APPELLATE DIVISION

 

CIVIL PROCEDURE/SUBJECT MATTER JURISDICTION

 

Supreme Court Did Not Have Subject Matter Jurisdiction In an Action Seeking Compensation for an Alleged Unconstitutional Taking of Land Based Upon the Denial of a Subdivision Application---the Court of Claims Has Exclusive Jurisdiction

 

The plaintiff landowner wished to subdivide a 16 acre parcel and build homes with septic systems.  The land is in a watershed.  The town rejected the subdivision because the septic systems would violate the watershed regulations. The plaintiff then sued in Supreme Court seeking $1,000,000 as compensation for the alleged unconstitutional taking of his property.  In concluding that Supreme Court did not have subject matter jurisdiction, the Second Department wrote:

 

The plaintiff acknowledges that the instant action for a judgment declaring an unconstitutional taking is a precursor to the commencement of an action to recover damages in the Court of Claims based on that taking. The plaintiff, in effect, seeks to bifurcate its claim: to establish the State's liability in the Supreme Court, and then to establish damages in the Court of Claims. The State Constitution, however, vests the Court of Claims with exclusive subject matter jurisdiction over claims against the State for appropriation of real property (see NY Const, art VI, § 9; Court of Claims Act § 9[2]). The plaintiff's action runs afoul of this exclusive grant. Therefore, we agree with the Supreme Court that it lacks subject matter jurisdiction over the plaintiff's claim… . Monroe Equities LLC v New York State, 2013 NY Slip Op 07715, 2nd Dept 11-20-13

 

 

COUNTY LAW/NAVIGATION LAW/ENVIRONMENTAL LAW

 

Notices of Claim Were Sufficient to Notify County of a “Navigation Law 181” Cause of Action Re: a Fuel Spill

 

The Second Department determined the notices of claim against the county were sufficient even though they did not explicitly mention a violation of Navigation Law section 181.  The notices alleged the county was negligent with respect to underground fuel storage tanks resulting in leakage and contamination of water wells. The notices did not specifically recite that the County was subject to strict liability for a violation of Navigation Law section 181. The Second Department explained the relevant legal and factual notice requirements:

 

…[T]he plaintiffs, as a condition precedent to the assertion of Navigation Law § 181 cause of action, were required to serve a notice of claim that included information and allegations specific to their Navigation Law § 181 cause of action. County Law § 52 requires a notice of claim to be served upon the County, and applies to any claim for "for invasion of personal or property rights, of every name and nature" and to "any other claim for damages arising at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county" (County Law § 52). The assertion of a Navigation Law § 181 cause of action against the County, which could result in the County being held strictly liable for all cleanup costs and damages resulting from a discharge of petroleum, is subject to the broad notice-of-claim requirements of County Law § 52… .

 

…[T]he plaintiffs' notices of claim were sufficient to apprise the County that they intended to pursue a cause of action premised upon a violation of Navigation Law § 181. The plaintiffs were not required to "state a precise cause of action in haec verba" in their notices of claim … . "The test of the sufficiency of a [n]otice of [c]laim is merely whether it includes information sufficient to enable the [municipality] to investigate'" the claim … . Here, the plaintiffs' notices of claim set forth conduct on the part of the County which allegedly caused the discharge of petroleum onto the plaintiffs' properties, thereby resulting in damage to the properties. The notices of claim provided information sufficient to enable the County to investigate the alleged fuel spills, leakage, and seepage while information concerning the alleged fuel spills, leakage, and seepage was still readily available. As such, the notices of claim were sufficient to alert the County to the potential Navigation Law § 181 cause of action, and afforded the County ample opportunity to promptly investigate the alleged spills, leakage, and seepage underlying that cause of action. Bartley v County of Orange, 2013 NY Slip Op 07701, 2nd Dept 11-20-13

 

 

 

CORPORATION LAW/CIVIL PROCEDURE

 

Criteria for Exercising Jurisdiction Over Foreign Corporation Based On Presence of Subsidiary Within Jurisdiction---the “Department Doctrine”

 

The Second Department explained when the presence of a subsidiary within the jurisdiction of the court can be sufficient to exercise jurisdiction over the foreign parent under the so-called “department doctrine” (the subsidiary must be a virtual “department” of the parent):

 

In its limited jurisprudence concerning the mere department doctrine, the primary focus of the Court of Appeals has been on the degree of control exercised by the domestic corporation over the foreign corporation … . Such control may be manifested in numerous ways and, thus, the method by which such control may be demonstrated will necessarily depend on the attendant facts … . Although the Court of Appeals has noted that it "has never held a foreign corporation present on the basis of control, unless there was in existence at least a parent-subsidiary relationship," it has nevertheless indicated that this factor is not dispositive … . "The control over [a] subsidiary's activities . . . must be so complete that the subsidiary is, in fact, merely a department of the parent" … . It is only when the two corporations are "in fact, if not in name . . . one and the same corporation, [that] there is realistically no basis for distinguishing between them" for jurisdictional purposes … .  Goes v Ramachandran, 2013 NY Slip Op 07708, 2nd Dept 11-20-13

 

 

 

CRIMINAL LAW

 

Handcuffing Defendant Constituted an Arrest/Defendant’s Actions Did Not Justify Use of Handcuffs

 

The First Department, contrary to the suppression-hearing court, determined the act of handcuffing the defendant constituted an arrest.  [The matter was sent back to allow the hearing court to determine whether a radio transmission from a fellow officer provided probable cause for the arrest, an issue the hearing court had not ruled upon.]:

 

…[W]e reject the People's argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances (see People v Acevedo, 179 AD2d 465, 465-66 [1st Dept 1992], lv denied 79 NY2d 996 [1992]). In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. The fact that defendant was "a little resistant" when told to put up his hands is not, on its own, sufficient to establish that the officers had any difficulty restraining defendant. Rather, like Acevedo, this case presents a situation in which the officers' initial use of handcuffs was not warranted by the threat confronting them…, so that the detention exceeds the proper bounds of an intrusion made on less than probable cause. People v Blanding, 2013 NY Slip Op 07692, 1st Dept 11-19-13

 

 

Defendant’s Flight Did Not Justify Police Pursuit and Entry Into Defendant’s Apartment---Evidence Properly Suppressed

 

The Second Department affirmed Supreme Court’s suppression of evidence.  Based upon a confidential informant’s vague description of a man who was about to be part of a drug sale, a police officer followed the defendant. The defendant started running and threw a small object away.  The defendant then entered an apartment with a key.  The police ultimately broke the door down and saw the defendant throw bags of marijuana and heroin out the window.   A subsequent search warrant turned up more drugs. The Second Department wrote:

 

"Police pursuit of an individual significantly impede[s]' the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed" … . Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit … . "Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry" … .

 

Here, there were no specific circumstances indicating that the defendant might be engaged in criminal activity. The fact that the defendant matched the extremely vague description given by the informant of someone who would conduct a drug transaction somewhere in the vicinity, sometime later that day, was not sufficiently indicative of criminal activity … . * * *

 

Moreover, the detective compounded the unlawful pursuit by entering the apartment without consent or probable cause and exigent circumstances … . While retreat into one's home cannot thwart an otherwise proper arrest set in motion in a public place, probable cause for the arrest is required … . When the detective entered the apartment, he did not have probable cause to believe that the defendant had committed a crime. Accordingly, all of the physical evidence was properly suppressed.  People v Nunez, 2013 NY Slip Op 07753, 2nd Dept 11-20-13

 

 

Defendant’s Waiver of His Right to Appeal, Which Included His Signing a Printed Form Used by Rockland County, Was Invalid

 

The Second Department determined defendant’s waiver of his right to appeal was invalid:

 

The defendant's purported waiver of his right to appeal was invalid … . Although the defendant signed a Rockland County pre-printed form waiver, as we have previously stated, this form "contained erroneous statements with regard to the waiver of the right to appeal" and should not have been utilized … . The Supreme Court's terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal. Further, the defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing … . Under these circumstances, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal.  People v Salgado, 2013 NY Slip Op 07755, 2nd Dept 11-20-13

 

 

Defendant Entitled to New Counsel After Defense Attorney Took a Position Adverse to Defendant’s Pro Se Motion to Withdraw Guilty Plea

 

The Third Department determined defendant should have been provided with new counsel after defense counsel took a position adverse to defendant’s pro se motion to withdraw his guilty plea:

 

We agree with defendant's contention that he should have been assigned new counsel to pursue his motion to withdraw the guilty plea because his counsel was essentially called as a witness against him.  While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel "may not take a position . . . that is adverse to the defendant" … .  Doing so creates an actual conflict of interest that requires the trial court to assign a new attorney to represent the defendant on the motion … . 

 

Here, defendant claimed that defense counsel coerced him into entering the guilty plea by failing to communicate with him, telling him that he did not want to represent him and that he had to take the offer "or that's it."  Defendant claimed that he was unprepared for any pretrial proceedings based on the lack of communication and felt that he had to take the plea to "get away" from counsel and avoid having to go to trial with him.  Defense counsel specifically refuted defendant's assertions and, in response to County Court's questioning, provided detailed information as to the discussions he had with defendant about the case and his options.  In response, defendant claimed that counsel's statements were untruthful.  Given that defense counsel took a position adverse to defendant's claim of coercion, County Court should have assigned new counsel to pursue defendant's motion to withdraw his plea… . People v Zaorski, 103901, 3rd Dept 11-21-13

 

 

Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser)

 

After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth:

 

As for the cocaine recovered from defendant's mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis "under the Fourth Amendment's 'objective reasonableness' standard" .. .  Defendant's affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances.  The People failed to substantively respond to this argument.  As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required… . People v Atkinson, 105126, 3rd Dept 11-21-13

 

 

Sentencing Court’s Reference to a Fine for Driving While Intoxicated as “Mandatory” Required Remittal for Resentencing

 

The Third Department noted that imposition of both a fine and imprisonment for Driving While Intoxicated is discretionary.  County Court’s indication that the fine was “mandatory” required remittal for resentencing.  People v Olmstead, 105214, 3^rd Dept 11-21-13

 

 

Revocation of Parole Based Upon Uncharged Assault Okay/Presence of Assault Victim at Revocation Hearing Excused

 

The Third Department determined petitioner’s parole was properly revoked even though the victim of the uncharged assault which triggered the revocation did not testify at the hearing:

 

Petitioner argues that he improperly was denied the opportunity to confront and cross-examine the victim.  While a "strong preference" for confrontation and cross-examination exists in parole revocation proceedings, the victim's absence nevertheless may be excused "upon a specific finding of good cause" (…see Executive Law § 259-i [3] [f] [v]…).  Here, the victim refused to testify and could not be located despite extensive efforts by parole officials to do so.  Accordingly, the Administrative Law Judge properly excused her absence and considered other evidence regarding the assault … . Contrary to petitioner's assertion, the fact the he was not indicted for any crimes stemming from the underlying assault did "not preclude a revocation of parole for the same conduct"… . Matter of Coston v NYS Division of Parole, 515013, 3rd Dept 11-21-13

 

 

Resentencing to a Term of Imprisonment with a Maximum Greater than the Initial Sentence Violates Double Jeopardy Principles

 

The Third Department determined resentencing defendant to a term of imprisonment with a maximum greater than the initial sentence violated double jeopardy principles:

 

County Court violated double jeopardy principles when it imposed on defendant an aggregate sentence with a maximum of more than 10 years in prison.  "[T]he key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his [or her] original sentence" … .  A court violates double jeopardy principles if it subjects a defendant to a greater maximum sentence upon resentencing after the original agreed-upon sentence has been determined to be illegal … .  At the time of resentencing, defendant had served two years of his 10-year prison sentence … .   As defendant had a reasonable expectation of finality in the maximum term of his prison sentence, namely that he would serve no more than 10 years in prison, imposing a maximum prison term greater than 10 years would run afoul of the double jeopardy clause … . Thus, we modify the resentence to an aggregate maximum of 10 years in prison.  People v DePerno, 105100, 3rd Dept 11-21-13

  

 

FAMILY LAW

 

Modification of Custody Reversed

 

The Second Department reversed Family Court’s modification of a custody arrangement (changing custody from mother to father), finding there was no sound and substantial basis for the modification in the record. There was evidence that the father induced the mother to agree to allow him to have custody of the child while she recovered from surgery by falsely stating the arrangement would be temporary:

 

Upon weighing the appropriate factors (see Eschbach v Eschbach, 56 NY2d 167), we find that the Family Court's determination that the best interests of the child would be served by remaining in the father's physical custody lacked a sound and substantial basis in the record, and that the child's best interests will be served by awarding the mother sole physical custody of the child. The Family Court failed to give sufficient weight to the mother's testimony, which it credited, that she only intended for the father to have custody of the child temporarily while she underwent a hysterectomy and moved from Washington to Colorado with her new husband. The record here shows that the mother, who stays at home to care for her children, has been the primary caregiver throughout the child's life, while the father had limited involvement with the child until the mother transferred custody to him …. Furthermore, while living with her mother, the child thrived both at home and at school … .  * * * The Family Court also erred in finding that the mother replaced the "father figure" in the child's life. The record contains no evidence to support a finding of parental alienation against the mother.

 

The Family Court also failed to give sufficient weight to the fact that the child's relationship with her half-siblings, who reside with the mother, will continue to be disrupted if she remains in the father's care, as the record demonstrates that the child and her half-siblings have a close and healthy relationship. Courts will not disrupt sibling relationships unless there is an overwhelming need to do so… . Matter of Shannon J v Aaron P, 2013 NY Slip Op 07733, 2nd Dept 11-20-13

 

 

Family Court Should Not Have Terminated Parental Rights (After an Alleged Violation of a Drug-Treatment Condition of a Suspended Judgment) Without Holding the Necessary Hearings

 

The Second Department sent the matter back to Family Court for a hearing on whether the parents (after a finding of permanent neglect) violated the drug-treatment condition of a suspended judgment, and, if warranted, a new dispositional hearing with respect to the termination of parental rights. Family Court, based solely on documents from DSS, determined the parents had violated the drug-treatment condition of the suspended judgment, and, on that ground, had terminated the parents’ parental rights without any hearings:

 

Upon a finding of permanent neglect, the Family Court may suspend judgment, "during which time the parents must comply with terms and conditions that relate to the adjudicated acts or omissions of the parents which led to the finding of [permanent] neglect" (…see Family Ct Act §§ 631[b]; 633). By enacting Family Court Act §§ 631(b) and 633, the Legislature vested the Family Court with discretion to give a parent of a permanently neglected child a second chance before terminating the parent's parental rights … . If a parent fails to comply with the terms and conditions of a suspended judgment, "a motion or order to show cause seeking the revocation of the order" suspending judgment "may be filed," and "if, after a hearing or upon the respondent's admission, the court is satisfied that the allegations of the motion or order to show cause have been established and upon a determination of the child's best interests, the court may modify, revise or revoke the order of suspended judgment" (22 NYCRR 205.50[d][1], [5] [emphasis added]). "The Family Court may revoke a suspended judgment after a violation hearing if it finds, upon a preponderance of the evidence, that the parent failed to comply with one or more of its conditions" … . * * *

 

…[E]ven if the Family Court had conducted a hearing on the DSS's motion to hold the parents in violation of the drug-treatment condition, and had determined that the violations had been established by a preponderance of the evidence, the Family Court was required to conduct an inquiry into the children's best interests before terminating the parents' parental rights … . Although a separate dispositional hearing is not always required in a proceeding to enforce a suspended judgment where the violation hearing or prior proceedings established that the court was aware of and considered the children's best interests …, this is not such a case … . The Family Court conducted no hearing at all on the motion to hold the parents in violation of the drug-treatment condition, and the record does not otherwise show that the Family Court made an inquiry into or adequately considered the best interests of the children in terminating the parents' parental rights.  Matter of Timmia S, 2013 NY Slip Op 07739, 2nd Dept 11-20-13

 

 

Grandmother Had Standing to Request Visitation/Visitation Properly Granted

 

The Third Department affirmed Family Court’s determination that grandmother had standing to petition for visitation with the child (Dakota) and that such visitation was in the best interests of the child. With respect to the standing criteria, the Third Department wrote:

 

Family Court correctly determined that petitioner established standing to petition for visitation with Dakota. When a child's parents are living, a grandparent who seeks visitation with his or her grandchild must establish that "conditions exist which equity would see fit to intervene" (Domestic Relations Law § 72 [1]) in order to obtain standing … . The grandparent "must establish a sufficient existing relationship with [his or her] grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention" … .  In the latter situation, the grandparent's "effort is measured against what [he or she] could reasonably have done under the circumstances"… . Matter of Rubel v Wilson, 511985, 3rd Dept 11-21-13

 

 

Amendment Allowing the Consideration of Incarceration as a Reason for a Downward Support Modification Is Not Applied Retroactively

 

The Third Department affirmed Family Court’s finding that the amendment to Family Court Act section 451 (which allows a court to consider incarceration as a reason for a downward support modification) does not apply retroactively:

 

Before the 2010 amendment to Family Ct Act § 451, a parent's loss of income resulting from incarceration generally was not considered a sufficient change in circumstances to warrant a reduction or suspension of child support … .  As part of legislation making many changes regarding child support (see Assembly Mem in Support, 2010 McKinney's Session Laws of NY at 1747), Family Ct Act § 451 was amended in several respects including, as relevant here, to provide that "[i]ncarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment" (Family Ct Act § 451 [2] [a]; see L 2010, ch 182, § 6).  However, the legislation further provided that, as to the section that included this amendment, it "shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act"… .  Matter of Baltes v Smith, 514485, 3rd Dept 11-21-13

 

 

Criteria for Termination of Parental Rights Based Upon Abandonment Explained

 

The Third Department determined Family Court properly terminated respondent’s parental rights after a finding of abandonment:

 

Despite respondent's intermittent homelessness, difficulties in arranging transportation, and lack of finances and accessible phone service, at some points during the six-month period she had housing and employment.  Thus, Family Court found that it would not have been impossible or unfeasible for respondent to contact petitioner or her child at some time during that period … .  …

 

Unlike in a permanent neglect proceeding, in an abandonment proceeding petitioner is not required to prove that it exercised diligent efforts to reunite the family or assist the parent in maintaining contact (see Social Services Law § 384-b [5] [b]…; compare Social Services Law § 384-b [7] [a], [f]).  The only statutorily authorized disposition after a finding of abandonment is an order committing the child's custody to petitioner; a suspended judgment is not an option (see Social Services Law § 384-b [3] [g]; compare Family Ct Act § 631 [permitting suspended judgment as an option after a finding of permanent neglect]).  Thus, Family Court properly terminated respondent's parental rights.  Matter of Erving BB …, 515880, 3rd Dept 11-21-13

 

 

Criteria for Reduction or Termination of Father’s Child Support Obligations Not Met/No Showing Wife Interfered with Access to Child/No Showing of Unjustified Abandonment by Child

 

The Third Department affirmed Family Court’s determination that the father’s child support obligations for his 18-year-old son should not be reduced or terminated.  The court described the relevant criteria:

 

Generally, a parent in this state is obligated to support his or her child until the child turns 21 (see Family Ct Act § 413 [1] [a]).  However, a noncustodial parent's child support obligation may be suspended where such parent establishes that "the custodial parent unjustifiably frustrat[ed] the noncustodial parent's right of reasonable access" … .  On the record before us, we agree with Family Court's determination that the father failed to establish that the mother unjustifiably interfered with his visitation.  * * *

 

…[W]e similarly conclude that the record supports a finding that the father's support obligation should not be terminated based upon the son's refusal to have contact with him.  A child's right to support payments may be forfeited when he or she is "of employable age and . . . actively abandons the noncustodial parent by, without cause, refusing contact" … .  However, the child's refusal of contact must be "'totally unjustified'" …, and "where it is the parent who causes a breakdown in communication with his [or her] child, . . . the child will not be deemed to have abandoned the parent" … .  Matter of McCloskey v McCloskey, 516342, 3rd Dept 11-21-13

 

 

Supreme Court Properly Declined to Give Husband Credit for Separate Property Contributions to Marital Residence---Husband Subsequently Conveyed Property to the Parties Jointly

 

The Third Department determined that Supreme Court properly declined to credit the husband with separate property contributions to the acquisition of the marital residence:

 

Although the residence was purchased prior to the marriage and the husband's separate funds were used for the down payment and premarital mortgage payments, the husband conveyed the property to the parties jointly in 1998, creating a presumption that it then became marital property in its entirety … .  Under these circumstances, whether to grant the husband a credit for the contribution of separate property to the acquisition of this marital asset was within Supreme Court's discretion …, and we find no abuse of that discretion here. Alecca v Alecca, 516659, 3rd Dept 11-21-13

 

 

EMPLOYMENT LAW/STATE AND LOCAL RETIREMENT SYSTEM

 

School District Attorney Was “Employee” Not “Independent Contractor”

 

The Third Department reversed the Comptroller’s finding that an attorney for a school district was an independent contractor, not an employee, requiring the attorney to refund retirement benefits already paid.  In explaining the criteria for an “employee” who provides professional services, the Third Department wrote:

 

Where professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship … .  Rather, such an employment relationship may be evidenced by "control over important aspects of the services performed other than results or means" …, i.e., "over-all control is sufficient to establish the employee relationship where [professional] work is concerned" … .  In our view, the Comptroller's determination that petitioner was not an employee of the school district is not supported by substantial evidence.

 

Here, both the school board president and the assistant superintendent testified that the school board routinely engaged in discussions about whether to retain petitioner's services as an employee or an independent contractor, and the board continually chose the former because it was more cost effective for the school district.  The testimony also indicated that, although there was no written contract with petitioner, the board and the assistant superintendent directed petitioner as to what work needed to be completed and when services were to be performed, the assistant superintendent and board reviewed petitioner's work for its sufficiency and the president monitored petitioner's performance and conducted annual performance evaluations.  Additionally, both the testimony and documentary evidence indicated that petitioner was a salaried employee paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and petitioner received a W-2 form annually.  Further, petitioner's appointment as an employee of the school district was recognized by the County Department of Civil Service as a "School Attorney" – an exempt position – at a salary in 1974 of $3,400 per year.  Matter of Mowry v DiNapoli, 516295, 3rd Dept 11-21-13

 

 

FREEDOM OF INFORMATION LAW (FOIL)
 

Because the Statute Relied Upon by the State Police to Deny a FOIL Request Did Not Pertain to the Sought Documents, the Request Should Have Been Granted/Court Cannot Substitute Another Ground for Denial

 

The Third Department determined an inmate’s FOIL request for lab reports, raw data, logbook entries, chain of custody forms and other documentation relating to the taking of blood samples should have been granted:

 

Courts reviewing administrative determinations may only rely on the grounds invoked by the agency, and if those grounds are improper, the courts may not substitute what they deem a legitimate or more appropriate basis … . Respondent relied on the portion of Executive Law § 995-c that states, "DNA records contained in the state DNA identification index shall be released" for only limited purposes, one of which is "for criminal defense purposes, to a defendant or his or her representative, who shall also have access to samples and analyses performed in connection with the case in which such defendant is charged" (Executive Law § 995-c [6] [b]).  For purposes of that statute, a DNA record is defined as "DNA identification information prepared by a forensic DNA laboratory and stored in the state DNA identification index for purposes of establishing identification in connection with law enforcement investigations or supporting statistical interpretation of the results of DNA analysis.  A DNA record is the objective form of the results of a DNA analysis sample" (Executive Law § 995 [8]). 

 

Petitioner seeks lab reports, raw data, logbook entries, chain of custody forms and other documentation related to the taking of the blood sample and transporting of the sample and results.  He acknowledges that he has already received the actual DNA results from the Division of Criminal Justice Services. Aside from the lab reports that he has already received from another source, it does not appear that these documents are kept in the State's DNA identification index, so they do not fall within the definition of DNA records.  Thus, Executive Law § 995c (6), which only applies to DNA records, does not apply to the majority of petitioner's request.  As respondent failed to prove that the only ground it invoked for denial would exempt the requested documents – aside from the lab reports of DNA results that petitioner has already received and is not seeking on appeal – petitioner is entitled to receive those other documents… . Matter of Karimzada v O’Mara, 515412, 3rd Dept 11-21-13

 

 

 

INSURANCE LAW/CONTRACT LAW/GENERAL BUSINESS LAW

 

“Filed Rate Doctrine” Precluded Lawsuit Alleging Unreasonable Premium

 

In a full-fledged opinion by Justice Skelos, the Second Department determined the “filed rate doctrine” precluded a lawsuit alleging an insurance premium (re: the employment of uninsured subcontractors) was unreasonable. The action was brought before the premium was paid.  For that reason, the court dismissed the unjust enrichment and breach of contract causes of action (which require damages), noting that the proper action was one seeking a declaratory judgment. In determining the General Business Law section 349 action was properly dismissed, the Second Department explained, in great detail which cannot be fairly summarized here, the “filed rate doctrine:”

 

The filed rate doctrine bars actions against federal- and state-regulated entities which are "grounded on the allegation that the rates charged by [those entities] are unreasonable" … . "Simply stated, the doctrine holds that any filed rate’---that is, one approved by the governing regulatory agency [here, the Insurance Department]---is per se reasonable and unassailable in judicial proceedings brought by ratepayers" … . Thus, "a consumer's claim, however disguised, seeking relief for an injury allegedly caused by the payment of a rate on file with a regulatory commission, is viewed as an attack upon the rate approved by the regulatory commission" and, therefore, barred by the doctrine … .  W Park Assoc Inc v Everest Natl Ins Co, 2013 NY Slip Op 07724, 2nd Dept 11-20-13

 

 

LANDLORD/TENANT

 

Lease Which Purported to Deregulate Rent-Controlled Apartment Is Void As Against Public Policy

 

In a full-fledged opinion by Judge Mazzarelli, the First Department determined that a lease (called the “New Agreement”) which purported to deregulate a rent-controlled apartment was void as against public policy:

 

In Drucker v Mauro (30 AD3d 37, 39 [1st Dept 2006], appeal dismissed 7 NY3d 844 [2006]) this Court stated:

 

"It is well settled that the parties to a lease governing a rent-stabilized apartment cannot, by agreement, incorporate terms that compromise the integrity and enforcement of the Rent Stabilization Law. Any lease provision that subverts a protection afforded by the rent stabilization scheme is not merely voidable, but void (Rent Stabilization Code [9 NYCRR] § 2520.13), and this Court has uniformly thwarted attempts, whether by mutual consent or by contract of adhesion, to circumvent regulated rent maximums."

 

Even an agreement that modifies the rent laws in a manner favorable to the tenant is of no effect (id. at 41). The New Agreement does not merely modify the rent regulations; it declares them inapplicable to the apartment. Without question, then, the New Agreement is void. We note that, although Drucker addressed only agreements to deregulate rent-stabilized apartments, there is no logical reason why the same principle should not apply to the rent-controlled apartment at issue here.  Extell Belnord LLC v Uppman, 2013 NY Slip Op 07697, 1st Dept 11-19-13

 

LEGAL MALPRACTICE

 

Court Should Have Instructed Jury on Comparative Fault

 

The Third Department determined Supreme Court should have charged the jury on comparative fault in a legal malpractice action.  The client’s first priority security interest in equipment and vehicles had not been protected. The client alleged the attorney’s failure to file a UCC-1 and DMV liens constituted malpractice. With respect to the requested comparative-fault jury instruction, the Third Department explained:

 

 We agree with defendants’ contention that Supreme Court erred in refusing to charge the jury regarding plaintiff’s comparative fault.  The culpable conduct of a plaintiff client may be asserted as an affirmative defense in a legal malpractice action in mitigation of damages (see CPLR 1411, 1412…).  Here, the evidence was sufficient to support a finding that plaintiff could reasonably have been expected to understand the underlying obligations and formalities… .  Hattem v Smith, 516183, 3rd Dept 11-21-13

 

 

LEGAL MALPRACTICE/STATUTE OF LIMITATIONS

 

Cause of Action for Legal Malpractice Accrues When Malpractice Is Committed, Not When Client Learns of It

 

A cause of action for legal malpractice accrues when the malpractice is committed, not when the client learns of it.  In this case the alleged malpractice was advice that selling property would not have adverse tax consequences.  The IRS disagreed and the client and his attorney fought the determination. After the unsuccessful fight, the client sued the attorney for malpractice. The action was deemed time-barred (the continuous representation doctrine did not apply):

 

“A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court’” … . Here, the defendants met their prima facie burden by establishing that the cause of action alleging legal malpractice accrued on March 5, 2003, the date they allegedly issued the opinion letter advising the plaintiff that the proposed sale would not result in the loss of his tax deferment status … . Although the plaintiff did not discover that his attorneys’ alleged advice was incorrect until years later, “ [w]hat is important is when the malpractice was committed, not when the client discovered it’” … . Therefore, since the defendants demonstrated that the plaintiff did not commence this action until December 29, 2011, more than three years after his claim for legal malpractice accrued, the defendants established, prima facie, that the claim was time-barred.  Landow v sSnow Becker Krauss PC, 2013 NY Slip Op 07710, 2nd Dept 11-20-13

 

 

 

MORTGAGES/FRAUD

 

Questions of Fact Existed About Whether Mortgage Lender Was Aware of Underlying “Foreclosure Rescue Scam”

 

In a full-fledged opinion by Justice Acosta, the First Department determined questions of fact existed about whether a mortgage loan (to Henry) was issued (by “Accredited”) with knowledge of fraud underlying the transaction.  Accredited alleged it was an “encumbrancer for value.”  After noting Accredited failed to submit evidence of its alleged “encumbrancer for value” status in admissible form (no official or certified title search was submitted), the First Department addressed evidence of Accredited’s knowledge of the underlying fraud:

 

Even assuming that defendants had established bona fide encumbrancer status, they would not be entitled to summary judgment because plaintiff has set forth evidence that defendants had notice of the underlying fraud.  * * *

 

…Accredited approved a $500,000 loan to Henry---a “buyer” who had no intention of purchasing a home and appears to have been coerced into attending the closing---without any proof that he had an ability to repay it. Indeed, the record is devoid of evidence to suggest that Accredited examined Henry’s paystubs, tax returns, or credit history before approving his loan application. These suspicious aspects of the transaction present issues of fact pertaining to Accredited’s knowledge of the foreclosure rescue scam.

 

The faulty appraisal also raises an inference that Accredited had notice of the underlying fraud. Although Accredited reduced the loan amount after becoming aware of the overstated appraisal, the fact that the initial appraisal was overstated would lead a reasonably prudent lender to investigate further to determine whether the prospective borrower was involved in a transaction free of fraud.  * * * Miller-Francis v Smith-Jackson, 2013 NY Slip Op 07821, 1st Dept 11-21-13

 

 

 

MUNICIPAL LAW/NEGLIGENCE

 

“Special Relationship” Required Before Municipality Can Be Liable for Failure to Enforce Statute or Regulation

 

The Second Department determined Supreme Court should have dismissed a complaint against the village alleging plaintiffs were exposed to “noise, smoke and odor” emanating from a Verizon facility and the exposure constituted a health hazard.  The complaint against the village alleged the negligent failure to enforce rules, regulations and building codes.  The Second Department explained that absent a “special relationship” creating a duty of care for the benefit of particular people, liability may not be imposed on a municipality for failure to enforce a statute or regulation.  The criteria for a special relationship are:

 

A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when the municipality voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known blatant and dangerous safety violation… .

 

“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action”… .

 

With respect to the creation of a special relationship by the municipality’s voluntary assumption of a duty and the plaintiffs’ justifiable reliance on the municipality’s undertaking, four criteria must be shown: “ (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking’”… .

 

“[R]eliance must be examined in the specific context of the nature of the affirmative duty undertaken[,]” and “[i]t is the plaintiffs’ burden to show that the defendants’ conduct actually lulled them into a false sense of security, induced them to . . . forego other avenues of protection, and thereby placed themselves in a worse position than they would have been had the defendants never assumed the duty”… . Ferriera v Cellco Partnership…, 2013 NY Slip Op 07706, 2nd Dept 11-20-13

 

 

Complaint Did Not State a Cause of Action Against City for Negligent Failure to Provide Emergency Medical Services---No “Special Relationship” Alleged

 

The Second Department determined a complaint against the City alleging a negligent failure to provide emergency services (resulting in the death of plaintiff’s decedent) should have been dismissed.  The court explained that the criteria for a “special relationship” with the city with respect to responding to a call for medical help had not been met:

 

As a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services” … . There is, however, a “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship’ between the municipality and the claimant” … . Such special relationship imposes a specific duty upon the municipality to act on behalf of the claimant … . As articulated by the Court of Appeals in Cuffy v City of New York, “[t]he elements of this special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking”… .

 

Here, the complaint fails to allege any facts tending to show that there was any “direct contact” between the decedent and the defendants or that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the complaint does not state facts from which it could be found that there was a special relationship between the decedent and the defendants necessary to assert a negligence cause of action against the defendants … . In the absence of any allegation of such a relationship, the complaint cannot state a viable cause of action against the City based on its alleged negligence in failing to send an ambulance to the decedent’s home.  Freeman v City of New York, 2013 NY Slip Op 07707, 2nd Dept 11-20-13

 

 

 

 

NEGLIGENCE

 

Question of Fact Re: Plaintiff’s Comparative Fault Precludes Summary Judgment---Supreme Court Erroneously Granted Summary Judgment to Plaintiff “To the Extent … Defendant Is Liable”

 

In a personal injury case involving a collision between defendant’s car and plaintiff’s bicycle, the Second Department determined that summary judgment should not have been granted to the plaintiff because there existed a question of fact about plaintiff’s comparative negligence.  Supreme Court had granted summary judgment to the plaintiff “to the extent that the defendant is liable:”

 

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault …, since there can be more than one proximate cause of an accident … . Thus, the issue of the defendant’s liability, a component of which is the apportionment of fault …, cannot be determined as a matter of law until it is decided whether any culpable conduct on the plaintiff’s part contributed to the happening of the accident. For this reason, the Supreme Court order granting the plaintiff’s motion “to the extent that the defendant is liable,” while directing that the “plaintiff’s comparative negligence, if any, shall be decided by a jury,” was internally inconsistent.  Lanigan v Timmes, 2013 NY Slip Op 07711, 2nd Dept 11-20-13

 

 

A Prank Played Upon Defendant Driver by a Passenger Warranted Instructing the Jury on the Emergency Doctrine

 

The Second Department, over a dissent, determined the trial court properly charged the jury on the emergency doctrine.  A jury found that the defendant was not negligent in the operation of her vehicle. A passenger in defendant’s car had pulled the string on her bikini top causing the top to fall off.  The court wrote:

 

In assessing the propriety of whether to instruct a jury on the emergency doctrine, the trial court must “make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a qualifying emergency’” … . “Only then is a jury instructed to consider whether a defendant was faced with a sudden and unforeseen emergency not of the actor’s own making and, if so, whether [the] defendant’s response to the situation was that of a reasonably prudent person” … . “The emergency instruction is, therefore, properly charged where the evidence supports a finding that the party requesting the charge was confronted by a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration’” … .

 

Here, “[v]iewing the evidence in the light most favorably toward giving the requested emergency doctrine instruction to the jury” … , based upon [defendant’s] testimony, there is a reasonable view of the evidence that her conduct was the product of a “ sudden and unexpected circumstance’” … . Contrary to our dissenting colleague’s determination, [defendant’s] general awareness that …a passenger in her vehicle…had engaged in certain distracting conduct while in the car would not preclude a jury from deciding that [defendant] did not anticipate that he would suddenly pull the strings on her bikini top, thereby causing the top to fall and her breasts to be exposed … . It was for the jury to find whether [defendant] was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was that of a reasonably prudent person… .  Pelletier v Lahm, 2013 NY Slip Op 07718, 2nd Dept 11-20-13

 

 

TAX LAW/REAL PROPERTY

 

Property Owned by Religious Group Entitled to Real Property Tax Exemption

 

The Third Department reversed Supreme Court and determined a religious group (Cybeline Revival) had demonstrated its property was used primarily for religious and charitable purposes, and, therefore, the group was entitled to a real property tax exemption:

 

…[P]etitioner met its burden to demonstrate that it uses the property primarily for its religious and charitable purposes … .  In accord with Supreme Court’s determination, respondents contend that the property was used primarily to provide cooperative housing because, in essence, the few adherents of the Cybeline Revival have in effect just continued the property’s former residential use… .  However, these arguments contend that there is some threshold amount of activity and public benefit that must be demonstrated, which confuses the standard that is simply whether the property was used primarily for religious and charitable purposes … .  The testimony established that the Cybeline Revival stresses communal living among its adherents, as well as providing hospitality and charity to those in need, and the members consider this property the home of their faith … .  They also conduct religious and charitable activities throughout the property on a regular basis.  Accordingly, petitioner has satisfied the legal requirements in order to receive a real property tax exemption for 2009, 2010 and 2011 … .  Matter of Maetreum of Cybele, Magna Mater Inc v McCoy…, 515598, 3rd Dept 11-21-13

 

 

 

TRUSTS AND ESTATES

 

Invocation of Fifth Amendment Privilege Against Self-Incrimination by Both Attesting Witnesses Did Not Require Dismissal of Petition to Admit Will to Probate

 

The Third Department determined that Surrogate’s Court properly denied the motion to dismiss the petition.  Dismissal was sought because both attesting witnesses invoked their Fifth Amendment right against self-incrimination:

 

To establish that the will was duly executed, petitioner was required to produce the attesting witnesses for examination unless the law permitted the court to dispense with their testimony (see SCPA 1404 [1]).  The applicable statutes do not address the invocation of the privilege against self-incrimination by attesting witnesses, but this Court has found that such an invocation is akin to a failure to recall the events surrounding a will's execution and, thus, that a will may be admitted to probate pursuant to SCPA 1405 (3) when one witness invokes the privilege, based on the testimony of the other witness or witnesses and sufficient other proof … .

 

Respondents contend that, as both attesting witnesses invoked the privilege here, the requirement in SCPA 1405 (3) for the testimony of "at least [one] other attesting witness" was not satisfied.   However, the Court of Appeals has held that SCPA 1405 (3) was not intended to "revolutionize[] prior practice" by requiring at least one attesting witness to testify in favor of a will … .  Instead, in holding that a will may be admitted to probate under SCPA 1405 (3) when no attesting witness recalls its execution, the Court found that – consistent with prior law – the statute requires attesting witnesses to be "examined, and all relevant testimony elicited" … but does not impose requirements upon the substance of their testimony.  * * * The issue thus distills to whether there was sufficient other evidence to establish a prima facie case of due execution, and we find that there was. Matter of Estate of Buchting…, 516257, 3rd Dept 11-21-13