In 1998, plaintiff was hurt in a fall from a ladder while working for the defendant on an IBM property.  He sued for damages under §240 and at the start of trial in 2006 settled his case by stipulation the terms of which called for IBM to mail to him a $500,000 settlement draft within 21 days.  Payment wasn’t made by the deadline.  IBM was insured by Reliance which went into receivership in 2001, which meant payment of the claim needed the approval of the Liquidation Bureau of the State Insurance Department. The plaintiff, 83-years old at the time of settlement, refused to sign a new stipulation acknowledging that payment of the settlement might be significantly delayed. Defendants moved to amend the original stipulation of settlement based on a mistake and the plaintiff cross-moved for summary judgment.  Supreme Court (Work, J., Ulster Co.) granted the cross-motion and the Third Department affirmed, noting that when the settlement was placed on the record, no mention was made that IBM’s insurer was in receivership or that payment might by delayed beyond the agreed-upon 21 days.

Claimant was injured in a fall during a construction project on the exterior walls of a state prison in Malone, Franklin County. Prior to trial, the Court of Claims dismissed his Labor Law §240 cause of action and the Third Department affirmed.  At trial, claimant lost again when the Court (Schweitzer, J.) found that there was no Industrial Code Rule 12 violation as needed to win on a claim under Labor Law §241(6).  The Third Department affirmed this time too, agreeing that even if Rule 12 had been violated, claimant did not prove that the violation caused the accident.

Plaintiff brought suit after being shot in the eye with a paint ball.  The shooter was a young man who lived in the home where the injury occurred, but he was not related in any way to the homeowners.  Plaintiff won a default judgment against the 20-year shooter, and then tried to collect on the judgment by way of the defendant’s insurance policy which defined an “insured” to include “persons under the age of 21 and in the care of” the homeowners.  Supreme Court (Relihan, J., Tompkins Co.) declared Hanover had no obligation to satisfy the judgment and the Third Department affirmed upon a finding that the shooter (who “paid rent when he had the money”) was simply a “boarder” in the home and that the homeowners “did not undertake any financial, disciplinary or emotional responsibility for him”.

A jury in Albany County Supreme Court returned a defense verdict and the plaintiff’s motion to set aside that verdict was denied by the Court (McNamara, J.).  There was “sharply conflicting evidence and expert opinions” regarding the merits of the plaintiff’s contention that the surgeon who operated on her right ankle was responsible for a circular thermal burn on her right calf.  The Third Department rejected plaintiff’s appeal, finding the jury had sufficient support in the record for its verdict, and further concluded that allegedly improper questions about plaintiff’s past drug use did not deprive her of a fair trial. 

(*Plaintiff’s appellate counsel: Michael J. Hutter of Powers & Santola, LLP)

Plaintiff claimed in this action that the defendant obstetrician, among other things, should have delivered her baby by C-section because vaginal delivery of the large for gestational age fetus caused a brachial plexus (nerves that operate arm and shoulder function) injury to the infant.  The jury found for the defendant.  Plaintiff claimed on appeal that Supreme Court (Monserrate, J., Schenectady Co.) erroneously failed to charge the jury on her “lack of informed consent” cause of action and did not ask on the verdict sheet whether that and other omissions by defendant were deviations from the standard of medical care.  The Third Department rejected both arguments and affirmed, finding plaintiff waived any challenge to the informed consent charge by failing to object before the jury began deliberations and noting that even had the issue been timely raised, that Supreme Court did not err.

The defendant corporation leased property from New York’s State Thruway Authority at the Malden rest area in Ulster County where one of its food service restaurants was operated by a non-party pursuant to a franchise agreement.  Plaintiff claimed she was hurt when a pair of handicap-accessible, electrically-operated doors at the rest area entrance closed suddenly and struck her from behind.  McDonald’s moved for summary judgment arguing, in part, that it owed no duty to the plaintiff and other “public users” by virtue of its franchise agreement with the operator of the restaurant.  Supreme Court (Kavanagh, J., Ulster Co.) denied the motion and the Third Department affirmed.  McDonald’s evidence in support of the motion did not establish, as a matter of law, that as an out-of-possession landlord it “lacked control over the doors” alleged to have caused plaintiff’s injuries.  Furthermore, said the Court, the lease agreement between McDonald’s and the Thruway Authority is not determinative of the question whether the Authority, or McDonald’s, or its franchisee was responsible to maintain and repair the automatic doors at the entrance.

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

In April, the Court handed down a number of labor and employment decisions of interest – all pertaining to eligibility for unemployment insurance benefits.

In Anthony v. Commissioner of Labor (503198), claimant worked for approximately one year as a delivery person, until January 2005, when an illness and transportation problems caused him to be absent for an extended period of time.  While claimant was absent, the employer hired an additional delivery person to cover for claimant. Although claimant initially kept the employer informed regarding his health and availability to work, claimant did not contact the employer after January 17, 2005.  In the first week of February 2005, claimant appeared unannounced at the employer's site, but was not immediately offered an assignment.  Without requesting an assignment or otherwise inquiring into whether work was available, claimant assumed there was no work for him and left.  Indicating that he had been fired, claimant applied for unemployment insurance benefits.  The Unemployment Insurance Appeal Board ("Board") denied claimant's application on the ground that he voluntarily left his employment without good cause. 

In affirming the Board, the Court noted that the employer testified that continuing work was available for claimant upon his return, despite his failure to maintain regular contact throughout his absence.  Although claimant testified that he believed that there was no work available for him due to the fact that the employer had hired another delivery person in his absence, claimant did not take reasonable steps to protect his employment by speaking to a supervisor about the availability of assignment or complaining about the potential reduction of his hours.  Under these circumstances, the Court found that substantial evidence supported the Board's decision.

In Miner v. Commissioner of Labor (503206), claimant, a full-time dental assistant, worked as a "floater" two days a week performing odd jobs around the dental office.  On one such day, claimant was asked by the office manager to clean the staff refrigerator.  Claimant refused and thereafter was discharged.  The Board denied her claim for benefits on the ground that she lost her employment due to misconduct.

In affirming the Board, the Court held that an employee's failure to comply with an employer's reasonable request may constitute insubordination rising to the level of disqualifying misconduct.  Here, although claimant testified that she refused the office manager's request on the day in question because she was ill, she conceded that she did not offer her alleged medical condition as an explanation at the time the request was made.  In any event, her claim in this regard was unsupported by any medical evidence in the present record.  Inasmuch as the employer's request was reasonable under the circumstances, and claimant failed to demonstrate a compelling reason for her refusal to comply, the Court found no basis for disturbing the Board's decision.

In Moore v. Commissioner of Labor (503196), claimant, a computer technology teacher, was discharged from her employment after she acted in a rude and unprofessional manner during the course of a meeting with her mentor and a student's parents.  Approximately one month before this incident, claimant received a written warning from the employer regarding similar behavior displayed at a school open house.  That notice expressly advised claimant that further conduct of the same or a related nature could lead to her discharge.  The Board denied her claim for benefits on the ground that she lost her employment due to misconduct.

In affirming the Board, the Court held that an employee's unprofessional and discourteous conduct, which is detrimental to the interest of her employer, has been held to constitute disqualifying misconduct.  Here, the credible evidence established that claimant arrived late for a scheduled meeting with her mentor and a student's parents, refused to sit at a table with those individuals, refused to respond to the parents' questions regarding her teaching credentials and prior experience, and generally displayed a discourteous and unprofessional demeanor.  According to the Court, such evidence was more than sufficient to support the Board's ruling that claimant's behavior constituted disqualifying misconduct.

In Chirico v. Commissioner of Labor, (502775) claimant, an administrative assistant at a state university who only worked when classes were in session, applied for and received unemployment benefits for the school break periods of August 2002 and January, June, July and August 2003 through 2005.  Admittedly, claimant also performed certain accounting duties for her husband's graphic design business, which he operated out of their home.  The Board disqualified claimant from receiving benefits because she was not totally unemployed during the time period in issue. 

In affirming the Board, the Court held where a claimant participates in business activities, even minimally, and stands to benefit financially by the continued operation of same, the claimant may be found to lack total unemployment.  To that end, evidence that a claimant stands to benefit financially includes a commingling of business and personal funds.  Here, claimant participated in her husband's business activity by balancing the books, preparing quarterly sales tax returns, and signing checks on the business account.  Evidence was also present that claimant and her husband commingled business funds with personal funds, as claimant testified that she often wrote checks for personal expenses on the business checking account.  While claimant contends that her involvement in the business was sporadic, especially during times of her unemployment from the university, substantial evidence supported the Board's assessment of claimant's credibility and the inference that, because of her activities on behalf of her husband's business, she was not totally unemployed during the periods at issue.

Environmental Update – May 2008
By Daniel Coffey
Hiscock & Barclay, LLP
dcoffey@hiscockbarclay.com  

State Budget Passes -  Includes Environmental Items

The slightly-late state budget included an increase for the Environmental Protection Fund of $5 million (a raise from $250 million to $255 million) The Fund pays for land that will be protected from development, as well as environmental programs such as $1 million for a Pollution Prevention Institute, and public health programs including $450,000 for a Breast Cancer Environmental Risk Factor Program.  Other environmental funding included $400,000 for the Cornell University Community Integrated Pest Management Program, $200,000 for a Road Salt Study in the Adirondacks and $1.5 million for the Marine Diseases Pathology Consortium to be administered by SUNY-Stony Brook.

The Legislature rejected the request by the Spitzer/Paterson Administrations to expand the “Bottle Bill” to non-carbonated beverages.  Under the Governor’s proposal, $25 million from the collection of deposits from bottles in unclaimed funds would have been directed to the Environmental Protection Fund.  The Assembly did not vote on “congestion pricing,” effectively killing the plan put forth by the Bloomberg Administration to reduce traffic volume in lower Manhattan.

The budget also included a $0.20 per gallon tax credit for “bioheat.”  Bioheat consists of biodiesel fuel mixed with traditional home heating oil for use in residential heating or hot water.  Biodiesel does not contain high quantities of sulfur and other pollutants found in petroleum-based heating oil and the tax credit purports to make bioheat more cost-competitive with petroleum-based fuel.  Taxpayers can claim a credit equal to $0.01 for each percentage point of biodiesel in a gallon of their heating fuel.  The credit took effect January 1 of this year and extends through the end of 2011.  New York enacted a one-year tax credit previously, but it sunset on June 30, 2007.  The latest version of the credit is long-term and analysts predict it will provide more incentive for the marketing of bioheat to consumers.

Third Department Passes Two SEQRA Article 78 Decision

The Appellate Division, Third Department, on April 11, issued two SEQRA decisions concerned, respectively, with “segmentation” and standing. 

1.         In the Matter of Friends of the Stanford Home v. Town of Niskayuna, et al., (3^rd Dept April 11, 2008)

 In Friends of the Stanford Home, Petitioners sought to annul a special use permit issued by the Town Board of Niskayuna to Respondent Highbridge Development BR (“Highbridge”).  Highbridge seeks to build an adult home facility and also a separate commercial/retail complex approximately one mile away.  Petitioners successfully argued before State Supreme Court that the two projects were significantly related, that they shared a common purpose and that they should be considered as part of an integrated larger plan.  Supreme Court concluded that the two projects should be lumped together and a “cumulative review” per SEQRA should be performed.

The Third Department disagrees.  The two projects could be “segmented” for purposes of SEQRA review.  The Court recognized that it is impermissible to segment a project “in order to avoid the detailed review called for under SEQRA.”  However, in the case at bar, the two projects (the nursing home project and the commercial/retail project) were not significantly related.  The two projects “have entirely different and separate purposes, they are located approximately one mile apart and they are not part of a common design.”  The Court rejected Petitioner’s argument that a contractual contingency contained in one of the contracts of sale was not sufficient to establish that the two projects were part of an overall plan of development such that would require cumulative review.

The Court reversed Supreme Court, reinstated the special use permit which had been issued by the Town Board, and dismissed the Petition. 

2.         In the Matter of Save the Pine Bush, Inc. v. Planning Board of the Town of Clifton Park, (3^rd Dept April 11, 2008)

On the same day that it issued the Friends of the Stanford Home decision, the Third Department also rejected the Petition filed in Save the Pine Bush, but for a different reason.  The Third Department found that Save the Pine Bush, Inc. lacked standing and affirmed Supreme Court (Judge Kramer’s) decision granting Respondent’s motion to dismiss the Petition.  In order to establish standing, a Petitioner must show that it would suffer direct harm or injury that is in some way different from that of the public at large.  To withstand a standing challenge, the Petitioner must be able to demonstrate that at least one of its members would have standing to sue individually, that the interests it asserts are germane to its purpose and that the resolution of the claim does not require the participation of its individual members. 

In the case at bar, Petitioner claimed that it had standing to maintain this action because it was an environmental organization dedicated in part to the preservation of the Karner Blue Butterfly and that the proposed development, if implemented, would result in the destruction of this creature’s habitat.  Petitioner alleged that ten of its individual members had a special interest because they regularly engaged in recreational activities in the area sought for development by Respondent.  In rejecting this argument, the Court found that the individual petitioners’ interests (i.e., engaging in recreational activities) was no different than the interests enjoyed by the public at large.  Petitioners failed to demonstrate a “specific environmental injury” and therefore lacked standing.  For example, none of the members of Petitioner’s organizations owned property in close proximity to the subject site and Petitioner failed to submit affidavits from any individuals demonstrating how they would be adversely affected by the development of the property in a manner different than that of the public at large.

Matrimonial And Family Law
By Michael P. Friedman, Esq.
Friedman & Molinsek
“I’ve married a few people I shouldn’t have, but haven’t we all?” Nancy Astor (1879-1964) English politician.

“Wedding rings:  the world's smallest handcuffs.”  Anonymous, of course

“Life in Lubbock, Texas, taught me two things:  One is that God loves you and you're going to burn in hell.  The other is that sex is the most awful, filthy thing on earth and you should save it for someone you love.” Butch Hancock, member of The Flatliners (1945 - )

Ah, Spring.  When a young man’s fancy lightly turns to thoughts of love.  For those whose fancies turn elsewhere, there is a new study showing that the cost of divorce and unwed childbearing to the American taxpayer is $112 billion annually.  Don’t ask how they got there, 1 but look to some politicians to use the report to pass a slew of family strengthening programs that won’t work.   And did you see The Pope weigh in on divorce in his sojourn to the US of A last month?   Telling us that the “ethical judgment of the Church on divorce is clear,” he called it a “serious offence which violates human dignity, inflicts deep injustice on human relations and offends God himself.”  Well, pardon me Your Eminence but the divorce rate for Catholics is 28%, 2 about the same statistically as atheists and agnostics.

In other news, the Republic of Korea had a stunning break with the Third Department 3 by declaring that sexual relations after the commencement of a divorce lawsuit do not constitute adultery.  It seems that Korea and New York are two of the only places where adultery is a crime.  A woman was convicted in Korea and was sentenced to ten months in prison.  Her conviction was overturned by the Busan District Court holding, ``the questionable intercourse was made after filing for divorce. It apparently shows that the couple already reached a consensus to be separated. Therefore, this lawsuit is void.''  Of course, this does not bode well for Korean-Third Department relations. 

Speaking of my favorite Appellate Division, they continue to lead the charge in requiring contributions for college expenses.  But that’s not all.  How many of us have written some glib language in a separation agreement that the parents will contribute towards the college education “as their then finances permit” or similar terms.  Then, if the parties cannot agree, they can have a court resolve the issue.  Did you ever think that this language could be used retroactively to form the basis of a violation petition?  I didn’t.   Most of us just figured if the parents couldn’t agree then they could go to court to adjust the existing order to provide prospective educational contributions. Not anymore.  In Heinlein v. Kuzemka, 4 poor Mr. Kuzemka must have felt like the proverbial stranger in a strange land when he was hit with a violation petition while his son was completing his third year at Rensselaer Polytechnic Institute.  In spite of the language requiring the father to approve of the educational institution, he was hit for arrears of $35,000 and the Third Department promptly affirmed.  Ouch.  And just why did the court hit him for this tidy sum plus child support on less than $50,000 in yearly income?  Two reasons:  Dad owns a luxury motorcycle and lives in his “paramour’s” home paying only $100 per week in rent.  Are you kidding me?  He pays for RPI because of his expensive motorcycle?  Could he have avoided all this by driving some low budget rice burner?  His paramour’s home?  Just how does a divorced guy have a paramour in the first place?  Besides, is the message of the Third Department to impoverish yourself with a nice fancy home but hold off on that nice new Harley if you want to skate on college obligations?  Or maybe, if you are going to live in your girlfriend’s home, be sure you pay her a lot of rent.  When you figure it out, call me.

In other bad news for the drafters of separation agreements, be careful how you word the uninsured health related expenses portion of the agreement.  If you just copy the statute and provide for “reasonable health care expenses of the child not covered by insurance” 5 your client might be on the hook for such expenses caused by the custodial parent utilizing a doctor who does not participate in the health insurance plan.  I kid you not.  In Wetherby v. Wetherby, 6 the noncustodial parent had to pay his 100% of the contracted obligation because the agreement “does not oblige defendant to exclusively pursue providers associated with plaintiff's health insurance plan.”  I daresay few agreements do, and I have never seen a support order with this language since the statute does not require it.  But I sure am pushing for this now so my clients don’t end up like Mr. Wetherby.

Probably smarting from the affront by the Republic of Korea, the Third Department broke with the Italian Republic in punishing a father in a custody proceeding for engaging in a five year affair during his marriage.  You see, Italy’s highest court just held that women can lie about extra-marital affairs “to protect their honor.”  Of course this is the court that said a woman who wears tight jeans could not be raped since they could only be removed with her consent.  Makes sense to me.  Getting back to the My Favorite Appellate Division, in Benjamin v. Benjamin, 7 the court upheld a shift from joint custody to sole custody with mom because of (among other legitimate reasons) the father taking the children as exemptions on his income tax return without telling the mother.  So what?  If he had no right to do so, the IRS would straighten things out, but I guess all is fair in love, war and custody litigation.

Speaking of exemptions, the Fourth Department just held that income tax exemptions are not an element of support and thus not enforceable in Family Court. 8 If the right is in an agreement incorporated in a judgment, then you need a plenary action to enforce which of course costs more than the exemption is worth.  I am also assuming that means Family Court does not have the power to award income tax exemptions in support orders, at least in the western part if the Excelsior State.  

Well, that’s all the bad news for now.  Happy Law Day everyone.

1. This was a study at Georgia State University commissioned by, among others The Institute for American Values, so the conclusions were somewhat of a self fulfilling prophecy. “The Taxpayer Costs of Divorce and Unwed Childbearing.”

2.  The Barna Group, a Christian Research organization in California.

3.  Golub v. Ganz, 22 A.D.3^rd 919 (Third Dept., 2005).

4.  __A.D.3^rd__ (Third Dept., March 13, 2008).

5.  Domestic relations Law Section 240 (1-b)(c)(5).

6.  __A.D.3^rd__(Third Dept., April 3, 2008).

7.  48 A.D.3^rd 912(Third Dept., 2008).

8.  John M.S. v. Bonnie M.R., __A.D.3^rd__(Fourth Dept., March 14, 2008). 

Criminal Law Update
By: Michael P. McDermott
O’Connell and Aronowitz
mmcdermott@oalaw.com

 Warrant required to remove “string-like object suspiciously hanging from defendant’s rectum”1

 Put this article down until you’re finished with your lunch.

 In People v. Hall, the Court of Appeals discusses the finer constitutional points of discovering and recovering evidence secreted in various bodily orifices. In order of intrusion, those searches consist of: strip searches; visual body cavity inspections and manual body cavity searches. All three were conducted in Hall.

Defendant Hall was observed participating in a drug sale. When he was arrested, no drugs were found on his person. At the police station, when the defendant was ordered to remove his clothes and bend over, the aforementioned “string-like object” was found hanging out of his rectum. The police pulled on the string and recovered a baggie containing crack cocaine.  

Supreme Court granted Mr. Hall’s motion to suppress the evidence and dismissed the indictment. The Appellate Division reversed, concluding that the police had reasonable suspicion to initiate the visual search and no warrant was required to retrieve the drugs.  The Court of Appeals reversed.

To conduct a strip search the police must have a reasonable suspicion that the arrestee is concealing evidence underneath clothing. To justify the more intrusive visual cavity inspection (which usually requires the suspect to bend over), the police must have a “specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity”.  It goes without saying that the aforementioned searches must be conducted in a reasonable manner.

A majority of the court held that if the police observe indicia of hidden contraband inside an orifice (such as the suspicious string-like object in this case) they must obtain a warrant before removing it, absent exigent circumstances.

The three-judge dissent had no problem with the police conduct in this case, writing that “[a]ll the [police] did was pull on a plainly visible string, causing the contraband to emerge with no difficulty”.

On the opposite end of the spectrum, Judges Ciparick and Jones, in a concurring opinion, would require a warrant for even a visual bodily cavity inspection, writing that “[w]hen a law enforcement official peers into the rectum of an arrestee to search for contraband, that visual inspection is clearly an intrusion into the body”.

Aren’t you glad you read this after lunch?

Stranger than Fiction

Defendant, wearing a prosthetic “fat suit”, took an elevator to the observation deck of the Empire State Building. Once at the top he shed the suit, revealing a jumpsuit and parachute, along with a helmet-mounted camera. He then quickly scaled the security fence and took a perch on the outer ledge of the skyscraper. A struggle ensued with security guards located on the inside of the fence who were trying to prevent his launch into the ether. One quick witted guard handcuffed the defendant to the fence. When informed that an accidental opening of his chute in this position would literally tear him limb from limb, the guards cut off the parachute. Thus deprived of his means of escape, the defendant surrendered.

Indicted for reckless endangerment in the first degree, defendant moved to dismiss. The motion court dismissed the indictment because the People gave incorrect legal instructions to the grand jury regarding the mens rea element of the crime. Reckless endangerment in the first degree requires a “depraved indifference to human life” mental state as defined in People v. Feingold (7 NY3d 288 [2006]). The grand jury was instructed using the language of People v. Register (60 NY2d 288 [1983]) which was overruled by Feingold. Because of the faulty instructions, the grand jury proceedings were defective.

On appeal, the People argued that, despite improper instructions on the law for the first degree charge, the proof and instructions were sufficient to establish the elements of the lesser included offense of reckless endangerment in the second degree, which requires only a showing of reckless conduct. The First Department agreed 2 and reinstated the indictment, remanding the case to Supreme Court with instructions to reduce the indictment pursuant to CPL 210.20(1-a).

The First Department opined that the defendant’s actions put many people at risk, both on the observation deck and on the ground. Since actual harm is not an element of the crime, it was immaterial that his attempted flight was aborted. The court reserved decision on whether, had the proper instructions been given, defendant’s conduct would have risen to the level of depravity required for the first-degree offense.  

Superman…consult with counsel before returning to Gotham. 

1. People v. Hall, 2008 NY Slip Op 02676 (decided 3/25/08).
2. People v. Corliss, 2008 NY Slip Op 01869 (decided 3/4/2008).

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. 

As a reminder, the purpose of this column is to provide a comprehensive body of results that local litigators can utilize to assess the potential values of their cases.  We hope that all of you find the information useful- the positive feedback that we have received for producing this column has been much appreciated

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.

*************

Body Snatching Leads to Settlement             

Settlement:                                         $36,500.00 Gross Settlement

Caption:                                   Vincent J. Loglio v. Undisclosed Defendant

Court:                                       Albany County Supreme

Judge:                                      Hon. Leonard Weiss (JHO)

Date of Settlement:               March 2008

Plaintiff’s Attorney:               Jonathan Summers, Esq.

Facts/ Injuries:                       Decedent, Nancy Loglio, passed away at a local hospital amidst concerns of medical malpractice.  The family initially spoke to one Greene County funeral home and then decided to employ another.  No  contract, purchase order or authorization was signed with the first funeral home. When a second funeral home was retained, their personnel attempted to retrieve the body from the hospital and found that it had been taken by the first funeral home.  The NYS Bureau of Funeral Investigators investigated and levied a $2,000.00 civil penalty.  Plaintiff brought suit claiming mental anguish due to the interference in access to the body and prolongation of grief.  Plaintiff also claimed that the delay prevented an autopsy, which in turn stymied their desire to consider a malpractice action.   The Defendant claimed no malicious intent, that the funeral took place as scheduled and that there was no damage to the body.  Defendant also maintained that the delay did not prevent a proper autopsy.

 _______________________________________________

Post-Surgical Medical Malpractice Settlement

Settlement:                $200,000.00

Caption:                      Bradshaw v. Undisclosed Defendant

Court:                         Albany County Supreme

Judge:                         Hon. Thomas J. McNamara

Date of Settlement:   February 2008                                    

Plaintiffs’ Attorneys: Martin D. Smalline, Esq.

Facts/Injuries:            Plaintiff was admitted to a local hospital for  surgical treatment of her back.  Plaintiff alleged that the defendant’s nursing staff failed to properly apply, monitor and remove surgical stockings resulting in circumferential scarring around her thighs that is permanent and subject to periodic wound breakdown and infection.  Defendant Hospital averred that the application, monitoring and removal of the surgical stockings was performed in accordance with the accepted standards for post surgical nursing care. 

_______________________________________________

Substantial Settlement For Former Averill Park Athletic Director Who Claimed Retaliatory Termination 

Settlement:                 $675,000.00
                                    $100,000 for reimbursement of expenses
                                    $150,000 for compensatory damages
                                    The balance for attorneys’ fees

Caption:                      Lou Cioffi v. Averill Park Central School District

Court:                         Northern District of New York

Judge:                         Hon. David Hurd

Date of Settlement:   March 2008                                        

Plaintiffs’ Attorney:   Phillip G. Steck, Esq.

Defendant’s Attorney: Beth A. Bourassa, Esq.                                 

Facts/Injuries:                        Lou Cioffi was Athletic Director of the Averill  Park Central School District.  He wrote a letter to the School Board that was critical of the school’s handling of the football program, specifically the coach’s support for performance enhancing substances and the school’s failure to aggressively respond to a hazing incident in the football locker room.  Two weeks later, the Board voted in secret to eliminate Cioffi’s position.  Cioffi then held a press conference at which he denounced the District for retaliating against him for expressing his views.  After his position was formally eliminated, he filed an action against the District and two individual defendants for damages under 42 USC Section 1983- on the ground that his First Amendment rights were violated.  The District Court dismissed the case against  all defendants, determining that Cioffi’s case was merely a personnel employment grievance, rather than speech on a matter of public concern.  The Second Circuit reversed as to the District and the US Supreme Court denied Certiorari.   The District maintained that Cioffi’s position as athletic director was abolished to save money for taxpayers and did not admit or concede liability.  Less than five percent of the settlement was paid by the District; the remainder was paid by the insurance carrier. 

$675,000 For Albany County Slip & Fall

Settlement:                 $675,000.00 Gross Settlement

Caption:                      Lupi v. Undisclosed Defendant

Court:                         Albany County Supreme

Judge:                         Hon. Thomas McNamara

Date of Settlement:   February 2008

Plaintiffs’ Attorneys: Jeffrey Anderson, Esq.

Facts/Injuries:            Plaintiff slipped on a loose tile on the landing of his apartment  building and fell down a flight of stairs.  Defendant Building owner and landlord denied knowledge of the claimed defect.  Plaintiff claimed to have sustained a closed head injury and seizures.  He was diagnosed with depression and was treated with anti-seizure medication and psychotherapy.  The defendants challenged the extent of the injuries and claimed that they were exaggerated by Plaintiff. 

(From the April 2008 Newsletter)

Trial of the plaintiff’s claim for damages arising out of a rear-end auto accident was the setting for consideration of an important evidentiary question.  As framed by the Appellate Division: May a treating physician testify to the content of a non-testifying radiologist’s report on an MRI which was ordered by the treating physician?  Affirming the ruling by Supreme Court (Kavanagh, J., Ulster Co.), the Third Department says ‘Yes’. The Court found it significant that the treating expert physician was not acting as a “conduit for the testimony of the report’s author” by simply dictating to the jury the MRI interpretation of the radiologist. Rather, the expert rendered a medical opinion based on the MRI report as well as his physical exams of the plaintiff and her other medical records.  By so doing, the MRI report and interpretation of the radiologist became “merely…a link in the chain of data” on which the witness relied in forming his opinion.  Also relevant to the Court was the fact that the MRI was “clearly a test routinely relied upon by neurologists in treating and diagnosing” patients with back pain.

Plaintiff delivered a child at the defendant hospital but one day after discharge required readmission and surgical treatment of a virulent infection which spread throughout her internal organs.  After hearing evidence supporting the claims of negligent failure to recognize the infection prior to discharge, the jury returned a verdict for the plaintiffs that included past and future pain and suffering awards of $5 million for the wife and $750K for her husband.  Supreme Court (Sise, J., Fulton Co.) reduced the total of future damages for both plaintiffs from $4.5 million to $2.25 million. The Third Department modified even further, reducing the total pain and suffering recovery of the husband from $500K to $200K.  The AD also found the trial court properly limited the testimony of a hospital nurse to facts and observations but not opinions because the nurse was not included in the defendants’ expert witness disclosure.  Lastly, it was improper for Supreme Court to put conditions on defense counsel’s pre-trial interviews of plaintiff’s treating doctors, but the restrictions did not result in prejudice that requires reversal of the verdict or a new trial.

Plaintiffs’ medical malpractice claims alleged negligent performance of a surgery and substandard follow-up care during office visits, the last of which was some five months after the operation.  The lawsuit was filed three days before the three-year anniversary of the surgery, and defendants moved for summary judgment contending expiration of the 2½-year statute of limitations.  Supreme Court (Kramer, J., Schenectady Co.) permitted the plaintiffs to amend their complaint to allege fraudulent concealment of medical malpractice and thereafter denied the motion for summary judgment.  The Third Department reversed and dismissed the complaint as untimely, further noting the lack of any “clear and convincing evidence” from the plaintiffs that late filing of the complaint resulted from fraud, deception or misrepresentation by the defendant.

Plaintiff alleged her injuries resulted from a fall on a staircase at defendant’s restaurant, but the case was dismissed by Supreme Court (Dawson, J., Clinton Co.) as untimely. Plaintiff admitted that her suit was filed three years and two days after she fell, but claimed the defendant should be estopped from asserting a statute of limitations defense because she relied on an inaccurate “date of accident” in a letter to her lawyer from the defendant’s insurance carrier. The Third Department affirmed Supreme Court’s decision, finding the plaintiff failed to show affirmative wrongdoing by the defendant that “deliberately induced” the fatal delay in filing suit.

This plaintiff slipped and fell while on a walkway leading into the defendant’s house which she had been hired to clean.  Although there was a snowstorm in progress at the time of the fall, plaintiff attributed her fall to a patch of ice that formed before the storm began.  Supreme Court (Pulver, J., Greene Co.) granted defendant’s motion for summary judgment and the Third Department affirmed, concluding that defendant offered undisputed proof that a storm was happening at the time of the fall and that plaintiff’s theory of the accident was both speculative and not supported by her evidence.

A claim for damages alleging violation of Labor Law §200 requires proof that a defendant contractor exercised some supervisory control over the performance of the work.  This proof was lacking in the plaintiff’s case, which was dismissed by Supreme Court (Mulvey, J., Tompkins Co.) and affirmed by the Third Department.  Plaintiff worked for a prime contractor on the construction project but evidence that his supervisor had “conversations about safety” with an employee of the defendant contractor did not constitute proof that the defendant had the authority to control the work that resulted in the injury.

Plaintiff was part of a work crew doing a night time renovation of a supermarket that was open for business during the day.  He was hurt in a fall from a stepladder that he believed happened when he slipped due to a greasy substance on his work boots. The Third Department affirmed Supreme Court’s (Kramer, J., Schenectady Co.) dismissal of the plaintiff’s claims under Sections 240 and 241(6), but reinstated the claim (against one defendant) premised on a failure to comply with the common-law negligence standard codified in §200. Plaintiff acknowledged that the ladder did not fall, was adequate for the job and was properly placed, causing the demise of his §240 cause of action. The §241(6) claim did not survive because the plaintiff’s supporting Rule 23 provisions were either non-specific or not applicable to the facts of the case. The §200 claim of the plaintiff against the property owner survived due to that defendant’s failure to show, as a matter of law, that it did not create the alleged dangerous condition and did not have actual or constructive notice that it existed prior to the injury.

Liability was conceded in this motor vehicle action, and after a non-jury trial, Supreme Court (Relihan, J., Broome Co.) found for the plaintiff, concluding that he sustained a “serious injury” under Insurance Law §5102(d) in the 90/180 days category. The Third Department affirmed, finding sufficient “objective medical evidence of an injury or impairment of a nonpermanent nature which would have caused the alleged limitations on plaintiff’s daily activities” and that such activities were curtailed “to a great extent rather than some slight curtailment”.

Pre-existing injuries, the bane of many a plaintiff’s case, proved the downfall of Willie Coston.  He claimed cervical and lumbar spine injuries as a result of two accidents (Nov. 2002 and Feb. 2003) and supported his claim of “serious injury” with a treating doctor’s affirmation.  But the physician made no reference to the plaintiff’s prior accidents and injuries, including a 20-foot fall from a ladder in 1992 that resulted in degenerative disc disease and the need to walk with a cane, a gunshot wound to the upper chest, a 1999 car crash in which plaintiff was ejected from the vehicle and a fall in 2000 that aggravated his low back pain. The prior accidents and injuries so muddied the causal connection of the newly-claimed injuries to the latest auto accidents that the Third Department found it was proper for Supreme Court (Work, J., Ulster Co.) to grant the defendants’ motion for summary judgment.

Supreme Court (Kramer, J., Schenectady Co.) granted defendant’s motion for summary judgment upon a finding that plaintiff’s proof didn’t meet the requirements of any of the four categories of “serious injury” she alleged.  The Third Department affirmed, noting that plaintiff’s only medical proof was the report of a doctor hired to perform the DME (defense medical examination), and that the report contained no opinions regarding permanency of the alleged injuries or whether plaintiff “suffered from any physical limitations or was restricted in her activities”.

A slow March at the Appellate Division (with respect to labor and employment decisions) presents the perfect opportunity to review a recent decision from the Court of Appeals concerning the employment at-will doctrine.

In Smalley v. Dreyfus Corporation (2008 NY Slip Op 1252), five at-will employees sued their former employer, Dreyfus Corporation ("Dreyfus"), for fraudulent inducement to enter into and remain in the employment of Dreyfus.  More specifically, in January 2001, plaintiff Gerald Thunelius, then the director of Dreyfus' Taxable Fixed Income Group (TFIG), heard a rumor that Mellon Financial Corporation, Dreyfus' parent corporation, had made an offer to acquire the fund management company of Standish Ayer & Woods.  When asked, Dreyfus' Chief Executive Officer (CEO) told Thunelius that no merger had occurred or was being considered.  Relying on those assurances, plaintiff Martin Fetherston accepted employment in the TFIG in December 2002.  Mellon acquired Standish in March 2001.  Between 2001 and 2004, Thunelius repeatedly asked Dreyfus' officers whether there were plans to merge the TFIG with Standish, and they denied any planned merger.  During these years, plaintiffs Kenneth Smalley, Darlene Haut and Michael Allen allege that they accepted jobs with the TFIG in reliance on the denials by Dreyfus' officers.  In April 2004, Dreyfus' CEO told the TFIG that any merger of the group into Standish was "off the table," and that the group would remain intact for at least another year.  By early fall 2004, merger rumors resurfaced, at which time Dreyfus' officers refused to confirm or deny.  In late 2004, the two groups merged, and in February 2005 – four years after the alleged merger discussions began – Dreyfus fired every member of the TFIG.

The five employees thereafter sued Dreyfus in Supreme Court, asserting several causes of action, only one of which – fraudulent inducement – remains relevant.  The trial court dismissed the entire complaint, noting that at-will employees cannot reasonably rely upon their employers' promises of continued employment, and that the plaintiffs failed to allege injuries apart from their termination.  The Appellate Division modified the trial court's order by reinstating the fraudulent inducement claim, concluding that Dreyfus misrepresented a present material fact, and that the plaintiffs alleged injuries distinct from termination.

In reversing the Appellate Division, the Court of Appeals summarized New York's employment at-will doctrine as follows:  "New York law is clear that absent 'a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired.'  Thus, either the employer or the employee generally may terminate the at-will employment for any reason, or for no reason."

Relying on a decision of the United States Court of Appeals for the Second Circuit –Stewart v. Jackson & Nash – plaintiffs argued that their case was not a breach of contract action, but rather, a legally cognizable tort claim, for fraudulent inducement.  In Stewart, defendant law firm recruited an environmental law attorney (plaintiff Victoria Stewart), telling her that it had secured a large environmental law client, that she would work on that client's matters, and that the firm was establishing an environmental law department, which she would head.  When Stewart arrived at the firm, however, she learned that the firm was still trying to secure the client, and, as a result, she performed only general litigation work.  The firm later terminated her employment, and she brought suit for damages.  Reversing the United States District Court, the Second Circuit denied the law firm's motion to dismiss Stewart's fraudulent inducement claim both because the firm's promises concerning the environment law client and department were misstatements of present fact, and because the alleged injuries – thwarting her professional objective to specialize in environmental law, and damaging her career potential – occurred well before plaintiff's termination and were unrelated to it.

Without adopting or rejecting the Second Circuit's rationale, the Court of Appeals noted that Stewart is fundamentally different from the case at hand.  The core of plaintiffs' claim is that they reasonably relied on no-merger promises in accepting and continuing employment with Dreyfus, and in eschewing other job opportunities.  Thus, unlike Stewart, plaintiffs alleged no injury separate and distinct from termination of their at-will employment.

Consequently, the Court held that, inasmuch as "the length of employment is not a material term of at-will employment, a party cannot be injured merely by the termination of the contract – neither party can be said to have reasonably relied upon the other's promise not to terminate the contract.  Absent injury independent of termination, plaintiffs cannot recover damages for what is at bottom an alleged breach of contract in the guise of a tort."

In December 1998, James and Deborah Spillane had an oil tank installed at their property in Islip, Long Island.  Less than four years later, they discovered an odor emanating from the tank and found that the tank was leaking and discharging oil into the soil and ground water.  The Spillanes filed a claim under their General Casualty insurance homeowner’s policy.  General Casualty paid and then brought an action against the manufacturer and distributor of the oil tank, alleging that the oil spill was due solely to a defect in the tank.  The trial court denied Defendant manufacturer’s motion to dismiss the complaint and the Appellate Court now affirms.

Navigation Law Section 181(1) imposes strict liability upon “[a]ny person who has discharged petroleum” regardless of fault.  An “innocent discharger” may bring a third-party cost recovery action against a “discharger” for the cost of cleanup and removal against one who “actually caused or contributed to the discharge.”  However, in order to bring a cost recovery action under the Navigation Law, the Plaintiff must be without fault; if it is established that the property owner in any way caused or contributed to the happening of the oil spill, the property owner is precluded from asserting a Navigation Law claim against a “discharger.”

In this action, General Casualty stepped into the shoes of its insureds, the Spillanes.  Reading the complaint liberally, the Court found that General Casualty alleges the Spillanes were faultless property owners and that the sole fault for the discharge was the defective oil tank manufactured and distributed by Defendant.  The Court ruled it was not impossible for Plaintiff to be able to prove a cause of action for cleanup under the Navigation Law.  The Court also found the complaint alleged a viable cause of action for common-law indemnification.

In proceedings which covered approximately twenty years, a developer was seeking Board approval to complete a residential project in an area which lay within the watershed area feeding New York City’s water supply.  The Town of Southeast appointed itself the lead agency for environmental oversight of the project.  The developer filed a State Environmental Quality Review Act (“SEQRA”) statement.  The Board found that the project “would likely have a significant impact on the environment” and required the developer to submit an Environmental Impact Statement (“EIS”).  The EIS was submitted by the developer, public comments were accepted, and a SEQRA statement was issued indicating the Board’s satisfaction with the steps taken to minimize adverse environmental impact.

Objectors filed the subject petition seeking to overturn the approval and seeking an order requiring a supplemental EIS be submitted.  The Court of Appeals reversed the Appellate Division and found that the Planning Board did not act arbitrarily or capriciously declining to require a supplemental EIS.  The Court noted that many of these environmental decisions are extremely fact-intensive and great deference must be given to the Planning Board to weigh and evaluate the credibility of the reports and comments.  It should not be, said the Court, the role of the reviewing court to duplicate the efforts of the Planning Board, so long as the board had given the requisite “hard look” at the evidence.  The Court noted that the Board’s wetlands consultant found that a proposed sewage treatment plant would eliminate a significant source of pollution; based on this, a second EIS was not needed. 

Client sought to purchase property for the purpose of manufacturing barbeque sauce.  The property had previously been classified by the NYSDEC as a Level 2A inactive hazardous waste disposal site.  The attorneys for the buyer knew that there had been environmental violations concerning the property and had written to state agencies seeking details.  Their letters were never answered and the attorneys did not follow up.  Based on the advice of counsel, Plaintiffs purchased the property on an “as is” basis.  Plaintiffs discovered that the prior tenant had collected rags from the printing industry, soaked with solvent, ink and oil and leakage from storage barrels had collected in a storm drain on their property.  Plaintiffs returned to their attorneys and sought advice on a possible cost recovery action from the prior tenant.  The attorneys advised that statute of limitations had run out and that a fraud cause of action was untenable.  A malpractice action against the attorneys proceeded to verdict.  A jury found in favor of Plaintiffs against the attorneys and awarded damages.  The Second Department affirmed the jury’s verdict and modified the award to include pre-judgment interest.

“The old theory was marry an older man, because they're more mature.  But the new theory is:  Men don't mature.  Marry a younger one."  Rita Rudner

“The trouble with my wife is that she is a whore in the kitchen and a cook in bed”  Geoffrey Gorer (1905-1985), Anthropologist

“A lot of guys think the larger a woman's breasts are, the less intelligent she is.  I think the larger a woman's breasts are, the less intelligent the men become.” Anita Wise

And I think to myself, what a wonderful world. 1 Really.  After all, where can you claim that one cannot possibly make ends meet for child support and maintenance on a tad over $7,485,000 per year?  Why jolly old London of course.  Next time you are filling out that silly Statement of Net Worth form so favored by the wonks at OCA, think of dear Heather Mills, the Gold Standard of needs and wants.  After all, I often say that no one costs more to feed than the clients of one of our favorite downtown Albany law firms, but even they are pikers compared to the modest and demure Ms. Mills.  Just how do you get there?  Let’s start with the niggardly sum of $69,000 per year for helicopters for vacations.  Or how about the seven full time housekeepers ($128,000) or my personal favorite: just shy of a quarter mil per annum for clothes.   Like I say, it’s a wonderful world. Unfortunately, Mr. Justice Bennett wasn’t buying it and awarded her only a fraction of that to keep body and soul together, saying, “If, as she has done, a litigant flagrantly overeggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget."   Man would I like to see the Third Department write something like that some day.  Overegg the pudding? 

Into this surrealism wandered Allan Chapin the other day, and the First Department gave us a doozie just in time for Easter. 2 Do you know him?  He’s a former partner in Sullivan and Cromwell, one of the largest law firms in the world, founded in the 19^th Century.  Of course, he gave up that lucrative gig when his marriage Numero Duo went sour.  Who wouldn’t?   It seems Mr. Chapin and Ms. Janet Johnson married in the Episcopal Church of Heavenly Rest 3 in NYC and nine months and one hour later had a bouncing baby boy.  Within three years Janet quit her job as a lawyer for the Walt Disney Company (of course) and Allan kept earning about $2.1 million yearly at S&C and after that the investment bankers Lazard Freres & Company.  He also had a tidy income from being on a bunch of corporate boards and was an adviser to my beloved Toronto Blue Jays.  So, what does such a Captain of Industry do in his spare time?  What they all do:  renovate a country home in Claverack, New York, a dippy little town in Columbia County best known as the home of Ollie North.4 Mr. Chapin owned the farm before he married Ms. Johnson, but sank $1.9 million into the property to increase its value a little less than $1.6 million.  What a financial genius.  In any event the trial court gave her half the increase which was reduced by the First Department to 25% because of passive appreciation I guess.  They do not really explain that rationale, but she did after all order pizza and coffee for the renovation workers.  Here’s where things got really squirrelly.  It seems that Allan owed his first wife some money pursuant to his divorce judgment, namely $584,000 in maintenance and $690,000 in equitable distribution for a nice total of $1,274,000.  Being the good spouse, he paid it all during the marriage to the former Mrs. Chapin.  So when it came time for Equitable Distribution, the current Mrs. Chapin aka Janet Johnson made the rather silly argument: “Wait a minute.  If he hadn’t paid the $1.2 million to the first Mrs. Chapin, then we would have had an extra $1.2 million in our marital estate.  Yeah, I knew about this obligation when I married him, but so what?  Give it back to me, or at least half.  Please.  Pretty please.”  Well, Dammit Janet, there’s a fire in their heart and you’ve fanned it.  So they reduced Allan’s separate property credits by half or over $600,000 and slid that over to Janet’s half of the equation.  Wow! 

Remember last month when I asked the First Department to lay off my beloved Third Department when writing a decision that not so respectfully disagreed with their Northerly brethren?  Well, maybe they took the article to heart but the venom spilled over their black robes into this decision in the form of the majority opinion and the dissent by Mr. Justice James McGuire, a Pataki gift from Queens to the First Department in 2006.  He was joined by Mr. Justice David Friedman, no relation to my learned brother of the same name.  Putting aside the snide remarks the majority foisted on the dissenters, the heavily footnoted dissent sent shivers through my spine in its excoriation of the majority, however wrong they may be.  Here is a sample:  “I respectfully disagree with virtually everything the majority has to say… The majority's assertion that Ms. Costello ‘gave testimony which supported [the wife's] position’ is breathtakingly wrong… Not surprisingly, the majority offers nothing by way of an attempt to respond to any of the points I make regarding its erroneous reliance on the CFO's testimony… The majority does not and cannot dispute this critical fact. Indeed, the majority ignores it.”  Boy, I would have loved to be in the room when this baby was argued by the Court.  Given the two judge dissent, one can only wonder what magic the Court of Appeals will work with these facts.  Did I mention that Allan had to pay $800,000 of Janet’s legal fees?  Just slipped my mind I guess.  Not bad for a 14 day trial.  I really must be doing something wrong.

In any event, aside from the juicy stuff about child support and maintenance, the really novel idea here is to get a credit for half of a spouse’s premarital debt paid during the marriage.  How ‘bout them student loans?  Pay them during the marriage, and get them back at the end.  Dammit, Janet, it really is a wonderful world.

I know the Office of Confused Adults has little money for judicial pay raises and the like, but who came up with the idea to put little numbered labels on everything in the courthouse?  Have you noticed that every chair, flag stand, telephone and bauble has a new label with the words “Office of Court Administration, ___ Judicial District, No.___” pasted on the personalty.  I wonder if the robes and shoes of the judges have numbered labels.  Isn’t there something better these guys can do? 

By the way, is the Third Department becoming a wholly owned subsidiary of the Third Judicial District?  We now have four new judges and three are from the Third District giving us 2/3 of the App Div and further depleting our trial bench with the loss of Justice Stein.  Can’t the other two districts chip in a judge or two to balance things out?

Happy Conch Republic Independence Day, the only place where this all makes sense.

1. Of Course, with a tip of the hat to Bob Thiele aka George Douglas and George David Weiss.  Did you know Clear Channel made the song persona non grata just after 9/11?
2.  Johnson v. Chapman, __A.D.3^rd__ (1^st Dept., March 13, 2008).
3.  For those of you who accuse me of making this stuff up, see The New York Times, January 13, 1991.  I’ll lend you my copy.
4. The most famous graduate of Ockawarmick High School.

 If you are looking for a straight answer, read no further, because you won’t find one here.

 The Court of Appeals recently decided two cases involving the admission of reports prepared by nontestifying experts.1 Defendants contended that these reports were “testimonial” within the meaning of Crawford and, therefore, their introduction into evidence violated the Confrontation Clause. In both appeals, the People urged the Court to adopt a bright-line rule that all business records were, by their very nature, not “testimonial” and therefore admissible under the long-standing business records exception to the hearsay rule.

 In Rawlins, the offending report pertained to a fingerprint comparison. In Meekins, it was a DNA report. The Court reached a different conclusion in each case. Let’s start with the DNA report.

Defendant Meekins was convicted, after trial, of first degree sodomy. Critical to the prosecution was evidence of DNA testing done on a rape kit collected from the victim. The actual testing of the evidence was done by a commercial laboratory under contract with the NYPD. The raw data from the testing was supplied to the Office of the Chief Medical Examiner. At trial, an employee of the laboratory and a DNA expert from the Medical Examiner’s office testified. Neither of these witnesses did any of the actual testing. However, the expert from the Medical Examiner’s office who testified was the person who compared the DNA profile obtained by lab from the rape kit with the defendant’s DNA profile and opined that they matched.

Central to the Court’s analysis was the distinction between objective scientific data which was “neither discretionary nor based on opinion” and the interpretation of the data which generated an opinion directly linking the defendant to the commission of the crime.

The Court found that the report containing the raw data of the DNA testing done by the laboratory was not “testimonial” and, accordingly, admissible under the business records exception to the hearsay rule. However, since the opinion testimony of the DNA expert necessarily comes close to a “direct accusation that the defendant committed the crime”, the Court implied that it would be error to admit such an opinion in a report under the business records doctrine. Luckily for the prosecution, the DNA expert testified to her conclusions at trial.

Let’s now turn to the fingerprint report in Rawlins, where the opposite conclusion was reached.

Defendant Rawlins was convicted of numerous commercial burglaries. Central to the prosecution in that case, was the report of a fingerprint examiner who matched fingerprints recovered from the crime scenes to the defendant.

At trial, a fingerprint expert testified for the People regarding all the fingerprints recovered. Additionally, the report of a non-tesifying fingerprint examiner, who compared some of the fingerprints, was received in evidence.

The Court found it was error to admit the report of the non-testifying expert because his report was “testimonial” and therefore violated Crawford. The key factor in finding the fingerprint report to be “testimonial” was its accusatory nature and the fact that it was offered to “establish the defendant’s identity”. The Court held that the non-testifying expert was, “ ‘testifying’ through his reports that, in his opinion, defendant is the same person who committed the burglaries…”. However, the Court found the error to be harmless because the report was merely cumulative to the live testimony of the other fingerprint examiner.

So, what conclusions can we draw from these two cases? Obviously, records should not go in evidence wholesale just because they fit the “business records” criteria. The trial court must make an individualized determination whether the offered report is a “surrogate for accusatory in-court testimony”. If it is, then it violates Crawford. On the other hand, if the report contains objective data and does not independently link the defendant to the commission of the crime, it will most likely survive challenge. 

For the Joy of Pepsi and a smoke, the defendant gave up the ghost, admitting to an execution-style killing in Brooklyn.2 The problem was, he was prompted into this request by a five minute, un-Mirandized conversation with detectives while he was in custody on an unrelated matter. Detectives showed the defendant a photograph of the murder victim and asked if he “would like to tell his side of the story”.  After a 15-20 minute cigarette and soda break, the defendant was given Miranda warnings and ultimately confessed.

The defendant complained on appeal that there was insufficient attenuation between the pre-Miranda accusations and the post-Miranda confession. While observing that the police should have given the defendant his Miranda warnings from the outset, the Court of Appeals found that, under the circumstances of this case, that the “defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning” after the soda break.

As the credit markets continue to reel from the mortgage crisis, with the rippling effects now being felt in the credit card industry – many reports have surfaced that homeowners now make mortgage payments with credit cards or are choosing to make their credit card payments instead of their mortgage payments, calculating that it will be easier to deal with their mortgage holder than their credit card issuer – many people believe that the Capital Region is fairing better than larger areas such as Las Vegas or Florida.  With the ramifications of the collapse of the sub-prime lending market still to be played out, the Committee on Professional Ethics of the New York State Bar Association has set forth its opinion on “Seller’s Concessions,” a method that is regularly used to help purchasers finance their closing costs.  The narrow ethical opinion – can an attorney participate in a scheme to inflate the purchase price – ignores the larger issue; what effect has millions of artificially inflated real estate transactions had on fueling increases in market values and the growth and failure of the market for mortgaged backed securities?

Does an attorney’s participation in a residential closing with a “grossed up” sales price and “seller’s concessions” violate New York’s Code of Professional Responsibility?  According to the Committee on Professional Ethics, “a lawyer may not ethically participate in such a ‘gross up’ of the actual purchase price and concomitant seller’s concession, unless there is neither deception nor misrepresentation at work in the transaction.” 1

The facts considered by the Opinion involved an agreed sales price that was then increased by 3%, in return for which the seller granted the purchaser a “seller’s concession” in the same 3% amount.  The artificially inflated purchase price enables the purchaser to obtain a larger mortgage, based upon the increased contract amount and, in theory, use the additional mortgage proceeds to cover closing costs.

The Opinion expresses that, at a minimum, the gross up and seller’s concession must be fully disclosed in the transaction documents.  However, the Opinion stops short on defining “full disclosure” and passes up an opportunity to provide specific guidelines for attorneys by failing to detail which transaction documents the gross up and seller’s concession should be reported on.  Thus, this Opinion leaves two matters to be further resolved: (1) what forms should a seller’s concession be reported on to satisfy the full disclosure standard set forth in the Opinion; and (2) how is the seller’s concession disclosed to the secondary market – does an attorney’s responsibility for full disclosure include disclosure to the secondary market?

In most Capital Region residential real estate transactions, the Purchase and Sale Contract is a standard form negotiated by the parties with input by the real estate brokers involved.  An attorney is not usually hired until the gross up and concession are negotiated and set forth on the contract.  Is the inclusion of the gross up and concession in the contract sufficient for full disclosure?  Is reference to the concession in the HUD-1 at closing sufficient?  Should the attorney include in their attorney approval letter additional language that states that the gross up and concession are contingent upon full disclosure in writing to the Lender?  At a minimum, both attorneys should retain for their files copies of the transaction documents where disclosure is made as this discussion is most likely to continue.

When the Property Condition Disclosure Act was first enacted, the purpose behind a seller completing the Property Condition Disclosure Statement (“PCDS”) was to provide a prospective purchaser with certain conditions and information concerning the property known to the seller and move New York away from a “Buyer Be Ware” state.  Though the original intent behind the PCDS was not to provide a warranty of any kind, it has now been held that any knowingly false or incomplete statements by the seller can subject the seller to claims of fraud after the completion of the sale.

In Simone v. Homecheck Real Estate Services, Inc., the Seller-Defendant answered “No” to certain questions on the PCDS and the Plaintiff-Buyer’s home inspector did not report that the property had any material defects during the inspection.  However, after the closing Plaintiff-Buyer allegedly discovered several material defects with the property, including several leaks which resulted in mold and rot problems.  Accordingly, Plaintiff-Buyer asserted two causes of action; fraud and breach of contract. 

The breach of contract cause of action was dismissed since the contract provided for the property to be sold “as is” and had a specific merger clause therein.  Thus, upon closing and delivery of the deed, the doctrine of merger extinguished any claim the buyer may have had regarding the contract.  However, the court found that when a “Seller makes a false representation in a Disclosure Statement, such a representation may be proof of active concealment” 2.  Therefore, the court held that the Supreme Court properly denied Defendant-Seller’s motion to dismiss the cause of action alleging fraudulent misrepresentation.

This decision provides that the doctrine of merger does not apply to the PCDS and allows for a seller to be brought into court to defend his or her answers to the PCDS after title has been transferred.  Justifiably so, a cause of action may be warranted against a seller who intentionally misrepresented facts about the property on the PCDS.  However, what happens to the seller who mistakenly or accidentally completed the PCDS in error, with no intent to mislead or commit fraud?  Does the $500.00 cost/credit of not completing the PCDS outweigh the expense and fees associated with defending a seller’s answers?

In most transactions, an attorney rarely has an opportunity to counsel a seller about the ramifications of the PCDS before the contract is executed and the PCDS is provided to the purchaser.  In some parts of the state real estate brokers will not even show a house or strongly discourage an offer if the PCDS is not provided.  Thus, what is an attorney to do in light of this decision? One option is for the attorney to explain the PCDS to the seller and verify the seller’s answers to the PCDS and make any changes thereto during the attorney approval.  Another option to consider is the inclusion of a provision in the attorney approval letter that the representations made in the PCDS shall not survive closing.

A Budget Bill being negotiated by the New York State Legislature and Governor’s Office, which may become effective upon passage of the budget, in its current form, increase the filing fee of the RP-5217 up to $575.00 for a transaction with a reported sales price of more than $1,000,000.00.  The filing fee, which is currently $75.00 for qualifying residential and agricultural property or $165.00 for all other lands, will vary from $75.00 to $400.00 based on the reported sales price if the property is qualifying residential property or agricultural property or $165.00 to $575.00 for all other lands. 

Please visit www.smprtitle.com and click on Industry News to obtain more information regarding the Bill and amounts to be charged.

1.  Committee on Professional Ethics of New York State Bar Association, Opinion 817 (2007).
2.  Simone v Homecheck Real Estate Services, Inc., 2007 NY Slip Op 6224 (Third Dept.), decided July 24, 2007.

We have many firsts this month, the first reported City Court jury verdict and the first reported defense verdict.  We hope you enjoy! 

Thanks again for the submissions and the continued support that we have been receiving relative to the development of 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. 

While we are tending to focus on larger awards (because that is what has been submitted), we again ask members of the bar to consider submitting “every-day” results as well.  The intent of this column is to present an informative and balanced cross-section of the results that are being obtained in the Capital Region.

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.

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Quinones v. Community Action Commission (Kane, J., 12/27/07)
            Plaintiff and her daughter were passengers in a van that collided with another car. The van driver moved for summary judgment contending she was not at fault because the other driver created an emergency situation when she veered into the opposite lane, making it impossible for the defendant to avoid the crash.  Supreme Court (Meddaugh, J., Sullivan Co.) and the Third Department found summary judgment improper given “divergent factual situations” described by the defendant and the plaintiff mother, who among other things, testified that the defendant was exceeding the speed limit, talking on her cell phone and did not apply the brakes prior to impact.

Lohraseb v. Miranda (Kane, J., 12/27/07)
            Plaintiff and defendant are sisters who were in a van being driven through Virginia on the way home from a family vacation.  The van was hit by another vehicle while the defendant was making a left turn at an intersection controlled by a traffic light.  Plaintiff’s motion for summary judgment on liability was granted by Supreme Court (Kramer, J., Schenectady Co.) and affirmed on appeal.  Defendant was ticketed after the crash and pleaded guilty to failure to yield the right of way.  The guilty plea is “some evidence of negligence” but was compelling proof on the motion when defendant failed to offer any explanation for the plea (such as the convenience of entering a plea instead of traveling out of state to contest the ticket).

Moran v. City of Schenectady (Spain, J., 1/3/08)
            A car-pedestrian accident in Schenectady resulted in a suit which included as defendants two engineering and construction companies that had worked on a plan to renovate the traffic signal system in the area where the plaintiff was injured while trying to cross State Street.  Supreme Court (Kramer, J., Schenectady Co.) granted those defendants summary judgment on the theory they owed no duty to the plaintiff.  The Third Department affirmed finding no proof that the claim met one of the three exceptions to the general rule that a breach of a contractual obligation does not, by itself, “impose tort liability to noncontracting third parties upon the promisor”.

Stringer v. Musachia (Mercure, J., 12/27/07)
            Plaintiff, a self-employed contractor, was injured when he fell from a ladder while building a shed on the defendant’s property.&n