficient number of bags or cartons for the handling, and packaging and pickup of containers which were not redeemed in a reverse vending machine.  Bottlers and distributors are prohibited from imposing certain onerous conditions on dealers such as requiring that containers be counted at an off-site location.  The law prohibits anyone from knowingly redeeming a container for which no deposit was paid in New York, but requires the bottlers and distributors to accept and redeem any container that the dealer or redemption center accepted and redeemed.

Deposit initiators must now set up a separate, interest-bearing “Refund Value Account.”  All container deposits must be placed into this account which is held in trust for the State of New York.  Payments of refund are to be paid from this account.  Deposit initiators must file quarterly reports with the Department of Taxation and Finance which describe the account balance; the amounts credited and paid out from the account including refunds and service/handling charges.

One of the most significant new provisions of the Bigger Better Bottle Bill is that the bottlers and distributors must now refund a portion of the unredeemed deposits back to the State of New York.  Thus, at the end of each quarterly reporting period, they must pay 80% of the balance in the Refund Value Account to the Department of Taxation and Finance Department.  The remaining 20% can be withdrawn and kept by the deposit initiators.   In the event a deposit initiator pays out more in refunds than it collects in deposits during a quarterly period, it may apply to the State for a refund of the excess amount paid as long as the request is made within 12 months.  All monies paid to the State, except for funds reserved for paying anticipated refund requests, are to be directed into the State’s general fund.

By June 1, 2009 all deposit initiators must apply to the State Department of Taxation and Finance for a registration certificate which will be issued for three year, renewable periods.  The Commissioner of Taxation and Finance has the authority to revoke or not renew any such registration if the deposit initiator has violated the law or any applicable rules and regulations.   Deposit initiators have the right to notice and a hearing to challenge any proposed revocation or non-renewal. 

The law also establishes penalties for various violations and expands the list of governmental agencies which can enforce the law.  For example, an unregistered bottler or distributor which sells containers in New York may be fined $500 per day of violation up to $25,000. Failure to maintain accounts and other records required by the law is subject to fines up to $1000 per quarter.  Any person who “willfully” tenders more than 48 containers for a deposit refund which he or she knows or should know that no deposit was paid, is subject to a civil penalty of  $100 per container, up to a total of $25,000.  (Dealers and redemption centers must post signs warning customers that such violations are subject to this penalty.)  The Attorney General and the Departments of Agriculture and Markets, Taxation and Finance and Environmental Conservation all have authority to enforce the provisions of the new law.  In addition, local governments can adopt local laws or regulations providing for the enforcement of most of the key provisions of the law.  

By June 1, 2009 deposit initiators must register new labels for containers offered for sale in NY which has a “New York State specific” bar code identifying the container as being offer for sale exclusively in New York.  This requirement is designed to prevent illegal redemption in New York of containers purchased outside of the state.  Such label registration must be renewed whenever the bar code is changed or when the size, composition or glass color of the container changes.

The new bottle bill also includes entirely new provisions creating a Bottle Bill Public Education Program and a Beverage Container Assistance Program.  The public education program is designed to disseminate information about the new law.  This program will publish information regarding the Bottle Bill of Rights, procedures for setting up a redemption center, the rights and responsibilities of bottlers, distributors, dealers and redeemers and general information about the benefits of recycling.  The Beverage Container Assistance Program will provide state grants to municipalities, certain not-for-profit organizations as well as distributors, dealers and redemption centers employing less than 50 people.  These grants will pay for up to 50% of the cost of the purchase of reverse vending machines or the purchase or rehab of property or buildings to be used to collect, sort or package empty beverage containers. 

Consumers, dealers, distributors and bottlers all face a lot of changes ahead under the Bigger Better Bottle Bill.  Change is good and hopefully all New Yorkers will benefit from the reduction of water bottles in our landfills and increased revenues from unclaimed deposits. 

verdicts@capitalregionlaw.com

Thank you again for the submissions and the continued support that we have been receiving relative to this column.  Please continue to submit the forms- which can be found at www.albanycountybar.com.com to Verdicts@Capitalregionlaw.com or fax them to Harris, Conway & Donovan, PLLC at 432-1996. 

These reports are based upon facts volunteered by the reporting attorney; none of these facts were independently investigated or gathered by the authors’ of this column.  Opposing counsel is given an opportunity to comment and, if they request, or if no response is received from them, their name(s) is/are not published.

Seven-Figure Settlement in Schoharie County

Settlement Amount:               $1,585,000.00                                   

Caption:                                 Alice Blakeslee v. Undisclosed Defendant

Court:                                     Schoharie County Supreme

Judge:                                    Hon. Eugene P. Devine

Date of Settlement:              March 9, 2009

Plaintiff’s Attorney:             Steven Foley, Esq. of Paul William Beltz, P.C. (Buffalo)

Defense Attorney:               Undisclosed

Facts/Injuries:                        On August 19, 2004, Plaintiff was traveling eastbound on Route 81 when a (rental) vehicle being operated by the Defendant allegedly ran a stop sign at the intersection of Route 81 and 27- causing a collision.  The defendant did provide conflicting testimony as to how the accident took place.

As a result of the collision Plaintiff suffered serious fractures to both lower extremities and ultimately underwent fusion surgeries for both ankles.  Plaintiff had been employed with Dynabil Industries of Coxsackie (sheet metal work contractors) as a Kitter and was rendered totally disabled by the accident.   

Albany County Defense Verdict for ER Doctor

Result:                                    Defense Verdict

Caption:                                 Undisclosed Plaintiff  v. Hallie Brooks, MD

Court:                                     Schenectady County Supreme             

Judge:                                    Hon. Thomas McNamara

Date of Verdict:                    February 27, 2009             

Plaintiff’s Attorney:             Undisclosed

Defense Attorneys:             Christine M. Napierski, Esq.

Facts/Injuries:                        Plaintiff alleged that the defendant doctor failed to diagnose her hip fracture when she arrived at a local emergency department complaining of leg and groin pain following a fall.  The Plaintiff was discharged with a diagnosis of right knee sprain and groin strain and instructed to follow-up with an orthopedist and given a pair of crutches.  Plaintiff chose to not use the crutches and failed to follow-up.  Ten days later Plaintiff’s hip snapped and she was required to undergo a partial hip replacement.

Plaintiff alleged that she must have had an incomplete fracture of the femoral neck that the ER doctor failed to diagnose.  The defense argued that the ER doctor did the appropriate exam of the hip and that it was negative for a hip fracture- and that it was Plaintiff’s negligence, in not following-up and in walking on the leg for 10 days, that caused the injury. 

 The jury was asked to decide if the ER doctor was negligent in failing to diagnose the hip fracture and if the doctor was negligent in giving appropriate discharge instructions.   The jury rendered a verdict in favor of the ER doctor.

Six Figure Dog Bite Settlement 

Settlement:                             $106,000.00 (combined recovery from Two defendants)

Caption:                                 Megan Hansen and Bradley Russell (derivative claim) v. Undisclosed Defendant

Court:                                    Albany County Supreme                      

Judge:                                    Hon. Thomas McNamara

Date of Settlement:             December, 2008

Plaintiff’s Attorney:             Jack Phelan, III, Esq and Timothy Brennan, Esq.

Defense Attorneys:             Undisclosed

Facts/Injuries:                       Plaintiff Hansen, who was a tenant, brought this claim against the dog owner (tenant) and the property owner.  The plaintiff alleged that she was lawfully on the premises when she was bitten in the face, sustaining significant and disfiguring injuries.  She further alleged that the dog had previously attacked a human and the defendants were aware of the dog’s vicious propensities.

The Defendants maintained that the dog had never previously attacked anyone and that the plaintiff’s injuries were a result of her own comparative negligence- in that she assumed the risk of injury by kneeling down to pet a dog that she was unfamiliar with.

(From the April 2009 Newsletter)

Torts and Civil Practice
By: Laura Jordan, Esq.
Powers & Santola
ljordan@powers-santola.com  

Just in case you have not already done so, you should read this case!

In this medical malpractice case, defendant Doerr settled with the injured plaintiff Fasso for $900,000, leaving $1.1 million in available insurance coverage on the table.  Prior to settlement, and without objection by any party, plaintiff’s health insurer, Independent Health Assoc., Inc. [IHA], intervened in the action seeking equitable subrogation for the $780,000 it had paid out on plaintiff’s behalf for the injuries she allegedly sustained due to defendant’s negligence.  As part of the settlement, plaintiff and defendant agreed that IHA’s subrogation claim would be dismissed because plaintiff was not “made whole” by accepting a settlement amount that was less than her actual damages.  Immediately thereafter, IHA sought to be reimbursed their $780,000 out of the remaining $1.1 million of insurance coverage but such claim was denied by Supreme Court.  However, the Court of Appeals heard the case and reversed, remanding for further proceedings.  The Court of Appeals held that the plaintiff and defendant could not agree to extinguish IHA’s equitable subrogation rights without IHA’s consent.  Furthermore, because $1.1 million remained in available insurance following settlement, the “made whole” rule would not preclude IHA’s claim merely because plaintiff accepted a settlement sum below the actual value of her claimed damages. 

Although the issue was not before the Court of Appeals, the Court took time to discuss the legal and practical issues surrounding intervention by insurers into underlying tort actions.  In stating that “competing policy concerns” are invoked by applications for intervention pursuant to CPLR § 1013, which deserves “legislative consideration”, the Court noted that such interventions place the insured and insurer in adversarial positions because neither has an incentive to consider the interests of the other, thereby complicating settlement negotiations between the injured party and tortfeasor.

While attending defendant’s school, and during a break between classes, the infant plaintiff attempted to slide down a stairwell banister and fell, sustaining a skull fracture and brain injury.  Plaintiff now seeks to recover damages for his injuries from defendants.  After completion of discovery and the filing of the note of issue, defendants moved to amend their answer to assert the affirmative defense of primary assumption of risk, which Supreme Court granted and the Appellate Division reserved.  On appeal the Court held that they were not inclined to extend the policy underlying the primary assumption of risk doctrine beyond situations in which the plaintiff was injured while voluntarily participating in a sporting event or entertainment activity.  In finding that plaintiff’s act of sliding down the banister was not a sporting or recreational activity, the Court refused to extend the doctrine of primary assumption of the risk to bar recovery against defendants. 

Following a jury trial, plaintiff was awarded $450,000 for her future pain and suffering related to injuries she sustained to her right arm and shoulder during a fall.  Defendant appealed claiming such award was excessive.  In upholding the jury’s determination and award, the Court noted that at the time of her injury plaintiff was 37 years old and had a life expectancy of 44.7 years.  The proof presented by plaintiff through her treating physician established that she sustained a hyper flexion injury to her dominant arm and injury to her brachial plexus, resulting in continuing symptoms of pain, numbness, weakness and reduced range of motion of her right arm.  The treating physician diagnosed plaintiff with thoracic outlet syndrome and scapula thoracic disassociation and testified that her conditions were permanent and would continue to significantly limit her use of her right arm and shoulder.  Furthermore, the plaintiff testified that due to her pain, numbness and weakness, she was restricted in her activities.

Plaintiff was injured when she stepped into a rut on a paved public street in Kingston, causing her to fall.  Following a motion for summary judgment by defendant, plaintiff argued that defendant affirmatively created the hazardous condition.  Plaintiff’s expert opined that the road was negligently designed and constructed, which caused water to pool and degrade the surface of the roadway over time.  However, there was no proof offered that defendant designed or constructed the road or that defendant performed any work that immediately resulted in the existence of a dangerous condition as opposed to a hazardous condition that evolved over a period of time.  The Court also dismissed plaintiff’s argument that the roadway should have been repaved rather than patched periodically as there was no evidence that plaintiff’s fall was the result of the patchwork. 

While walking on the sidewalk in front of property owned/leased/managed by the respective defendants, plaintiff slipped and fell on ice causing her injuries.  Plaintiff alleged defendants created the dangerous condition or had notice of the ice and failed to address it properly.  Defendants met their initial burden on their motions for summary judgment dismissing the complaint through testimony of an employee who performed snow removal and de-icing of the subject sidewalk less then 24 hours prior to the accident and inspected the property on a daily basis.  In opposition to defendants’ motions, plaintiff offered her own testimony and the affidavit of a meteorologist.  Plaintiff testified that she slipped on a patch of ice that was the size of her body, although she did not see it until after she fell because she was looking ahead while walking toward a bus stop.  The meteorologist’s proof established that a 24-hour storm produced 8.5 inches of snow in the effected area beginning some 40 hours prior to plaintiff’s fall and that no precipitation had fallen in the 16 hours immediately prior to her fall.  He opined that the large patch of ice that plaintiff testified she slipped on was the residue of that 24-hour storm that had ended some 16 hours before her accident.  Supreme Court and the Appellate Division both held plaintiff’s proof created a trial question of fact regarding constructive notice. 

Plaintiff worked at decedent’s residence three days a week for a few months prior to the date of her accident, when she arrived at decedent’s house and slipped and fell on packed snow and ice on the driveway, causing her to sustain injuries.  In support of its summary judgment motion, defendant produced proof that a storm was in progress at the time of plaintiff’s fall, thereby shifting the burden to plaintiff.  Plaintiff presented proof that the storm began about the same time she arrived at decedent’s house, that there was packed snow and ice on the driveway that covered most of the driveway, which was a few inches thick, and that it had been present before the date of the accident.  There was also proof that in the two days prior, temperatures did not go above freezing and no precipitation had fallen.  Therefore, the Court found plaintiff presented sufficient proof to create a triable question of fact as to whether decedent was negligent in maintaining his property, reversing Supreme Court’s grant of summary judgment.

Plaintiff was involved in a single car accident when she swerved to avoid a deer, went off the paved portion of the roadway, side-swiped some trees and struck a tree stump located three feet off the roadway, head-on.  At issue on appeal was plaintiff’s claim that the State of New York was negligent in failing to comply with new safety standards regarding clear zones along the side of the roadway during a 1991 project involving that roadway.  Plaintiff was required to prove that the State was undertaking a reconstruction of the roadway, and not just a paving or resurfacing project, to argue the State had to comply with design standards adopted after the roadway was constructed.  In affirming the lower court’s finding that defendant was not liable following a bifurcated trial, the Court noted testimony from State and local DOT employees who testified that the project involved repaving only and did not rip-out or reconfigure the roadway or in any way change the area outside of the shoulders. Additionally, the Court held there was no proof that the State breached its duty to maintain the road in a reasonably safe condition as no prior accident or other event gave notice to the State of this allegedly dangerous condition beyond the paved portion of the roadway.

Plaintiff, an attorney, brought this action for defamation/fraud/injurious falsehood (among others claims) against his former client, defendant Claverack.  For 25 years the plaintiff was retained by defendant to represent its insured’s in liability claims.  One such action in which plaintiff was retained resulted in a $4,206,780 verdict against defendant’s insured, which was found 75% liable.  Following the large verdict, defendant claimed plaintiff failed to keep it apprised of the progress of the litigation and failed to settle the case within the policy limits of its insured.  During post-trial settlement negotiations, defendant sent a letter to plaintiff’s professionally liability insurer, Zurich, seeking their contribution to a post-judgment settlement.  In the letter to Zurich, defendant enclosed various memoranda detailing conversations between plaintiff and two officers and directors of defendant that were allegedly created contemporaneous to the alleged telephone conversations.  However, plaintiff claims that the memoranda were fabricated to compel his liability carrier, Zurich, to contribute to the post- judgment settlement, which it did.  Plaintiff was also required to pay his deductible on the settlement payment.  Following these events, Zurich declined to renew plaintiff’s liability policy, forcing plaintiff to insure with another company at a higher premium.  On appeal from Supreme Court’s grant of summary judgment to defendants, the Court reversed and found questions of fact on the defamation, injurious falsehood, and fraud causes of action.  Notably, plaintiff contended defendants intentionally fabricated the memoranda to contain false statements, published them to Zurich implicating his business reputation, caused plaintiff to pay a deductible and caused him to pay high premiums for insurance. 

Plaintiff initiated this Labor Law action against, among others, the Town of Colonie.  The Town in turn brought a third-party indemnification claim against Anjo Construction seeking contractual indemnification.  Anjo moved to dismiss the third-party claim, which motion was granted by Supreme Court.  Plaintiff appealed the grant of partial summary judgment dismissing the third-party claim.  In citing CPLR 5511, the Court dismissed plaintiff’s appeal stating that plaintiff did not have standing to dispute the dismissal of the third-party contractual indemnification action between the Town and Anjo, which did not affect the plaintiff’s complaint.

Plaintiff’s case was dismissed for failure to timely serve a complaint pursuant to CPLR 3012 (b) after receiving a demand for a complaint in April 2007 by defendants.  The Court noted that plaintiff failed to proffer a reasonable excuse for her three-month delay in responding to defendants’ demand and that the proof in the record established that plaintiff had sufficient information at the time of filing the summons with notice to serve a complaint but failed to timely do so.

During this medical malpractice jury trial, Supreme Court charged the jury with an instruction regarding evidence of the defendant physician’s habit in performing surgeries.  A core issue in the action was what caused plaintiff to suffer a long thoracic nerve injury during a breast biopsy surgery performed by defendant.  On appeal by plaintiff following a defense verdict, defendant conceded the habit evidence instruction was given in error.  However, the Court found such error was harmless as defendant did not rely on this theory in his case and there was no real evidence concerning defendant’s habits in performing this type of surgery presented to the jury. 

Plaintiff brought this action on behalf of her infant daughter for injuries she sustained due to dangerous conditions on defendants’ property.  The Court ordered the infant plaintiff to submit to an IME by a certain date.  Counsel for the parties confirmed a date for the IME within the court’s timeline and plaintiff’s counsel informed the plaintiff of the date.  However, the infant plaintiff did not appear for the IME as scheduled.  Following defendants’ motion to dismiss the complaint for failure to comply with disclosure, Supreme Court struck the complaint.  On appeal, the Court reversed and ordered Supreme Court to issue a conditional dismissal order.  Given the infant plaintiff’s age, hearsay claims that plaintiff was never informed of the IME date and the fact that plaintiff only failed to appear at one IME, Supreme Court should not have dismissed the complaint.         

Labor and Employment Practice
By: Glen P. Doherty, Esq.
McNamee, Lochner, Titus & Williams, P.C.

As discussed in my March article, the American Recovery and Reinvestment Act of 2009 ("the Act") contains major changes to the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").  The Act provides COBRA subsidies and special election rights to individuals who lose their group health coverage due to involuntary termination of employment between September 1, 2008 and December 31, 2009, and requires employers to notify eligible individuals of their rights and options under the new law, and to provide short-term funding of the COBRA subsidy.

More specifically, beginning March 1, 2009, eligible individuals will only be required to pay 35% of their COBRA premium.  The employer (or plan, in the case of a multi-employer plan) must "front" the remaining 65%.  The employer may then obtain reimbursement of the funds it advanced by taking a credit against its federal payroll obligation.  The subsidy ends no later than the earlier of nine months after the first day of the first month the subsidy coverage begins, or on the date COBRA would otherwise expire.  The subsidy will also terminate if the individual becomes eligible for coverage under another group health plan or Medicare.

Under the Act, an employer may allow eligible individuals the opportunity to elect a type of coverage other than the type the individuals had immediately before the qualifying event, provided the premium for the different coverage is not more than the premium for the coverage in which the individual was entitled at the time of the qualifying event, and the coverage option is one that is offered to the employer's active employees.

The Act provides a special 60-day period to elect subsidized COBRA continuation coverage.  Employers must provide notice of this right to eligible individuals no later than April 18, 2009 – even if an individual declined coverage in the past or elected and then terminated coverage.  The special 60-day election period starts the day the eligible individual is provided notice of the availability of the subsidy.  The earliest coverage can begin under the subsidy is March 1, 2009 – not on the date of the initial qualifying event (e.g., termination).  Under the Act, the plan cannot apply preexisting condition exclusion on account of any break in coverage.

Under the Act, the Department of Labor was required to issue model notices to assist employers and plan sponsors in complying with the Act's notice requirements and implementing the subsidy.  On March 19, 2009, the DOL issued the following four (4) notices:  Notice (full version); General Notice (abbreviated version); Notice in Connection with Extended Election Periods; and Alternative Notice (see, www.dol.gov/ebsa/cobra.html).

General Notice (full version) – This notice (and election form) must be provided to all qualified beneficiaries, not just covered employees, who experience a qualifying event, regardless of the type of qualifying event, between September 1, 2008 and December 31, 2009.  It is almost identical to the DOL's existing model notice, except that it now includes information concerning the Act, and boxes have been added so that the plan administrator can indicate whether "end of employment" is "voluntary" or "involuntary."  The following additional documents are included with this notice:  Summary of the COBRA Premium Reduction provisions under ARRA; Request for Treatment as an Assistance Eligible Individual; Switching COBRA Continuation Coverage Benefit Options; and Premium Reduction Ineligibility.

General Notice (abbreviated version) – This notice (and election form) includes the same information as the full version regarding the availability of the premium reduction and other rights under the Act, but does not include the COBRA coverage election information.  It may be sent in lieu of the full version to individuals who experienced a qualifying event on or after September 1, 2008, have elected COBRA coverage, and still have it.

Notice in Connection with Extended Election Periods – this notice (and election form) must be provided to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who: experienced an involuntary termination of employment during the period from September 1, 2008 through February 16, 2009; and was previously offered COBRA coverage but either did not elect such coverage or elected it and then subsequently discontinued it.  It must be provided no later than April 18, 2009, and the "second" election period must last for a period of 60 days from the date the notice is provided.

Alternative Notice – this notice (and election form) must be used by insurance issuers where coverage is to be provided in accordance with State continuation coverage.

The model notices identified above will obviously need to be modified in order to meet the specifics of each particular plan.  However, use of the models as a base (rather than modification of existing notices) will presumably constitute good faith compliance with the Act.

In W.R. Grace & Co. v. Zotos International, Inc., ___ F3d___, WL 564048  (2^nd Cir., 2009), the Second Circuit Court of Appeals addressed the question of whether and under what specific circumstances a potentially responsible party (PRP) can seek recovery of its response costs against another PRP under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Three specific CERCLA provisions relating to cost recovery and contribution rights for parties which have incurred response costs cleaning up a contaminated site were the focus of the Second Circuit’s analysis in W.R. Grace:

·        CERCLA §107(a)(4)(B), which provides that a party which meets one of the four criteria for being deemed a PRP under CERCLA shall be liable for “(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;”; 

·        CERCLA §113(f)(1) which states that “[a]ny person may seek contribution from any other person who is liable or potentially liable under [§107(a)]…during or following any civil action” under CERCLA Sections 106 or 107; and 

·        CERCLA §113(f)(3)(B) which provides that a “person who has resolved its liability to the United States or a State for some or all of a response action…in an administrative or judicially approved settlement may seek contribution from any person who is not a party to” such settlement.

In W.R. Grace, W. R. Grace acquired a contaminated site in a 1978 purchase of another company’s assets.  Grace alleged that Zotos International arranged for the disposal of hazardous wastes at this site.  In the l980s, Grace entered into two administrative Consent Orders with the New York DEC under which Grace agreed to investigate and remediate the site and reimburse the DEC for about $20,000 in State response costs.  Grace did not admit liability under these Consent Orders and voluntarily agreed to carry out the Orders’ investigative and remedial obligations.  Grace cleaned up the site and by 2004 had incurred $1.7 million in remedial costs.  

Grace commenced this action in 1998, originally seeking contribution from Zotos under CERCLA §113(f).   After a bench trial the District Court ruled that Grace was not entitled to contribution under that provision because it found that Grace was neither a party to a civil suit under CERCLA or a party to a settlement.   Grace appealed arguing that it was entitled to contribution under CERCLA §113(f)(3)(B) or, alternatively, that it could recover some of its costs under §107(a)(4)(B).

During the pendency of this action and appeal, the Supreme Court decided two cases -- critical to the Second Circuit’s decision in this case -- which resolved open questions regarding these cost recovery and contribution provisions of CERCLA.  In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), the Supreme Court held that a party can bring a contribution claim under §107(f)(1) only if that party had been subject to a civil action under CERCLA §106 or §107.  The Second Circuit correctly noted that previous to Cooper Industries most courts had held that only §113(f) provided a PRP with a cause of action for reimbursement from another PRP and that §107(a) was reserved for actions by innocent parties.  In United States v. Atlantic Research Corp, 127 S. Ct. 2331 (2007), however, the Supreme Court again clarified the scope of these provisions ruling that “the plain terms of §107(a)(4)(B) allow a PRP to recover costs [it incurred in cleaning up a site] from other PRPs.” 127 S Ct. at 2339.  

Given these rulings, the Second Circuit first analyzed whether Grace had a cause of action against Zotos for contribution under §113(f).   Grace acknowledged, and the Court agreed, that in light of Cooper Industries, it did not have a right of action under §113(f)(1) because it was not previously subject to a civil suit under either §106 or §107.  In deciding whether Grace had a cause of action under §113(f)(3)(B), the Court had to examine whether or not the Consent Order which Grace entered into with DEC qualified as an administrative settlement resolving Graces’ CERCLA liability.  The Court found that the Consent Order only settled the DEC’s state law claims against Grace and that it did not, in fact, resolve Grace’s liability under CERCLA.  The Court concluded that DEC Consent Order was not an “administrative settlement cognizable under section 113(f)(3)(B)” and, thus, affirmed the District Court’s decision denying Grace’s right to bring a contribution action against Zotos under this provision.

Next, the Court evaluated whether, in light of Atlantic Research, Grace could assert a claim under §107(a)(4)(B).  Zotos argued that because Grace was “compelled” to incur cleanup costs under the DEC Consent Order, that Grace had not incurred response costs within the meaning of §107(a).   Examining the definition of response costs and the scope of Atlantic Research,  the Second Circuit found that that cost recovery rights under §107 are not limited only to an “innocent” party (i.e., a PRP has a cause of action) but also held that this right is not limited only to a party which “voluntarily” cleans up a site.  Thus, the Court found that the fact that Grace, a PRP, entered into a Consent Order with DEC to cleanup the site did not preclude it from bringing an action pursuant to §107(a).  The Court  noted that Zotos’ interpretation of the statute would discourage parties from entering into voluntary agreements with the State which would lead to cleanups with proper regulatory oversight.  Moreover, in the Court’s view, it would be wholly contrary to CERCLA’s purpose to interpret the statute such that a PRP, such as Zotos, would bear no financial responsibility for the cleanup, while a party such as Grace, that agreed to voluntarily remediate the site, would bear the full financial burden of the remediation.

Finally, having decided that Grace could pursue its claim against Zotos under §107(a)(4)(B), the Court noted this subsection only allows for the recovery of “necessary cost of response…consistent with the national contingency plan.”  Since the District Court had decided that Grace had no cause of action at all, it had not made any ruling on the nature of the costs incurred by Grace.  Accordingly, the Second Circuit remanded the matter back to the District Court for further proceedings on this issue.

“Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else's cash.” P.G. Wodehouse aka Sir Pelham Grenville

“You never know how short a month is until you pay alimony.”  John Barrymore

“There are much easier things in life than finding a good man.  Nailing Jell-O to a tree, for instance.”  Anonymous 

Ah, Spring. When a young man’s fancy certainly does not turn towards thoughts of child support, although it should.  Case in point, Travis Henry, winner of the CSSA Flying Fickle Finger of Fate Award for 2009.  If you’ve never heard of this guy, join the club.  However, he is a very good football player, being an all pro NFL running back and signing a $25 million contract in 2007.   He celebrated his exoneration on a failed marijuana drug test by smoking marijuana and getting suspended again, so you know he has a sense of humor.  Although only thirty years old, he has fathered nine children by nine different women and he is obligated to pay over $170,000 per year in child support for his offspring.  Recently he was jailed in Florida for failing to pay over $16,000 for one of these cherubs, and apparently Mr. Henry is now broke.  He did tell the New York Times shortly before he was jailed, “I love all my kids.”  Amen.  He now has Shawn Kemp (seven children by six women) and Derrick Thomas (seven by five) beat by a landslide.  Nice job, big guy.  But compare Mr. Henry with David Bean who was made to pay lifetime maintenance of at least $150,000 and child support for one child of $85,000 per year on $1 million in yearly income, considerably less than Mr. Henry’s yearly take as a running back.  That’s just fine in the Third Department.  Bean v. Bean, 1 setting the Gold Standard for the CSSA cap at $500,000 of combined income.  One wonders what kind of numbers Mr. Henry would put up in the Third Department had one of the moms wandered into the jurisdiction.

By the way, did you get your latest issue of the Journal of the American Psychosomatic Society?  No?  There’s a nifty study there by a psychologist named Nancy Henry (no relation to Travis) and some others at the University of Utah that concludes that women are far more likely than men to have damage to their health in strained marriages.  The study included people who had been married twenty years and found that both men and women claimed to be depressed in bad marriages, but only women showed negative physiological signs.  One of the leading researchers concluded, “It's a little premature to say they would lower their risk of heart disease if they improved the tone and quality of their marriages - or dumped their husbands.” 2 Geez, I could have told them that, but this is Reason Number 12,394 for the Empire State to pass no fault divorce if you ask me.  But no one is asking.

And speaking of divorce reform, did you get the news of the two imbeciles in the West Virginia Legislature named John Ellum and Robert Schadler?  They want to make it impossible to get maintenance (alimony) if you commit adultery.  As Mr. Ellum said, “It has always bothered me that you can almost be rewarded in a way for cheating on your spouse.” 3 You and you alone, John Bob, or is it Bob John?

Before we get to the latest from My Favorite Appellate Division, there was an interesting study of the “wage gap” between men and women based on the Census Bureau’s Current Population Survey for 2007.  Suffice it to say men earn more than women for the same job, but we all know that.  However, the “wage gap” is 22% among lawyers, with women earning about $71,500 and men earning about $91,600 per year.  So, ladies, not only do we earn more than you, but apparently we make you sick in bad marriages.  Time to rethink things here?

So, we all know that an attorney is supposed to sign a pleading, and this goes for Family Court Petitions.  If you don’t believe me, take a gander at 22 NYCRR 130-1.1.  So if the attorney doesn’t sign, is the petition to be dismissed?  Of course not, but the Third Department had to reverse a Family Court judge who did just that in Green v. Tierney. 4  Finally, a victory for resolution on the merits over technicality.

Are you entitled to paralegal fees in Family or Supreme Court?  Of course not as the statues only refer to “counsel fee” applications.  Sure, §8602(b) of the CPLR allows the recovery for paralegal fees in actions against the state, but Family Court Act §438, §536, §842(f) and Domestic Relations Law §237 make no mention of paralegal or other such fees.   Therefore, one might conclude that since the legislature allowed such fees in one kind of action, but not in domestic relations matters, they never intended a recovery for paralegal fees in Family Court or Matrimonial Actions.  Makes sense to me, but not to the Second Department, who recently held that a court can award paralegal fees in Family Court in the court’s discretion, although denied in this instance. Hubbard v. Clay. 5  Makes you wonder.

Speaking of wondering, the Second Department gave us a doozy at the end of February in deciding that the standard for finding a violation of an Order of Protection under Article 8 of the Family Court Act is beyond a reasonable doubt!  Rubackin v. Rubackin. 6  They frankly acknowledged that this is contrary to their own prior decisions as well as the decisions of the other Appellate Divisions including our Favorite App Div. 7  The language of this decision seems to imply that this might also be the standard in support violation matters as potential incarceration is the lynchpin for the standard, citing the 1911 Supreme Court case of the great labor activist Samuel Gompers v. Buck’s Stove and Range Co. 8 Sounds like the Second Department is dying to grant leave to the Court of Appeals on this one. We’ll see.

Finally a few words on the Appellate Division, Third.  I know that we have about a 30% chance of a reversal or modification in matrimonial appeals and obviously significantly less in criminal and prisoner appeals.  But ladies and gentlemen, a day with 29 affirmances and one measly reversal, which occurred on March 5, 2009?  Man, the stars must have been aligned on that day.

The Gov’nor finally appointed three new appellate justices last month, but many newspaper articles only commented on the skin color or sexual orientation of the jurists. Whatever happened to the judicial qualifications?  Doesn’t that mean anything anymore to the hoi polloi?  Is skin color or sexual orientation the only relevant issues anymore when it comes to judicial selection?   Makes me wonder if I were ever appointed to anything, the headlines the next day would probably be, “Delusional, Demented, Narcissistic Blue Jay Fan wing nut appointed by the Gov.” Guilty as charged.  

Thank you again for the submissions and the continued support that we have been receiving relative to this column.  Please continue to submit the forms- which can be found at www.albanycountybar.com to Verdicts@Capitalregionlaw.com or fax them to Harris, Conway & Donovan, PLLC at 432-1996. 

These reports are based upon facts volunteered by the reporting attorney; none of these facts were independently investigated or gathered by the authors’ of this column.  Opposing counsel is given an opportunity to comment and, if they request, or if no response is received from them, their name (s) is/are not published.

Result:                                    Verdict for Defendant

Caption:                                  Undisclosed Plaintiff v. ORDA
Court:                                     Essex County Supreme
Judge:                                     Hon. James Dawson
Date of Verdict:                     November 20, 2008
Plaintiff’s Attorney:              Undisclosed
Defense Attorney:                 Matthew J. Kelly, Esq.

Facts/Injuries:                       Plaintiff had been injured on December 29, 2003, while ice skating at the Speed Skating Oval in Lake Placid, NY. Plaintiff brought a lawsuit contending that the Olympic Regional Development Authority (ORDA) was negligent in the maintenance of the premises and that it had failed to take reasonable care to prevent injury to skaters and those using the rink.

The jury was out for one hour and returned a verdict for the Defendant.

Caption:                                  Undisclosed Plaintiff  v. Undisclosed Defendant
Court:                                     Schenectady County Supreme             
Judge:                                     Hon. Vincent J. Reilly, Jr.
Date of Settlement:               January 2009
Plaintiff’s Attorney:               Frank M. Putorti, Jr., Esq.
Defense Attorneys:               Undisclosed

Facts/Injuries:                       Plaintiff was an 18 year old contact lens user.  During the summer of 2005, he developed a viral infection called "fungal keratitis" in his left eye- allegedly from the use of an eye solution manufactured by the Defendant. The infection seriously damaged the eye, resulting in Plaintiff undergoing cosmetic surgery to put in a prosthetic lens to resemble the right eye.   Plaintiff may also lose the eyeball in the future.  

An action was commenced in Schenectady County in 2006.  It settled just prior to trial.

Caption:                                  Undisclosed Plaintiff  v. Undisclosed Defendant
Court:                                     Albany County Supreme                      
Judge:                                     Hon. Thomas McNamara
Date of Settlement:               December 3, 2008
Plaintiff’s Attorney:               Andrew Kirby, Esq.
Defense Attorneys:               Undisclosed

Facts/Injuries:                       This matter arose out of an intersection collision in Albany County.  Plaintiff claimed that he had the right of way and that the Defendant failed to yield.  The Defendant claimed that she was not negligent and that her view of the intersection was obstructed. 

Following the accident, Plaintiff did not treat at a hospital but returned to a chiropractor, who had treated him for a pre-existing low back condition.  At trial, the Plaintiff’s treating radiologist testified that an L5-S1 herniation was caused by the accident and that the Plaintiff’s complaints of lower extremity pain fit an S1 radiculopathy pattern.  Plaintiff also called two treating physical therapists to testify as to his limited range of motion. Plaintiff did not have surgery and he was not unable to work for any significant periods of time.  The Plaintiff’s family physician was prepared to testify as to causation as well as to “serious injury” but the matter settled prior to his testimony.

Prior to the settlement, the Defense maintained that the Plaintiff suffered from a pre-existing herniation.  They further contended that based upon an IME, the Plaintiff’s symptoms were not disabling and that he had regained most of his lost range of motion. 

I’m only so brave and having received near death threats after the first of the two Compensation jokes, I have elected NOT to use the other but to continue to scour the internet in search of a Workers’ Compensation joke that is actually funny.

But in the mean time we have now approached two years since the new statutory scheme and cases are ready for a classification. At a recent meeting with the Board, the question was asked how the Administrative Law Judges were going to calculate the degree of disability when the guidelines have not been released and will not be released for some time to come. Recall that whether or not a claimant has a permanent 39% disability versus a 40% disability is very significant money wise. We were advised that the Judges would “use their best judgment”. But of course their judgment can not be any better than the medical opinions provided by the Claimant’s doctor and the carrier’s consultant and since they have no guidelines to base their opinion on the whole thing smacks of a guess.

There have not been a lot of recent AD cases but in MURIEL WEBB, as Widow of  JERRY WEBB, Deceased, v  COOPER CROUSE HINDS COMPANY, Appellant  (3/5/09) the  claimant was classified with a permanent partial disability, apportioned in part to the comp case and in part unrelated. Upon his death from the same condition there was a question as to whether or not the death claim award should also be apportioned.  The AD denied apportionment noting “the Board has concluded – correctly, in our view – that apportionment is not available between work-related and nonwork- related causes of death”.

In DENISE PETRILLO, Appellant, v WALTER B. COOKE et al. (3/5/09) the Claimant was out of work due to a compensable injury and, through the assistance of VESID obtained a degree to work as a paralegal. Having done so she then apparently decided that she did not wish to work as a paralegal, notwithstanding her new qualifications. The Court held that she had removed herself from the labor market since there was no showing that her compensable injury was preventing her from doing this sedentary work.

Not everyone recalls the less exciting portions o section 123 of the WCB. In addition to denying further indemnity payments on cases that are more than 18 years old with no payment of comp in the last 8 years it also provides that if a case is closed without being established and not thereafter established within 7 years that it is all over. The AD said, yes indeed, the case is over and the Board does not have the authority to revisit it.  DENISE PETRILLO, Appellant, v WALTER B. COOKE et al. (3/5/09).

Within the next month or two we should have an indication of how the Administrative Law Judges are handling the disability issue. No matter how they handle it the Appellate division will be involved thereafter.

(From the March 2009 Newsletter)

Torts and Civil Practice
By: Laura Jordan, Esq.
Powers & Santola
ljordan@powers-santola.com

During a medical malpractice jury trial in July 2007, defense counsel had ex-parte conversations with two of plaintiff’s treating physicians without first obtaining plaintiff’s authorization pursuant to HIPAA.  Following discovery of these improper conversations during the trial, plaintiffs moved post-trial to set aside the defense verdict and for a new trial, which was granted by Supreme Court.  Defendant appealed and the Appellate Division affirmed Supreme Court’s post-trial decision and order.  During the trial, plaintiffs subpoenaed the two treating physicians at issue to provide testimony on plaintiff’s behalf.  However, the physicians’ testimony was not what plaintiff’s counsel had expected and came as a complete surprise.  It was not until later that plaintiffs’ counsel became aware of the ex-parte conversations defense counsel had with these two treating physicians.  In holding that the testimony of the treating physicians was clearly prejudicial to plaintiffs’ case, the Court noted that defense counsel’s illegal behavior enable him to obtain information he otherwise would not have had, which allowed him to elicit favorable testimony for defendant, of which plaintiff was not prepared to rebut.

Plaintiff, a 71 year old woman, was injured when she allegedly stumbled and fell while exiting defendant’s bus.  The defendant bus company had a policy that all drivers are to stand facing the bus and assist passengers who are alighting from the bus.  Furthermore, as a common carrier, defendant owed a duty to plaintiff, as an alighting passenger, to stop at a place where she could safely disembark.  Defendant moved for summary judgment dismissing the complaint, which Supreme Court denied and the Appellate Division affirmed finding questions of fact regarding defendants’ negligence.  Notably, there was testimony from the bus driver that he was engaged in a conversation with another passenger when plaintiff exited the bus and therefore did not notice her.  Plaintiff and her daughter testified that the bus driver had his back to plaintiff as she exited and partially blocked her way, causing her fall and injury.  There was also proof of a height differential from the bottom step of the bus to the ground, which was not addressed by the driver.  However, a fellow passenger testified that plaintiff fell after walking away from the bus, not while exiting. 

Supreme Court dismissed a negligent supervision action against defendant school district regarding injuries a fifth grade student received after being pushed by a fellow fifth grader into a locker and bench in the boys’ locker room.  The incident occurred immediately following gym class during the four minutes the boys are allotted to change after class.  In focusing on the issue of whether or not the acts of the fellow student could have been reasonably anticipated, the Court cited testimony from the physical education teacher in charge of the boys that day, finding questions of fact exists as to whether defendant could have reasonably anticipated the intentional act causing plaintiff injuries and whether the lack of supervision in the locker room was a substantial factor in brining about the injuries.  Namely, the physical education teacher testified that the students in this gym class were acting out of control, not listening to directions, and had to be lectured on stopping their inappropriate behavior and listening to directions.  The teacher admitted that given the students behavior that day, the teacher would have greater concern to supervise their behavior while they were changing in the locker room.  Furthermore, it was custom for the teacher to go into the locker room at some point while the boys were changing.  However, on the date in question, the teacher did not enter the locker room because he was talking to another student in the gym.

In this subrogation action by plaintiff, a health insurer, against defendants, who injured plaintiff’s insured, Supreme Court dismissed the complaint based upon a general release the insured provided to defendants. In the underlying tort action, Stephanie Weaver (insured) settled her personal injury action against defendants, the driver and owner of a vehicle that struck her as a pedestrian, for $2 million dollars.  Prior to the settlement agreement entered into by Weaver and defendants, defendants were made aware of plaintiff’s lien and subrogation rights as Weaver’s health insurance company who had paid approximately $71,000 on behalf of Weaver for health services.  During the settlement process, Weaver’s counsel indicated to defendants that the purported lien would be satisfied with settlement funds held in escrow.  At the same time, however, Weaver’s counsel told plaintiff that while settlement negotiations were occurring and a settlement hearing date was set, the settlement would only be for pain and suffering and not damages for any medical expenses, including those paid by plaintiff on Weaver’s behalf.  Once the settlement was reached, Weaver signed a general release in favor of defendants which stated Weaver would “indemnify and save harmless [defendants] against any and all further claims for damages, costs, expenses and liens, including but not limited to …. health insurance liens.”  Despite this language, the Appellate Court reversed Supreme Court’s order dismissing the complaint, holding that as defendants had knowledge of plaintiff’s subrogation rights prior to settlement, the settlement had no effect on plaintiff’s right to recover against defendants.  The Court did not address defendants’ possible indemnification claim against Weaver, but presumably that litigation will arise very shortly.

Plaintiff was injured in a car accident when Mr. Zulauf, driving while intoxicated, struck her vehicle.  She brought this action against defendant Grandview pursuant to GOL § 11-101 and the case proceeding to trial.  The proof at trial established that during the evening immediately prior to the accident, Zulauf had attended a Christmas Party at defendant Grandview hotel.  There were approximately 200 guests at the party and two bartenders.  While there was clear evidence that Zulauf was visibly intoxicated during the party, there was no evidence presented that the bartenders or any of defendant’s employees personally served Zulauf alcohol.  Witnesses testified that Zulauf remained seated at a table most of the evening and, due to the large number of people at the party, the bartenders’ views of the tables were often obstructed.  Given this proof, the jury’s verdict for defendant would not be set aside on appeal.          

The American Recovery and Reinvestment Act of 2009 ("the Act"), signed by President Obama on February 17, 2009, contains major changes to the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").  To summarize what is more fully discussed below, the Act provides COBRA subsidies and special election rights to individuals who lose their group health coverage due to involuntary termination of employment between September 1, 2008 and December 31, 2009, and requires employers to notify eligible individuals of their rights and options under the new law, and to provide short-term funding of the COBRA subsidy.

Beginning March 1, 2009, eligible individuals will only be required to pay 35% of their COBRA premium.  The employer (or plan, in the case of a multi-employer plan) must "front" the remaining 65%.  The employer may then obtain reimbursement of the funds it advanced by taking a credit against its federal payroll obligation.

The subsidy ends no later than the earlier of nine months after the first day of the first month the subsidy coverage begins, or on the date COBRA would otherwise expire.  The subsidy will also terminate if the individual becomes eligible for coverage under another group health plan or Medicare.

The subsidy does not apply to flexible spending accounts.

Under the Act, an employer may allow eligible individuals the opportunity to elect a type of coverage other than the type the individuals had immediately before the qualifying event, provided the premium for the different coverage is not more than the premium for the coverage in which the individual was entitled at the time of the qualifying event, and the coverage option is one that is offered to the employer's active employees.

The Act provides a special 60-day period to elect subsidized COBRA continuation coverage.  Employers must provide notice of this right to eligible individuals no later than April 18, 2009 – even if an individual declined coverage in the past or elected and then terminated coverage.

The special 60-day election period starts the day the eligible individual is provided notice of the availability of the subsidy.  The earliest coverage can begin under the subsidy is March 1, 2009 – not on the date of the initial qualifying event (e.g., termination).  Under the Act, the plan cannot apply a preexisting condition exclusion on account of any break in coverage.

The notice may be provided under a modified COBRA notice or in a separate document.  The Department of Labor is required to issue model notices by March 19, 2009.  For employers that do not wish to wait for the DOL forms, the notice must:  advise the eligible individual that the premium subsidy is available; include any forms necessary for establishing eligibility for the subsidy; provide contact information; describe the extended election period; describe the eligible individual's obligation to notify the plan if he or she becomes eligible for other group health plan coverage or Medicare (and the penalty for failing to do so); describe the eligible individual's right to a reduced premium and conditions for receiving such; and describe the eligible individual's option to enroll in different coverage, if applicable.

Although the 65% subsidy is available to all eligible individuals, the amount of subsidy will be subject to income tax, on a sliding scale, for those classified as "high income individuals."  For single filers, the phase-in starts at a modified adjusted gross income of $125,000, with full taxability at $145,000 (for the year in which they receive the subsidy).   For joint filers, the phase-in starts at a modified adjusted gross income of $250,000, with full taxability at $290,000 (for the year in which they receive the subsidy).

Environmental Update – March 2009
By: Gary S. Bowitch, Esq.
bowitchlaw@earthlink.net

In the Matter of Lighthouse Pointe Property Associates LLC, v. NYS Department of Environmental Conservation, et al., Appellate Division, Fourth Department, 2009 NY  Slip Op 00878 (Feb. 6, 2009)

I am delighted to begin writing the Environmental Update column for the Albany County Bar Association Newsletter.  I wish to warmly thank Daniel Coffey for recommending me for this assignment.   Dan has done an extraordinary job writing this column month after month, leaving me with very large shoes to fill.  There are a host of new cases and statutes impacting environmental law in New York.  I look forward to exploring many of them with you.  This month, I’ve chosen to focus on an area of environmental law –the New York Brownfield Cleanup Program – which is the subject of much recent controversy and litigation. 

For those unfamiliar with New York’s Brownfield program, a little background will be helpful.  In 2003, the State enacted a comprehensive law to help spur development of contaminated – “Brownfield” – properties in New York.  The heart of the law was the creation of an entirely new Brownfield cleanup and financing scheme known as the Brownfield Cleanup Program (BCP).  The BCP allows a party (such as a developer) to remediate a Brownfield site to cleanup standards which are tied to the anticipated future use of the site.  In return, the developer receives certain liability protections and substantial, refundable tax credits based upon both the cost of the site cleanup as well as the cost for redeveloping the site.  The BCP is overseen by the New York State Department of Environmental Conservation (DEC).  To participate in the BCP,  a party must apply to the DEC for entry into the program.  To determine eligibility into the BCP, DEC must first decide whether the contaminated site meets the statutory definition of a “Brownfield.”  Under the statute, a Brownfield site is “any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant,” where contaminant is defined as hazardous waste or petroleum.

Unfortunately, the statute does not provide any direction to DEC as to what facts or evidence is needed to decide whether a site is so “complicated” by real or perceived contamination. Though DEC promulgated BCP implementing regulations, the regulations do not clarify this issue.   Needless to say, DEC’s decisions to reject applications for entry into the BCP based on its determination the subject site was not a “Brownfield” has led to numerous lawsuits brought by parties denied entry.  

The first case to be decided by an appellate level court is In the Matter of Lighthouse Pointe Property Associates LLC, v. NYS Department of Environmental Conservation, et al., Appellate Division, Fourth Department, 2009 NY  Slip Op 00878 (Feb. 6, 2009).  In this case, the Petitioner, Lighthouse Pointe Property Associates, LLC applied for entry into the BCP in order to cleanup and redevelop two contiguous contaminated sites in Rochester, New York.  These properties had historically been used, among other things, as a municipal landfill and wastewater treatment plant.  Refuse, ash, slaw, sewage sludge, construction debris and other fill materials were deposited at the site.  Prior to applying to the DEC, Lighthouse Pointe investigated the environmental conditions of the site and found that contamination exceeded DEC’s soil and groundwater standards for several contaminants.   In particular, some of the contamination exceeded DEC’s own brownfield cleanup standards, the Soil Cleanup Objectives (SCOs), set forth in DEC’s brownfield cleanup regulations. 

Nonetheless, DEC denied Lighthouse Pointe’s entry by DEC into the BCP program.  Petitioner commenced an Article 78 proceeding against the DEC.  The Supreme Court ruled in Petitioner’s favor holding that to DEC failed “to state the reasoning [it] employed in reaching" its decision that the SCO exceedances were minimal and thus would not complicate the redevelopment project. The Court concluded that, "[b]y failing to provide any rational basis for [its] determination that the development of [the parcels] would not, or could not, be complicated by the possible presence of even minimal levels of contaminants, the DEC has failed to demonstrate that [its] actions were anything but arbitrary and capricious."    Supreme Court ordered the DEC to admit Lighthouse Pointe into the BCP.  DEC appealed.  

The Appellate Division, 4^th Department, reversed and upheld DEC's denial of the application. The Court relied on the affidavit of a DEC engineer who opined that, despite the fact that there were exceedances of DEC’s own cleanup standards, that the "exceedances revealed by both historical and current sampling data were few in number, were limited in magnitude, were widely dispersed throughout the property, and did not indicate the need for remedial action."   Stating that courts cannot “second-guess a reasoned agency determination,” the Appellate Division deferred to DEC and ruled that DEC's denial of Petitioner’s BCP application was not unsupported by the evidence and that DEC did not act in an arbitrary and capricious manner.

Significantly, Judge Smith dissented in a detailed and well-reasoned opinion.  After examining the facts of the case, the statutory definition of a "Brownfield site" and the DEC's Brownfield guidance, Judge Smith strongly disagreed with the majority and concluded “that this case in fact presents a paradigm of sites that fall within the ambit of the BCP as defined by the statutes, and that the interpretation by the DEC of the BCP's enabling statutes to exclude the subject parcels is unreasonable.”   Pointedly noting that the DEC found this site not to a Brownfield even though the contaminant levels exceeded the DEC’s own Brownfield cleanup standards, the dissent stated that if these cleanup standards (the SCOs) are not the standard for determining whether a property is contaminated such that is would be a Brownfield, then "there really is no standard at all."

Rejecting the majority view, the dissent argued that that this was not a case where the Court must defer to DEC’s interpretation of the Brownfield statute.  Instead, Judge Smith found that that DEC “improperly interpreted the enabling statutes for the BCP” by “redacting” certain sites (i.e., solid waste disposal sites such as the Lighthouse Pointe site) from inclusion into the BCP, the DEC “improperly usurped legislative function.”  In sum, the dissent believed that DEC's determination to deny the application was unreasonable in light of the facts and was arbitrary and capricious due to the lack of standards.

For practitioners representing clients applying for inclusion in the BCP, the majority opinion in his case is a disappointing one.  Moreover, the law on what is or is not a brownfield in New York is still very unsettled.  There are three very recent Supreme Court decisions which found DEC’s denial of petitioners’ entry into the BCP to be arbitrary and capricious.  See, Destiny USA Dev., LLC v. New York State Depart of Envtl. Conservation, 19 Misc 3d 1144[A], 2008 WL 2368085 (N.Y.Sup., Onondaga Cnty., 2008); East River Realty Co., LLC v. New York State Dept. of Environmental Conservation, 866 N.Y.S.2d 537 (N.Y.Sup., N.Y. Cnty., 2008); HLP Properties, LLC v. New York State Dept. of Environmental Conservation, 21 Misc.3d 658 (N.Y.Sup., N.Y. Cnty., 2008). Given this confusion, as well as the likelihood that the Lighthouse Pointe Petitioners will seek leave to appeal this decision to the Court of Appeals, advising clients on their prospects of gaining entry into the BCP will be difficult for quite some time to come.

Matrimonial and Family Law
By: Michael P. Friedman, Esq.

You know, there are certain mysteries to the practice of law that can never be explained.  I’m not talking about the Eleusian Mysteries here, just things that baffle me every time I think about them.  As I have said, there is no reason why the Rensselaer County Courthouse has seven elevator buttons for a three story building.  A hop, skip and a jump from said elevator is a picture of the Rensselaer County Bar Association for the year 2000.  There among the smiling barristers in the center are the significant judges of the county bar, including the Watervliet City Court Judge.  Last I looked, Watervliet was in Albany County.  Go figure.  Down the river at the lovely Albany County Courthouse on the third floor in the “Eagle Street Courtroom” is a fine array of the former Supreme Court Justices from Albany.  The Albany County Bar Association provides these wonderful portraits so we don’t forget the fine state justices who taught us how to practice and serve our clients.  There in the upper right is the Hon. Lawrence J. Kahn who served us well from 1980 to 1996.  If you look really close, you will see his portrait is in front of the symbol of the United States District Court for the Northern District of New York.  Why?  Beats me.  This makes about as much sense as the lovely spittoons that grace the feet of every judge in the Court of Appeals during oral argument.  Somehow, I don’t think Victoria Graffeo is a Chattanooga Chew or a Southern Pride fan.  I could be wrong.  Then there’s the Unified Court System Website that had running news of the judges’ lawsuit for a pay raise, but recently switched to Governor Paterson’s remarks praising our new Chief Judge Jonathan Lippman.  If that is old news to you, try the Russian small claims tutorial. 1 Nothing in German or Portuguese (Brazilian) of course, but those Russkies can figure it out without speaking English.   You can also see pictures of the swearing in ceremony of Court of Appeals Associate Judge Read in 2003, including a nice one with Judge Lippman. 2 The subsequent swearings in of Judges Jones, Smith, Pigott and Lippman didn’t make it.  Not to be outdone, the Third Department website still has Justice Carpinello hearing cases. 3 Then there’s those courtroom flags.  Didn’t anyone tell the OCA wonks that the American Flag is supposed to be higher than the New York State Flag and if on the same level never to the right of the American Flag? 4 I guess not, at least in Schenectady and the new Justice Building in Albany.  Then there’s the limousines and body guards for our judges.  It seems a select few Supreme Court jurists, mostly deputy administrative judges, have a car, driver and sometimes a body guard courtesy of our bankrupt state.  Best me why they rate such an expense, but what the hell are you going to do with $2 billion a year anyway?  Give someone a raise?  C’mon.  If any of you can figure these mysteries out, send me a note.  As for me, it’s more likely that I will solve the Inverse Galois Problem in my spare time. 

If all this makes no sense to you, consider our beloved legislature who decided to torture us with a new little ditty known as Domestic Relations Law 240(1-a).  Now, just for yucks, the court must conduct a review of the statewide registry of Orders of Protection and sex offenders before signing custody orders.  Nice.  And faster than you can say Jiminy Cricket, OCA developed a form for just such matters, called gf (for Godforsaken)-40a. 5 Can they make this process any more complicated?  Of course it begs the question of what a court is suppose to do when finding such an Order of Protection after the parties place a stipulation on the record of the court.  Punt?  Of course, I wonder if any of the geniuses who passed this bill ever spent more than an hour in any Family Court.  Stay tuned. 

The Second Department recently gave us a strange decision on issues of res judicata and collateral estoppel, whatever they are.  I seem to remember that if you could have asserted a claim but didn’t, and a matter goes to trial, you cannot later assert such a claim.  You get but one bite of the apple, so to speak.  Such was the decision in O’Connell v. Corcoran, 6 where the Court of Appeals denied 35 years of the acquisition of marital assets just because the wife “could have” litigated equitable distribution in Vermont but did not do so since the Vermont court deferred to New York.  The aforesaid Second Department used such a principle to deny a constructive trust lawsuit which “could have” been litigated at the time of the divorce action but wasn’t. 7 So it seemed pretty strange that in Mohan v. Sharma 8 they allowed a second shot at the grounds for divorce.  In an August 17, 2006 divorce complaint, Mr. Mohan pleaded cruelty and constructive abandonment.   When he was defeated on fault grounds, he sued again on an actual abandonment that allegedly occurred from June 1, 2005 for more than one year.  Clearly this “could have” been pleaded in the earlier action, but nonetheless the Second Department holds this is NOT collateral estoppel or res judicata.  So, if at first you don’t succeed, try, try again, even if the grounds occurred before the prior complaint.  All’s fair in love and the Second Department.

Every once in a while, I am really proud of the Third Department.  Such a moment came on January 22, 2009 in the form of an opinion on gay marriages in Lewis v. New York State Department of Civil Service. 9 We have been waiting for some time to see if a gay or lesbian marriage sanctioned by another state or country will be recognized in New York or whether such marriages violate our public policy.  With a whole slew of amicus briefs, you knew this was going to be a significant case.  The Department of Civil Service announced it would recognize same sex marriages for purpose of benefits under the family health insurance provided by the State of New York as a benefit to its employees.  That brought a lawsuit by Kenneth Lewis and other taxpayers to declare this policy “illegal, unconstitutional and an unlawful disbursement of taxpayer funds.”    As for me, I rather my taxpayer funds were used for this rather than a limo, driver and bodyguard for some deputy judge in New York City.  In any event, Judge McNamara in Albany County granted summary judgment to the Department of Civil Service and the Third Department affirmed.  Currently Connecticut, Massachusetts and, if Jerry Brown has his way, California recognize such marriages, as opposed to civil unions as in Vermont.  Clearly holding that public policy is not offended by such marriages, the majority held, “New York’s public policy, however, cannot be said to abhor same-sex marriages.”   Two judges concurred for different more narrow reasons without reaching the public policy issue.  Of course, the conclusion here is that same sex marriage means same sex divorce if there are no public policy impediments.  Welcome to the Domestic Relations Law my gay and lesbian friends!

Happy Pi Day. 

1.  http://www.courts.state.ny.us/courts/nyc/smallclaims/smallclaims_russian/index.shtml
2. http://www.courts.state.ny.us/admin/publicaffairs/courtinitiatives_swearingin2003.shtml
3.  http://www.courts.state.ny.us/ad3/Justices.html
4.  United States Code Title 4 Chapter 1, Section 7(c)
5.  http://www.nycourts.gov/forms/familycourt/pdfs/gf-40a.pdf
6.  N.Y.3^rd 179 (2003)
7.  Rakowski v. Rakowski, 109 A.D.2^nd 1 (2^nd Dept., 2005)
8.  __A.D.3^rd __ (February 3, 2009)
9.  __ A.D.3^rd __ (3^rd Dept., January 22, 2009)

verdicts@capitalregionlaw.com

We had a wonderful response to our call for submissions! Keep them coming!

Please continue to submit the forms which can be found at www.albanycountybar.com to Verdicts@Capitalregionlaw.com or fax them to Harris, Conway & Donovan, PLLC at 432-1996. 

Please note that we are not interested in the names of the parties or the identity of the non-reporting attorney.  The goal of the Capital Region Reporter is to assist ACBA member in evaluating their cases based on actual results.

These reports are based upon facts volunteered by the reporting attorney; none of these facts were independently investigated or gathered by the authors’ of this column.  The opposing counsel is given an opportunity to comment and if they request or no response is received then their name (s) is/are not published.

Plaintiff Awarded $150,000 in Two-Car Accident

Award:                                   $150,000.00

                                                ($125,000.00 Plaintiff past and future damages)

                                                ($25,000.00 Plaintiff husband loss of services, society and consortium)

Caption:                                  Undisclosed Plaintiff v. Undisclosed Defendant

Arbitration:                             Hon. Leonard Weiss, Hon. Harold Hughes, Hon. Robert Doran

Date of Award:                       November 2008

Plaintiffs’ Attorneys:             Frank M. Putorti, Jr., Esq.

Defense Attorneys:               Undisclosed

Facts/Injuries:                        On or about November 4, 2004, the Plaintiff, a 44 year-old married woman, was in a motor vehicle accident on Vischer Ferry Road in Clifton Park.  Plaintiff was taken by ambulance to Ellis Hospital and released the same day.  She received ongoing treatment for soft tissue injuries but she was ultimately diagnosed with whiplash, left rhomboid strain and degenerative changes in the thoracic spine.  The Arbitrators found that the collision caused Plaintiff to sustain an aggravation and exacerbation of preexisting injuries, as well as new injuries in the low back and lower extremities.

Settlement:                             $175,000.00

Caption:                                 Undisclosed Plaintiff v. Undisclosed Defendant

Court:                                     Albany County Supreme                      

Date of Settlement:               October 20, 2008

Plaintiffs’ Attorneys:         Andrew W. Kirby, Esq.

Defense Attorneys:               Undisclosed

Facts:                                      The Plaintiff fell from a “make-shift” scaffold at a construction site and landed on his feet on the basement floor of the building.  The Plaintiff won a motion for partial summary judgment on liability (Labor Law 240(1)).  The Defendant, a not-for-profit corporation, unsuccessfully contended that it was entitled to the homeowner’s exemption since the building was listed as a one or two bedroom home and was going to be used as a homeless shelter. 

Injuries:                                  The Plaintiff injured both ankles, sustained a right osteochondral fracture of the right talus and a subchondral cyst in the right tibia requiring arthroscopic debridement, cutterage, drilling and excision of fracture fragment. The Plaintiff also suffered from post-traumatic arthritis in his right ankle and faced future surgery.  An IME confirmed the diagnosis and causation and the need for surgery. Although the Plaintiff missed time from work, he returned to work after his first surgery in a construction management position earning as much as he did prior to the accident.

Award:                                 Defendant’s Verdict  

Caption:                               Undisclosed Plaintiff  v. Edward J. Batta

Court:                                   Albany County Supreme

Judge:                                  Hon. Joseph Teresi

Date of Award:                    December 3, 2008

Plaintiff’s Attorney:            Undisclosed

Defense Attorneys:           Scott M. Peterson, Esq.
Facts/Injuries:                     The Plaintiff, former general manager for a local semi-professional baseball team, alleged that he suffered damages after the Defendant, a former co-owner of the organization, made several statements about Plaintiff to the local media following Plaintiff’s resignation.  Prior to the Plaintiff’s resignation he was indicted on charges relating to his management of the team.  The Plaintiff sought damages for defamation and slander. The Defendant contended that any statements made by him were true, and that in any event the speech related to matters of public concern. The Defendant contended that in making the statements, he did not act with the requisite state of mind to establish liability.  The Defendant further contended that the Plaintiff’s indictment, handed down prior to the Defendant’s alleged defamatory statements, was the sole cause of any damages that the Plaintiff allegedly sustained.  The jury was out for approximately 90 minutes and rendered a verdict for the Defendant.

Award:                                     $200,000.00 (plus interest from date of finding of liability)
 ($150,000.00 past pain and suffering)
 ($50,000.00 future pain and suffering)

Caption:                                  Barry Porter  v. Undisclosed Defendant

Court:                                      Court of Claims

Judge:                                     Hon. Francis T. Collins

Date of Award:                       December 8, 2008

Plaintiff’s Attorney:                Mark D. Greenberg, Esq.

Defense Attorneys:               Undisclosed
Facts:                  The Plaintiff, an inmate at a Correctional Facility, was injured while playing basketball in the prison gymnasium.  The Plaintiff claimed he slipped on a wet substance on the surface of the basketball court.  The Defendant claimed that the basketball court had been properly maintained.        
Injuries:              The Plaintiff suffered a ruptured patella tendon which required surgical repair.

RECORDING FEE INCREASE FOR ALBANY COUNTY
Nicholas M. Ihnatolya, Esq.
Sneeringer Monahan Provost Redgrave Title Agency, Inc.
50 Chapel Street
Albany, New York 12207
Phone: 518-434-0127
Fax: 518-434-9997
www.smprtitle.com

Please be advised that as of March 16, 2009, the recording fee and per page fee will increase on recorded documents in the Albany County Clerk’s Office.

The Albany County Clerk’s Office fees will be increasing from $28.00 per document plus $3.00 per page to $45.00 per document plus $5.00 per page.

This increase is based upon Senate Legislation 8713, which was adopted by the Albany County as Albany County Local Law 1 for 2009.  Albany County is the 48^th of the 58 counties outside of New York City to increase these fees.

Documents received at the Albany County Clerk's office by the end of the business day on Friday March 13, 2009, or postmarked before March 16, 2009, will be accepted at the old fee level. Documents delivered to the Albany County Clerk's office on March 16, 2009 or after, or postmarked March 16, 2009 or after, must be accompanied by the new, higher fees.

There is NO CHANGE to FILING FEES. Only recording fees are affected.  Please visit www.smprtitle.com or contact our local offices if you have any questions or for further information.

(From the February 2009 Newsletter)

Plaintiff was injured while riding in the back compartment of a box truck that was transporting a motorcycle.  Plaintiff stood up while the vehicle was stopped at a red light, and subsequently fell injuring his arm on the wheel well when the truck began moving again.  After commencing an action asserting claims of negligence and strict products liability, defendant Utilimaster (manufacturer of the box portion of truck) was granted summary judgment dismissing the claims against it.  In support of its motion, defendant presented proof that the wheel well that injured plaintiff was not inherently dangerous for its intended purpose, which did not include passengers riding in the cargo area of the truck.  Plaintiff’s expert affidavit did not raise any question of fact as his opinion that it was common for people to ride in the cargo area of the truck lacked a proper foundation.  Because it was not reasonably foreseeable that plaintiff would ride in the cargo area, the Court held the complaint was properly dismissed by Supreme Court.

While playing touch-football during recess at school, the infant plaintiff, a fifth grader, collided with a fellow teammate causing some of her teeth to be knocked out.  The parents of the injured student initiated an action against the school district alleging negligent supervision by the defendant.  Following defendant’s summary judgment motion to dismiss the complaint, Supreme Court denied the motion finding triable questions of fact as to negligence and causation.  In reversing Supreme Court, the Appellate Court found the complaint must be dismissed for lack of proximate cause finding that no amount of supervision could have prevented this unintentional collision between children participating in a sport which requires running in different directions.  Furthermore, plaintiff’s expert affidavit cited no recognized standards or data to support his conclusions that the recess game required formal supervision and provision of safety equipment.

In this Labor Law §§ 200, 240(1) and § 241(6) action, plaintiff injured his left elbow while working on an elevated platform when he tripped over a trapdoor in the floor, which he had left open after climbing through it to gain access to the platform, causing him to fall to the floor of the platform, hitting his elbow.  Following motions for summary judgment by all parties, Supreme Court dismissed plaintiff Labor Law § 200 claim but denied summary judgment to any party on the other claims.  On appeal, the Court modified Supreme Court’s decision and dismissed the entire complaint.  As for the § 240 (1) claim, the Court held because plaintiff’s injury caused by tripping over the trapdoor and hitting his elbow on the platform could have occurred at ground level and was not related to the effects of gravity, his claim should be dismissed.  The § 241(6) claim also should have been dismissed by Supreme Court because the evidence supported the finding that plaintiff’s injury resulted solely from his tripping and falling onto the platform and was not proximately caused by any violation of the regulations regarding hazardous openings or use of safety harnesses. 

Plaintiff, a laborer hired by defendant to construct a garage at defendant’s home, was injured when he fell from a scaffold while working on the garage project.  As Labor Law § 240(1) and § 241(6) do not apply to owners of one and two-family dwellings, such as defendant’s dwelling, plaintiff brought this Labor Law action under the premise that defendant directed and/or controlled the work of plaintiff and therefore the homeowner exemption did not apply.  Supreme Court granted defendant’s motion to dismiss the complaint and the Third Department affirmed finding although defendant homeowner was involved in many aspects of the garage project, he ordered materials and hired subcontractors at the direction and suggestion of plaintiff, the garage was built according to a proposal prepared by plaintiff and there was not proof that defendant supervised or controlled any actual construction of the garage.  Furthermore, the Labor Law § 200 claim could not continue as the conditions that brought about the accident were caused by plaintiff’s own work methods at a point in time when defendant was not exercising any control over the work.

Following the grant of partial summary judgment to plaintiff on liability (Labor Law § 240[1]) and a non-jury trial on damages before Supreme Court, the Appellate Division on this cross-appeal reversed the prior order that granted plaintiff’s partial summary judgment and sent this case back for trial.  Namely, the Court found questions of fact exist regarding whether or not plaintiff’s conduct was the sole proximate cause of his injuries in his choice of where to tie off his lanyard and whether the scaffold used by plaintiff should have been expected to withstand the weight exercised upon it by the falling spider beams that plaintiff was dismantling at the time of his injury.  In reaching this conclusion, the Court found conflicting testimony between plaintiff and the only eyewitness to the accident regarding the happenings of the event and whether or not the scaffolding collapsed or if plaintiff was merely pulled from the scaffolding by a falling spider beam, which possibly should not have been expected to withstand the weight being put upon it.  The Court also found questions of fact with regard to whether a proper tie off point for plaintiff’s lanyard was provided and whether or not plaintiff had been the sole cause of the accident by not creating his own pad eye to tie himself off to rather then using one already available within his work area. 

On February 15, 2007, while a senior at respondent’s high school, petitioner was injured when a fellow student pulled a chair out from under her in the senior only cafeteria, which was allegedly unsupervised.  On the day of the accident, the petitioner’s mother explained to the school nurse what happened and an accident report was made indicating the facts set forth above.  Eight months later, in October 2007, petitioner applied for leave to file a late notice of claim against respondent to allege her injuries were caused by its negligent supervision of the students in the cafeteria at the time of plaintiff’s injury.  The Court affirmed Supreme Court’s denial of leave to file a late notice of claim as the respondent arguable suffered substantial prejudice in its ability to investigate this claim and incidence as the fellow students in the cafeteria had presumably graduated as of October 2007 and the cafeteria was allegedly not supervised by any adults.  Furthermore, petitioner did not offer any excuse for her delay in filing the notice of claim.

The Third Department took a contrary position to those of the Fourth Department and Second Department in this personal injury action brought by a police officer seeking to invoke VTL § 1104 (e) to his benefit to recover for personal injuries he sustained while in the course of his duties as a police officer attempting to effectuate a traffic stop.  The accident occurred when plaintiff, a Broome County Deputy Sheriff, was traveling northbound and attempted to make a u-turn, with his emergency lights activated, to pursue a southbound speeding vehicle.  Prior to his attempted u-turn, plaintiff pulled to the right shoulder with his emergency lights activated and saw defendant’s decelerating northbound vehicle approaching him from behind.  After looking over his shoulder and detecting no vehicle, plaintiff began his u-turn and was immediately struck by defendant’s vehicle.  The deputy had assumed defendant had stopped her vehicle prior to reaching the location of plaintiff’s stopped vehicle but defendant testified that she had only slowed down her vehicle in approaching the plaintiff’s patrol car.  Following the accident, plaintiff initiated a negligence action against defendant seeking recovery for his personal injuries sustained in the accident.  Defendant asserted an affirmative defense alleging that plaintiff’s culpable conduct caused or contributed to his damages.  Plaintiff then moved to dismiss the affirmative defense pursuant to VTL §§ 101, 114-b and § 1104.  The plaintiff argued that because he was involved in an emergency operation at the time of the accident, his own negligence may not be considered and that liability can only be assessed against him through proof that he acted with reckless disregard for the safety of others.  Defendant argued plaintiff cannot use the reckless disregard standard found in VTL § 1104 (e) as a “sword” to avoid comparative negligence in seeking damages for his own injuries.  Supreme Court granted plaintiff’s motion to dismiss the affirmative defense and on appeal, the Third Department reversed finding plaintiff is not entitled to the protections of VTL § 1104 (e) when suing in his personal capacity as the issue in the case is a bystander’s civil liability to the operator of an emergency vehicle and not the civil liability of an emergency operator to an injured party.  The Court made note that the application of VTL § 1104 (e) in this action could potentially cause an unwarranted financial windfall to plaintiff if plaintiff’s negligence were barred for consideration by the jury.  Lastly, the Fourth and Second Departments have taken contrary positions on this issue involving application of VTL § 1104 (e).    

Labor and Employment Practice
By: Glen P. Doherty, Esq.
McNamee, Lochner, Titus & Williams, P.C.

In January, the Court handed down a number of decisions of interest concerning the difference between "employees" and "independent contractors."

In Central Transport, Inc. v. Commissioner of Labor (504892), claimant hauled freight for Central Transport, Inc. (Central), a "less than truck load" carrier that picks up and delivers small shipments within a particular geographic area.  To accomplish this task, claimant utilized a truck he leased from Central's parent company and trailers owned or otherwise provided by Central.  Claimant bid on, and was then assigned, a specific geographic area, was required to display Central's logo on his truck while he was hauling for them, and was provided with pallets and a forklift to assist in the loading of his truck.

Claimant was also required to submit daily invoices for his deliveries, which were subject to review, and was paid at a rate specified in the contract he executed with Central.  Although claimant did not have a set schedule and was obligated to find a replacement driver if he was unavailable,   Central retained the authority to object to the replacement driver based on safety or competency concerns.  Similarly, if claimant failed to show or provide a replacement driver, Central would attempt to reassign claimant's deliveries or have one of its "employee drivers" haul claimant's load.  Central also resolved all customer complaints.

The Unemployment Insurance Appeal Board ("Board") found that claimant was an employee of Central, and held that Central was liable for unemployment insurance contributions based on remuneration paid to claimant and those similarly situated.  Central appealed.

In affirming the Board, the Court found that Central exercised sufficient control over important aspects of the work of claimant and of those similarly situated.  Notably, the Court made this finding despite the existence of a written contract identifying claimant as an independent contractor as well as other evidence in the record that supported a contrary result.

In 2020 Video Voice Data, Ltd. v. Commissioner of Labor (504852), claimant worked as a sales representative for 2020 Video Voice Data, Ltd. ("VVD"), a company engaged in direct sales of telecommunications services for companies such as Verizon.  After he stopped working for VVD, claimant applied for unemployment insurance benefits.  The Board subsequently ruled that claimant was an employee of VVD, and that VVD was liable for additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated sales representatives.  VVD appealed.

In reversing the Board, the Court noted that the predominant consideration in determining whether an individual is an employee or independent contractor is evidence of the alleged employer's control over the results produced or the means used to achieve those results, with the latter being more important.  That said, the Court found that, while VVD directed compliance with Verizon's requirement of background checks and use of Verizon identification badges by sales representatives, and identified the areas where Verizon services were available for sale, VVD did not mandate, supervise or otherwise control how, when or where its representatives performed their door-to-door sales work.  Special clothing and product orientations were available, but were not mandatory.  In addition, VVD's sales representatives had no prescribed hours or exclusive territories, were not paid their expenses, received commissions on a per sale basis, executed independent contractor agreements, and wore badges that identified them as such.  As for paperwork and complaints, the record indicated that VVD kept sales records for only a brief period of time, and it served only as a conduit between Verizon and the sales representative in handling complaints.

I hope you’ve enjoyed reading my column these last three-plus years.  While it was a scramble some months coming up with something interesting to report on, and to meet the mid-month deadline, I appreciated having the opportunity to learn and tell you about new environmental regulations, statutes and court decisions.  As I begin my service on the ACBA Board of Directors, I am handing this column off to the capable hands of my colleague and suite-mate, Gary Bowitch.  For those of you who don’t know Gary, he is a former AAG and former counsel for the NYS DEC who practices exclusively in environmental matters.   I’m sure you will enjoy reading Gary’s column in the future.

Supreme Court Rules on Many Aspects of Oil Spill Law
Eskenazi v. Mackoul, Nassau SCt, Justice Phelan; No.: 017248/06  (Dec. 11, 2008)

An interesting case out of Nassau Supreme Court, which covers many topics related to oil spill liability:  liability under the Navigation Law, damages recoverable, mitigation of damages, insurance coverage pro-ration, and spoliation of evidence.

“M” purchased property in Lido Beach in a foreclosure sale March 1993.  At the time of sale, the house had no heating system.  M denied knowing there was an underground fuel tank on the property.  M installed a gas heat system for the premises.

M’s neighbor (hereinafter “Plaintiff”) discovered oil in their basement in October 2005.  Plaintiff hired an environmental contractor, who concluded the oil came from a leaking underground tank or faulty supply/return line on M’s property.  Plaintiff sued M for cost to cleanup the oil in his basement. 

The Court holds M strictly liable for the discharge.  Navigation Law section 181(1) provides that any person responsible for a discharge may be held strictly liable, without regard to fault, for all cleanup and removal costs.  Even though M claims he lacked knowledge that the tank was on the property at the time he took title, he was “in a position to control the site and the source of the discharge” and thus is strictly liable.  The court further found that, should plaintiff’s property not be restored to its pre-discharge condition, plaintiff would be entitled – in addition to remediation costs – to “the total amount of the diminution in value.”  In this regard, the court may consider whether a “stigma” caused by the oil spill has had an impact on the value of the property.  While plaintiff could not recover for alleged personal injuries under the Navigation Law, plaintiff could pursue same under a negligence common law theory.

Defendant M argued that plaintiff failed to mitigate damages because plaintiff refused to enter into a remediation contract with M’s cleanup contractor and this delayed the cleanup.  The Court rejected this argument.  It is the discharger (M) who has the primary responsibility to promptly clean up and remove the oil spill.  Plaintiff’s refusal to sign the contract was “eminently reasonable” because the responsibility for the cleanup lay with M and plaintiff’s refusal could not be considered a “failure to mitigate.”

M had been insured since March 5, 2002 by Hanover Insurance.  General Accident (n/k/a OneBeacon) insured “M” prior to March 5, 2002.  M sought coverage under the OneBeacon policy.  In a previous motion, OneBeacon moved for summary judgment, arguing that it was M’s burden to show oil discharged during the applicable coverage period (i.e., prior to March 5, 2002).  The Court in an earlier decision denied OneBeacon’s motion, ruling that the burden was on OneBeacon to prove that oil did not discharge during its coverage period.  In the present motion, Hanover presented expert proof in the form of affidavits that, based upon the absence of “normal alkanes” and the level of corrosion in the tank, the spill occurred more than five years prior to its discovery in 2005.  OneBeacon’s motion for summary judgment is denied and the matter of coverage – and possible pro-ration between OneBeacon and Hanover -- is left to the jury to resolve.

M’s cleanup contractor had removed and disposed of the tank.  OneBeacon is awarded spoliation sanctions based on having been “deprived… of the opportunity to inspect or test [the tank].”  Hanover and M are precluded at trial from offering an expert opinion as to when the oil spill occurred based on the extent of corrosion of the tank.

And they say American entrepreneurship is dead.  If you read this in time, you can get yourself to the Hilton Garden Inn in Austin Texas for the next Texas Divorce Bootcamp.1  United Airlines can get you there in about 6½ hours.  A full day of learning for men only to teach you “how to plan, how to survive the initial assault of the Temporary Order hearings, how to devise a divorce strategy and how to win.”  For a mere $250 including lunch, you can spend four hours learning about the wiles and tricks of those nefarious members of The Second Sex.  So, if your practice seems to be lagging a little with the economy in the dumpster and all, and if the Legislature doesn’t seem to be progressing with gay marriage and it’s progeny, gay divorce, rent a room at the local Garden Inn and see who shows up for your own unique boot camp. 

If you think that is crazy, how about a Divorce Party Planner?  If you trundle on down to RevengeLady.com, you can get a copy of The Divorce Party Planner by Christine Gallagher, as well as lots of helpful advice, including the Top 10 Revenge Stories and a link to buy your very own “Don’t Get Mad, Get Even” license plate holder.  Just in time for Valentine’s Day. 

If all that man v. woman stuff is too much, how about a Divorce Expo, an egalitarian gathering of vendors and consumers for the recently and soon to be divorced.  Sound crazy?  One was held in Vienna in 2007, and several have been held in Brighton, England and Holland in 2008.  One is being held at the Harbor Links Golf Course in Port Washington, New York on March 24 with hundreds of vendors of male enhancement pills, therapists, plastic surgeons and God knows what else.  The possibilities are endless, so you may yet recover from Bernie Madoff’s defalcation of your Profit Sharing Plan.

Of course, that is just News of the Weird and really has no connection to the serious nature of matrimonial practice, as we all know.  So what is new?  How about the brand new and improved Rules of Professional Conduct, 2 replacing the New York Code of Professional Responsibility and bringing New York in line with the ABA Model Rules of Professional Conduct.  This hilarious tome goes into effect on April Fools Day, and defines “sexual relations”, among other things, as “touching the intimate part of the lawyer.”  That’s a new one on me, and it sure is nice to know that someone thinks we have intimate parts.  Of course, “intimate part” is not defined, but the new code clearly states that your law partner can have all the sex he or she wants with your client, intimate parts and all, and you cannot be disciplined if said partner does not participate in representing the client.3 What a relief!

Enough of that stuff. Time for a cold shower and a dose of reality, courtesy of the Perspicacious Prophets of the Empire State Plaza.  Is there anything more execrable than someone trying to discharge your hard earned fees in bankruptcy?  How about an opposing spouse who tries to skate on his obligation to pay your fees awarded in a custody proceeding in Family Court?   Mom said it could not be discharged as a “domestic support obligation” defined in the Bankruptcy Law, 4 whatever that is.  Dad argued that legal fees are not support and therefore dischargeable like any Joe the Plumber’s bill.  Giving a broad interpretation to the term “in the nature of support”, the Third Department thankfully held that legal fees cannot be discharged. Ross v. Sperow 5 decided, appropriately enough on Christmas Eve.  A tip of the hat to Justice Malone for that nice Christmas present to us all.

Until now, courts have been pretty strict with the filing requirements for Objections to an Order of a hearing examiner, dismissing such appeals for late filing or for failure to file the affidavit of service with the objections.  The Third Department said just that in Monahan v. Hartka, 17 A.D.3^rd 728 (3^rd Dept., 2005) holding that you cannot even move for permission to extend the time limit requirements of Family Court Act §439(e).  Now comes some wiggle room courtesy of Latimer v. Hartkin 6 where the dismissal of Objections filed one day late was found to be an abuse of discretion.   If the affidavit of service is not timely filed with the Objections, the Third Department will also excuse that defect.  Rossiter v. Rossiter, 56 A.D.3^rd 1011 (3^rd Dept., 2008), which is contrary to a line of cases from those strict constructionists in the Second Department.7

Sometimes, one can find gems in the footnotes, those little bits of dicta that sometimes explain the court’s thought process, even if not part of the ultimate determination.  Such was the case in McGovern v. McGovern, 8 a custody modification case involving a fourteen year old boy.  In footnote 2, Justice Spain writing for the unanimous majority, lamented the denial of the Law Guardian’s request to permit the child to testify in camera in a Lincoln 9 hearing without the parents being present.  Such a procedure would have “limited the harm” of a child confronting his parents in open court.  While there is some conflict among Family Court judges as to the propriety of resolving factual disputes on the basis of testimony not subject to cross examination, the Third Department seems to be begging for some limited inquiry into the child’s preferences to avoid open court testimony.  Smart trial judges try to get consent to this process, as any parent who insists on his or her child’s testimony is only demonstrating parental deficits.  It was good of the Third Department to point this out, although not directly asked to do so.  We tea leaf readers of the appellate courts always enjoy the thought.

A comment on the fate of Barry L. Goldstein, a fellow practitioner who seems to have lost his way and ultimately his license to practice for five years for the overzealous representation of his client in a child custody matter.   Matter of Goldstein 10 decided in the waning hours of 2008 by the Second Department.  Counselor Goldstein represented Yevgenia Shockome in a child custody matter that was contested in Dutchess Family Court before Judge Damien Amodeo and then in the Second Department 11 and then in the United States District Court for the Southern District of New York in Matter of Shockome v. County of Dutchess.   When she was held in contempt of court and imprisoned for custody visitation interference, he posted an article on the Battered Mothers Custody Conference website that is in part still available on the internet. 12 Calling Judge Amodeo a Bad Judge, giving out his e-mail and phone number and calling his decision bizarre, giving the children to an abuser, and attacking and berating the mother.  He then submitted an affidavit in an Order to Show Cause with such useful allegations as, “Clearly something is wrong with the system in Dutchess...there is no reason that Dutchess County has to remain on the side of the abuser.”  There were other allegations of financial misconduct, but one wonders where the line is to be drawn between free speech, opinion and overzealous representation.  In many ways, bad cases make bad law, and the sanctioning of Counselor Goldstein may be used to seek restrictions on other zealous advocates.   For his part, Mr. Goldstein is unrepentant, writing in a blog following his suspension, “In their desire to retaliate against me for exposing an abusive judge they have placed the lives of battered women in danger.”  13   I think we have not heard the last of this controversy.

Finally, because you asked, a thought about Dr. Richard Batista, a vascular surgeon who donated his kidney to his wife, only to have her be the recipient of the donations of her physical therapist.  Dr. B is seeking the return of the kidney, which would kill her, or its value ($1.5 million) in equitable distribution.  Hell, if you can get the value of an opera singer’s career, 14 or a congressional career, 15 why not give it a try?  Stranger ideas have stuck like boiled pasta to the wall of matrimonial judicial excess.  Reminds me of a case I had a few years ago involving breast implants that led to the filing of an adultery complaint shortly after implantation.  Not to be misunderestimated, I requested the equitable distribution of one of the two, and I was promptly rebuked by opposing counsel.  I then requested a “Physical Examination” under CPLR Rule 3121.  Counsel politely declined, so I suggested temporary visitation under Domestic Relations Law §240(1) (a).  The phone call was terminated.  No sense of humor, that guy.

Happy Lupercalia and Canadian Flag Day

The Reporter has been going strong now for eighteen months and the feedback has been very positive.  Unfortunately our submissions were down during the Holidays and we do not have any cases to report for this month.  We did receive 8 submissions the day before the deadline and have not had enough time to allow the non-reporting counsel to reply.  So we will be back!

Over the last year and a half we have been told on many occasions that cases would have been submitted but people did not want to identify their clients or their adversary.  We were also told that people only wanted to submit “large” verdicts or settlements.  The goal of this column is not to report the names of the parties or even the lawyers.  Anonymity is perfectly acceptable.  The only information we wish to report is the disposition of the verdict or settlement and the basic facts of the case.  The name of the parties is entirely irrelevant for the purposes of this column.  This column is meant to assist members of the bar in evaluating cases and providing their clients with a realistic assessment.  If the number is not large and you do not want your name associated with it, we will not print it. 

In order for this to continue for the benefit of all members we ask that you submit your cases so we can continue to provide this information to all.  Please fill out the submission form, which can be found at www.albanycountybar.com or if you are not computer savvy call (436-1661) and we would be happy to fax you one, and we will only print the names of the parties who consent.  You can send your send your completed forms via email to (Verdicts@Capitalregionlaw.com) or fax them to Harris, Conway & Donovan, PLLC at 432-1996. 

Thank you,
Mike and Ryan