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CRIMINAL LAW, ATTORNEYS, EVIDENCE.

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Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant's Lawyer's Phone Number from Defendant's Wallet---Subsequent Statements Should Have Been Suppressed/Defense Counsel's Failure to Move to Suppress Weapon Seized from Defendant's Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant's lawyer's phone number from the defendant's wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel's failure to move to suppress the weapon seized from defendant's person:

"Whether a particular request [for counsel] is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor [and] manner of expression[,] and the particular words found to have been used by the defendant" (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant's attorney from defendant's wallet. The hearing testimony further established that an investigator acknowledged defendant's request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. " [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant's request for his attorney's phone number]' " ... ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  ... . 

We agree with defendant ... that he was denied effective assistance of counsel based on defense counsel's errors with respect to suppression ... . We note that defense counsel moved to suppress evidence seized from defendant's residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant's person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing "approximately 8-10 houses away" from the location of reported gunfire. According to a police report, "[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody," and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity ... . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant's person and that was the factual basis for the charges in the indictment ... . We further conclude that defense counsel's errors prejudiced defendant and deprived him of the right to effective assistance of counsel ... . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15

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CRIMINAL LAW, ATTORNEYS, APPEALS.

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Defendant's Attorney Not Ineffective for Failing to Make a Motion to Suppress---Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent

The Fourth Department, over a two-justice dissent, determined that defendant's attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop.  The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop.  The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:

We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is "whether the motion at issue had more than little or no chance of success." It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success' " ... . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court was explaining what does not constitute ineffective assistance of counsel. As noted, the Court has made clear in other cases that the standard to be applied is whether defense counsel failed to file a "colorable" motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so ... . Although neither the Court of Appeals nor the Appellate Division has defined "colorable" in this context, the term is elsewhere defined as "appearing to be true, valid, or right" (Black's Law Dictionary 301 [9th ed 2009]). Federal courts have described a colorable claim as one that has " a fair probability or a likelihood, but not a certitude, of success on the merits' " ... . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15

CRIMINAL LAW.

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Sentencing a Defendant with a Prior Felony Conviction as a First-Time Felon Is Illegal

The Fourth Department determined that sentencing a defendant with a prior felony conviction as a first-time felon is illegal:

...[T]he proper sentencing procedures pursuant to CPL 400.21 were not followed and thus that the sentence may be illegal. County Court sentenced defendant as a first felony offender, but, " [w]hen it became apparent at sentencing that defendant had a prior felony conviction, the People were required to file a second felony offender statement in accordance with CPL 400.21 and, if appropriate, the court was then required to sentence defendant as a second felony offender' " ... . "[I]t is illegal to sentence a known predicate felon as a first offender" (id. [internal quotation marks omitted]) and, inasmuch as we cannot allow an illegal sentence to stand, we modify the judgment by vacating the sentence imposed and we remit the matter to County Court for the filing of a predicate felony offender statement and resentencing in accordance with the law ... . People v johnson, 2015 NY Slip Op 00062, 4th Dept 1-2-15

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CRIMINAL LAW.

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Criminal Possession of a Weapon in the Third Degree Is Not a Lesser Inclusory Concurrent Count of Criminal Possession of a Weapon in the Second Degree

The Fourth Department determined that criminal possession of a weapon in the third degree is not a lesser inclusory concurrent count of criminal possession of a weapon in the second degree:

"[A] comparative examination of the statutes defining the two crimes, in the abstract" (People v Glover, 57 NY2d 61, 64), demonstrates that it is possible to commit criminal possession of a weapon in the second degree without by the same conduct committing criminal possession of a weapon in the third degree (compare § 265.02 [1] with § 265.03 [3]). For example, a defendant in possession of a loaded gun outside of his or her home or business who had not previously been convicted of any crime would be committing only the second-degree but not the third-degree offense. Because it is possible to commit the greater offense without committing the lesser one, the two counts are " non-inclusory concurrent counts' " ... . To the extent that the prior decision of this Court in People v Wilkins (104 AD3d 1156, lv denied 21 NY3d 1011) was based on an incorrect concession by the People and suggests a rule to the contrary, we conclude that Wilkins should no longer be followed. People v Puryear, 2015 NY Slip Op 00093, 4th Dept 1-2-15

CRIMINAL LAW, ATTORNEYS.

Reversible Error to Deny For Cause Challenge to Biased Juror/Defendant's Counsel Ineffective

The Fourth Department reversed defendant's conviction because one of the jurors indicated a bias in favor of police officers [the for cause challenge to the juror was denied and the peremptory challenges were exhausted] and because the defendant was denied his right to effective assistance of counsel:

Upon questioning by defense counsel, a prospective juror stated that there was a possibility that he would have "sympathy" for police officer witnesses. Despite further questioning on the issue, the prospective juror did not provide an unequivocal assurance that he would not be biased in favor of the police. It is well settled that, once a potential juror has indicated a possible bias, he or she "must be excused unless [he or she] provide[s] unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence' " ... . Inasmuch as the court erred in denying defendant's challenge for cause, we reverse the judgment and grant a new trial.

We further agree ... that reversal is also required on the ground that he was denied effective assistance of counsel based upon, inter alia, defense counsel's elicitation of testimony that had been precluded by the court's pretrial ruling and defense counsel's characterization of defendant as a "drug dealer" on summation ... . Although "[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness" ... , here defense counsel's failures were "so serious, and resulted in such prejudice to the defendant, that he was denied a fair trial thereby" ... . People v Tapia-DeJesus, 2015 NY Slip Op 00167, 4th Dept 1-2-15

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CRIMINAL LAW, EVIDENCE, ATTORNEYS.

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Failure to Make a Motion to Suppress Constituted Ineffective Assistance

The Fourth Department determined defendant was denied his right to effective assistance of counsel because counsel failed to move to suppress drugs seized during a traffic stop and the motion was likely to succeed.  The police questioning defendant whether he had anything illegal on him was not prompted by a reasonable suspicion of criminal activity:

In a supporting deposition, a police officer stated that he stopped defendant's vehicle after observing defective brake lights, in violation of Vehicle and Traffic Law § 375 (40). He observed that defendant was nervous, and defendant gave responses to questions concerning where he was coming from and where he was going that did not make sense considering the direction in which he was traveling. The officer ordered defendant out of the vehicle and asked him "if he had anything illegal on him," and defendant responded that he had "coke" in his pocket. The officer then searched defendant's pocket and retrieved what was later determined to be cocaine.

We conclude that defendant established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence ... . The officer's question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot ... . Defendant's nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot ... . We further conclude that defendant's contention survives his guilty plea inasmuch as defense counsel's error infected the plea bargaining process ... . People v Dealmeida, 2015 NY Slip Op 00169, 4th Dept 1-2-15

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CRIMINAL LAW, APPEALS.

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Case Remitted for Determination Whether Defendant Should Be Adjudicated a Youthful Offender/Record Insufficient to Determine Whether Court Erred In Not Disclosing to the Defendant the Written Submissions of the Victims Which Were Reviewed by the Court--Case Remitted to Make an Adequate Record for Review

The Fourth Department determined County Court erred in failing to determine whether defendant should be adjudicated a youthful offender.  The Fourth Department further determined the record was not sufficient for consideration of defendant's argument County Court erred when it refused to allow defendant to see the written submissions to the judge made by the victims. The case was remitted for consideration of whether the defendant should be adjudicated a youthful offender and to create a record of the written submissions and the reasons defendant was refused access to them.  People v Minemier, 2015 NY Slip Op 00171, 4th Dept 1-2-15

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CRIMINAL LAW.

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Statute of Limitations Tolling Provisions Do Not Apply to Endangering the Welfare of a Child

In finding the count charging defendant with endangering the welfare of a child was time-barred, the Fourth Department noted that the tolling provision (starting the statute of limitations when the victim reaches the age of 18) does not apply to that offense:

The statute of limitations for that offense is two years (see CPL 30.10 [2] [c]), and the tolling provision of CPL 30.10 (3) (f) does not apply to that offense ... . Although, as noted, defendant's contention is unpreserved for our review, we exercise our power to address it as a matter of discretion in the interest of justice, and we modify the judgment accordingly ... . People v Lomaglio, 2015 NY Slip Op 00181, 4th Dept 1-2-15

CRIMINAL LAW/APPEALS

Larceny Jury Instruction Shifted Burden of Proof to Defendant---Reversal Required In Absence of Preservation of the Error

The Fourth Department reversed defendant's conviction because the jury instruction shifted the burden of proof to the defendant:

Penal Law § 155.15 (1) provides that, "[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith." ...[H]owever, the Court of Appeals in People v Chesler (50 NY2d 203, 209-210) "held that section 155.15 was unconstitutional insofar as it made a good-faith claim of right an affirmative defense because to do so impermissibly shifted the burden onto the defendant to disprove the element of intent." Rather, "a good faith claim of right is properly a defense--—not an affirmative defense—--and thus, the [P]eople have the burden of disproving such defense beyond a reasonable doubt' " ... . Here, however, the court instructed the jury that "defendant has the burden of proving that she took, withheld or obtained the property under a claim of right made in good faith by a preponderance of the evidence." We conclude that the court committed a mode of proceedings error when it shifted the burden onto defendant to disprove the element of intent ..., thereby requiring reversal of the judgment and a new trial even in the absence of preservation ... . People v Forbes-Haas, 2015 NY Slip Op 00092, 4th Dept 1-2-15

CRIMINAL LAW/APPEALS/EVIDENCE

Where Proof Is Directed Exclusively to a Theory Not Charged in the Indictment, the Proof Is Insufficient to Support the Conviction---Such a Variance Need Not Be Preserved by Objection to Be Raised on Appeal/Conduct of Spectators (Mouthing Words When Victim Testified) Did Not Require that the Spectators Be Removed and Did Not Mandate the Declaration of a Mistrial

The Fourth Department determined that variance between the charges described in the indictment and the proof at trial required the dismissal of several counts.  Such a variance does not need to be preserved for appeal by objection.  The court noted that the trial judge's failure to exclude spectators who were mouthing word's during the victim's testimony was not an abuse of discretion:

"Where the charge against a defendant is limited either by a bill of particulars or the indictment itself, the defendant has a fundamental and nonwaivable' right to be tried only on the crimes charged" ... . We have thus held that, where, as here, a defendant contends that he or she has been convicted upon an uncharged theory of the crime, such a contention does not require preservation... . * * *

"Where there is a variance between the proof and the indictment, and where the proof is directed exclusively to a new theory rather than the theory charged in the indictment, the proof is deemed insufficient to support the conviction" ... . Counts two and three of the indictment alleged hand-to-vagina contact, but the victim testified that the only part of defendant's body that came into contact with her vagina was defendant's penis. Indeed, when asked specifically if any other part of defendant's body came into contact with her vagina during the incident encompassed by counts two and three, the victim responded, "No." Count nine of the indictment alleged penis-to-vagina contact, but the victim testified that defendant touched her vagina with his hand during that incident. Again, when asked specifically if any other part of defendant's body came into contact with her vagina during the incident encompassed by count nine, the victim responded, "No." We thus conclude that the evidence is legally insufficient to support the conviction with respect to counts two, three and nine and that defendant was denied his fundamental and nonwaivable right to be tried on only those crimes charged in the indictment. We therefore modify the judgment accordingly.  People v Duell, 2015 NY Slip Op 00014, 4th Dept 1-2-15

CRIMINAL LAW/EVIDENCE

(Harmless) Error to Admit Voice Identification Testimony---The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory

The Fourth Department noted that voice identification testimony should not have been allowed because the people did not provide notice of it and it was not merely confirmatory.  The error was deemed harmless however:

We agree with defendant that the court erred in allowing one of the victims to offer voice identification testimony at trial. Prior to trial, the prosecutor had the victim listen to recordings of telephone calls allegedly made by defendant from jail, and the victim identified the voice of the person making the calls as belonging to defendant. The victim offered similar testimony at trial over defendant's objection. Because the People failed to provide defendant with notice of the pretrial voice identification procedure as required by CPL 710.30 (1) ..., the voice identification testimony was admissible at trial only if the identification was merely confirmatory as a matter of law ... . Contrary to the People's contention, the victim's identification of defendant's voice was not merely confirmatory inasmuch as the victim acknowledged that, although he had heard defendant speak a number of times in the neighborhood, he and defendant had never actually spoken to each other. We thus conclude that the People did not establish as a matter of law that the victim was so familiar with defendant's voice that "the identification at issue could not be the product of undue suggestiveness" ... . People v Ramos, 2015 NY Slip OOp 00049, 4th Dept 1-2-15

CONVERSION/NEGLIGENCE/CONSTITUTIONAL LAW/CIVIL PROCEDURE

Seizure of Claimant's Computers Pursuant to a Warrant Did Not Give Rise to Conversion, Negligent Misrepresentation and Constitutional Tort Causes of Action---Elements of Those Causes of Action Explained

The Fourth Department reversed the Court of Claims and dismissed causes of action for conversion and negligent misrepresentation stemming from the seizure of claimant's computers pursuant to a judicial warrant.  The court noted that the seizure pursuant to the authority of the warrant precluded the conversion cause of action and the absence of privity between the claimant and the investigators who said the computers would be promptly returned precluded the negligent representation cause of action. Alternate ways to seek return of the computers (an application to County Court and an Article 78 proceeding if the application were denied) precluded the constitutional tort cause of action:

An actionable "conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" ... . Here, a search warrant specifically authorized law enforcement to "search for and seize" six categories of items, including "[a]ll computers and computer storage media and related peripherals, electronic or computer data." Claimants have never challenged the validity of the search warrant. Moreover, the unchallenged warrant placed no time limit on the retention of the items seized, and the authorization to "seize" the computers was not terminated until County Court ordered the property returned following Boerman's guilty plea. We therefore conclude that defendant's exercise of control over the computers did not constitute conversion inasmuch as it had the proper authority to exercise such control ... .

The tort of "negligent misrepresentation requires [a claimant] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information' " ... . We agree with defendant that, as a matter of law, there can be no "privity-like relationship" between an investigator and the target of his or her investigation ... . Indeed, the relationship between investigator and target is the opposite of a "special position of confidence and trust" in which one party might justifiably rely upon the " unique or specialized expertise' " of the other party ... . Thus, as defendant correctly contends, the negligent misrepresentation claim fails as a matter of law ... . 

Even assuming, arguendo, that the initial seizure or continued detention of claimants' computers violated the Search and Seizure Clause of the State Constitution (art I, § 12), we conclude that "no . . . claim [for constitutional tort] will lie where the claimant has an adequate remedy in an alternate forum" ... . Here, claimants could have raised their constitutional arguments in an application to County Court seeking the return of their computers ... or, if such motion were denied, in a CPLR article 78 proceeding seeking relief in the nature of mandamus or prohibition ... . LM Bis Assoc Inc v State of New York, 2015 NY Slip Op 00007, 4th Dept 1-2-15

LABOR LAW-CONSTRUCTION LAW.

Collapse of Makeshift Scaffold Entitled Plaintiff to Summary Judgment in Labor Law 240(1) Action---Plaintiff's Comparative Negligence Is Not a Defense

The Fourth Department determined summary judgment should have been granted to the plaintiff in the Labor Law 240 (1) action. Plaintiff was not provided with a scaffold or safety equipment.  Plaintiff fashioned a makeshift scaffold which collapsed.  The court noted plaintiff's comparative negligence (in the construction of the scaffold) is not a defense under Labor Law 240 (1):

We conclude that "[t]he fact that the scaffold collapsed is sufficient to establish as a matter of law that the [scaffold] was not so placed . . . as to give proper protection to plaintiff pursuant to the statute" ... . Contrary to defendant's contention, there is no issue of fact whether the safety equipment provided to plaintiff was sufficient to afford him proper protection under Labor Law § 240 (1). The only safety device provided to plaintiff at the work site was a 14-foot-long pick [an aluminum plank]. "There were no harnesses, lanyards, safety lines, or similar safety devices available for use to prevent [plaintiff's] fall" ... . To perform the work of installing siding on the building, plaintiff therefore had to create what the court accurately referred to as a "makeshift" scaffold by placing one end of the pick in the shovel of a backhoe and the other end between two pieces of wood he or a coworker nailed into the side of the building. "[T]he onus [was not] on plaintiff to construct an adequate safety device, using assorted materials on site [that were] not themselves adequate safety devices but which may [have been] used to construct a safety device" ... . Bernard v Town of Lysander, 2015 NY Slip Op 00050, 4th Dept 1-2-15

MENTAL HYGIENE LAW

Supreme Court Should Have Considered the Alleged Incapacitated Person's (AIP's) Available Resources Before Finding the AIP Incapacitated and In Need of a Guardian

The Fourth Department reversed Supreme Court's determination the alleged incapacitated person (AIP) was incapacitated and needed a guardian.  Supreme Court did not consider the sufficiency of the AIP's available resources:

We agree with the AIP that Supreme Court erred in making that determination without considering "the sufficiency and reliability of available resources' (Mental Hygiene Law § 81.02 [a] [2]) to satisfy the AIP's personal needs and property management without the need for a guardian" ... . It is undisputed that the AIP had "available resources," i.e., a power of attorney and healthcare proxy (see Mental Hygiene Law § 81.03 [e]), and the court should therefore have inquired whether those advance directives were adequate to protect the AIP's personal and property interests before determining that she is incapacitated and in need of a guardian ... . Matter of Mitchell, 2015 NY Slip Op 00165, 4th Dept 1-2-15

REAL PROPERTY

Criteria for Implied Easement, Express Easement, Easement by Necessity and Prescriptive Easement Explained

In considering whether a turnaround area was the subject of an easement, the Fourth Department found that the criteria for an implied easement, express easement, and easement by necessity were not met, but a question of fact about the existence of an easement by prescription had been raised.  The court described the criteria for each:

..."[A] grantee claiming an easement implied by existing use must establish: (1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed" ... . "Stated another way, [a]n implied easement will arise "upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate" ' " ... . "Implied easements are not favored by the law and the burden of proof rests with [plaintiffs] to prove such entitlement by clear and convincing evidence"... . ...

With respect to the ... cause of action... for an express easement... we note that Real Property Law § 240 (3) provides in relevant part that "[e]very instrument creating [or] transferring . . . an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." "The intent' to which the statute refers is the objective intent of the parties as manifested by the language of the deed; unless the deed is ambiguous, evidence of unexpressed, subjective intentions of the parties is irrelevant" ... . We conclude that defendants met their burden of establishing that the access easement in the deed to defendants from the owner of what was formerly the common properties did not grant to that owner express permission to use the turnaround ... . ... 

With respect to the ... cause of action, seeking an order determining that plaintiffs have an easement by necessity with respect to the turnaround, we note that "[t]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and [ ] that at the time of severance an easement over [the servient estate's] property was absolutely necessary' . . . Significantly, the necessity must exist in fact and not as a mere convenience' . . . and must be indispensable to the reasonable use for the adjacent property"... . * * *

To establish a prescriptive easement, plaintiffs must establish by clear and convincing evidence that the use of the turnaround was" adverse, open and notorious, continuous and uninterrupted for the prescriptive period' " of 10 years ... . The elements of a claim for an easement by prescription are similar to those of a claim for adverse possession, except that demonstration of exclusivity is not essential to a claim for easement by prescription ... . Thus, to establish an easement by prescription, plaintiffs must establish by clear and convincing evidence possession that was hostile and under a claim of right; actual; open and notorious; and continuous for the required period ... . Mau v Schusler, 2015 NY Slip Op 00052, 4th Dept 1-2-15

REAL PROPERTY LAW/FRAUD/CONTRACT LAW

Questions of Fact Raised About Whether Sellers' Representations on the Condition Disclosure Statement Claiming No Water-Related Problems on the Property Violated Real Property Law 462, 465, Constituted Fraud, and Constituted Breach of Contract

The Fourth Department determined the sellers' representations on the condition disclosure statement created questions of fact about whether sellers violated Real Property Law 462 and 465, whether the sellers committed fraud, and whether the sellers breached the sales contract.  The sellers indicated on the condition disclosure statement that they had experienced no problems with standing water and water seeping into the basement.  There was evidence the sellers were aware of the existence of such water problems when they indicated on the form there had been none:

Real Property Law § 462 (1) requires sellers of residential real property to "complete and sign a property condition disclosure statement" and to provide such statement to a prospective buyer "prior to the signing by the buyer of a binding contract of sale." Real Property Law § 462 sets forth the disclosure form, which instructs the seller to complete the form based upon his or her "ACTUAL KNOWLEDGE," and contains the seller's certification that "THE INFORMATION IN THIS PROPERTY CONDITION DISCLOSURE STATEMENT IS TRUE AND COMPLETE TO THE SELLER'S ACTUAL KNOWLEDGE AS OF THE DATE SIGNED BY THE SELLER." Where a seller provides a property condition disclosure statement and "willful[ly] fail[s] to perform the requirements" set forth in article 14 of the Real Property Law "[such] seller shall be liable for the actual damages suffered by the buyer in addition to any other existing equitable or statutory remedy" (Real Property Law § 465 [2]). * * *

... [W]e conclude that plaintiff raised an issue of fact with respect to whether defendants knowingly misrepresented a material fact, i.e., the property's history of flooding and standing water, on the property condition disclosure statement ... . We likewise conclude that plaintiff raised an issue of fact with respect to whether he justifiably relied on defendants' alleged misrepresentations ... . * * *

Although the provisions of a contract for the sale of real property are generally merged in the deed and therefore extinguished upon the closing of title ..., that rule does not apply " where the parties have expressed their intention that [a] provision shall survive delivery of the deed' " ... . Here, the contract provides that "[a]ny claim arising from failure to comply with Paragraph[] 5 [of the contract]," which encompasses defendants' representations in the property condition disclosure statement, "shall survive for 2 years after the Closing or cancellation of this Contract" ... . In any event, we note that "the merger doctrine [is] inapplicable where, as here, there exists a cause of action based upon fraud" ... . Sicignano v Dixey, 2015 NY Slip Op 00054, 4th Dept 1-2-15

REAL PROPERTY TAX LAW

Actual Income Is Best Measure of Value of Income-Producing Property/Amount of Mortgage on Property Does Not Necessarily Fairly Reflect Value/Assessment Awarded Can Not Be Lower than that Requested in Article 7 Petition

The Third Department determined petitioner was entitled to a lower assessment of petitioner's property, which included a hotel. However, the Third Department held that the assessment could not be lower than that requested in the Article 7 petition (Supreme Court had imposed a lower assessment than that requested in the petition based upon the trial evidence). The Third Department noted that actual income is the best indicator of income-producing property and the amount of the mortgage on the property is not necessarily a fair measure of value. The relevant law was explained:

It is undisputed that petitioner met its initial burden to rebut the presumptive validity of the tax assessments and, accordingly, Supreme Court was required to "weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued" ... . "Where, as here, conflicting expert evidence is presented, we defer to the trial court's resolution of credibility issues, and consider 'whether the court's determination of the fair market value of the subject property is supported by or against the weight of the evidence'" ... . Under settled law with respect to income-producing property, "actual income is the best indicator of value" ... . * * *

While a court in determining fair market value may consider evidence of loans advanced on property during or near a particular tax status date when reviewing an assessment proceeding, such evidence standing alone is not entitled to [the] 'greatest weight' because the reasons behind the terms and amount of the loan may be uncertain and unrelated to market values" ... . The mortgage was collateralized by land, buildings, furniture and equipment, with a limited personal guarantee, and, under the prevailing circumstances, did not necessarily fairly reflect the value of the property.

... We have previously stated that, "in areas outside New York City, RPTL 720 (1) (b) prohibits tax reductions beyond those requested in the petitions" ... . * * * We are unpersuaded by petitioner's argument that it should be permitted to essentially eviscerate this statutory provision via a motion to amend its pleadings made after there has been a trial and decision on the merits of the petitions. Matter of Village Sq of Penna Inc v Board of Assessment Review of the Town of Colonie, 2014 NY Slip OP 09080, 3rd Dept 12-31-14

REAL PROPERTY TAX LAW/BANKRUPTCY/FORECLOSURE/LANDLORD-TENANT

Tenant's Filing for Bankruptcy Precluded County from Proceeding with Efforts to Collect on a Property Tax Lien

The Fourth Department determined the county properly concluded it could not proceed to collect on a tax lien after the tenant in the relevant property filed for bankruptcy:

The Village contends that the County used an improper basis for its determination to withdraw the properties from the in rem foreclosure proceeding and to cancel the tax liens, i.e., the bankruptcy proceeding filed by plaintiff's tenant. Although the County does not explicitly respond to the Village's contention that the bankruptcy petition of plaintiff's tenant did not operate to stay the in rem proceeding because plaintiff is the property owner, we nevertheless reject that contention. "[A] leasehold, like all other interests of the debtor, immediately becomes property of the [debtor's] estate whenever bankruptcy relief is sought" ... . Thus, the tenant's petition operated as a stay to "enforce any lien against property of the estate" (11 USC § 362 [a] [4]). We therefore conclude that the County properly determined that the in rem foreclosure proceeding with respect to the subject parcels was stayed pursuant to RPTL 1140 (1), and properly withdrew those parcels from the proceeding. Herkimer County Indus Dev Agency v Village of Herkimer, 2015 NY Slip Op 00053, 4th Dept 1-2-15

REAL PROPERTY TAX LAW/ENVIRONMENTAL LAW

Biogas Facility Which Is Located on a Farm and Which Produces Electricity from Manure Is Not Entitled to a Tax Exemption Pursuant to the Former Version of RPTL 483-a

Petitioners use manure produced on petitioners' dairy farm to generate electricity in a biogas facility.  The electricity is used to operate the farm and is sold to the grid. The Fourth Department determined petitioners were not entitled to a tax exemption for the biogas facility because it was not a "manure storage and handling" facility within the meaning of the former statute (Real Property Tax Law [RPTL] 483-a).  The court further determined that new version of the statute, by its explicit terms, cannot be applied retroactively:

...[P]etitioners contend that the facility is entitled to a tax exemption pursuant to RPTL 483-a (former [1]) because it is a "manure storage and handling" facility as contemplated by that statute. We reject that contention. Inasmuch as petitioners' contention involves "a question of statutory interpretation, we turn first to the plain language of the statute[] as the best evidence of legislative intent" ... . The former version of the statute provided that "[s]tructures permanently affixed to agricultural land for the purpose of preserving and storing forage in edible condition, farm feed grain storage bins, commodity sheds, manure storage and handling facilities, and bulk milk tanks and coolers used to hold milk awaiting shipment to market shall be exempt from taxation, special ad valorem levies and special assessments" (RPTL 483-a [former (1)]). We conclude that the anaerobic digester facility is not a "manure storage and handling" facility as contemplated by RPTL 483-a (former [1]) because the facility is not used simply to store and handle manure. Petitioners' facility uses an anaerobic digester to produce biogas from the manure, which is then used to generate electricity, and the statute does not provide a tax exemption for an anaerobic digester or an electrical generator. Notably, another provision of RPTL article 4 defines the term "farm waste generating equipment" as "equipment that generates electric energy from biogas produced by the anaerobic digestion of agricultural waste" (RPTL 487 [1] [e]), but such equipment was not included among the enumerated structures in RPTL 483-a (former [1]). Furthermore, "words employed in a statute are construed in connection with, and their meaning ascertained by reference to the words and phrases with which they are associated" (McKinney's Cons Laws of NY, Book 1, Statutes § 239 [a]), and the plain language of RPTL 483-a (former [1]) establishes that the tax exemption is applicable to structures used for the storage of agricultural materials, and not to structures used for the generation of energy. Matter of Synergy LLC v KIbler, 2015 NY Slip Op 00038, 4th Dept 1-2-15

REAL PROPERTY TAX LAW/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW/MUNICIPAL LAW

County Has Power to Amend Tax Maps Without Notice and a Hearing/Tax Maps Merely Identify Property and Do Not Determine Ownership/Any Dispute About Ownership Must Be Remedied by an Action to Quiet Title

The Third Department determined the county had the power to amend tax maps without notice and a hearing.  Here the director of real property tax services amended a tax map to list the Steger Trust as the current owner of a 25 acre lot previously listed as the petitioner's property. The Third Department explained the county's powers in this regard, noted that a tax map merely identifies property, does not determine ownership and an action to quiet title is the appropriate remedy:

The County correctly asserts that the Director of Real Property Tax Services has the statutory authority to amend tax maps and to provide information about such amendments to the Town's assessor. Counties are required to prepare and maintain tax maps for each city and town therein, and it is the duty of the assessors to use such maps in assessment administration (see RPTL 503 [1] [a]; 1532 [1] [a]). As part of this responsibility, county directors of real property tax services are required to make "such changes from year to year upon such tax maps as may be necessary to maintain the maps in current condition" (RPTL 503 [2]; see 20 NYCRR 8189.14 [a] [7]; [c] [8]; 8189.16 [b]), and to advise assessors on the preparation and maintenance of assessment rolls and property record cards, among other things (see RPTL 1532 [1] [c]). Based on this authority, the County properly amended its tax map and provided the updated information to the assessor listing the Steger Trust as the current reputed owner.

Also, contrary to petitioners' claim, the County did not determine that they do not own the parcel. Rather, the listing of the reputed owner on the tax map is only for the purpose of identifying the assessed property ... . Likewise, because title to the property is not determined by the tax map, petitioners have failed to identify any protected property interest giving rise to procedural due process protection ... . Any ongoing dispute between petitioners and the Steger Trust should be resolved in an action to quiet title pursuant to RPAPL [Real Property Actions and Proceedings Law] article 15... . Matter of Carpentier v County of Sullivan, 2014 NY Slip Op 09083, 3rd Dept 12-31-14