JUST RELEASED

April Page I

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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COURT OF APPEALS

 

ATTORNEYS/HUMAN RIGHTS LAW/EMPLOYMENT LAW

 

Statutory Attorney's Fees Awarded in a Human Rights Law Action Should Not Be Added to the Jury Award to Determine the Amount of the Contingency Fee

 

The Court of Appeals, in a full-fledged opinion by Judge Lippman, explained how attorney's fees should be calculated when there is a contingency fee agreement which does not make clear how the contingency fee is affected by the award of statutory attorney's fees (in addition to the jury award) pursuant to the Human Rights Law.  The attorney claimed that the contingency should be calculated after adding the statutory fees to the jury award. The court disagreed:

 

...[B]oth federal precedent and instructive decisions from our sister states evince that,"absent a contractual provision to the contrary, the trend is to calculate the contingency fee based on the amount of the judgment exclusive of the fee award, and then credit the fee award to the client as an offset against the contingency fee owed. Under this approach, the attorney should be entitled to receive either the contingent fee calculated on the amount of the damage recovery exclusive of any court-awarded fees, or the amount of the court-awarded fee, whichever is greater"... .

 

In the context of the present case, concerning construction of retainer agreements in conjunction with attorneys' fees awarded pursuant to the NYCHRL (New York city Human Rights Law), such an approach comports with our precedent holding that ambiguous fee agreements should be interpreted against the drafting attorney ... .

 

In addition, permitting counsel to collect a statutory award that exceeds the amount due under a contingency fee agreement advances the "uniquely broad and remedial purpose" of the NYCHRL by incentivizing the private bar to represent civil rights plaintiffs even where any damage award is likely to be insubstantial ... . In this regard, freedom of contract is also respected since, in the event that the statutory award is less than the contingency fee, deducting the court-awarded fees from the sum owed under the contract ensures that the attorney receives, and the client pays, no more or less than they bargained for ... .

 

On the facts before us, we need not decide whether a retainer agreement entitling an attorney to court-ordered counsel fees in addition to the full contingency fee would be enforceable. We would note, however, that such an arrangement would be subject to requisite scrutiny under applicable laws and rules controlling the reasonableness of attorney compensation... .  Albunio v City of New York, 2014 NY Slip Op 02325, CtApp 4-3-14

 

 

CIVIL PROCEDURE

 

Notice Requirements for a Nonparty Subpoena Pursuant to CPLR 3101(a)(4) Explained/Criteria for a Motion to Quash and Opposition to the Motion to Quash Explained

 

In a full-fledged opinion by Judge Pigott, the Court of Appeals determined the nature of the notice requirements for subpoenaing a nonparty pursuant to CPLR 3101 (a)(4), and the criteria for determining a motion to quash the subpoena:

 

We conclude that the subpoenaing party must first sufficiently state the "circumstances or reasons" underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), and the witness, in moving to quash, must establish either that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is "material and necessary" to the prosecution or defense of an action, i.e., that it is relevant. Matter of Kapon v Koch, 2014 NY Slip Op 02327, CtApp 4-3-14

 

CIVIL PROCEDURE/ATTORNEYS

 

Action for Attorney Deceit Originated in New York Common Law, Not Statutory Law---Six-Year "Catch All" Statute of Limitations Applies

 

The Court of Appeals, in a full-fledged opinion Judge Read, determined that an action for attorney deceit (Judiciary Law 487) was governed by the six-year "catch-all" statute of limitations (CPLR 213(1)), not the three-year statute (CPLR 214(2)). The question came down to whether the attorney-deceit action stemmed from a statute or from the common law. The Court noted that the statutory law of England was incorporated into New York's common law before the first New York statute dealing with attorney deceit was was enacted.  Therefore the "catch-all" six-year statute applied:

 

A cause of action for attorney deceit ... existed as part of New York's common law before the first New York statute governing attorney deceit was enacted in 1787 ... . The 1787 statute enhanced the penalties for attorney deceit by adding an award for treble damages, but did not create the cause of action ... .Thus, even if a claim for attorney deceit originated in the first Statute of Westminster rather than preexisting English common law ..., liability for attorney deceit existed at New York common law prior to 1787. As a result, claims for attorney deceit are subject to the six-year statute of limitations in CPLR 213 (1). Melcher v Greenberg Traurig LLP, 2014 NY Slip Op 02213, CtApp 4-1-14

 

 

CRIMINAL LAW/EVIDENCE

 

No Probable Cause for Disorderly Conduct Arrest/Defendant Was Standing in Front of a Store with Three Others All of Whom Refused Police Officer's Request to Move

 

The Court of Appeals determined the presence of three reputed gang members in front of a store, one of whom was partially blocking the door, was not enough to support a disorderly conduct charge.  Evidence seized as a result of arrest should therefore have been suppressed:

 

The applicable statute is Penal Law § 240.20 (6), which says:"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:. . . ."6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse;"

 

We have made clear that evidence of actual or threatened public harm ("inconvenience, annoyance or alarm") is a necessary element of a valid disorderly conduct charge ... . Here, the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences. According to the officer's testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police. The only evidence of any possible impact on the public resulting from their presence was the officer's testimony that one of defendant's companions "was partially blocking" the entrance to a store by standing in front of it.  Defendant and the other two men were close to the door, but not in front of it. There is no evidence that anyone trying to enter or leave the store was actually obstructed. This was not sufficient to satisfy the public harm element of the statute.  People v Johnson, 2014 NY Slip Op 02217, CtApp 4-1-14

 

CRIMINAL LAW/APPEALS

 

Jury Should Have Been Instructed that It Could Determine Whether Witness Was an Accomplice and Assess the Witness' Credibility Accordingly/Propriety of Jury Instruction Is Reviewable by the Court of Appeals as a Matter of Law

 

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the trial court committed reversible error by refusing defendant's request for an "accomplice-in-fact" jury instruction.  The defendant's conviction for manslaughter for participation in a beating death involving several assailants was based in large part upon the testimony of an eyewitness.  The Court of Appeals found that there was enough evidence of the eyewitness' participation in the crime to warrant an instruction which would allow the jury to determine if the eyewitness was an accomplice and to assess the eyewitness' credibility accordingly.  The Court explained the "accomplice as a matter of law" and "accomplice-in-fact" theories:

 

An accomplice is "a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged" (CPL 60.22 [2]). Under our criminal law, "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" (CPL 60.22 [1]). Testimony of such a witness, marked by obvious self interest, carries the potential for falsification to avoid prosecution ... . * * *

 

Where the court determines on the evidence that a witness comes within the meaning of CPL 60.22 (2), the witness is an accomplice as a matter of law, and the court must instruct the jury that the witness is an accomplice and subject to the statutory corroboration requirement ... . * * * In a case where the court concludes that a factual dispute exists as to whether the witness is an accomplice under the statute, the factual question is left for the jury to resolve... . * * *

 

We have found a witness is an accomplice as a matter of law where, for example, the witness pleads guilty to aiding the defendant in the commission of the crime ..., or otherwise confirms participation or assisting in the charged crime ... .

 

In contrast, the witness may be found to be an accomplice in fact where there are factual disputes as to the witness's participation or intent, such that "different inferences may reasonably be drawn" from the evidence as to the witness's role as an accomplice ... .  * * *  The propriety of a jury instruction is reviewable as a matter of law... .  People v Sage, 2014 NY Slip Op 02214, CtApp 4-1-14

 

 

CRIMINAL LAW/APPEALS

Appeals Not Pursued for a Decade or More Properly Dismissed

 

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined, with respect to three of four defendants, dismissal of the appeals was appropriate. The appeals were not pursued for more than a decade, in one case more than two decades, after the filing of the notices of appeal, and the excuses for inaction were found insufficient.  With respect to the fourth defendant, counsel had never reviewed the record. Therefore, defendant's right to appellate counsel had not been honored. The matter was sent back for the appointment of appellate counsel and submissions, after which the motion to dismiss the appeal could be properly considered.  People v Perez, 2014 NY Slip Op 02326, CtApp 4-3-13

 

 

EMPLOYMENT LAW/RETIREMENT AND SOCIAL SECURITY LAW/MUNICIPAL LAW

 

No Credit for Civilian Service Under Post December 19, 1990, Tier 3 CO-20 Retirement Plan (Re: 20 Year Early Service Retirement)

 

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that a corrections officer, a post December 19, 1990, member of the Tier 3 CO-20 New York City Department of Corrections (DOC) retirement plan established by Retirement and Social Security Law 504-a, was not entitled to an additional pension benefit based upon his three years as a non-uniformed civilian employee of the NYC Department of Environmental Protection (DEP). Therefore, the New York City Employees' Retirement System (NYCERS) properly did not consider the civilian service for the DEP in calculating the corrections officer's pension benefit:

 

... [F]or post-December 19, 1990 Tier 3 CO-20 plan members, unlike the other participants in Tier 3 CO-20 plans established by chapter 936, only allowable correction service (i.e., uniformed service) counts towards eligibility for 20-year early service retirement ... . Matter of Kaslow v City of New York, 2014 NY Slip Op 02324, 4-3-14

 

 

ENVIRONMENTAL LAW/CIVIL PROCEDURE/ADMINISTRATIVE LAW

 

Owners of Land Slated for Development Had Standing to Challenge Procedures Used by the NYS Department of Environmental Conservation to Amend Regulations Affecting Endangered Species/The Land In Question Was Home to Two Endangered Species/Therefore the Amendments Affected the Land Owners Differently from the Public at Large

 

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that the petitioners (land owners) had standing to raise claims that the NYS Department of Environmental Conservation failed to adhere to certain procedural requirements before adopting amendments aimed at protecting endangered species.  The land, which was designated for economic development, was home to two endangered species.  The Court explained why the petitioners had alleged a unique "injury," different from injury to the public at large, which comported standing to raise the procedural claims:

 

Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria" ... . Petitioner has the burden of establishing both an injury in fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated ... . In land use matters, moreover, petitioner "must show that it would suffer direct harm, injury that is in some way different from that of the public at large" ... . These requirements ensure that the courts are adjudicating actual controversies for parties that have a genuine stake in the litigation ... . * * *

 

Petitioners, governmental entities titled to land for the purpose of redevelopment, whose property is subject to the amended regulations, have alleged a sufficient injury in fact for these purposes. We do not, and need not, decide whether land ownership, by itself, could satisfy the injury requirement. As the United States Supreme Court has recognized, a litigant's " some day' intentions -— without any description of concrete plans, or indeed even any specification of when the some day will be —- do not support a finding of the actual or imminent' injury that our cases require" ... . Here, however, there is more than an amorphous allegation of potential future injury. Petitioners have asserted a concrete interest in the matter the agency is regulating, and a concrete injury from the agency's failure to follow procedure. Moreover, in connection with [a] prior proposal to subdivide the land at issue, DEC provided them with an outline for a comprehensive habitat protection plan and indicated its intention to serve as lead agency for the purposes of SEQRA (State Environment Quality Review Act) review. Petitioners' allegations are sufficient to satisfy the requirements that they have an actual stake in the litigation and suffer a harm that is different from that of the public at large... .

 

Petitioners further allege that the violation of these procedural statutes deprived them of an adequate "airing" of the relevant issues and impacts of the proposed amendments, as well as an accurate assessment of the projected costs involved. The asserted statutory provisions set forth certain procedural steps to be followed when promulgating rules or regulations. The alleged violations, including the deprivation of an opportunity to be heard, constitute injuries to petitioners within the zone of interests sought to be protected by the statutes. Most significantly, to deny petitioners standing in this case would have the effect of insulating these amendments from timely procedural challenge — a result that is contrary to the public interest ... . Given the compressed four-month statute of limitations (see SAPA 202 [8]), we would be erecting an "impenetrable barrier" to any review of this facet of the administrative action... .  Matter of Association for a Better Long Is Inc v New York State Dept of Envtl Conservation 2014 NY Slip Op 02216, CtApp 4-1-14

 

NEGLIGENCE/PRODUCTS LIABILTY

 

A Third-Party's Removal of a Safety Device Did Not Require Summary Judgment In Favor of the Manufacturer, Even though the Safety Device Would Have Prevented the Injury/There Was Evidence the Safety Device Itself Was Defective, Leading to Its Removal by the Third Party/Therefore, the "Substantial Modification" Defense Did Not Insulate the Manufacturer from Liability as a Matter of Law

 

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the defendant manufacturer of a post-hole digger did not demonstrate entitlement to summary judgment dismissing the product liability suit because a plastic safety shield (which would have prevented the injury) had been removed by a third party after the sale (the "substantial modification" defense).  There was evidence that the plastic shield was defective in that it wore out prematurely:

 

If the defendant establishes prima facie entitlement to summary judgment based on substantial modification, the burden shifts to the plaintiff to come forward with evidentiary proof in admissible form demonstrating "the existence of material issues of fact which require a trial of the action" .... . The plaintiff may overcome a substantial modification defense by demonstrating that the post-sale modification did not render a "safe product defective" because the product incorporated a defectively designed safety feature at the time of sale ... . In other words, the plaintiff must raise a triable issue of fact whether the safety feature "was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury" ... . * * *

 

...[I]f a plaintiff establishes the existence of material issues of fact concerning the defective design of a safety feature, the defendant will not automatically prevail on summary judgment simply because that safety feature was modified post sale. The substantial modification defense is intended to insulate manufacturers and others in the distribution chain from liability for injuries that would never have arisen but for the post-sale modification of a safety feature on an otherwise safe product. [It] does not, however, mandate summary disposal of cases where the plaintiff raises a colorable claim that the product was dangerous because of a defectively designed safety feature and notwithstanding the modification by the third party. We agree with the Appellate Division that, on this record, plaintiff established the existence of material issues of fact sufficient to overcome defendants' substantial modification defense. Hoover v New Holland N Am Inc, 2014 NY Slip Op 02215, CtApp 4-1-14

 

 

APPELLATE DIVISION

 

CIVIL PROCEDURE

 

Inconsistent Responses to Special-Verdict Interrogatories Required Resubmission to the Jury or a New Trial

 

The First Department determined the trial judge, faced with inconsistent answers to the special verdict interrogatories, should have either resubmitted the interrogatories or ordered a new trial:

 

The jury's responses to the second and third interrogatories are not only in direct conflict with one another, but puzzling given the jury charge. The trial court instructed the jury that "if you find all of the agreed-upon services have been performed, then the [p]laintiff is entitled to recover the fee agreed upon or such part of that fee as you find remains unpaid." In light of these instructions, the jury's finding that defendant is obligated to pay plaintiff, even though plaintiff did not perform its obligations under the contract, is "logically impossible" .... .As the verdict was inconsistent, pursuant to CPLR 4111(c), the court was obligated to either resubmit the interrogatories to the jury or order a new trial ... . The trial court "engaged in improper speculation as to the jury's thought process" by attempting to reconcile the jury's answers with the evidence ..., based upon a theory that was not part of the jury's findings. ... The trial court should have required the jury to reconsider the interrogatories or order a new trial, even though defense counsel did not request, on the record, that the verdict be resubmitted to the jury... . Bellinson Law, LLC v Iannucci, 2014 NY Slip Op 02219, 1st Dept 4-1-14

 

 

CIVIL PROCEDURE/FRAUD/DEBTOR-CREDITOR

​Monetary Award to Compensate Fraud Victims Ordered by a Czech Court in a Criminal Fraud Prosecution Entitled to Enforcement in New York as a "Foreign Country Judgment"

 

The First Department, in a full-fledged opinion by Justice Tom, determined a judgment in a Czech criminal proceeding ordering a monetary award to compensate fraud victims was entitled to recognition in New York pursuant to CPLR 5301(b) (a matter of first impression):

 

CPLR 5301(b) defines a "foreign country judgment" as "any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters." The judgment sought to be enforced in this case provides restitution ..., directing ... the criminal defendant, to pay a specific sum as "compensation for damages to the victim" of his scheme to defraud. Clearly, the judgment is not one for taxes or support obligations; nor is it a fine. Thus, the question is whether a judgment providing compensation to a crime victim (here, a victim of criminal fraud) should be regarded as a "penalty" and denied enforcement.

 

Where, as here, the purpose of a monetary judgment is to compensate the victim for actual damages, it represents "reparation to one aggrieved" ... . Harvardsky Prumyslovy Holding AS -V Likvidaci v Kozeny, 2014 NY Slip Op 02250, 1st Dept 4-1-14

 

 

CIVIL PROCEDURE

Motion for Voluntary Discontinuance Should Not Have Been Granted "With Prejudice"

 

The Second Department determined a motion for the voluntary discontinuance of an action should not have been granted "with prejudice:"

 

In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice (see CPLR 3217[c]...).  Here, there was no showing of any such special circumstances. Contrary to the respondents' contention, there is no evidence in the record that the action was settled, discontinued, or dismissed on the merits ... . Rather, it is undisputed that the settlement reached by the parties was a forbearance agreement. Accordingly, the action should have been discontinued without prejudice. New York Mtge Trust Inc v Dasdemir, 2014 NY Slip Op, 2nd Dept 4-2-14

 

 

CIVIL PROCEDURE

Lawsuit Properly Dismissed on "Forum Non Conveniens" Grounds

 

The Second Department determined that a lawsuit stemming from an accident in Canada in which New York's only connection was the residence of the plaintiff should be dismissed on the ground of forum non conveniens upon the condition the defendant waive any jurisdictional or statute of limitations defenses:

 

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over the action, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]... ). On a motion to dismiss the complaint on the ground of forum non conveniens, the defendant bears the burden of demonstrating "relevant private or public interest factors which militate against accepting the litigation" ... . "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" ... . "No one factor is dispositive" ... . "The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors ... .

 

Here, the plaintiff is a resident of Canada and the defendant is a resident of Richmond County. The incident complained of occurred in Canada. The location of the defendant's residence is the sole connection in this case to the State of New York. Under the circumstances of this case and considering all of the relevant factors, including the fact that many of the witnesses, including law enforcement officials, emergency responders, medical personnel, and the owner of the hunting lodge who assigned the plaintiff to act as a hunting guide, are in Canada, the Supreme Court providently exercised its discretion in granting the defendant's motion to dismiss the complaint pursuant to CPLR 327(a) on the ground of forum non conveniens ... . Koop v Guskind, 2014 NY Slip Op 02266, 2nd Dept 4-2-14

 

 

CIVIL PROCEDURE

 

Pre-Deposition Motion for Summary Judgment Should Not Have Been Granted

 

The Second Department determined a pre-deposition motion for summary judgment was premature and should not have been granted:

 

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" ... . This is especially so where the motion for summary judgment was made prior to the parties conducting depositions ... .Here, an award of summary judgment would be premature at this stage of the action. The plaintiff's motion for summary judgment was made prior to the deposition of the plaintiff. In light of the fact that the plaintiff was the sole witness to the accident, and that his account of the accident has been placed in issue, the defendant should have been afforded the opportunity to conduct his deposition ... . Schlichting v Elliquence Realty LLC, 2014 NY Slip Op 02281, 2nd Dept 4-2-14

 

 

CONTRACT LAW

 

Lost Profits Not Recoverable---Too Speculative and Not Contemplated in the Agreement

 

The First Department determined the agreement between the parties did not contemplate lost profits and, therefore, lost profits could not be awarded as damages for the breach:

 

Nevertheless, the court properly concluded that [plaintiff] was not entitled to recover lost profits. To the extent [plaintiff] seeks lost profits for a five-year period, such damages are speculative, as its assumption that it would have remained in contract with [defendant] for five years could not be established with reasonable certainty. To the extent it seeks lost profits in the amount of $1 million for 2010 (i.e., $500,000 for two seasons), such lost profits were not within the contemplation of the parties as a probable result of a breach at the time they entered into the agreement and could not be established with reasonable certainty ... . The evidence surrounding the negotiation and execution of the contract does not show that the parties expected [defendant] to bear the responsibility for any lost profits sustained by [plaintiff]. Indeed, all the witnesses acknowledged that sales revenue of $500,000 per season was mere expectation, and [defendant's] principal testified that he would not guarantee minimum sales in his sales agreements, especially with emerging designers, as there were "too many variables involved in procuring success in sales in our very competitive and fickle industry." Such evidence undermines the conclusion that the parties contemplated that [defendant] would assume liability for [plaintiff's] loss of anticipated revenue ... . Olsenhaus Pure Vegan LLC v Electric Wonderland Inc, 2014 NY Slip Op 02343, 1st Dept 4-3-14

 

 

CRIMINAL LAW

 

Two Dissenting Justices Found Defendant's Sentence Excessive Under the Facts

 

The First Department, over a two-justice dissent, found that the defendant's application for resentencing under the Drug Reform Act was properly denied.  The decision is notable for the dissents, which forcefully argued defendant's sentence was harsh and excessive in light of all the facts. People v Lovett, 2014 NY Slip Op 02329, 1st Dept 4-3-14

 

 

CRIMINAL LAW/ATTORNEYS

Defense Counsel Did Not Provide Effective Assistance

 

The First Department determined the defendant did not receive effective assistance of counsel.  Counsel did not object to inadmissible hearsay which corroborated the complainant's testimony, counsel did not subpoena medical records or call a medical expert despite proof at the first trial the evidence of complainant's injury was unsupported, and counsel did not impeach the complainant by confronting her with her prior inconsistent statements:

 

in a case that depended heavily on the credibility of the complainant, counsel failed to object to hearsay testimony indicating that several unnamed out-of-court declarants supported the complainant's version of the incident. These bystander statements were not admissible under any theory, and we reject the People's arguments to the contrary. These declarations did not qualify as excited utterances, and, under the circumstances of the case, they were not admissible as background information to complete the narrative and explain police actions. At a prior trial, at which defendant was represented by different counsel, and which ended in a hung jury, the content of these declarations was not placed in evidence.

 

We are unable to discern any strategic basis for counsel's failure to object to this highly prejudicial hearsay evidence. Any benefit that defendant may have gained when his counsel attempted to suggest that a police witness fabricated the existence of the bystander declarations was clearly outweighed by the prejudicial effect of having the jury hear the declarations in the first place. Defendant had nothing to lose, and much to gain, by keeping the declarations completely out of the case. Furthermore, the trial record reveals that counsel was unaware, and apparently surprised, that the content of these declarations was not in evidence at the first trial. This tends to suggest that counsel's failure to object had nothing to do with strategy. People v Ugweches, 2014 NY Slip Op 02333, 1st Dept 4-3-14

 

 

CRIMINAL LAW/EVIDENCE

​Dismissal of Indictment On Ground that Law Enforcement Personnel Improperly Issued a Subpoena for Defendant's Financial Records Reversed/Defendant Did Not Have Standing to Challenge the Subpoena and Issuance of the Subpoena Did Not Violate Defendant's Constitutional Rights

 

The Second Department determined that the trial court should not have dismissed an indictment in the interest of justice on the ground that law enforcement personnel improperly issued a subpoena to Citibank for defendant's financial records.  The court noted that defendant did not have standing to challenge the subpoena because he did not have a proprietary interest in the records:

 

Even assuming, arguendo, that the subpoena was improperly issued, the defendant had no standing to challenge the validity of the subpoena ... as he had no possessory or proprietary interest in the bank's records ... . Further, any impropriety in the issuance of the subpoena did not implicate the defendant's constitutional rights ... or federal statutory rights ... . Since any misconduct on the part of law enforcement in issuing the subpoena did not implicate the defendant's rights or interests, justice did not require dismissal of the subject counts of the indictment on the basis of any such misconduct. Further, for the reasons noted above, suppression of the Citibank records was not proper either as a sanction for alleged misconduct or for an alleged violation of the defendant's Fourth Amendment rights... . People v Adeniran, 2014 NY Slip Op 02302, 2nd Dept 4-2-14

 

 

CRIMINAL LAW

Mischaracterization of a Jury Note Required Reversal

 

The Second Department determined that the trial court's mischaracterization of a jury note required reversal:

 

The Supreme Court mischaracterized the contents of the note to counsel as merely requesting a readback of the elements of the charged offenses rather than as indicating the jury's apparent erroneous impression that proof of a single element of each crime was sufficient to render a guilty verdict ... . In thus mischaracterizing the note, the Supreme Court did not afford defense counsel the opportunity to participate in the formulation of the court's response to the jury's confusion. "Since defense counsel was not afforded the opportunity to provide suggestions, [s]he was prevented from participating meaningfully at this critical stage of the proceedings" ... . "In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal" (People v Tabb, 13 NY3d 852, 853), despite defense counsel's failure to object to the court's treatment of the jury note ... . Furthermore, meaningful notice of the contents of a jury note must take place on the record ... . Accordingly, contrary to the People's contention, a reconstruction hearing to determine whether counsel was provided with the note off the record would be neither appropriate nor helpful ... . People v Giraldo, 2014 NY Slip Op 02309, 2nd Dept 4-2-14

 

CRIMINAL LAW/APPEALS

Failure to Prove Shared Intent (Accessorial Liability) Required Dismissal of Robbery Counts Under a Weight of the Evidence Analysis

 

The Second Department, after a weight of the evidence review, determined there was insufficient proof defendant shared the intent to commit the robbery and dismissed the relevant counts of the indictment:

 

Here, the defendant was convicted of two counts of attempted robbery in the second degree under a theory of accessorial liability. "To sustain a conviction based upon accessorial liability, the evidence . . . must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the principal to commit such crime'" (...see Penal Law § 20.00...).Upon the exercise of our factual review power (see CPL 470.15), we determine, in the first instance, that acquittal of the charges of attempted robbery in the second degree would not have been unreasonable based upon the evidence presented and, moreover, that the jury failed to accord the evidence the weight it should have been accorded ... . The evidence presented at trial did not establish, beyond a reasonable doubt, that the defendant shared the intent to commit robbery, or that he solicited, requested, commanded, importuned, or intentionally aided the principal in committing the offense of attempted robbery in the second degree. Accordingly, the convictions of attempted robbery in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment must be dismissed ... . People v Marchena, 2014 NY Slip Op 02312, 2nd Dept 4-2-14

 

 

CRIMINAL LAW

Trial Court's Decision to Conduct Trial in Defendant's Absence Without Consideration of the Factors Mandated for Consideration by the Court of Appeals Required Reversal

 

The Third Department reversed defendant's conviction because the trial judge did not consider the appropriate factors before continuing with the trial without the defendant's presence:

 

"A defendant's right to be present in the courtroom during his or her trial is one of the most basic rights guaranteed by the Federal and New York Constitutions, and by statute" ... . Even where, as here, "a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized"... . Rather, it must also appear from the record that the trial court considered "all appropriate factors" before proceeding in defendant's absence, "including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling [the] trial and the chance that evidence will be lost or witnesses will disappear" ... . As the Court of Appeals has instructed, "[i]n most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile" ... .

 

Here, the record fails to demonstrate that Supreme Court considered any of the appropriate factors. When defendant failed to appear on the morning that trial was scheduled to commence, defense counsel represented to the court that he had no information as to defendant's whereabouts and requested an adjournment. Supreme Court declined to grant an adjournment, issued a bench warrant for defendant's arrest and pronounced its decision to proceed immediately to trial. People v June, 105292, 3rd Dept 4-3-14 

 

 

 

CRIMINAL LAW/ATTORNEYS

Failure to Challenge Conviction Rendered Invalid by Not Advising Defendant of the Period of Post Release Supervision [PRS] Constitutes Ineffective Assistance of Counsel

 

The First Department determined the defendant did not receive effective assistance of counsel when he was sentenced as a predicate felony offender.  Counsel failed to challenge a 2000 conviction upon a guilty plea which was invalid because defendant was not apprised of the period of post release supervision (PRS) which was subsequently imposed. The fact that the PRS was later removed from the sentence did not cure the error because the defendant had already served four years of PRS and had spent time in jail for a violation of supervision:

 

In connection with the 2000 conviction, Supreme Court, New York County added postrelease supervision to the sentence in 2009 to cure an unlawful administrative imposition of PRS ... . In May, 2010 that court removed PRS from the sentence in accordance with People v Williams (14 NY3d 198 [2010]). Contrary to the People's sole argument on appeal addressing the Catu issue [the initial failure to advise defendant of the period of post release supervision], the vacatur of defendant's PRS could not cure the Catu error, or give defendant the benefit of his plea, since at the time of the vacatur he had already served four years of PRS, and had also spent time in jail in violation of that supervision. ...

 

In connection with the instant CPL 440.20 motion [motion to vacate the sentence], the attorney who represented defendant at his 2010 persistent violent felony offender adjudication and sentencing acknowledged that he had no strategic reason for failing to challenge the 2000 conviction, and that he never inquired into whether defendant had been advised about PRS at his 2000 plea proceeding. He further affirmed that had he been aware that the conviction was obtained in violation of Catu, he would have in fact challenged its use to enhance defendant's sentence in this case. Thus, this was not a case where an attorney may have reasonably believed that it would have been futile to raise a Catu issue regarding the constitutionality, for predicate felony purposes, of defendant's 2000 conviction, or that the law was unclear on this issue... .  People v Fagan, 2014 NY Slip Op 02344, 1st Dept 4-3-14

 

CRIMINAL LAW

Denial of For Cause Juror Challenges Required Reversal

 

After determining one of the counts of the sex-offense indictment must be dismissed as duplicitous because more than one offense was alleged to have taken place during the  time period described in the count, the Third Department reversed defendant's conviction finding that for cause challenges to jurors should have been granted:

 

It is well established that "a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" ... . When a juror's impartiality is in doubt, it is the court's obligation to make further inquiries and to excuse the juror if the doubt is not fully dispelled ... . In this respect, the court should err on the side of disqualification, as "the worst [it] will have done in most cases is to have replaced one impartial juror with another impartial juror" (...see CPL 270.20 [1] [b]; [2]...). Conversely, the denial of a challenge for cause to a biased juror calls fundamental fairness into question and "casts a doubt on the legitimacy of the verdict even before the trial begins" ... .Here, one juror stated that his job experience as a correction officer "might" affect his ability to be impartial; when asked whether his employment would prevent him from applying "basic principles" granting certain rights to defendant, he responded, "It may." A second juror said that her husband's employment in law enforcement "could" cause her to give greater weight to a police officer's testimony, and a third juror said that he could not "guarantee" that he would follow an instruction not to grant greater weight to such testimony. A fourth juror stated that her husband's work as a sheriff's deputy would"[p]ossibly" cause her to hesitate in providing defendant his constitutional protections; she further confirmed that she would be reluctant to apply the presumption of innocence. A fifth juror said that she believed that children who accused parents of sexual abuse could not lie, and a sixth juror agreed with other jurors that it was "highly unlikely" that a child would lie about this subject, and that it was probable that such a charge must be true because of its seriousness. Finally, a seventh juror expressed doubt when asked whether she would draw an adverse inference from a defendant's choice not to testify, explaining that "it brings the question up why wouldn't you[?]" Although she stated that she would follow the judge's instructions in this regard, she added that she could not "control myself to take something that's already in my mind away." The prosecutor advised County Court that at least one of these jurors required rehabilitation because of such expressions of uncertainty, stating that "there should be inquiry from the court. "Nevertheless, the jurors were not questioned further, and none made "unequivocal assertion[s] of impartiality"... . People v Russell, 105083, 3rd Dept 4-3-14

 

CRIMINAL LAW

Questioning of Witnesses by Trial Judge Did Not Deprive Defendant of a Fair Trial

 

The First Department, in a full-fledged opinion by Justice Andrias, determined that the participation of the judge in the questioning of witnesses did not rise to the level of depriving the defendant of a fair trial:

 

The guarantee of a fair trial does not "inhibit a Trial Judge from assuming an active role in the resolution of the truth" ... . Thus, a trial judge is permitted "to question witnesses to clarify testimony and to facilitate the progress of the trial," and, if necessary, to develop factual information ... . However, a judge may not "take [] on either the function or appearance of an advocate at trial" ... .

 

The "substance and not the number of questions asked is the important consideration" ... . Even if a trial judge makes intrusive remarks that would better have been left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is "not prevented from arriving at an impartial judgment on the merits" ... . Notably, although the exercise of a trial court's power to question witnesses should be exercised "sparingly" ..., "in the case of expert testimony, the court's intervention is often necessary to assist the jurors in comprehending matters of specialized knowledge" ... , and the trial judge is afforded greater leeway.  

 

The record before us establishes that the trial court did not take on the function and appearance of an advocate. * * *

 

Furthermore, although it is true that a "claim that the intrusion of the Trial Judge deprived [the defendant] of his constitutional right to a fair trial is not subject to harmless error analysis" ..., the strength or weakness of the evidence may be considered as a factor in determining whether the defendant received a fair trial ... .  People v Adams, 2014 NY Slip Op 02349, 1st Dept 4-3-14

 

CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)

 

Downward Departure Warranted in SORA Proceeding Where Victim's Lack of Consent Was Solely By Virtue of Age

 

The Second Department, over a dissent, determined the fact that the victim's lack of consent to sexual intercourse was due solely to the inability to consent by virtue of age warranted a downward departure in a SORA proceeding. The court noted that, although the victim became pregnant, there was no evidence the defendant intended to make the victim pregnant, and the defendant pays child support and visits the child often:

 

...[T]he SORA Guidelines provide that "[a] court may choose to downwardly depart from the risk assessment in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender's risk to public safety'" ... . The evidence in this case proves the existence of the facts supporting this ground for departure.It is true, as our dissenting colleague points out, that there was an 11-year difference in age between the defendant and the victim, and that the victim became pregnant as a result of the defendant's crime. We share our colleague's concern about these facts and about the significance of the age differential ... . Nevertheless, the purposes of the SORA Guidelines are to assess the risk that a sex offender will reoffend and the offender's threat to public safety (see Correction Law § 168-l[5]). There is no evidence here that the defendant committed his crime with the intention that the victim become pregnant, so the fact that a pregnancy did result is irrelevant to the SORA risk level determination. Moreover, the evidence at the hearing demonstrated that the defendant pays child support to the victim. While, as our dissenting colleague points out, payment of child support is a legal obligation, it was undisputed at the hearing that the defendant not only pays child support, but that he also regularly travels a significant distance to visit the child. People v Marsh, 2014 NY Slip Op 02274, 2nd Dept 4-2-14

 

 

CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)

Brutality of Offense Warranted an Upward Departure in SORA Proceeding

 

The Second Department determined the brutality involved in the offense warranted an upward departure:

 

...[I]n light of the extreme brutality and violence of the defendant's conduct in his commission of the underlying crimes, which included holding the victim hostage in her home over the course of approximately 13 hours, repeatedly threatening to stab her with a knife and burn her to death with gasoline, raping her twice, locking her in a closet, choking and punching her, and engaging in a standoff with the police, the County Court properly determined that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary ... . Upon making such a determination, the County Court providently exercised its discretion in granting the People's application for an upward departure from a level two to a level three sex offender ... . People v Soevyn, 2014 NY Slip Op 02275, 2nd Dept 4-2-14

 

 

CRIMINAL LAW

Purchaser of a Firearm is an Accomplice of the Seller for Corroboration Purposes

 

The Third Department determined the trial court's failure to instruct the jury that a witness against the defendant (Lewandowski) was an accomplice as a matter of law (requiring corroboration of his testimony) was reversible error. Lewandowski bought a firearm from the defendant and therefore was an accomplice of the seller for corroboration purposes:

 

"A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" (CPL 60.22 [1]). Pursuant to CPL 60.22, an accomplice is a person who "may reasonably be considered to have participated in . . . [t]he offense charged; or . . . [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged" (CPL 60.22 [2] [emphasis added]). Notably, the definition of an accomplice for the purpose of the corroboration rule differs significantly from the definition of an accomplice for purposes of accomplice criminal liability (...compare CPL 60.22 with Penal Law § 20.00). CPL 60.22 broadens the definition of an accomplice "'in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable'"... . Thus, to be an accomplice for corroboration purposes, the witness "must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial" ... .

 

Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for – and was, in fact, charged with – criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase (see Penal Law §§ 265.01 [1]; 265.20 [a] [3]). Just as the purchaser in a drug sale is, as a matter of law, an accomplice of the seller for corroboration purposes ..., here Lewandowski was an accomplice as a matter of law with respect to defendant's weapon sale and possession charges since he could have been (and was) charged with a crime "based upon some of the same facts or conduct" upon which the charges against defendant were based (CPL 60.22 [2] [b]...). County Court was therefore required to instruct the jury that Lewandowski was an accomplice as a matter of law as to those charges, and that defendant could not be convicted on Lewandowski's testimony absent corroborative evidence... . People v Medeiros, 105941, 3rd Dept 4-3-13

 

 

FIDUCIARY DUTY, BREACH OF/WORKERS' COMPENSATION/INSURANCE LAW/CONTRACT LAW

 

Breach of Fiduciary Duty Cause of Action Stated Against Actuary

 

After sorting out professional malpractice claims (negligence---three-year S/L) from breach of contract claims (intentional---six year S/L), the Third Department explained the elements of a "breach of fiduciary duty" cause of action in the context of actuarial services (provided by SGRisk):

 

Actuaries are not considered professionals for the purpose of the shortened statute of limitations applicable to malpractice claims ... . Despite not being deemed professionals in that context, actuaries can still develop relationships of trust and confidence sufficient to give rise to a fiduciary duty. Courts must conduct a fact specific inquiry to determine whether a fiduciary relationship exists based on confidence on one side and "resulting superiority and influence on the other" ... . Plaintiff alleged that SGRisk "held itself out as being a skilled and competent actuarial" firm that "adhered to accepted professional standards," that it rendered services for the trusts' benefit, provided advice and created "a relationship of trust and confidence between" itself and the trusts. Plaintiff also alleged that SGRisk agreed to exercise "good faith and undivided loyalty" when determining appropriate valuation of the trusts' future claims liability and the trusts reasonably relied on this, placing confidence in SGRisk that it would accurately produce truthful annual actuarial reports with correct estimates of future claims reserves. Additionally, plaintiff alleged that SGRisk breached the duty by knowingly and consistently underestimating the claims liabilities and necessary reserves and failing to identify dangerous underfunding ... .  New York State Workers' Compensation Board... v SGRisk LLC, 517387, 3rd Dept 4-3-14

 

 

FREEDOM OF INFORMATION LAW [FOIL]

 

Respondents Must Demonstrate Why Request Not Specific Enough For Extraction from Electronic Documents/Claim that Documents Are Exempt from Disclosure Is Not Enough to Defeat the Request---Remedy Is In Camera Review

 

The Third Department determined the respondents should demonstrate why the descriptions of the documents sought by a FOIL request were insufficient for extraction from electronic documents.  With respect to respondents claim the information was exempt from disclosure, that assertion is not enough to defeat a FOIL request and the appropriate relief is an in camera review of the material alleged to be exempt:

 

We agree with respondents that a valid basis for denying the FOIL request has been established – at least with respect to the actual files – when they are not "indexed in a manner that would enable the identification and location of documents" ... . Respondents have also indicated, however, that at least some of the files are maintained electronically. Despite this, they have offered no evidence to establish that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document from the virtual files through an electronic word search of the former Assistant County Attorney's name or other reasonable technological effort (see Public Officers § 89 [3] [a]...).  We also note that "the broad allegation here that the files contain exempt material is insufficient to overcome the presumption that the records are open for inspection" ... . In the event that the requested record can be located electronically and respondents are able to establish that the document contains exempt material, the appropriate remedy is an in camera review and "disclosure of all nonexempt, appropriately redacted material"... . Matter of Pflaum v Grattan, 516119, 3rd Dept 4-3-14

 

 

NEGLIGENCE

 

Driver of Middle Car in Chain Collision May Not Be Negligent

 

The Second Department explained the status of the "middle car" in a "chain" rear-end collision. The driver of a vehicle which is struck from behind and pushed into the rear of plaintiff's vehicle may not be negligent:

 

"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" (Vehicle and Traffic Law § 1129[a]...). Hence, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision ... . In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle ... .Here, in support of her motion, the plaintiff submitted evidence including the deposition testimony of the defendant driver, who testified that an unidentified vehicle struck his vehicle in the rear, causing his vehicle to move forward and strike the rear of the plaintiff's vehicle. This testimony revealed the existence of a triable issue of fact as to whether the defendant driver was at fault in the happening of the accident ... . Kuris v El Sol Contr & Contr Corp, 2014 NY Slip Op 02268, 2nd Dept 4-2-14

 

 

NEGLIGENCE/MUNICIPAL LAW/VEHICLE AND TRAFFIC LAW

 

New York City Street-Sweeping Vehicles Are Now Exempt from the Rules of the Road Pursuant to Vehicle and Traffic Law 1103 (b) (Subject to the "Reckless Disregard" as Opposed to the "Ordinary Negligence" Standard) But Were Not So Exempt in 2010 When this Accident Occurred

 

The First Department, over a dissent, determined street-sweeping vehicles, at the time of the accident in 2010,  were not "hazard vehicles" exempted from the rules of the road under Vehicle and Traffic Law 1103 (b) (apparently, under the Rules of City of New York Department of Transportation, street-sweeping vehicles are now so exempt:)

 

...Vehicle and Traffic Law § 1103(b), which exempts "hazard vehicles" from the rules of the road and limits the liability of their owners and operators to reckless disregard for the safety of others ..., does not apply to the New York City street-sweeping vehicle involved in the collision with plaintiff's vehicle that gave rise to this action. Therefore, defendants are subject to the ordinary negligence standard of liability, not the reckless disregard standard on which their motion was based. At the time of the accident, in 2010, Vehicle and Traffic Law § 1103(b) was superseded by Rules of City of New York Department of Transportation (34 RCNY) § 4-02, which excepted street sweepers, among others, from compliance with traffic rules to the limited extent of making such turns and proceeding in such directions as were necessary to perform their operations (34 RCNY 4-02[d][1][iii][A]). While subparagraph (iv) contained a broader exception, expressly invoking Vehicle and Traffic Law § 1103, we find that subparagraph (iv) did not include street sweepers because that would have rendered subparagraph (iii) redundant and meaningless. Indeed, when 34 RCNY 4-02 was amended, in 2013, the City Council explained in its "Statement of Basis and Purpose" that the effect of the adopted rule would be "that operators of DOT and New York City Department of Sanitation snow plows, sand/salt spreaders and sweepers will now be subject to the general exemption set forth in subparagraph (iv) of that same subsection" (emphasis added) — a strong indication that they were not so subject before then. Deleon v New York City Sanitation Dept, 2014 NY Slip Op 02221, 1st Dept 4-1-14

 

 

 

PRIMA FACIE TORT

 

Elements of Prima Facie Tort Explained---Disinterested Malevolence Not Demonstrated

 

The Third Department, in finding the allegations insufficient to make out the cause of action, explained the elements of prima facie tort:

 

"To sufficiently allege a cause of action for prima facie tort . . . a plaintiff must plead the intentional infliction of harm without justification or excuse, which results in special damages, by one or more acts which would otherwise be lawful" ... . Moreover, "there is no recovery in prima facie tort unless malevolence is the sole motive for the defendant's otherwise lawful act" ... . The act "must be a malicious one unmixed with any other and exclusively directed to injury and damage of another" ... . Even egregious conduct by an attorney during the course of representing a client that aids to some degree the attorney's client or the attorney's practice generally will not satisfy the disinterested malevolence requirement of a prima facie tort, because such conduct is not motivated solely to harm the defendant ... .

 

... While plaintiffs' pleadings are liberally interpreted in the context of a CPLR 3211 (a) (7) motion, such liberal standard "will not save allegations that consist of bare legal conclusions or factual claims that are flatly contradicted by documentary evidence or are inherently incredible"  Wiggins & Kopko LLP v Masson, 517155, 3rd Dept 4-3-14

 

 

REAL PROPERTY LAW

 

A Forged Deed Is Void Ab Initio and Conveys Nothing to a Bona Fide Purchaser or Encumbrancer

 

The Second Department explained the effect of a forged deed on all subsequent transactions in which the forged deed is involved:

 

"A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid" ... . "If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing" ... . Jiles v Archer, 2014 NY Slip Op 02262, 2nd Dept 4-2-14

 

REAL PROPERTY TAX LAW/MUNICIPAL LAW

 

Appraisal Report Lacking Required Supporting Data Properly Struck

 

The Third Department determined Supreme Court properly struck the appraisal report offered by the petitioner in an effort to reduce the assessed value of petitioner's golf courses.  The report was struck for failure to include supporting data (required by 22 NYSRR 202.59 [g][2]):

 

Petitioner's appraisal report employed the income capitalization approach ..., which purported to establish value by capitalizing the anticipated net operating income from a single year by a market oriented capitalization rate. The appraisal report used as a key component income and expenses from two other golf courses, and this information formed the basis for the operating expense ratio. However, the identity of the other two courses used in compiling this information was not provided, but was listed as "confidential" since petitioner's appraiser had ostensibly obtained the information when working for such courses. We agree with Supreme Court that this information was critical and, since undisclosed, ran afoul of 22 NYCRR 202.59 (g) (2) ... . *  *  *

 

We further note that, even if the presumption regarding the assessor's value is rebutted, petitioner still had the burden of establishing overvaluation by a preponderance of the evidence ..., and we generally accord deference to Supreme Court's credibility determinations in analyzing the appraisal reports, as well as its decision, so long as they are "not based upon an error of law or against the weight of the evidence" ... . Here, Supreme Court set forth several deficiencies in the appraiser's report and the appraiser's testimony that caused it to reject petitioner's contention regarding value. Matter of Bove v Town of Schodack, 516416, 3rd Dept 4-3-14

 

 

UNEMPLOYMENT INSURANCE

 

Agent for Insurance Company Properly Found to Be an "Employee" Entitled to Unemployment Insurance

 

The Third Department determined claimant, who sold insurance as an agent for Coface North America Insurance Company, was an "employee" entitled to unemployment insurance:

 

Whether an employment relationship exists within the meaning of the unemployment insurance law is a factual question for the Board to resolve, and its determination in this regard – if supported by substantial evidence in the record as a whole – will not be disturbed ... . "While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important" ... .

 

Here, there is ample evidence to support the Board's finding that Coface exercised control over numerous aspects of claimant's work. Coface, among other things, assigned claimant a sales territory ..., provided her with sales leads that she was required to pursue..., precluded claimant from representing other insurers without Coface's prior written consent ..., directed that claimant devote all of her efforts to generating business for Coface, reserved the right to accept or reject insurance proposals submitted by claimant ..., required claimant to work under the direction and supervision of its regional agent, set claimant's commission rate, paid claimant a bimonthly draw against her commissions that she was not required to refund ... and contributed to her health insurance premiums ... . Additionally, claimant testified that Coface scheduled her workday, required her to work out of its regional office during her first year of employment, insisted that she keep her supervisor apprised of her whereabouts at all times and required her to attend quarterly sales meetings ... . Such proof, in our view, is more than sufficient to support the Board's finding of an employment relationship between Coface and claimant (and those similarly situated) – notwithstanding the existence of other proof in the record that could support a contrary conclusion ..., including a provision in the parties' agreements identifying claimant as an independent contractor... . Matter of Joyce ..., 517162, 3rd Dept 4-3-14

 

 

ZONING

 

Keeping Animals In Cages On the Same Lot as Petitioner's Home, as Part of the Operation of a Business, Constituted a "Home Occupation" Requiring Approval by the Zoning Board

 

The Third Department determined the zoning board of appeals had properly ruled that petitioner was conducting a business inside his home without approval, a so-called "home occupation."  The fact that large animals were kept outside petitioner's home in permanent cages was found to be within the scope of the relevant definition of an "accessory structure:"

 

Petitioner contends that the activities occur in the cages on his property, not in any building on the property or any offsite location. There is no evidence in this record to show that business activities are conducted "inside the residence" or "at off-site locations," so such activities must be conducted in "a legally constructed accessory building" to fall within the ordinance (Zoning Law [2008] of the Town of Mayfield § 202 [A] [42]). An "[a]ccessory [s]tructure" is defined as a building "which is located on the same lot" as, and "the use of which is incidental to that of," a one- or two-family dwelling (Zoning Law[2008] of the Town of Mayfield § 202 [A] [1]). "Building" is defined as a one- or two-family dwelling or portion thereof "intended to be used for human habitation" but also "shall include accessory structures thereto" (Zoning Law [2008] of theTown of Mayfield § 202 [A] [10]). While cages would not generally be considered buildings, the Zoning Law contains a section on "[w]ord [u]sage" stating that "[t]he word 'building' includes the word 'structure'" (Zoning Law [2008] of the Town of Mayfield § 201). That provision clarifies any ambiguity concerning the definitions of the relevant terms here, as a cage that is built into the ground – like these cages apparently are – can be considered a structure, and the cages are on the same lot as and incidental to the use of petitioner's residence ... .The code enforcement officer did not assert that the cages were illegally constructed. Thus, as petitioner is carrying on business activities in legally constructed accessory structures, he is operating a home occupation. Matter of Salton v Town of Mayfield Zoning Board of Appeals, 516523, 3rd Dept 4-3-14

 

 

ZONING

Zoning Board Misinterpreted Term "Auditorium" to Require Fixed Seating and Thereby Wrongly Prohibited  Use of Property as a Night Club or Dance Club

 

The Third Department determined the zoning board of appeals had misinterpreted the term "auditorium" in its ruling that a "Rave party," night club or dance club violated the permitted use of the petitioner's building.  In so ruling, the Third Department explained its role in reviewing a determination by a zoning board:

 

Courts will annul a determination of a board of zoning appeals only if it is irrational or unreasonable ... . Although a reviewing court will generally grant deference to the interpretation of an ambiguous zoning ordinance by a board of zoning appeals, where, as here, "the issue presented is one of pure legal interpretation of the underlying zoning law or ordinance, deference is not required" ... .Moreover, "[z]oning regulations, being in derogation of the common law, must be strictly construed against the municipality which has enacted and seeks to enforce them, and any ambiguity in the language used must be resolved in favor of the property owner"... .

 

* * * Resolving, as we must, any ambiguity in favor of petitioner, we conclude that the BZA's determination that the proposed use was impermissible – based solely upon its limited interpretation of the definition of auditorium as requiring fixed seating, to the exclusion of other commonly accepted definitions – was irrational and unreasonable... . Albany Basketball & Sports Corporation ... v City of Albany, 517313, 3rd Dept 4-3-14