BALLOT MANEUVERS
By Mark Thompson
markthomp@yahoo.com
Posted 08-27-08
With election season looming, the Appellate Division resuscitated two campaigns that had been knocked off track by a couple of Queens County Supreme Court judges.
Justice Charles Thomas rejected the petition of a candidate who sought to be listed on the ballot for the Democratic primary, apparently without even bothering to examine any of the evidence presented by either side. Thomas issued his ruling in response to an oral motion brought by a representative of a rival candidate, but didn’t hold much of a hearing, to hear the Appellate Division tell it. The judge erred, a unanimous appellate panel said, “in failing to consider any of the evidence submitted to it or to address any of the issues raised in this proceeding before making [his] determination.” In its ruling released less than three weeks before the Sept. 9 primary, the appellate panel reversed Thomas’s denial of the petition and sent the matter back to him with instructions to hold a proper hearing “forthwith” and this time, to address “all of the issues raised in this proceeding.” Matter of Richards v Board of Elections of the City of New York (August 20)
In another case, Justice James Dollard kicked a candidate off the primary ballot for a state Senate seat on unproven allegations that he did not reside in the district, the Appellate Division said. The candidate, who petitioned to be listed as a nominee for the Republican Party, Conservative Party, and Independence Party, claimed that he had lived part of each week for more than a year at a residence in Flushing, and he produced a voter registration card, driver’s license and tax records to prove it. A rival candidate who sought to remove the alleged carpetbagger from the ballot had the burden of proving that he did not reside in the district as he claimed, and he failed to meet that burden, the appellate panel concluded. That burden of proof is more daunting than it might seem because case law regarding residency for the purpose of running in a election has recognized, the appellate panel pointed out, that in this mobile day and age, people may have more than one bona fide residence at the same time. Matter of Stavisky v Koo (August 20)
OTHER NOTABLE REVERSALS
KINGS COUNTY
ENVIRONMENTAL: Justice Carolyn E. Demarest dismissed an environmental enforcement action initiated by the Queens County District Attorney on the erroneous theory that only the state Department of Environmental Conservation has authority to initiate criminal investigations under the provisions in the Environmental Conservation Law covering discharges of hazardous waste into waterways, the Appellate Division said. The noxious effluent at issue in this case was first spotted flowing from a cement plant into the East River by an investigator with an environmental organization called Riverkeeper. The investigator notified the Department of Environmental Conservation as well as the Queens County District Attorney’s office, and the county prosecutor took the initiative to launch legal action without waiting for a green light from the state agency. Demarest dismissed the indictment on grounds that the district attorney action was not authorized by the law. The Appellate Division, however, in a case of first impression, delved into the legislative history of the statute, concluded that a local district attorney and the attorney general have concurrent jurisdiction over violations of the law, reversed Demarest and put the district attorney’s office back on the case. People v Quadrozzi (August 19)
NEW YORK COUNTY
CONTRACT: Justice Charles Edward Ramos jumped to the unwarranted conclusion that a company breached a contract to provide fiber optic capacity, even though negotiations over final terms of the agreement were never definitively broken off, the Appellate Division said. The preliminary agreement between the parties requiring the defendant to provide fiber optic capacity was incomplete in some of its details, but it was a binding contract anyway, which obligated both sides to negotiate in good faith to reach an agreement on the final terms. Negotiations bogged down, but since the defendants never made a definite and final communication of an intent to forgo their obligations to complete negotiations, the defendant never breached the settlement agreement, the appellate panel said, reversing Ramos’s partial grant of summary judgment to the plaintiffs on the issue of their liability for breach of contract. IDT Corp. v Tyco Group, S.A.R.L. (August 19)
CONTEMPT: Justice Ramos was reversed in part a second time on the same day for unnecessarily circumscribing the scope of a motion for contempt against a defendant who ignored a legal proceeding, said the Appellate Division. Ramos erred in denying the part of the plaintiff's initial contempt motion that concerned a one-year period between the date when a temporary restraining order was issued and the date when counsel for the defendants finally got around to appearing in court to accept service of the restraining order. As the appellate panel noted, the defendants knew the terms of the order, and thus were not entitled to avoid its effects by failing to appear at the hearing when it was issued or inquire further about the proceeding, said the appellate division, reversing that part of the trial judge’s ruling. Ramos properly determined that the plaintiff's motion for contempt against all defendants with respect to all other periods of time should be tried with the balance of this action, the appellate panel said. Rosado v Edmundo Castillo Inc. (August 19)
PUBLIC RECORD: Justice Herman Cahn properly upheld a subpoena issued by the Department of Investigation to compel a volunteer member of a landmarks commission to provide testimony about a meeting at which the volunteer allegedly misrepresented the content of a letter purportedly submitted by a city legislator. The DOI has jurisdiction over the volunteer, even though she is not a city employee, because she has information relevant to an investigation of a public hearing. In exchange for her testimony, however, Cahn should have granted the volunteer immunity from criminal prosecution, the appellate panel said, reversing Cahn in part. Matter of Parkhouse v Stringer (August 19)
QUEENS COUNTY
CRIMINAL: Justice Mark Spires should have dismissed the second-degree robbery count on which Corey Bailey was convicted because that offense was encompassed by the concurrent first-degree robbery count, the Appellate Division said, dismissing the redundant count. People v Bailey (August 19)
OTHER NOTABLE REVERSALS
KINGS COUNTY
ENVIRONMENTAL: Justice Carolyn E. Demarest dismissed an environmental enforcement action initiated by the Queens County District Attorney on the erroneous theory that only the state Department of Environmental Conservation has authority to initiate criminal investigations under the provisions in the Environmental Conservation Law covering discharges of hazardous waste into waterways, the Appellate Division said. The noxious effluent at issue in this case was first spotted flowing from a cement plant into the East River by an investigator with an environmental organization called Riverkeeper. The investigator notified the Department of Environmental Conservation as well as the Queens County District Attorney’s office, and the county prosecutor took the initiative to launch legal action without waiting for a green light from the state agency. Demarest dismissed the indictment on grounds that the district attorney action was not authorized by the law. The Appellate Division, however, in a case of first impression, delved into the legislative history of the statute, concluded that a local district attorney and the attorney general have concurrent jurisdiction over violations of the law, reversed Demarest and put the district attorney’s office back on the case. People v Quadrozzi (August 19)
NEW YORK COUNTY
CONTRACT: Justice Charles Edward Ramos jumped to the unwarranted conclusion that a company breached a contract to provide fiber optic capacity, even though negotiations over final terms of the agreement were never definitively broken off, the Appellate Division said. The preliminary agreement between the parties requiring the defendant to provide fiber optic capacity was incomplete in some of its details, but it was a binding contract anyway, which obligated both sides to negotiate in good faith to reach an agreement on the final terms. Negotiations bogged down, but since the defendants never made a definite and final communication of an intent to forgo their obligations to complete negotiations, the defendant never breached the settlement agreement, the appellate panel said, reversing Ramos’s partial grant of summary judgment to the plaintiffs on the issue of their liability for breach of contract. IDT Corp. v Tyco Group, S.A.R.L. (August 19)
CONTEMPT: Justice Ramos was reversed in part a second time on the same day for unnecessarily circumscribing the scope of a motion for contempt against a defendant who ignored a legal proceeding, said the Appellate Division. Ramos erred in denying the part of the plaintiff's initial contempt motion that concerned a one-year period between the date when a temporary restraining order was issued and the date when counsel for the defendants finally got around to appearing in court to accept service of the restraining order. As the appellate panel noted, the defendants knew the terms of the order, and thus were not entitled to avoid its effects by failing to appear at the hearing when it was issued or inquire further about the proceeding, said the appellate division, reversing that part of the trial judge’s ruling. Ramos properly determined that the plaintiff's motion for contempt against all defendants with respect to all other periods of time should be tried with the balance of this action, the appellate panel said. Rosado v Edmundo Castillo Inc. (August 19)
PUBLIC RECORD: Justice Herman Cahn properly upheld a subpoena issued by the Department of Investigation to compel a volunteer member of a landmarks commission to provide testimony about a meeting at which the volunteer allegedly misrepresented the content of a letter purportedly submitted by a city legislator. The DOI has jurisdiction over the volunteer, even though she is not a city employee, because she has information relevant to an investigation of a public hearing. In exchange for her testimony, however, Cahn should have granted the volunteer immunity from criminal prosecution, the appellate panel said, reversing Cahn in part. Matter of Parkhouse v Stringer (August 19)
QUEENS COUNTY
CRIMINAL: Justice Mark Spires should have dismissed the second-degree robbery count on which Corey Bailey was convicted because that offense was encompassed by the concurrent first-degree robbery count, the Appellate Division said, dismissing the redundant count. People v Bailey (August 19)