top of page


July Page I

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


Click on the Case Name to View Full Decision








Proof of the Dog's Emaciated Condition Supported Defendant's Conviction of the Violation of Agriculture and Markets Law 353


The Court of Appeals determined the proof of the emaciated condition of defendant's dog supported the defendant's conviction for a violation of Agriculture and Markets Law 353 which prohibits depriving an animal of necessary sustenance. On appeal the defendant argued the trial court erred in refusing to instruct the jury that a conviction required proof of a mens rea, i.e., that defendant knowingly deprived or neglected the dog. The Court of Appeals did not address the defendant's argument, finding that the proof of the dog's condition alone supported the conviction.  People v Basile, 2015 NY Slip Op 05623, CtApp 7-1-15






An Assignment of a Note, Which Was Silent About Whether the Assignment of the Right to Bring a Tort Action Was Included, Did Not, Under New York Law, Include the Right to Bring a Tort Action


The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the assignment of a note, which was silent about whether the assignment included the right to bring a tort action, did not include such a right. Therefore the Second Circuit's certified question whether the assignee of the note had standing to sue Morgan Stanley for fraud was answered in the negative. The case arose out of the collapse in value of sub-prime residential mortgage-backed securities. The court explained the relevant New York law:


To be sure, fraud claims are freely assignable in New York ... . It has long been held, however, that the right to assert a fraud claim related to a contract or note does not automatically transfer with the respective contract or note ... . Thus, where an assignment of fraud or other tort claims is intended in conjunction with the conveyance of a contract or note, there must be some language — although no specific words are required — that evinces that intent and effectuates the transfer of such rights ... . Without a valid assignment, "only the . . . assignor may rescind or sue for damages for fraud and deceit" because "the representations were made to it and it alone had the right to rely upon them" ... . Commonwealth of Pa. Pub. Sch. Employees' Retirement Sys. v Morgan Stanley & Co., Inc., 2015 NY Slip Op 05591, CtApp 6-30-15






The People Were Required to Give Pre-Trial Notice of an Out-of-Court Identification of Defendant by Officer Viewing the Controlled Buy from Across the Street---Identification Was Not So Free From the Risk of Undue Suggestiveness that It Could Be Considered Merely "Confirmatory"---Error Was Harmless In the Face of Overwhelming Evidence


The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the People were required to provide the pre-trial statutory notice of the intent to introduce evidence of an out-of-court identification of the defendant by the officer (Detective Vanacore) who viewed the underlying controlled drug purchase (by an undercover officer) from across the street. The error was deemed harmless however.  Noting that the identification at issue was not so free from the risk of undue suggestiveness as to render the identification merely "confirmatory," the court offered a clear explanation of the reasons for the statutory pre-trial notice requirement:


"CPL 710.30 could not be clearer" ... . When the People intend to offer at trial "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such," the statute requires the People to notify the defense of such intention within 15 days after arraignment and before trial (CPL 710.30 [1] [b]). Not only is "[t]he statutory mandate . . . plain" but the procedure is "simple" ... . The People serve their notice upon defendant, the defendant has an opportunity to move to suppress and the court may hold a Wade hearing (see id.). If the People fail to provide notice, the prosecution may be precluded from introducing such evidence at trial.


The notice statute was "a legislative response to the problem of suggestive and misleading pretrial identification procedures" ... . In enacting the notice requirement, the Legislature "attempt[ed] to deal effectively with the reality that not all police-arranged identifications are free from unconstitutional taint" ... .


The purpose of the notice requirement is two-fold: it provides the defense with "an opportunity, prior to trial, to investigate the circumstances of the [evidence procured by the state] and prepare the defense accordingly" and "permits an orderly hearing and determination of the issue of the fact . . . thereby preventing the interruption of trial to challenge initially the admission into evidence of the [identification]" ... . Thus, the statute contemplates "pretrial resolution of the admissibility of identification testimony where it is alleged that an improper procedure occurred" ... . * * *


Detective Vanacore's surveillance of defendant does not constitute an "observation of . . . defendant . . . so clear that the identification could not be mistaken" thereby obviating the risk of undue suggestiveness ... . Therefore, the People were required to serve their notice concerning Detective Vanacore's observations. People v Pacquette, 2015 NY Slip Op 05595, CtApp 6-30-15





"Continuity" Element of a Criminal Enterprise Explained---Substantive Arguments Re: the Erroneous Use of "And" Instead of "Or" In the Jury Instructions and the "Ineffective Assistance" Stemming from the Failure to Object to the Instructions--the Majority Held the Error Was Not Preserved and the Seriousness of the Error Was Not So Clear-Cut as to Implicate Ineffective Assistance--the Dissent Argued the Jury-Instruction Error Was Preserved and Was Reversible


The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissent, affirmed the defendants' enterprise corruption convictions. The enterprise here involved a doctor and a chiropractor (the defendants), medical clinics, faked accidents, faked injuries, kickbacks to lawyers, fraudulent insurance claims, etc. The court explained that there is no requirement that the People prove the enterprise would continue in the absence of a key participant to demonstrate the "continuity" element of the enterprise, i.e., that the "structure [of the enterprise is] distinct from the predicate illicit pattern." In addition, the majority determined an acknowledged jury-instruction error (using "and" instead of "or") was unpreserved, and rejected an ineffective assistance argument which was based on the failure to object to the erroneous jury charge.  In rejecting the ineffective assistance argument, the majority noted that whether the jury-instruction error was reversible was a close question. If the error had been clearly reversible, the majority explained, the ineffective assistance argument would have prevailed. The dissent argued that the jury-instruction error was preserved and constituted reversible error. The jury-instruction and ineffective assistance discussions, like the enterprise corruption discussion, are extensive and substantive.  With respect to the proof requirements for the "continuity" element of enterprise corruption, the court wrote:


Were the People required to prove, beyond a reasonable doubt, that a criminal enterprise would survive the removal of a key participant, it would be impossible in most cases to demonstrate the existence of a criminal enterprise. Except where the leading participant was in fact removed some time before the enterprise disbanded, the People would be expected to prove an unknowable proposition concerning a counterfactual scenario in which events occurred differently from the actual world. We have never required such an exercise. Moreover, there is no reason to treat a criminal structure as less deserving of enhanced penalty if its key figure is so essential to the organization that his or her absence would threaten its criminal agenda. A criminal enterprise is no less a criminal enterprise if it has a powerful leader. Finally, if we were to require a criminal enterprise to be able to survive the removal of a key figure, criminal organizations could avoid enhanced penalties simply by placing all control in the hands of one person. It cannot have been the intent of the Legislature to allow such a loophole.


Instead, what is meant by the continuity element of the statute is that to be a criminal enterprise, an organization must continue "beyond the scope of individual criminal incidents" (Penal Law § 460.10 [3]), and must possess "constancy and capacity exceeding the individual crimes committed under the association's auspices or for its purposes" ... . In other words, the requirement is not that the group would continue in the absence of a key participant, but rather that it continues to exist beyond individual criminal incidents. A team of people who unite to carry out a single crime or a brief series of crimes may lack structure and criminal purpose beyond the criminal actions they carry out; such an ad hoc group is not a criminal enterprise. If a group persists, however, in the form of a "structured, purposeful criminal organization" (id. at 659), beyond the time required to commit individual crimes, the continuity element of criminal enterprise is met. People v Keschner, 2015 NY Slip Op 05596, CtApp 6-30-15





Entering the Victim's Domicile With the Intent to Assault the Victim Who Died from His Injuries Constitutes Felony Murder (Murder Committed During a Burglary)


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined defendant's felony murder conviction should stand. There was evidence the defendant entered the victim's apartment intending to assault, not kill, the victim. Therefore the defendant's causing the death of the victim in the course of the burglary constituted felony murder. The question whether entering the apartment with the intent to kill, and thereafter killing the victim, would also constitute felony murder remains unanswered. The court rejected defendant's argument that the felony murder statute requires that the death be caused in order to advance the underlying felony, finding that the statute requires only a logical nexus between a murder and a felony:


Noting the Legislature's inclusion of burglary of all degrees, without qualification, as a predicate felony for felony murder, we observed "that persons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street" ... . It is clear that the Legislature chose to treat burglary differently than other crimes. Therefore, an individual who approaches another on the street with an intent to assault but causes the death of that person could be convicted of manslaughter, but not felony murder. It is entirely reasonable, however, that a person — like defendant — who unlawfully enters a building with the intent to commit an assault therein, but causes the death of another, may be convicted of felony murder, in recognition that the homicide occurs in the context of other criminal activity that enhances the seriousness of the offense. * * *


Defendant also argues that his felony murder conviction rests on legally insufficient evidence because there is no evidence that he committed the murder "in the furtherance of" a burglary. He asserts that the statutory language "in the furtherance of" requires that the death be caused in order to advance or promote the underlying felony. We have not interpreted "in the furtherance of" so narrowly. The felony murder statute is intended to punish a perpetrator for a death he or she caused during the commission of a felony, but not a death that is coincidental to the felony ... . The "in furtherance of" element requires "a logical nexus between a murder and a felony" ... . Here, there is a clear logical nexus between defendant's felony of unlawfully entering the victim's apartment to assault him and the homicide, which was certainly not coincidental. People v Henderson, 2015 NY Slip Op 05592, CtApp 6-30-15





Defense Counsel's Failure to Object to the Prosecutor's Mischaracterization of the Strength and Meaning of DNA Evidence Constituted Ineffective Assistance of Counsel


The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, reversed the Appellate Divsion and determined defendant was not afforded effective assistance of counsel. In her summation, the prosecutor mischaracterized the strength and meaning of the DNA evidence. Defense counsel had effectively, through cross-examination, called into question the strength and meaning of the DNA evidence. But defense counsel did not object to the prosecutor's unsubstantiated claims in her summation. The court concluded the failure to object could not be justified as a viable defense strategy and required reversal:


The People's case was circumstantial because there were no eyewitnesses to the crime and no forensic evidence that clearly established defendant's guilt. Other than testimony that placed defendant and others in the victim's company around the time of her death, and defendant's statement that he engaged in consensual sex with the victim, the People had no evidence that linked her to defendant. To meet the People's burden of proof, the prosecutor relied heavily on the results of DNA testing to connect defendant to the murder. However, the DNA analysis was also circumstantial because it did not "match" defendant's DNA to the DNA collected at the crime scene. Instead, the test only indicated that defendant could not be excluded from the pool of male DNA contributors, and the expert testimony provided no statistical comparison to measure the significance of those results.


Notwithstanding the known limitations of this DNA evidence and the indeterminate conclusions about the test results drawn by the People's own experts, the prosecutor in summation misrepresented the DNA analysis, including arguing the evidence established that defendant's DNA was at the crime scene and on a critical piece of evidence linked to the victim's murder. In light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding the limited probative value of the DNA methodology employed in this case, and the qualified nature of the test results, defense counsel's failure to object rendered him ineffective. People v Wright, 2015 NY Slip Op 05621, CtApp 7-1-15






In the Context of a Pre-Answer Motion to Dismiss, the Statute of Frauds Barred Actions Stemming from Advising Defendants in the Actual Negotiation of a Business Opportunity, But Did Not Bar Actions Stemming from Advising Defendants Whether to Negotiate a Business Opportunity


The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined, in the context of a pre-answer motion to dismiss, the statute of frauds did not bar the causes of action which stemmed from plaintiff's advising defendants whether to negotiate a business opportunity, as opposed to the causes of action stemming from plaintiff's advising defendants in the actual negotiation of a business opportunity (which were barred by the statute of frauds).


Here we are specifically concerned with General Obligations Law § 5-701 (a) (10), which "appl[ies] to a contract implied in fact or in law to pay reasonable compensation" and which provides that "[e]very agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking . . . [i]s a contract to pay compensation for services rendered in . . . negotiating the purchase . . . of any real estate or interest therein, or of a business opportunity, business, its good will, inventory, fixtures or an interest therein . . . ." ... . * * *


... [T]he allegations with respect [some of the projects] could be construed as seeking recovery for work performed so as to inform defendants whether to partake in certain business opportunities, that is, whether to negotiate. (emphasis added) To the extent the causes of action are based on such allegations, they are not barred by the statute of frauds.  JF Capital Advisors, LLC v Lightstone Group, LLC, 2015 NY Slip Op 05622, CtApp 7-1-15






Police Vehicles Are Excluded from the Meaning of "Motor Vehicle" in the Insurance Law---Passenger-Police-Officer Injured In a Police Vehicle by an Uninsured/Underinsured Driver Is Not Covered Under the Uninsured/Underinsured Motorist Provision of the Police-Officer-Driver's Personal Policy


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined that a police vehicle is not a motor vehicle within the meaning of the Insurance Law. Therefore a police officer, who was injured in a police vehicle driven by another police officer, could not recover under the police-officer-driver's uninsured/underinsured motorist coverage in the driver's personal insurance policy:


... Insurance Law §§ 3420 (e) and 3420 (f) (1) do not directly define "motor vehicle" in so many words, but Insurance Law § 3420 (e) does refer to "a motor vehicle or a vehicle as defined in [VTL 388 (2)]." VTL 388 is the sole provision of VTL article 11, which governs civil liability for negligence in the operation of vehicles. VTL 388 (2) states, "As used in this section, 'vehicle' means a 'motor vehicle', as defined in [VTL 125], except fire and police vehicles," and certain other vehicles not relevant here (see VTL 388 [2]).  * * *


... [B]ecause the liability insurance provision of Insurance Law § 3420 (e) had traditionally dovetailed with the coverage of VTL 388 and its predecessors, Insurance Law § 3420 (e) employed the phrase "of a motor vehicle or of a vehicle as defined in [VTL 388]" as an imprecise way of incorporating the limitations of VTL 388 into Insurance Law § 3420 (e). In other words, Insurance Law § 3420 (e) used VTL 388 (2) to redefine "motor vehicle" as exempting police vehicles from the automobile insurance sections of Insurance Law § 3420. Given that the uninsured motorist and SUM coverage sections of Insurance Law § 3420 had originated as outgrowths designed to simply fill the uninsured or underinsured motorist "gaps" in the compulsory insurance statute and Insurance Law § 3420 (e), rather than to expand the class of covered vehicles, the Court rightly decided that Insurance Law §§ (f) (1) and (f) (2) logically applied to the limited category of "motor vehicles" referenced in Insurance Law § 3420 (e), thus also excluding police vehicles. Since SUM coverage under Insurance Law § 3420 (f) (2) was just a variant of uninsured coverage under subsection (f) (1) of the same statute, the Court appropriately found that SUM coverage was likewise limited to non-police vehicles. Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald, 2015 NY Slip Op 05626, CtApp 7-1-15






City Had Not Impliedly Dedicated Certain Parcels of Land as Public Parklands---Therefore the Parcels, Which Had Been Used as Public Parks, Were Not Protected by the Public Trust Doctrine and Could Be Sold by the City Without the Approval of the State Legislature


The Court of Appeals determined certain city-owned parcels of land which had been used as public parkland had not been impliedly dedicated as public parklands.  Therefore the parcels were not under the protection of the public trust doctrine and could be sold by the city without the approval of the state legislature:


In support of their appeal, petitioners again advance their argument that the City's actions manifest its intent to impliedly dedicate the parcels as parkland. Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the Legislature ... . A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that: (1) "[t]he acts and declarations by the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication" and (2) that the public has accepted the land as dedicated to a public use ... .


It remains an open question whether the second prong of the implied dedication doctrine applies to a municipal land owner, but we need not and do not resolve that issue on this appeal because we conclude that the City's acts are not an unequivocal manifestation of an intent to dedicate the parcels as permanent parkland. With respect to the element of the owner's intent — the only matter contested in this appeal — if a landowner's acts are "equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication" ... . * * *


Here, as the Appellate Division noted, several documents created prior to this litigation demonstrate that the City did not manifest an unequivocal intent to dedicate the contested parcels for use as public parks. The permit, memorandum of understanding and lease/license relating to Mercer Playground, LaGuardia Park and LaGuardia Corners Gardens, respectively, show that "any management of the parcels by the [DPR] was understood to be temporary and provisional" ... . Thus, those documents' restrictive terms show that, although the City permitted and encouraged some use of these three parcels for recreational and park-like purposes, it had no intention of permanently giving up control of the property. And, as the Appellate Division observed, "the City's "refus[al of] various requests to have the streets de-mapped and re-dedicated as parkland" ... further indicates that the City has not unequivocally manifested an intent to dedicate the parcels as parkland. Matter of Glick v Harvey, 2015 NY Slip Op 05593, CtApp 6-30-15





Local Law, Which Regulates the Conduct of Attorneys Who Regularly Engage in (Nonlegal) Activities Traditionally Performed by Debt Collectors, Not Preempted by the Judiciary Law


The Court of Appeals, over a two-judge dissent, answering a certified question from the Second Circuit, determined that New York City's Local Law 15, which regulates debt-collection practices, including some debt-collection practices used by attorneys, was not preempted by the Judiciary Law. The Local Law only reaches attorneys who regularly engage in activities traditionally performed by debt collectors. The court found no conflict between the Local Law and the Judiciary Law (no "conflict" preemption). And the court found that the Judiciary Law does not evince an intent to preempt the field of regulating nonlegal services performed by attorneys (no "field" preemption):


Local Law 15, enacted in 2009, amended the debt collection legislation in several ways. Significantly, it expanded the definition of "debt collection agency" to "include a buyer of delinquent debt who seeks to collect such debt either directly or through the services of another by, including but not limited to, initiating or using legal processes or other means to collect or attempt to collect such debt" (Administrative Code of City of NY § 20-489 [a]). The amendments continued a limited exemption for attorneys or law firms that were "collecting a debt in such capacity on behalf of and in the name of a client solely through activities that may only be performed by a licensed attorney" (Administrative Code of City of NY § 20-489 [a][5]). The exemption, however, did not cover "any attorney-at-law or law firm or part thereof who regularly engages in activities traditionally performed by debt collectors, including, but not limited to, contacting a debtor through the mail or via telephone with the purpose of collecting a debt or other activities as determined by rule of the commissioner" (Administrative Code of City of NY § 20-489 [a][5]). * * *


Plaintiffs assert both conflict and field preemption in connection with the argument that Local Law 15 is preempted by the Judiciary Law. The Local Law, by its terms, governs the conduct of debt collection agencies. Although attorneys that are acting in a debt collecting capacity may fall within its penumbra, it does not purport to regulate attorneys as such. In fact, it clearly states that it does not pertain to attorneys who are engaged in the practice of law on behalf of a particular client. There is no express conflict between the broad authority accorded to the courts to regulate attorneys under the Judiciary Law and the licensing of individuals as attorneys who are engaged in debt collection activity falling outside of the practice of law and, thus, the Local Law does not impose an additional requirement for attorneys to practice law. Rather, the regulatory schemes can be seen as complementary to, and compatible with, one another. * * *


The courts' authority to regulate attorney conduct does not evince an intent to preempt the field of regulating nonlegal services rendered by attorneys. "Intent to preempt the field may 'be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area'" (People v Diack, 24 NY3d 674, 679 [2014] [citations omitted]). Although the courts may have preempted the field of regulating attorney misconduct, that authority does not extend to all nonlegal aspects of attorney behavior, which can be governed by both civil and criminal law, including regulatory proscriptions. To the extent that the courts have exercised some authority over nonlegal services provided by attorneys (see Rules of Professional Conduct 5.7), the regulation in that area is not "so detailed and comprehensive so as to imply that" the field has been preempted ... . Eric M. Berman, P.C. v City of New York, 2015 NY Slip Op 05594, CtApp 6-30-15




Parking Lots Owned by a Federal-Income-Tax-Exempt Charitable Organization Formed to Facilitate Commercial Development Were Not Entitled to a Charitable Exemption from Real Property Taxes---The Parking Lots Were "Used" to Increase Commerce Which Is Not a Charitable Use Under the Real Property Tax Law


The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined that parking lots owned by "Greater Jamaica" were not entitled to a charitable exemption from real estate taxes.  "Greater Jamaica" is an organization formed for the purpose of facilitating Jamaica's commercial development.  It is exempt from federal income taxation pursuant to 26 USC 501 (c) (3).  The NYC Department of Finance (DOF) revoked Greater Jamaica's exemption from real estate taxes which the DOF had previously granted. Supreme Court upheld the revocation. The Appellate Division reversed Supreme Court. And the Court of Appeals reversed the Appellate Division. The Court of Appeals noted that the criteria for a charitable exemption under the IRS code is different from the criteria under Real Property Tax Law (RPTL) 420-a and, although a court may consider the IRS exemption in a RPTL 420-a proceeding, the IRS exemption is not determinative. The Court of Appeals concluded the parking lots were primarily used to facilitate the commercial growth of Jamaica, which was not a charitable purpose under the RPTL:


The City revoked the tax exemption on the ground that it was erroneously awarded in the first instance. It met its burden in this regard by demonstrating that the "use" of the parking facilities was not for "charitable" purposes but rather for economic development, and that the use of the parking facilities were not "incidental to another recognized charitable [*6]purpose." Specifically, the City's revocation letter explained that the City reached its determination after reviewing documents submitted to it by Greater Jamaica and case law from this Court. The City also explained why it believed that the status granted Greater Jamaica by the IRS had no bearing on the issue of "charitable use" of the parking facilities under section 420-a. The letter stated that although the parking facilities may have served "an important public purpose and support[ed] development of a community," those factors did not qualify the facilities for a charitable exemption. Indeed, according to the City's review of the ownership structure of the lots along with other documentation, it appeared that Jamaica First collected monies that exceeded the carrying, maintenance and depreciation charges attributable to the premises and that Jamaica First utilized those excess proceeds to fund other additional operations, such as the purchase of an additional parking lot. * * *


Although we do not disturb the Appellate Division's holding that petitioners met the "organized or conducted exclusively for . . . charitable . . . purposes" prong of the tax exemption test, we part company with the Appellate Division relative to its holding that "petitioners demonstrated that the use of their public parking facilities was consistent with their exempt purpose, as expressly noted by the IRS in granting such operation tax exempt status" ... . By so holding, the Appellate Division utilized the petitioners' organizational status' under Internal Revenue Code (26 USC) § 501 (c) (3) to support its holding that petitioners' demonstrated that the use of the parking facilities was for an exempt purpose. This was error. ... 


... [T]he IRS's definition of what constitutes an exempt "charitable" purpose is exceedingly broad, including, among other things, "the lessening of the burdens of [g]overnment" (26 CFR 1.501 [c] [3]-1 [d] [2]), while the second prong of section 420-a (1) (a) requires a court to review "the actual or physical use of the property when it exempts from taxation property 'used exclusively for carrying out thereupon one or more' exempt purposes" ... . Thus, our analysis under section 420-a is concerned with the "use" of the parking facilities as a whole, and whether the facilities are "used exclusively for carrying out thereupon one or more of [section 420-a's] purposes." * * *


We disagree with petitioners' assertion that the parking facilities are charitable in and of themselves because they fulfill the primary purpose of economic development. The economic benefit conveyed by below-market rate parking, however, inures to the benefit of private enterprise and cannot be said to further any charitable purpose. It lessens the burden of local businesses, obviating any need for them to make their own parking arrangements for prospective customers. The below-market rates that the facilities charge provide an incentive for the public to patronize those businesses, providing a dual benefit for local business and a benefit to prospective customers of those businesses. While these goals may be laudable, they are not charitable. Matter of Greater Jamaica Dev. Corp. v New York City Tax Commn., 2015 NY Slip Op 05620, CtApp 7-1-15







Non-Resident Shareholders In an S Corporation Who Sold their Stock and Treated the Transaction as a "Deemed Asset Sale" Were Properly Assessed New York Income Tax on the New York-Source Aspects of the Sale


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined non-resident plaintiffs, shareholders in an S corporation who sold their stock and treated the transaction as a "deemed asset sale," were properly assessed New York income taxes on the New York-source aspects of the sale pursuant to Tax Law 632. The court rejected the argument that the tax assessment violated Article 16 section 3 of the New York Constitution:


Based on the results of [an] audit, defendant New York State Department of Taxation and Finance assessed $167,000 in state income taxes on plaintiffs' ... transaction gains, relying on Tax Law § 632 (a) (2), which was amended in 2010 to provide, in relevant part, that "any gain recognized on [a] deemed asset sale for federal income tax purposes will be treated as New York source income." Plaintiffs paid the taxes and thereafter demanded refunds, claiming that their corporate-derived income was obtained from the sale of ... stock, which is considered intangible personal property and nontaxable.


After defendant rejected the refund demands, plaintiffs filed the instant declaratory judgment action against defendant and the Commissioner of the New York State Department of Taxation and Finance, challenging the tax as unconstitutional ... . * * *


.... [T]here is no question that New York State's Tax Law, including Tax Law § 632 (a) (2), as amended in 2010, contemplates the taxes that defendants assessed on the New York-source portion of plaintiffs' deemed asset sale gains. * * *


Nothing changes the fact that plaintiffs sold something of value and reaped the benefits from that sale. Article 16, § 3 in no way supports plaintiffs' attempts to avoid paying state taxes on those gains. Burton v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 05624, CtApp 7-1-15







Retroactive Application of Tax Law 632 Amendments, Which Clarified that Installment Payments Re: a Deemed Asset Sale Will Be Treated as New York-Source Income, Did Not Violate Plaintiffs' Due Process Rights


The Court of Appeals, in a full-fledged opinion by Judge Stein, in an action raising many of the same income-tax-law issues raised in Burton v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 05624, CtApp 7-1-15 (summarized directly above), determined plaintiffs' due process rights were not violated by the retroactive application of Tax Law 632. The case concerned the taxation of installment payments re: a deemed asset sale of stock in an S corporation. The 2010 amendments of Tax Law 632 clarified that the installments will be treated as New York-source income and made the amendments retroactive for 3 1/2 years. The Court of Appeals determined: (1) plaintiffs' interpretation of the prior law was not reasonable and therefore plaintiffs did not establish reliance on the prior law; (2) the length of the retroactive period was not excessive; and (3),  the amendment (correcting an error and preventing revenue loss) served a valid public purpose. The court explained the nature of the amendments and the analytical criteria for determining the validity of retroactive application:


Prior to its amendment, Tax Law § 632 mandated only that, as relevant here:


"In determining New York source income of a nonresident shareholder of an S corporation . . . there shall be included only the portion derived from or connected with New York sources of such shareholder's pro rata share of items of S corporation income, loss and deduction entering into his federal adjusted gross income . . ."


The 2010 amendments clarified, among other things, that if the S corporation distributed an installment obligation under 26 USC § 453 (h) (1) (A) or made a deemed asset sale election under 26 USC § 338 (h) (10), "any gain recognized on the receipt of payments from the installment obligation . . . [or] on the deemed asset sale for federal income tax purposes will be treated as New York source income" (L 2010, ch 57, Part C § 2). The amendments were made retroactive to all taxable years beginning on or after January 1, 2007 — which represent those years for which the statute of limitations for seeking a refund or assessing additional tax was still open (L 2010, ch 57, Part C, § 4, amended L 2010, ch 312, Part B, § 1) — thus, effectively creating a 3½ year period of retroactivity. * * *


While "retroactive legislation does have to meet a burden not faced by legislation that has only future effects[,] . . . that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose" ... . In analyzing whether a statute is harsh and oppressive — and, thus, arbitrary and irrational — this Court uses a balancing-of-equities test ... :


"The important factors in determining whether a retroactive tax transgresses the constitutional limitation are (1) 'the taxpayer's forewarning of a change in the legislation and the reasonableness of . . . reliance on the old law,' (2) 'the length of the retroactive period,' and (3) 'the public purpose for retroactive application'" ... . Caprio v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 05625, CtApp 7-1-15






Question of Fact Re: Whether Dog Had Exhibited Vicious Propensities Prior to Plaintiff's Injury Precluded Summary Judgment


The Second Department determined questions of fact about whether the dog exhibited vicious propensities prior to plaintiff's injury precluded summary judgment in a dog bite case.  The court explained the relevant law, noting that no negligence cause of action for a dog bite exists in New York:


Aside from the limited exception ..., regarding a farm animal that strays from the place where it is kept ..., which is not at issue here, "New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal" ... . Thus, "[t]o recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities" ... . Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others ... . "Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" ... .


Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of the defendant's liability. In support of her motion, the plaintiff submitted her deposition testimony that, although the dog had barked "aggressively" at her prior to the incident, she had never observed the dog attack any person or another pet prior to this incident. The plaintiff also submitted the deposition testimony of a neighbor who, on two separate occasions prior to the instant attack, observed the dog growl, bark, bare its teeth, and jump at a person. Significantly, the neighbor testified that the defendant was present during both of the prior incidents. However, in support of her motion, the plaintiff submitted the deposition testimony of the defendant, who maintained that, prior to the attack on the plaintiff, the dog had never attacked any person or any other dog, and had never acted threateningly toward anyone. The defendant further testified that, although the dog might have barked at times, no one had ever complained to her about the dog or reported to her that they felt threatened by the dog. This evidence demonstrated the existence of triable issues of fact as to whether the dog displayed vicious propensities prior to the plaintiff's attack, or if it did, whether the defendant was aware of such propensities ... . Ostrovsky v Stern, 2015 NY Slip Op 05654, 2nd Dept 7-1-15






Parents of Children in Public Schools Had Standing to Seek Court Review of the SUNY Trustees' Authorization of Charter Schools---The Authorization Was Not Arbitrary or Capricious or an Abuse of Discretion


The Second Department determined parents of children in public schools had standing to bring an Article 78 petition for a review of the SUNY Trustee's authorization for charter schools. The court determined the authorization was not arbitrary or capricious or an abuse of discretion, noting that there was no requirement of majority community support:


The petitioners, a group of parents of children in public schools in Community School District 14 and an organization they founded to oppose the subject charter schools, commenced this proceeding pursuant to CPLR article 78 to review the SUNY Trustees' determination authorizing the charters. The amended petition alleged that the SUNY Trustees authorized the charters in violation of Education Law §§ 2851(2)(q), 2852(9-a)(b)(ii), and 2852(2)(a), in that [the charter school organization] failed to demonstrate adequate community support, outreach, or input, and therefore, the charters should be voided. * * *


In authorizing the issuance of charters to the subject schools, the SUNY Trustees were required to find that the proposed schools met all requirements of the Charter School Act (see Education Law § 2852[2][a]). Given the representations and support therefor contained in [the] applications, the SUNY Trustees' determination that [the charter school organization] met the statutory requirements with regard to evidence "of adequate community support for and interest in the charter school sufficient to allow the school to reach its anticipated enrollment" (Education Law § 2851[2][q]), and public outreach to solicit community input and address comments received from the impacted community concerning the educational and programmatic needs of students (see Education Law § 2852[9-a][b][ii]...), was, insofar as relevant here, not arbitrary and capricious. As the SUNY Trustees and the charter schools correctly contend, majority community support is not required by the Charter Schools Act (see Education Law § 2851[2][q]). Matter of Williamsburg & Greenpoint Parents: Our Pub. Schools! v Board of Trustees, State Univ. of N.Y., 2015 NY Slip Op 05690, 2nd Dept 7-1-15






Motion to Intervene by Members of a De-Certified Class Should Have Been Granted---Class Members Allowed to Sue In Their Individual Capacities


The Second Department determined the motion to intervene by plaintiffs and 167 residents in a de-certified class action alleging environmental damage resulting from emissions from defendant's (BNL's) lab should have been granted. The action began as a class action suit which was dismissed without prejudice. Then, in accordance with CPLR 1013, the individuals in the class brought a motion to intervene accompanied by a complaint which was denied by Supreme Court.  The Second Department held the motion to intervene should have been granted and further held that the statute of limitations had been tolled from the time the class action proceedings were commenced:


... [T]he plaintiffs, along with 167 members of the proposed classes, moved together for leave to allow those 167 proposed class members to intervene in the action as plaintiffs pursuant to CPLR 1013, on the ground that "when a class action is de-certified, putative members of the de-certified class are given the opportunity to intervene into the case because of their allegations of common questions of law and fact." The plaintiffs and the proposed intervenors (hereinafter collectively the appellants) alleged that the proposed intervenors owned property in the vicinity of BNL in 1996 and after, and presented common questions of law and fact with respect to loss of property values, and the cost of using municipal water instead of well water. They submitted a third amended complaint in support of their motion. * * *


... [T]he causes of action of the proposed intervenors are all based upon common theories of liability and, thus, satisfy the requirement of CPLR 1013 that their causes of action involve common questions of law or fact. Contrary to the Supreme Court's conclusion, BNL would not be faced with a "plethora of new claims." Moreover, BNL did not demonstrate that intervention would substantially prejudice any party, or cause undue delay ... .


To the extent BNL argues, as an alternate ground for affirmance , that the claims of the proposed intervenors are time-barred, this contention is without merit. The statute of limitations applicable to this toxic tort action is the three-year statute of limitations pursuant to CPLR 214-c, which runs from the date of discovery or the date when the injury should have been discovered through the exercise of due diligence ... . In American Pipe & Constr. Co. v Utah (414 US 538, 553), the United States Supreme Court held that, under the federal class action rule, commencement of a class action suit tolls the running of the statute of limitations for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. New York courts have adopted this rule ... . Osarczuk v Associated Univs., Inc., 2015 NY Slip Op 05653, 2nd Dept 7-1-15






Constructive Trust Properly Imposed---Sister, Who Was Not Included on the Original Deed Because of Credit Problems, Contributed One-Third of the Downpayment Based Upon a Promise She Would Be Added to the Deed at a Later Time


The Second Department determined a constructive trust was properly imposed on property for which the plaintiff provided one-third of the downpayment.  Plaintiff Reynida Diaz was not included on the original deed with her two sisters because of her credit history. There was an agreement among the sisters that Reynida would be added to the deed at a later time. Defendant sister refused to add Reynida to the deed. The court explained the requirements for a constructive trust:


In general, the imposition of a constructive trust is appropriate in situations when " property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'" ... . The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment ... . A party must establish the elements of a constructive trust by clear and convincing evidence ... .


There is no dispute that the first element, a confidential relationship, exists among the sisters ..., a fact conceded by the defendant. As to the second element, the testimony of the two plaintiff sisters, the defendant, and a family friend, as well as the documentary evidence, established the existence of an express agreement among the parties at the time the subject property was purchased that Reynida Diaz would be added to the deed at some later date ... . The plaintiffs also established the transfer in reliance element in that, at the time of the purchase of the subject property, Reynida Diaz had given the defendant $13,000, the same amount contributed by the defendant and the other plaintiff, in exchange for the promise of being added to the title as a co-owner at a later date ... . The fourth element, that the defendant would be unjustly enriched if the constructive trust was not imposed, was also established in that the defendant had received the $13,000 from Reynida Diaz, as well as payments from her toward the monthly mortgage and maintenance of the property equal to the amounts contributed by the defendant and the other plaintiff who was on the deed to the subject property ... . Diaz v Diaz, 2015 NY Slip Op 05635, 2nd Dept 7-1-15





Stipulation of Forfeiture of a Sum of Money Was Part of the Judgment of Conviction and Therefore Was Reviewable on Appeal from the Judgment of Conviction


The First Department, over a dissent, determined a stipulation of forfeiture of a sum of money entered by the defendant was part of the judgment of conviction, and was therefore reviewable on appeal. The dissent argued that appeal should have been dismissed because the forfeiture was not part of the judgment of conviction and was therefore not reviewable.  The forfeiture was ultimately affirmed on the merits:


At the outset, we reject the People's contention, adopted by the dissent, that this appeal is not properly before us because the forfeiture was not part of the judgment of conviction. Pursuant to Penal Law § 60.30, a court has the authority to order a forfeiture of property, and any order exercising that authority "may be included as part of the judgment of conviction." In People v Detres-Perez (127 AD3d 535 [1st Dept 2015]), relying on Penal Law § 60.30, this Court recently found that a forfeiture agreement was part of the judgment of conviction and thus reviewable on the appeal from the judgment. Likewise here, the court's so-ordering of the stipulation at the time of sentencing rendered it part of the judgment of conviction and reviewable on this appeal as of right (see CPL 450.10). Contrary to the dissent's position, we do not conclude that Penal Law § 60.30 authorizes the inclusion of forfeiture as part of a defendant's sentence. Rather, that provision allows a court to order forfeiture as a separate component of the judgment of conviction... . ... Finally, the omission of the forfeiture order from the sentence and commitment sheet does not render the order unreviewable since a forfeiture, although not a component of a criminal sentence, can nevertheless be part of the judgment of conviction ... . People v Burgos, 2015 NY Slip Op 05600, 1st Dept 6-30-15






Judge's Failure to Properly Handle Note from Jury Was Reversible Error


The Second Department determined the trial judge's failure to follow the proper procedure for answering a note from the jury was reversible error.  The jury sent out a note requesting a readback of alibi testimony. Just after that note was read to the jury and the parties for the first time, the trial judge read a second note which indicated the jury had reached a verdict.  Without addressing the first note, the verdict was pronounced. Defense counsel was not alerted to the contents of the first note or the judge's intended response and was not given a chance to suggest a response before the jury was called in. a violation of CPL (Criminal Procedure Law 310.30):


A court's " core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors' request—in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'" ... . "Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . preservation is not required" ... . Furthermore, "we cannot assume that [such an] omission was remedied at an off-the-record conference that the transcript does not refer to" ... .


Here, the jury note requested a readback of the defense witnesses' alibi testimony. This note was read for the first time on the record before all parties and the jury. Immediately thereafter, the trial court read a second note from the jury advising that a verdict had been reached, at which point the verdict was pronounced. The trial court failed to meet its "core responsibilities" ..., since defense counsel was not alerted on the record to the contents of the note and to the court's intended response, or nonresponse, prior to calling back the jury (see id.). "[A]lthough a defense counsel who is given notice of the trial court's intended response might be expected to object at a time when counsel had an opportunity to ask [the court] to alter course' ... counsel here had no such opportunity because he learned of the trial court's response at the same time the jury heard it" ... . The defendant was thus deprived of any opportunity to voice opposition to the trial court's decision to pass over the first note and proceed directly to the verdict without further inquiry. People v Wiggs, 2015 NY Slip Op 05707, 2nd Dept 7-1-15







Failure to Make Clear in the Jury Instructions that the Acquittal on the Top Count Based Upon the Justification Defense Required Acquittal on the Lesser Counts As Well Rendered the Verdict "Ambiguous"---New Trial Ordered in the Interest of Justice


The First Department, in a full-fledged opinion by Justice Tom, exercising the court's "interest of justice" jurisdiction, determined defendant was entitled to a new trial because the jury instructions did not make clear that, if the jury found the defendant's actions justified (self-defense), acquittal on all counts was mandatory. The defendant was charged with attempted murder, attempted assault in the first degree, and assault second degree stemming from a stabbing. There was evidence defendant may have acted in self-defense.  Therefore the jury was given the justification-defense instruction. The jury found the defendant not guilty of attempted murder, but guilty of the lesser two counts. If the not guilty verdict was based on the justification defense, then the defendant should have been acquitted of all charges. The jury instructions did not make the effect of finding the defendant's acts justified clear. Because it could not be discerned whether the jury acquitted the defendant of attempted murder based on the justification defense, the verdict was ambiguous and a new trial was required, notwithstanding that the error in the jury instructions was not preserved:


On this record, review of the issue in the interest of justice is warranted because it is impossible to discern whether acquittal of the top count of attempted murder in the second degree was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts. While lack of justification was included as an element of each crime, the verdict sheet and the court's accompanying explanation created confusion, because they indicated among other things that the jurors "must consider" count three irrespective of their disposition of higher counts and they failed to explicitly convey that a finding of justification on the top count precluded further deliberation. While the trial court did follow the CJI justification instruction in its charge, it also included as an element of each offense "[t]hat the defendant was not justified," which may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted the defendant of the top count of attempted murder in the second degree based on justification. People v Velez, 2015 NY Slip Op 05619, 1st Dept 6-30-15






Warrantless Arrest in Doorway of Defendant's Apartment Did Not Violate the Payton Rule


The Second Department determined the warrantless arrest of the defendant in the doorway of his apartment did not violate the "Payton" rule which prohibits warrantless arrests in the home:


Contrary to the defendant's contention, his arrest did not violate his rights under Payton v New York (445 US 573) and People v Levan (62 NY2d 139, 144). "The rule announced in Payton and applied in Levan is clear and easily understood: a person enjoys enhanced constitutional protection from a warrantless arrest in the interior of the home, but not on the threshold itself or the exterior" ... . As pertinent to this case, where the defendant lived in the upstairs apartment of a building containing two separate apartments, there is clearly a "distinction between homes and common areas such as halls and lobbies . . . which are not within an individual tenant's zone of privacy" ... .


Here, the hearing evidence demonstrated that the police entered the building the defendant lived in through the front door. Thereafter, they passed through a vestibule before climbing the stairs to the defendant's upstairs apartment. One of the officers knocked on the closed apartment door, the defendant opened it, and the officer effectuated the arrest in the doorway. The arresting officer did not go inside the defendant's apartment ..., or reach in to pull the defendant out ... . Since the defendant was arrested at the threshold of his apartment, after he "voluntarily emerged [and thereby] surrendered the enhanced constitutional protection of the home" ..., his warrantless arrest did not violate Payton and Levan ... . People v Garvin, 2015 NY Slip Op 05695, 2nd Dept 7-1-15






People Could Not Show Good Cause for the Nearly Five-Year Pre-Indictment Delay---Indictment Dismissed


The Third Department, over a dissent, determined, in a child pornography case, the nearly five-year delay between when defendant's computer was seized and defendant questioned (2009) and the indictment (2013) required dismissal of the indictment. The case was not complex and no additional information beyond that gathered in 2009 was needed to indict. The People therefore did not demonstrate good cause for the extensive delay:


The parties agree that there has been a protracted preindictment delay that places the burden on the People to establish good cause for that delay ... . The People state in their brief that there are no issues of fact regarding the issue before this Court and the record on appeal provides an adequate basis to determine whether the protracted delay was justified.


In determining whether there is an undue delay, the trial court must consider "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" ... . Here, although defendant was not incarcerated during the period of delay and the nature of the charges are serious, the extent of the delay was clearly extensive. The People attribute the delay to the fact that the matter was initially referred to the office of the United States Attorney for the Northern District of New York for prosecution, and point to vague references of personnel changes within that office, as well as that office's decision, at some point, not to prosecute.


This was not a complex legal matter and the record establishes that no further evidence was needed in order to charge defendant beyond that gathered in the 2009 ... .  People v Montague, 2015 NY Slip Op 05721, 3rd Dept 7-2-15






Warrantless Search of Parolee's Car by Detective Was Valid--Detective Was Effectively Functioning As a Parole Officer, Was Aware of an Arrest Warrant Based Upon Defendant's Alleged Parole Violations, and Was Aware the Defendant, as a Parolee, Had Consented In Writing to the Search of His Person and Property


The Second Department determined the warrantless search of a parolee's car by a detective who was exercising parole-warrant responsibilities was valid. The detective was aware of defendant's parole violations and the related warrant for defendant's arrest. The detective was also aware that defendant, as a parolee, had consented in writing the search of his person and property:


While a person on parole is not denied the Fourth Amendment right to be free from unreasonable searches and seizures, the status of a parolee is always relevant and may be critical in evaluating the reasonableness of a particular search or seizure. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee ... . The special circumstances and close supervision that come with being a parolee must be considered when determining if a search is reasonable ... .


Under the circumstances of this case, the detective's search of the car was "rationally and reasonably related to the performance of the parole officer's duty" by dint of the detective's parole responsibilities as a member of the Joint Apprehension Warrant Squad ... . Here, no relevant distinction exists between the detective and the defendant's parole officer ... . At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant's arrest ..., and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun ... . People v McMillan, 2015 NY Slip Op 05702, 2nd Dept 7-1-15




Declaratory Judgment Actions Seeking a Determination of the Validity of Certain Tax Assessment/Liens Were Governed by the Six-Year Statute of Limitations


Reversing Supreme Court, the Second Department determined the declaratory judgment actions seeking a ruling on the validity of certain tax assessments/liens were not time-barred and further found that, even where tax assessments are challenged as "void ab initio," the statute of limitations (six years here) applies:


... [E]ven where a tax assessment is challenged as "void ab initio," the action is subject to the governing statute of limitations ... .


An action for a declaratory judgment is generally governed by a six-year limitations period (see CPLR 213[1]). Where a declaratory judgment action involves claims that are " open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action'" ... . The instant action could not have been brought pursuant to CPLR article 78 (see CPLR 7803), or as any other form of proceeding for which a specific limitations period is provided. Therefore, the six-year limitations period is applicable ... . Town of Hempstead v AJM Capital II, LLC, 2015 NY Slip Op 05663, 2nd Dept 7-1-15






In the Absence of Finding of Aggravating Circumstances an Order of Protection Cannot Exceed Two Years


In a family offense proceeding, the Second Department noted that Supreme Court did not make the finding of aggravating circumstances required for an order of protection which exceeds two years:


The Supreme Court ... failed to set forth any finding of aggravating circumstances "on the record and upon the order of protection," as is required to issue an order of protection with a duration exceeding two years (Family Ct Act § 842), and insufficient evidence was presented at the hearing to support any finding of aggravating circumstances (see Family Ct Act § 827[a][vii]...). Therefore, the duration of the order of protection may not exceed two years ... . Matter of Masciello v Masciello, 2015 NY Slip Op 05681, 2nd Dept 7-1-15






Although the Mortgage Note Was Discharged In Bankruptcy, the Bank Holding the Mortgage Note Had Standing to Bring a Foreclosure Action (In Rem) Seeking the Proceeds of the Foreclosure Sale---The Bank Could Not, However, Seek a Deficiency Judgment (In Personam) Against the Borrower


The Second Department, in a full-fledged opinion by Justice Cohen, determined that the assignee of a mortgage note discharged in bankruptcy (Deutsche Bank) has standing to bring a foreclosure action for the sale of the mortgaged property. The borrower, Stephanos, because of the discharge in bankruptcy, could not be held liable on the note in personam (no deficiency judgment was possible).  But the bank could proceed against the property in rem seeking the proceeds of a foreclosure sale:


Under New York law, in order to have standing to commence a foreclosure action, a plaintiff generally must be the holder or assignee of the note which the mortgage secures. On this appeal, we are asked to consider whether a note discharged in bankruptcy can be subsequently assigned, with the mortgage passing incident thereto, so as to convey standing to the assignee. ... [W]e answer the question in the affirmative. Although a bankruptcy discharge extinguishes a debtor's personal liability on a mortgage note, it does not impair a creditor's right to assign that note, and an assignee who holds the discharged note and mortgage has standing to bring a foreclosure action and seek payment through the sale of the mortgaged property. Accordingly, even if the note at issue in this case was assigned or delivered to the plaintiff after it was discharged in bankruptcy, a fact which is not clear from this record, the defendant homeowners failed to establish their entitlement to dismissal of the complaint on the ground that the plaintiff lacked standing. * * *


A mortgage secures an obligation ... . However, it is not necessary that an obligation involve personal liability in order for a mortgage to remain valid after a bankruptcy discharge. Here, Stefanos obtained a personal discharge in bankruptcy; thus, his personal liability for the obligation was released ... . This did not affect the mortgage securing the note. Post-bankruptcy, the mortgage still secures an obligation; it is simply no longer personal, but in rem ... . A discharge in bankruptcy is a discharge from personal liability only and, without more, does not affect a lien ... . Although a bankruptcy discharge extinguishes one mode of enforcing a note—namely, an action against the debtor in personam, it leaves intact another—namely, an action against the debtor in rem ... . * * *


... "[A]n assignee of a mortgage takes it subject to the equities attending the original transaction" ... . After assignment, a note remains subject to any defense, legal and equitable, that existed between the original parties ... . Thus, although Stefanos's personal bankruptcy did not "extinguish" the note for every purpose, he maintains the right to assert, as a defense, his personal discharge in bankruptcy to the extent the note was to be enforced against him in personam. By amending the complaint to limit the relief sought against Stefanos, Deutsche Bank essentially recognized the defendants' affirmative defense, such that, upon proof of a valid discharge in bankruptcy, Deutsche Bank would not seek a deficiency judgment against Stefanos. Deutsche Bank Trust Co. Ams. v Vitellas, 2015 NY Slip Op 05634, 2nd Dept 7-1-15






Pleading Requirements for Unjust Enrichment and Fraud Not Met


The Second Department determined the complaint against defendant bank alleging unjust enrichment and fraud was properly dismissed for failure to state a cause of action. The action stemmed from a foreclosure sale.  After the property had been sold, the judgment of foreclosure and sale was vacated because the bank did not properly serve process on one of the parties. The full amount paid for the property was refunded to the plaintiff.  The plaintiff then sued for unjust enrichment claiming the bank collected banK fees and interest.  Re: unjust enrichment: the complaint failed to allege the bank had been enriched at plaintiff's expense. And the plaintiff sued for fraud alleging the bank knew it had failed to properly serve one of the parties at the time it prosecuted the foreclosure action.  Re: fraud: the complaint included only conclusory allegations of fraud without out the requisite supporting factual allegations. The Second Department explained:


The elements of a cause of action to recover for unjust enrichment are "(1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" ... . "The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" ... .


Here, the plaintiff merely alleged in the amended complaint that U.S. Bank was "unjustly enriched in that it collected bank fees and interest." Even accepting these allegations in the amended complaint as true, the amended complaint failed, as a matter of law, to sufficiently allege that U.S. Bank was enriched at the plaintiff's expense ... . * * *


"The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages" ... . All of the elements of a fraud claim "must be supported by factual allegations containing the details constituting the wrong" in order to satisfy the pleading requirements of CPLR 3016(b)... . 


Here, the amended complaint consisted of conclusory allegations regarding U.S. Bank's knowledge that it had commenced and prosecuted the underlying foreclosure action without properly effecting service on all of the necessary parties. Furthermore, the facts alleged in the amended complaint do not give rise to a reasonable inference that U.S. Bank had knowledge of, or participated in, the alleged fraud ... . GFRE, Inc. v U.S. Bank, N.A., 2015 NY Slip Op 05640, 2nd Dept 7-1-15






Absent a Private Right of Action Expressly Granted by Statute, An Association Created by Statute Does Not Have the Capacity to Sue


The Second Department determined a nonprofit association created by statute (Insurance Law 2130), the Excess Line Association of New York (ELANY), did not have the capacity to sue based upon the defendants' alleged failure to comply with the Insurance Law. Only the Superintendent of Insurance can enforce the Insurance Law.  Because the legislature did not provide ELANY with a statutory private right of action, the association did not have the capacity to bring the suit:


... ELANY both lacked capacity to commence this action and failed to state a cause of action. Capacity to sue "concerns a litigant's power to appear and bring its grievance before the court" ... . Entities created by statute "have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate" ... Such an entity " has no power other than that given it by the Legislature, either explicitly or by necessary implication'" ... . 


ELANY was created by Insurance Law § 2130. The statute gives ELANY certain duties, mostly relating to receipt of records and preparation of reports, and provides that the services ELANY performs are to be funded by a stamping fee assessed for premium bearing documents submitted to it in accordance with Insurance Law § 2118 (see Insurance Law § 2130[a], [f]). Brokers' records are to be open to examination by ELANY and the Superintendent of Insurance (now the Deputy for Insurance; hereinafter the Superintendent) (see Insurance Law § 2118[c]; Financial Services Law § 203). ELANY must perform its functions under the plan of operation established and approved by the Superintendent and "shall be supervised by the superintendent" (Insurance Law § 2130[a]; see Insurance Law § 2130[c]). The Superintendent may impose fines and may suspend or revoke an excess line broker's license for noncompliance with the Insurance Law (see Insurance Law §§ 109, 2105[a]). Contrary to ELANY's contention, none of the provisions of the statute confers upon it by necessary implication the capacity to sue to enforce the provisions of the Insurance Law. Rather, the broad enforcement powers of the Superintendent, the lack of enforcement powers granted to ELANY, and the requirement that ELANY function under the supervision of the Superintendent "negate[ ] any inference of a legislative intent to confer that power" ... . Excess Line Assn. of N.Y. (ELANY) v Waldorf & Assoc., 2015 NY Slip Op 05637, 2nd Dept 7-1-15




Subcontractor Who Is Not Vicariously Liable for the Acts or Omissions of Its Subcontractors Under Labor Law 200 May Be Vicariously Liable for those Acts or Omissions Under Labor Law 241 (6)


The First Department explained that, under Labor Law 200 (a codification of common law negligence), a subcontractor, as the statutory agent of the owner and general contractor, stands in the shoes of the owner and general contractor. Neither the owner, general contractor nor their statutory agent may be held liable under Labor Law 200 in the absence of evidence the owner, general contractor or their statutory agent actually created the dangerous condition or had actual or constructive notice of the dangerous condition. Here there was no evidence the defendant subcontractor created or was aware of a dangerous condition allegedly created by its subcontractors. A subcontractor who did not create and/or has no notice of the dangerous condition, however, can be vicariously liable for the acts and omissions of its subcontractors, as a statutory agent, under Labor Law 241 (6):


 As a subcontractor and, therefore, the statutory agent of the owner and general contractor, [defendant] stands in the shoes of the owner and general contractor, neither of which may be held liable under common-law negligence or Labor Law § 200 (a codification of common-law negligence) for injuries arising from a dangerous condition in the absence of evidence that such party actually created the dangerous condition or had actual or constructive notice of it ... . Uncontroverted evidence establishes, as a matter of law, that [defendant]  sub-subcontracted all of its work ... and furnished no workers in its own employ to perform work. Rather, [defendant's] presence at the site was limited to one-hour visits by its president once a week or every other week. Since there is no evidence that [defendant] itself created the condition in question or had actual or constructive of it, it cannot be held liable for injuries arising from that condition under common-law negligence or Labor Law § 200, neither of which makes an owner, a general contractor or their statutory agent vicariously liable for the negligence of a downstream subcontractor ... . 


However, given that [defendant's] subcontract with [the owner] delegated to it the authority to supervise all drywall work, and given plaintiff's allegation that the presence of the pipe segment on the floor was caused by employees of [defendant's] spackling sub-subcontractor ... , [defendant] is subject to liability under Labor Law § 241(6) as a statutory agent ... . DeMaria v RBNB 20 Owner, LLC, 2015 NY Slip Op 05599, 1st Dept 6-30-15






Individual Condominium Owners Are Not Responsible for Conditions in the Common Elements of the Condominium, Which Are Under the Control of the Board of Managers---In a Case Stemming from a Slip and Fall in a Vestibule (a Common Element) the Individual Owners' Motions for Summary Judgment Were Properly Granted


Plaintiff slipped and fell in a vestibule, one of the common elements of a condominium.  The common elements of a condominium are under the control of the board of managers, not the individual condominium owners.  Therefore the condominium owners' motions for summary judgment were properly granted:


As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property ... . "[C]ondominium common elements are solely under the control of the board of managers" ... . Here, the defendants, moving separately, each established their prima facie entitlement to judgment as a matter of law by demonstrating that as individual unit owners of the condominium, they had no duty to maintain the vestibule where the accident occurred, as it was one of the condominium's common elements ... . In opposition, the plaintiff failed to raise a triable issue of fact as to, inter alia, whether the defendants created the alleged wet condition that caused the plaintiff to slip and fall ... . O'Toole v Vollmer, 2015 NY Slip Op 05655, 2nd Dept 7-1-15






The Fact that Plaintiff's Testimony Was the Only Evidence of the Defect Which Caused Her to Fall (a Hole in a Worn Rubber Mat) Did Not Render the Evidence Insufficient to Support the Plaintiff's Verdict


The First Department, over a dissent, determined the trial evidence was sufficient to support the jury's conclusion the defendant hospital had constructive notice of a worn rubber mat. The jury could reason that the wearing of the mat, resulting in a hole, occurred over a period of time and should have been noticed by the defendant. The fact that plaintiff's testimony was the only evidence of the claimed defect did not render the evidence insufficient. The motion to set aside the verdict was properly denied and the verdict was not against the weight of the evidence:


Plaintiff testified that as she entered the playground with her five-year-old grandson, her foot became caught in a hole in the rubber mat, and she fell forward, her right elbow striking the ground. Plaintiff described the hole as being caused by "worn out" rubber. * * *


To set aside a jury verdict as unsupported by sufficient evidence, the movant must demonstrate that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" ... . The standard for setting aside a verdict as against the weight of the evidence is "whether the evidence so preponderate[d] in favor of the [movant] that [the verdict] could not have been reached on any fair interpretation of the evidence" ... .


The liability verdict was based on legally sufficient evidence of defendant's constructive notice of a dangerous condition on its premises and was not against the weight of the evidence ... . 


Plaintiff's testimony that she was caused to fall when her foot became ensnared in a "worn out" section of the rubber mat was sufficient to support a finding of liability ... . The fact that plaintiff's testimony provided the lone evidence of the claimed defect is not a basis to conclude that there was insufficient evidence of a hazardous defect to impose liability on the premises owner ... .


The dissent's contention that there was insufficient evidence to support the inference that the worn out area was visible or apparent by reasonable inspection cannot withstand scrutiny. A "worn out" section by definition occurs over the passage of time. As the trial court noted "the very description of a worn out area pre-supposes a slow process, and can support a jury inference [*3]that the defect should have been discovered." The jury having reasonably credited plaintiff's direct observations and testimony over that of the defense witnesses, it is not for us to second-guess the verdict. Cruz v Bronx Lebanon Hosp. Ctr., 2015 NY Slip Op 05601, 1st Dept 6-30-15






Company Which Contracted with County to Maintain Traffic Signals Did Not Owe a Duty to Plaintiff---Plaintiff Alleged a Malfunctioning Traffic Signal Caused an Accident in Which She Was Injured


Plaintiff alleged a traffic accident was the result of a malfunctioning traffic signal.  The defendant county had entered a traffic-signal maintenance contract with defendant Welsbach.  The Second Department determined that the contract between the county and Welsbach did not give rise to tort liability re: defendant Welsbach in favor of the plaintiff because the contract was not such that it displaced the county's duty to maintain the traffic signal. The court explained the analytical criteria:


"[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" ... . Exceptions to this general rule exist "(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties[;] and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" ... . Welsbach established, prima facie, that it did not owe the plaintiff a duty of care, since its limited maintenance contract with the County did not displace the County's duty to maintain the traffic signal at the subject intersection in a reasonably safe condition and it did not launch an instrument of harm ... . Watt v County of Nassau, 2015 NY Slip Op 05668, 2nd Dept 7-1-15






Question of Fact Whether Out-of-Possession Landlord Relinquished Control of the Premises to the Extent that Its Duty to Maintain the Premises in a Reasonably Safe Condition Was Extinguished---Lease Allowed Landlord to Reenter to Inspect and Make Repairs and Improvements


The Second Department determined there were questions of fact whether an out-of-possession landlord (Marphil Realty) was liable for a dangerous condition (resulting in a fire). The lease gave the landlord the right to reenter during usual business hours in order to inspect the premises and to make repairs and improvements. Therefore there was a question of fact whether the landlord had relinquished complete control over the property such that its duty to maintain the property in a reasonably safe condition was extinguished:


"Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition" ... . "That duty is premised on the landowner's exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others'" ... . Accordingly, "a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property" ... . However, an out-of-possession landlord may be liable for injuries occurring on the premises if "it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs" ... . Yehia v Marphil Realty Corp., 2015 NY Slip Op 05670, 2nd Dept 7-1-15






"Conclusory" Allegation Rear-End Collision Was Caused by the Sudden Stop of the Lead Vehicle Is Not Enough to Defeat Plaintiffs' Summary Judgment Motion


Reversing Supreme Court, the Second Department determined plaintiffs, who were struck from the rear in a vehicle collision, were entitled to summary judgment. A "conclusory" allegation by the defendant that plaintiffs' vehicle caused the accident by stopping suddenly was not enough to defeat the motion.  The court explained the relevant law:


"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" ... . 


"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision"' ... .


A nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle ... . However, "vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead"... . Moreover, "[a] conclusory assertion by the operator of the following vehicle that the sudden stop of the vehicle caused the accident is insufficient, in and of itself, to provide a nonnegligent explanation" ... . Brothers v Bartling, 2015 NY Slip Op 05630, 2nd Dept 7-1-15






The Defendants, Lessees of the Property Abutting the Sidewalk, Demonstrated in their Summary Judgment Motion that there Was No Statute or Ordinance Imposing Liability on Lessees for Failure to Clear Snow and Ice from the Sidewalk, But the Defendants Did Not Affirmatively Demonstrate They Did Not Make the Condition More Hazardous by their Snow Removal Efforts---Therefore the Summary Judgment Motion Must Be Denied Without Reference to the Answering Papers


The Second Department determined defendants, who leased the premises abutting a sidewalk in Brooklyn, were not entitled to summary judgment dismissing a "snow and ice" slip and fall complaint. The defendants demonstrated that there was no statute or ordinance imposing tort liability. However the defendants failed to affirmatively demonstrate that their snow removal efforts did not make conditions more hazardous (another example of the need for a defendant bringing a summary judgment motion to address every possible theory of liability):


" The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so'" ... . "In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous" ... .


Here, the ... defendants, as lessees of the property, established that no statute or ordinance imposed tort liability on them (cf. Administrative Code of City of NY 7-210 [applicable to owners of real property]). However, they failed to make a prima facie showing that there were no efforts to clear the sidewalk on the date of the injured plaintiff's accident or that any snow and ice removal efforts undertaken by them or by persons on their behalf did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall ... . Forlenza v Miglio, 2015 NY Slip Op 05639, 2nd Dept 7-1-15






Under the Public Trust Doctrine, Only the Uses of the Dedicated Parkland Which Were Contemplated by the Relevant Provisions of the NYC Administrative Code Are Allowed---The Code Provisions Authorized Construction of Facilities Directly Related to Shea Stadium (Now Demolished)---Under Standard Rules of Statutory Construction, the Meaning of the Code Provisions Cannot Be Stretched to Allow the Construction of a Shopping Mall


The First Department, in a full-fledged opinion by Justice Mazzarelli, determined that provisions of the NYC Administrative Code could not be interpreted to allow the construction of a shopping mall in the area where Shea Stadium once stood. Rather the code provisions allowed only construction which was relevant to the stadium. Under the public trust doctrine only the uses of the dedicated parkland contemplated by the code provisions were authorized


This dispute turns on whether the plain language of Administrative Code § 18-118 compels a narrow use of the parkland in question such that any additional construction on it must be directly related to a stadium, or whether any such construction on the parkland must only be related to one of the purposes delineated in § 18-118(b). The proper interpretation of the statute is critical in this case, because, under the public trust doctrine, dedicated park areas in New York are impressed with a public trust for the benefit of the people of the State, and their "use for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State Legislature, plainly conferred" ... . Stated differently, parkland may be alienated or leased for non-park purposes as long as authorized by the legislature ..., and the "legislative authority required to enable a municipality to sell its public parks must be plain" ... . * * *


... [T]he public trust doctrine is clear that any alienation of parkland must be explicitly authorized by the legislature. No reasonable reading of Administrative Code section 18-118 allows for the conclusion that the legislature in 1961 contemplated, much less gave permission for, a shopping mall, unrelated to the anticipated stadium, to be constructed in the Park. Further, it is simply not in our power to set the doctrine aside, no matter how worthy a proposed use of parkland may be. Here, while there is a legislative mandate for the use of the Park, that mandate does not encompass the use proposed by respondents. Matter of Avella v City of New York, 2015 NY Slip Op 05790, 1st Dept 7-2-15






Property Was Not Transferred Until Escrow Conditions Were Met---Appellant Did Not Own the Building Where Plaintiff Slipped and Fell Because the Escrow Conditions Were Not Met and the Deed Was Not Released from Escrow Until the Day After the Slip and Fall


Reversing Supreme Court, the Second Department determined appellant did not own the property on the day plaintiff slipped and fell. The "preclosing" on the sale of the property to appellant took place on the day of the accident. But the deed was held in escrow until the escrow conditions were met on the day following the accident. Therefore the property was not transferred to the appellant until the day after the accident:


"When a deed is delivered to be held in escrow, the actual transfer of the property does not occur until the condition of the escrow is satisfied and the deed is subsequently delivered to the grantee by the escrow agent"... . Here, the appellant established its prima facie entitlement to judgment as a matter of law by submitting proof that the actual transfer of the property to the appellant did not occur until the conditions of the escrow were satisfied and the deed was thereafter released by the escrow agent on [the day after the accident]. As a result, the appellant demonstrated that it did not own or otherwise control the subject property on the date of the plaintiff's alleged accident ... . Camac v 550 Realty Hgts., LLC, 2015 NY Slip Op 05631, 2nd Dept 7-1-15







Defendants Ordered to Dismantle and Remove Boathouses Built Without Permits/Immediate Neighbors Had Standing to Bring an Action to Enjoin the Zoning Violations


The Third Department, in a full-fledged opinion by Justice Egan, determined that boathouses constructed without permits (required by the New York State Uniform Fire Prevention and Building Code [SBC] and the Village of Lake Placid/Town of North Elba Land Use Code [LUC]) must be completely dismantled and removed.  The defendants were aware from the start that proceeding with the building of the boathouses without permits would be at their own risk. The permits were ultimately denied. The opinion is extensive and much of it is devoted to explaining the litigation/appeal history and refuting defendants' arguments (not addressed here).  With respect to the finding that the neighbors had standing to bring an action to enjoin the asserted zoning violations re: one of the parcels (referred to as the "children's parcel"), the court wrote:


As a threshold matter, Supreme Court correctly concluded that the neighbors have standing to challenge the asserted zoning violations and to seek injunctive relief against the children. Although municipal officials indeed are tasked with enforcing zoning ordinances within their boundaries (see Town Law § 268 [2]), this "does not prevent . . . private property owner[s] who suffer[] special damages from maintaining an action seeking to enjoin the continuance of the violation and obtain damages to vindicate [their] discrete, separate identifiable interest[s]" ... . To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant's activities, he or she will sustain special damages that are "different in kind and degree from the community generally" and that the asserted interests fall "within the zone of interest to be protected" by the statute or ordinance at issue ... .


To that end, the neighbors both alleged and submitted proof that they own land (improved with single-family homes) on either side of the children's parcel and that the children's boathouse was built without the permits required by the LUC and SBC. The neighbors also demonstrated that the children's boathouse violates various provisions of the LUC, including those governing set-backs and prohibiting accessory structures on land that lacks a principal building (see Joint Village of Lake Placid/Town of North Elba Land Use Code part IV, art III, § 4; art V, appendix F [II]). Where, as here, the offending premises are immediately adjacent to the neighbors' property, "a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury" ... . We find that the neighbors' specific allegations of close proximity give rise to an inference of damage and injury, thereby permitting them to maintain action No. 2. Moreover, the neighbors have demonstrated that their interests fall within the "zone of interest" protected by the LUC, in that violations thereof adversely affect their privacy and property values ... . Indeed, we recognized as much in our prior decision permitting the neighbors to intervene, concluding that they "have an interest in the litigation by virtue of their status as owners of adjoining premises" ... . Town of N. Elba v Grimditch, 2015 NY Slip Op 05740, 3rd Dept 7-2-15

bottom of page