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November Page V

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)





Department of Homeless Services’ New Eligibility Procedure Triggered the Notice and Hearing Requirements of the City Administrative Procedure Act


The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined that the NYC Department of Homeless Services’ (DHS’s) adoption of a new Eligibility Procedure for temporary housing assistance triggered the notice and hearing requirements of the City Administrative Procedure Act (CAPA).  The failure to comply with the act prohibited implementation of the new rules.  In explaining that the Eligibility Procedure met the definition of a rule or regulation, the Court wrote:


DHS argues that the Eligibility Procedure is not a rule because DHS workers exercise some measure of discretion in resolving certain issues relevant to eligibility, such as whether an applicant has provided adequate cooperation during the need assessment process.  But the procedure itself is mandatory -- all intake workers must follow it, regardless of the circumstances presented by an individual applicant -- and many of the standards articulated in it are mandatory in the sense that their application will dictate whether an individual will or will not receive benefits.  For example, applicants are required to produce documentation pertaining to prior housing, financial resources and mental or physical impairment (which may necessitate the signing of a medical release) and if they fail to do so without a valid reason (mental or physical impairment), this "constitutes a failure to cooperate" mandating denial of benefits.  Similarly, the procedure specifies that a single adult who has $2,000 of on-hand assets "must utilize his/her resources to reduce or eliminate his/her need for emergency shelter" prior to being eligible for benefits.  Another section directs that "if an applicant has tenancy rights at any housing option, that residence will be deemed the viable housing option and the applicant will be found ineligible, provided there is no imminent threat to health or safety."  These concrete provisions substantially curtail, if not eliminate, an intake worker's discretion to grant THA (temporary housing assistance) benefits.  In fact, there are several specific directives in the Eligibility Procedure that appear to compel intake workers to deny benefits based on the presence or absence of a single factor, regardless of other circumstances that might support a determination of eligibility.  The procedure, which is itself mandatory, requires the application of standards that are dispositive of the outcome.  Matter of the Council of the City of New York v The Department of Homeless Services of the City of New York, 193, Ct App 11-26-13





CPLR 5015 Power to Vacate a Final Judgment after Reversal of a Companion Case Is Discretionary


The Court of Appeals, in a full-fledged opinion by Judge Pigott (with a dissent), determined that Supreme Court had the discretion to vacate a final $4.4 million judgment against Port Authority based upon the subsequent Court of Appeals reversal of a companion case (Ruiz) holding Port Authority immune from lawsuits stemming from the 1993 bombing of the World Trade Center.  Supreme Court had vacated the judgment, but appeared to do so under the assumption the vacation was mandated by statute (CPLR 5015).  The Court of Appeals sent the matter back to Supreme Court, explaining that the court had the power to exercise its discretion:


Although a court determination from which an appeal has not been taken should "remain inviolate," that rule applies "[a]bsent the sort of circumstances mentioned in CPLR 5015" ….  Moreover, as Professor Siegel has observed, "[i]f a judgment for which preclusive effect is sought is itself based on an earlier judgment . . ., and the earlier one has been vacated or reversed or otherwise undone, it is of course divested of its finality and the remedy to cancel the second judgment is a motion to vacate it on the ground of the undoing of the first" (Siegel, NY Prac § 444 at 776 [5th ed 2011] [emphasis supplied], citing CPLR 5015 [a] [5]).  Subdivision 5 of section 5015 (a) is applicable where the reversed, modified or vacated judgment or order is the basis for a later judgment - not where it merely compelled the result as a matter of collateral estoppel or stare decisis, but where it was actually entered in the same lawsuit as, and led directly to, the later judgment.  Thus, section 5015 (a) (5) applies in a case like this one where a joint trial on liability results in a single order entered in two cases, and where, after a separate trial on damages in one of the cases, that order is reversed on appeal.  * * *


Here, Supreme Court's only finding was that this Court's decision in Ruiz "eviscerate[d] any judgment, holding or finding of tortious liability on behalf of the Port Authority," and therefore "require[d]" Supreme Court to find the Port Authority insulated from tortious liability pursuant to CPLR 5015 (a) (5).  It also appeared to believe that once the Port Authority had demonstrated that the Ruiz holding reversed the earlier liability determination to which Nash was a party, Supreme Court had no choice but to grant the Port Authority's vacatur motion.  That was error. Nash v Port Authority, 238, Ct App 11-26-13





Court’s Refusal to Give the Circumstantial Evidence Jury Instruction Required Reversal---No Direct Evidence Defendant Was Aware of Cocaine Hidden in Vehicle


The Court of Appeals reversed defendant’s conviction determining the trial court erred when it refused to charge the jury on circumstantial evidence.  The case was based upon the constructive possession of a brick of cocaine found in a hidden compartment in a vehicle.  Defendant was not the owner of the vehicle, was not driving the vehicle, and was not the target of police surveillance:


It is well established that a "defendant's request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence" … .  Constructive possession can be proven directly or circumstantially, and the necessity of a circumstantial evidence charge should be resolved on a case-by-case basis.  In this case, the proof connecting defendant to the drugs was wholly circumstantial.  Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the concealed cocaine… . People v Santiago, 204, Ct App 11-26-13



A Factually Inconsistent Verdict Did Not Render the Evidence Insufficient to Support the Conviction


In a full-fledged opinion by Judge Lippman (over a dissent), the Court of Appeals determined a factual inconsistency in a jury verdict acquitting a defendant of one count and convicting him of another did not render the record evidence insufficient to support the conviction.  The defendant was charged with insurance fraud and arson.  The prosecution’s theory was the defendant burned a building down to recover the insurance proceeds.  The jury convicted the defendant of insurance fraud and acquitted him of arson.  In explaining the difference between a factually inconsistent verdict and a verdict not supported by legally sufficient evidence, the Court of Appeals wrote:


A verdict is factually inconsistent where, in light of the evidence presented, an acquittal on one count is factually irreconcilable with a conviction on another count … .  Factual inconsistency "which can be attributed to mistake, confusion, compromise or mercy - does not provide a reviewing court with the power to overturn a verdict" … .  If a jury renders a factually inconsistent verdict, the trial court "can point out the apparent inconsistency to the jurors, issue further appropriate instructions and ask them to continue deliberations. But a failure to take such action would not be an abuse of discretion as a matter of law" … .


In contrast, a conviction not supported by legally sufficient evidence should be overturned.  A conviction is legally insufficient where, viewing the record in the light most favorable to the prosecution, there is no "valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" … . 


Factual inconsistency and legal insufficiency are analytically distinct.  One may inform the other - i.e., in some instances, a reviewing court may consider a jury's acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence … . But it does not follow that such factual inconsistency in the verdict renders the record evidence legally insufficient to support the conviction.  Put another way, an acquittal is not a preclusive finding of any fact, in the same trial, that could have underlain the jury's determination.


Therefore, even assuming, as submitted by the defendant, that the jury's verdict in this case presented a factual inconsistency, it does not affect the propriety of his conviction. People v Abraham, 192, Ct App 11-26-13



“Something” Stuck in Victim’s Back Is Legally Sufficient Evidence of Displayed Firearm


In a full-fledged opinion by Judge Read (over a dissent), the Court of Appeals affirmed the first-degree robbery convictions of two co-defendants.  The Court determined evidence of “something” stuck into the victim’s back was legally sufficient evidence of a displayed firearm, and a show-up identification procedure (two hours after and five miles away from the robbery) was correctly found to be reasonable by the lower courts (generally an unreviewable mixed question of law and fact for the Court of Appeals).  People v Howard…, 189, 190, Ct App 11-26-13





A Sex Offender Cannot Be Confined to a Treatment Facility as Part of “Strict and Intensive Supervision” under Article 10


The Court of Appeals, in a full-fledged opinion by Judge Rivera (over a dissent), determined that, pursuant to Article 10 of the Mental Hygiene Law, a sex offender could either be confined or placed under strict and intensive supervision (SIST), not both.  Here the hearing court determined the People did not meet their burden demonstrating the offender (Nelson D) should be confined, but included confinement in a treatment facility (Valley Ridge) as part of strict and intensive supervision:


We conclude that article 10 provides for only two dispositional outcomes, confinement or an outpatient SIST regime. Therefore, we agree with Nelson D. that, absent a finding of the type of condition that statutorily subjects him to confinement, his placement at Valley Ridge constitutes involuntary confinement, in violation of the plain language of Mental Hygiene Law article 10.  We also agree that involuntary commitment, as part of a SIST plan, deprives Nelson D. of the statutorily proscribed procedures mandated for confinement under article 10. Matter the State of New York v Nelson D, 194, Ct App 11-26-13





Error to Deny Missing Witness Jury Instruction on Ground Such Testimony Would Be Cumulative---Only Testimony of a Party’s Own Witnesses Can Be Deemed Cumulative, Not, as Here, the Testimony of the Opposing Party’s Witnesses


The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court erred in refusing to grant the plaintiff’s request for a missing witness jury instruction.  Plaintiff claimed to have been injured in a motor vehicle accident. Questions were raised about whether plaintiff’s injuries were caused by the accident.  The defense failed to call any of the doctors hired by the defense to examine plaintiff.  The plaintiff’s request for the missing witness charge was denied on the ground the defense-doctors’ testimony would be merely cumulative.  The Court of Appeals ruled that testimony can be deemed cumulative only with respect to a party’s own witnesses, not with respect to witnesses under the opposing party’s control:


The appropriate analysis is found in Leahy v Allen (221 AD2d 88 [3d Dept 1996]), in which the Third Department held that "one person's testimony properly may be considered cumulative of another's only when both individuals are testifying in favor of the same party" (id. at 92), noting that to hold "otherwise would lead to an anomalous result.  Indeed, if the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiff's assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge" (id.).  Accordingly, our holding is that an uncalled witness's testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness. 


In short, a witness's testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness's testimony.  Because the record indicates that the latter was Supreme Court's rationale in this case, Supreme Court erred in denying plaintiff's request for a missing witness charge. De Vito v Feliciano, 195, Ct App 11-26-13





“Rent Paid In Advance” Lease Enforced/Insufficient Proof of Oral Modification


In a full-fledged opinion by Judge Read, the Court of Appeals determined the Appellate Division correctly held the tenant was obligated to pay an annual rent in advance and the proof was insufficient to demonstrate any contrary oral modification of the lease.  The Court explained the “rent paid in advance” concept and the criteria for oral modification in the face of a clause prohibiting it:


Under the common law, rent is consideration for the right of use and possession of the leased property that a landlord does not earn until the end of the rental period (…1 Friedman & Randolph, Friedman on Leases § 5:1.1 [5th ed 2013]).  This presumption may be altered, however, by the express terms of the parties' lease such that rent is to be paid at the beginning of the rental period rather than the end (…1 Robert Dolan, Rasch's Landlord and Tenant § 12:23 [4th ed 1998]; 1 Friedman & Randolph § 5:1.1). When a lease sets a due date for rent, that date is the date on which the tenant's debt accrues (see 1 Friedman & Randolph § 5:1.1… ).  Rent paid "in advance" (i.e. at the beginning of the term) is unrecoverable if the lease is terminated before the completion of the term, unless the language of the lease directs otherwise … * * *


When the parties dispute whether an oral agreement has been formed, it is the conduct of the party advocating for the oral agreement that is "determinative," although the conduct of both parties may be relevant … .  This is because the equity doctrine is designed to prevent a party from inducing full or partial performance from another and then claiming the sanctuary of the Statute of Frauds or section 15-301 when suit is brought … .  Eujoy Realty Corp v Van Wagner Communications LLC, 179, Ct App 11-26-13








Arbitrator Exceeded His Authority by Modifying Punishment Imposed by Town Upon Employee for Misconduct


The Second Department determined an arbitrator exceeded his authority (by modifying punishment) as that authority was described in a stipulation prior to the hearing, and further determined objection to the arbitrator’s exceeding his authority was not waived by the town. Petitioner was a town employee who had been suspended for thirty days for misconduct.  The arbitrator determined there was just cause for the town’s action, but imposed a lesser penalty.  The town brought the Article 75 proceeding to address whether the arbitrator had exceeded his authority by modifying the punishment:


"Judicial review of an arbitrator's award is extremely limited" … . A court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (…see CPLR 7511[b][1][iii]…).


A party can only waive its contention that an arbitrator acted in excess of his or her power "by participating in the arbitration with full knowledge" of the alleged error that is being committed and "by failing to object until after the award" is issued … . * * *


At the beginning of the arbitration, the issue to be determined was defined as whether there was just cause to punish [the employee] and, "if not," what the remedy should be. As framed in this manner, the issue to be determined by the arbitrator was in accordance with his powers, as set forth in Article X(E)(6) of the [Collective Bargaining Agreement], which only empowered the arbitrator to provide [the employee] with a remedy upon a finding that the imposition of discipline was not founded on just cause. Since the arbitrator found that there was just cause for the discipline imposed, the arbitrator exceeded his authority in reducing the penalty imposed. Matter of Town of Babylon v Carson, 2013 NY Slip Op 07980, 2nd Dept 11-27-13





Motion to Resettle Not Proper Vehicle for Substantive Change to Order


In determining a motion to resettle pursuant to CPLR 5019(a) was not the proper vehicle for seeking the reinstatement of a cause of action the court had dismissed, the Second Department explained:


"CPLR 5019(a) provides a court with the discretion to correct a technical defect or a ministerial error, and may not be employed as a vehicle to alter the substantive rights of a party" … . Where a movant seeks to change an order or judgment in a substantive manner, rather than correcting a mere clerical error, CPLR 5019(a) is not the proper procedural mechanism to be employed, and relief should be sought through a direct appeal or by motion to vacate pursuant to CPLR 5015(a) … . Chmelovsky v Country Club Homes, Inc, 2013 NY Slip Op 07927, 2nd Dept 11-27-13


Supreme Court Should Not Have Treated Pre-Answer Motion to Dismiss as Motion for Summary Judgment


The Third Department determined Supreme Court erred in treating respondents’ pre-answer motion to dismiss as a motion for summary judgment:


Generally, a summary judgment motion is premature prior to the service of an answer … .  However, a court may treat a pre-answer motion as one for summary judgment if it "give[s] prior notice to the parties or, through their submissions, the parties themselves . . . demonstrate an intent to 'deliberately chart[] a summary judgment course'" … .  There is no indication in the record before us – nor do the parties assert – that Supreme Court provided any notice of its intention to treat the motion as one for summary judgment. Thus, the question before us distills to whether the parties charted a summary judgment course by laying bare their proof…. .  [P]etitioners clearly did not lay bare all of their proof … .  … Under these circumstances, Supreme Court erred in treating respondents' motion as one for summary judgment.  Dashmaw v Town of Peru, 516581, 3rd Dept 11-27-13





CPLR 3408, Which Requires a Settlement Conference in a Foreclosure Action Involving a Primary Residence, Does Not Apply Where the Mortgage Collateralizes a Personal Guaranty of a Commercial Loan to a Corporation


In a full-fledged opinion by Justice Cohen, the Second Department determined a statute designed to assist homeowners faced with foreclosure on their primary residence (calling for a settlement conference) did not apply where the mortgage collateralizes a personal guaranty of a commercial loan to a corporation:


CPLR 3408 (requiring a settlement conference) is certainly applicable to many residential foreclosure actions. However, CPLR 3408 does not apply to every residential foreclosure action. Indeed, CPLR 3408 is limited to residential foreclosure actions involving home loans as the term "home loan" is defined by RPAPL 1304. As so defined, home loans are those which are made to a natural person and in which the debt incurred is primarily for personal, family, or household purposes (see RPAPL 1304[5][a][ii], [iii]).


The borrower, as defined under the instant term loan agreement and the note, and the entity that is recognized in the guaranty, was [a corporation]. … The borrower …was not a natural person (see RPAPL 1304[5][a][ii]).


Further, the debt incurred was the $230,000 loan given to [the corporation]. The Supreme Court correctly determined that since the purpose of the loan was to purchase machinery and equipment, and to fund other various start-up, closing, and construction costs associated with fashioning a … store, it was clearly not primarily incurred for personal, family, or household purposes (see RPAPL 1304[5][a][ii]…).  Independence Bank v Valentine, 2013 NY Slip Op 07937, 2nd Dept 11-27-13





Condominium Owners Stated a Cause of Action Based Upon Third-Party-Beneficiary Status Re: a Contract Between the Village and an Engineer Hired to Inspect the Condominiums/The Contract Cause of Action Precluded the Professional Malpractice Cause of Action


The Second Department determined that a cause of action based upon the theory that condominium owners were third-party beneficiaries of a contract between a village and an engineer hired to inspect the condominiums should not have been dismissed.  It was alleged that the engineer approved the buildings (leading to the issuance of certificates of occupancy by the village) despite defects, including the absence of firewalls. Because a contract-based theory had been properly alleged, the related professional malpractice cause of action, sounding in negligence, should have been dismissed:


In determining third-party beneficiary status it is permissible for the court to look at the surrounding circumstances as well as the agreement . . . Moreover, it is well settled that the obligation to perform to the third party beneficiary need not be expressly stated in the contract" … . Here, the plaintiffs submitted an affidavit from the Village Attorney attesting that the Village engaged the defendant to perform the subject inspections for the benefit of the purchasers of the subject condominiums … . Moreover, "the identity of a third-party beneficiary need not be set forth in the contract or, for that matter, even be known as of the time of its execution" … .


The plaintiffs asserted in the complaint that the defendant "negligently performed inspection services relative to the homes in [Encore I] and [Encore II]," in that, inter alia, the defendant "fail[ed] to detect the existence of defects in the homes and appurtenant common areas." "[M]erely alleging that a party breached a contract because it failed to act with due care will not transform a strict breach of contract claim into a negligence claim" … . This is because "[o]bligations that flow exclusively from a contract must be enforced as contractual duties under a theory of contract law" … . "[A] court enforcing a contractual obligation will ordinarily impose a contractual duty only on the promisor in favor of the promisee and any intended third-party beneficiaries" … . "Thus where a party is merely seeking to enforce its bargain, a tort claim will not lie'" .. . Taking into account the applicable factors, including "the nature of the injury, the manner in which the injury occurred and the resulting harm" … , it is clear that the plaintiffs, as third-party beneficiaries, are seeking enforcement of the defendant's promise to properly inspect the construction of the subject homes. Thus, the only claim the plaintiffs have alleged against the defendant is one sounding in contract, and they have failed to state a cause of action sounding in tort. Accordingly, the Supreme Court properly directed dismissal of the second cause of action pursuant to CPLR 3211(a)(7). Encore Lake Grove Homeowners Assn Inc v Cashin Assoc PC, 2013 NY Slip Op 07932, 11-27-13





Double Hearsay in Presentence Report Did Not Render the Information Unreliable Re: a SORA Sex Offender Proceeding


The Second Department determined that the presence of double hearsay in a presentence report did not render the information unreliable such that it could not be considered in a SORA proceeding to determine the level of a sex offender:


"In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay" … . Here, as the People correctly point out, the presentence report prepared by the Department of Probation, the felony complaint sworn to and signed by the arresting officer, and the arrest report constituted "reliable hearsay" (Correction Law § 168-n[3]) and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of the rape … . Contrary to the defendant's contention, the fact that certain statements contained in these documents constituted "double hearsay" did not necessarily render them unreliable for purposes of a SORA hearing … . Moreover, even though certain proof may not have been admissible at the criminal trial, the Legislature did not limit the types of materials admissible in a SORA proceeding to what would be admissible at a civil or criminal trial… . People v Dash, 2013 NY Slip Op 07948, 2nd Dept 11-27-13



Defendant Should Have Been Advised of His Right to Be Heard in Resentencing Proceeding Pursuant to CPL 440.46


The Second Department determined the failure to inform defendant of his right to be heard in a resentencing proceeding pursuant to CPL 440.46 required a remittance:


The statutory procedures governing the determination of a motion for resentencing pursuant to CPL 440.46 provide, in pertinent part, that "[t]he court shall offer an opportunity for a hearing and bring the applicant before it" (L 2004, ch 738, § 23; see CPL 440.46[3]…). The defendant's presence is not required for the court's threshold determination of the purely legal issue of whether the defendant meets the statutory eligibility requirements for relief pursuant to CPL 440.46 …, but the defendant is entitled to appear before the court and to be given an opportunity to be heard with respect to the merits of the resentencing motion … .


Here, the defendant was not brought before the Supreme Court prior to the court's determination that, although he met the statutory eligibility requirements, substantial justice dictated that his motion for resentencing should be denied. There is nothing in the record to indicate that the defendant was ever advised of his statutory right to be brought before the court, or that he knowingly, intentionally, and voluntarily chose to relinquish that right … .The Supreme Court therefore failed to comply with the statutory mandate… .  People v Duke, 2013 NY Slip Op 07983, 2nd Dept 11-27-13



The Prosecutor’s Summation Was Filled With Impermissible Statements and Suggestions, Requiring Reversal of Defendant’s Conviction


The Third Department reversed defendant’s conviction because of the prosecutor’s impermissible statements in summation. The prosecutor vouched for his witnesses, suggested that in order to believe the defendant the jury would have to believe there was a conspiracy to convict him, involving the trial judge, and effectively shifted the burden of proof to the defendant:


During the course of his summation, the prosecutor, among other things, repeatedly vouched for the credibility of the People's witnesses ("He's telling the truth").  Such comments clearly are impermissible … .  We reach a similar conclusion regarding the prosecutor's statement that if the jury was inclined to believe defendant, he had "a bridge in Brooklyn [to] sell" as well … .  These errors were compounded by the prosecutor's completely speculative comment that "the only reason that [defendant] wasn't involved in the other robbery that [Young] and [Ervin] committed" not long after the attack upon the victim "was because he couldn't be there with them" – suggesting that had defendant not been in custody at the time that the subsequent robbery was committed, he would have participated in that crime as well.  Although the prosecutor's comment in this regard undeniably was improper …, it paled in comparison to his statement that, in order to believe defendant's version of events, the jury had to accept that there was a far-reaching conspiracy to convict defendant — one that included the trial judge.  Specifically, the prosecutor stated, "[H]ere's what you'll have to find to find that the defendant is not guilty.  This is what you have to believe.  You have to believe there was a conspiracy against [defendant,] that every single one of the witnesses that came in here went over there, put their hand on the Bible, swore to tell the truth, and then lied and made up a story, and that the detectives from the Albany Police Department . . . got together and risked their entire careers and got together with . . . Ervin and . . . Young to frame [defendant].  Then they got me involved to continue prosecuting the case, and then they got Judge Herrick and Judge Breslin to go along with these cooperation agreements and allowed them to come in here and lie."


The problem with the foregoing statement is three-fold. First, the comment made by the prosecutor relative to what the jury would need to believe in order to find that defendant was not guilty arguably shifted the burden of proof from the People to defendant.  Additionally, the prosecutor's reference to a conspiracy in no way constitutes fair comment upon the evidence adduced.  Although defendant indeed testified that Young and Ervin were not being truthful, he never suggested that the People's witnesses, among others, were engaged in a conspiracy to wrongfully convict him, and there is nothing in the record to support such a claim.  Finally, there is no question that one of the jury's key roles in a criminal trial is to assess the credibility of the witnesses who testify on behalf of the People and, in those instances where the defendant takes the stand or otherwise presents witnesses in support of his or her defense, to weigh the credibility of the People's witnesses vis-a-vis the defendant's witnesses.  Such a "credibility contest" is entirely permissible, and there is nothing inherently prejudicial about that evaluative process.  Here, however, the prosecutor's commentary set up a far different credibility contest by suggesting to the jury that it could believe defendant only if it also believed that the trial judge, among others, had permitted the People's witnesses to lie to the jury and/or otherwise engaged in some form of misconduct.  Simply put, the prosecutor's conduct in pitting defendant against the very judge who had presided over the course of the trial was inexcusable and, despite defense counsel's prompt objection and County Court's appropriate curative instruction, the prejudicial impact of that conduct cannot be ignored. People v Forbes, 104771, 3rd Dept 11-27-13




County Court Should Have Ordered a Hearing Re: Defendant’s 440 Motion to Vacate His Conviction—There Was Evidence Outside the Record that Required Development---Defendant Suffered from a Mental Illness and Was Taking Medications which May Have Affected His Judgment at the Time of the Plea Proceedings


The Third Department determined County Court erred when it did not order a hearing to determine defendant’s CPL 440.10 motion to vacate his conviction (by guilty plea).  The motion, as well as other evidence in the record (i.e., the presentence report), indicated defendant suffered from a mental illness and was taking medications that may have clouded his judgment when the guilty plea was entered:


Defendant presented further evidence of his mental illness and use of psychotropic medications upon his CPL 440.10 motion. In his own affidavit, defendant recounted experiencing extreme anxiety leading to his hospitalization, and stated that the medications he was taking made him feel intoxicated and in a haze during the plea and sentencing proceedings.  He also submitted the affidavit of a forensic nurse consultant, who indicated that the side effects of the medications that defendant was taking included drowsiness, dizziness, fatigue and abnormal thinking, and noted that Zoloft was not recommended for individuals with bipolar disorder.  The nurse opined that the combination and quantity of medications that defendant was taking at the time of his plea and sentencing "most certainly" would have affected his cognitive ability to understand the proceedings.


Although postjudgment motions may often be determined upon the record and submissions, a hearing is required where facts outside the record are material and would entitle a defendant to relief (see CPL 440.30 [5]…). Here, the proof reveals that defendant suffers from a mental illness and was taking psychotropic medications, and further development of the record is required to determine the extent to which his mental capacity was impaired and whether this rendered him unable to enter a knowing, voluntary and intelligent guilty plea.  A hearing on defendant's CPL 440.10 motion is the appropriate vehicle for collecting further evidence on this issue and determining whether defendant's guilty plea should be vacated as a result … .  Accordingly, we find that County Court erred in denying defendant's CPL 440.10 motion without a hearing, and conclude that this matter must be remitted to County Court for this purpose. People v Hennessey, 105342, 3rd Dept  11-27-13




Reopening of Suppression Hearing to Address Deficiency in People’s Case (Pointed Out by the Defense in Post-Hearing Papers) Okay (But See People v Kevin W, 187, Ct App 11-21-13)


The First Department determined the suppression court properly allowed the suppression hearing to be reopened to address a deficiency in the People’s case:


The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and submitted legal arguments but before any decision on the merits had been made, to allow the People's witness to provide additional testimony establishing the legality of the police conduct … . "A request to present additional evidence in this type of situation should be addressed to the court's discretionary power to alter the order of proof within a proceeding …, rather than being governed by the restrictions on rehearings set forth in People v Havelka (45 NY2d 636 [1978])" (id. at 481).


Defendant argues that since the reopening came after defense counsel had pointed out a deficiency in the People's case, there was a heightened risk of tailored testimony. However, "one of the purposes of requiring timely and specific motions and objections, a requirement applicable to suppression hearings, is to provide the opportunity for cure … . It would be illogical to require a defendant, for preservation purposes, to point out a deficiency at a time when it can be corrected, but then preclude the People from correcting the deficiency. In Whipple, the Court of Appeals disapproved of such a notion, which it described as "a sort of gotcha' principle of law" (97 NY2d at 7).  People v McCorkle, 2013 NY Slip Op 07835, 1st Dept. 11-26-13




Defendant’s Placement of a Bag in the Engine Compartment Deemed Inconsistent with An Innocent Explanation


The First Department determined the observations made by the officer, including the placement of a bag under the hood of the car, provided reasonable suspicion of criminal activity (justifying the stop):


At a drug-prone intersection, experienced narcotics officers saw an illegally parked car, in which defendant and his passenger were making movements suggesting that something was being transferred. They then saw defendant close a clear plastic bag with his mouth, get out of the car while holding the bag, open the hood of the car, reach into the engine area and return to the car without the bag. Based on those observations, the police had reasonable suspicion that defendant had engaged in criminal activity, most likely a drug transaction … . In particular, it was highly suspicious for defendant to apparently secrete a bag under the hood of the car. This behavior was inconsistent with innocent explanations, such as repairing the car. Accordingly, the police conducted a lawful stop for the purpose of investigating criminal activity, and they properly detained and questioned defendant and the passenger.  People v Smalls, 20134 NY Slip Op 07866, 1st Dept 11-26-13





Count (on which Jury Could Not Reach a Verdict) Dismissed Before “Entry of Sentence” on the Remaining Count Can Be Reprosecuted after Appeal


The First Department determined the defendant could be retried on an attempted rape charge which was dismissed upon a motion by the prosecution after the jury was unable to reach a verdict on that count.  The defendant was convicted of the assault count.  The assault conviction was reversed on appeal and a new trial was ordered. The question before the court was whether, upon re-trial, the dismissed attempted rape count could be re-tried as well:


Upon remand, Supreme Court properly determined that the People were permitted to reprosecute the attempted rape charge, because that count of the indictment was deemed reinstated pursuant to CPL 470.55(1). Although the statute provides that a count is not deemed reinstated if it was dismissed on a "post-judgment order" (CPL 470.55[1][b]), the dismissal of the attempted rape charge occurred between the oral imposition of sentence and the entry of judgment … . There is nothing in the record to indicate that, before dismissing the count at issue, the court had done anything that could be construed as entry of a judgment. Since a judgment "is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence" (CPL 1.20 [15][emphasis added]), "post-judgment" can only mean after entry.


Double jeopardy concerns did not bar retrying defendant on the attempted rape count. The first jury never returned any verdict on that count. Furthermore, defendant had no legitimate expectation that the dismissal of that count was final and irrevocable As noted, the statute provides that a reversal granting a new trial would automatically reinstate any counts dismissed under the circumstances presented here. Moreover, the record establishes that when the People moved to dismiss, they were engaging in the common practice of dismissing a charge as sufficiently covered by a conviction on another charge, an exercise of prosecutorial discretion that was frustrated by the reversal of the conviction. Defendant had no legitimate expectation that in the event of a reversal he would receive the windfall of having the dismissed charge stay dismissed.  People v Thomas, 2013 NY Slip Op 07833, 1st Dept 11-26-13





Evidence Relevant to a Reason to Fabricate is Never Collateral


The Third Department noted that the trial court erred (harmless) when it prohibited defendant from questioning witnesses against him (Corsi and Beebe) about grievances and a lawsuit defendant had filed.  Evidence of a witness’ reason to fabricate should not have been excluded as collateral:


…County Court improperly denied his motion requesting permission to question Corsi and Beebe about prior notices of discipline, grievances filed by defendant and defendant's pending federal lawsuit … .  The court concluded that the issues were collateral and would be precluded unless the door were opened by a witness's testimony reflecting bias or hostility toward defendant.  While "trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters," "extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground"… .  People v Hughes, 105838, 3rd Dept 11-27-13





Petitioner Denied Right to Assistance of Counsel—Dismissal and Expungement Ordered


The Third Department determined the inmate was denied his right to “seek and receive the assistance of attorneys” requiring dismissal and expungement:


Petitioner here sought to discuss the disciplinary proceedings with retained counsel, but prison officials prohibited personal and telephonic contact between the two prior to the disciplinary hearing.  To be sure, inmates do not "have a right to either retained or appointed counsel in disciplinary proceedings" … .  They remain, however, entitled to "a reasonable opportunity to seek and receive the assistance of attorneys" with regard to issues of concern to them … .  Petitioner was deprived of such an opportunity, which amounted to unjustifiable interference with his right to "marshal the facts and prepare a defense" under the circumstances of this case and requires dismissal of the remaining charge and expungement from his institutional record … .  Matter of Jeckel v NYS Dept of Corr, 515391, 3rd Dept 11-27-13






Father Demonstrated His Loss of Employment Justified a Downward Modification of Child Support


The Second Department determined Family Court erred when it held father had not demonstrated his loss of employment constituted a substantial and unanticipated change in circumstances justifying a downward modification of his child support obligations:


Loss of employment may at times constitute a substantial and unanticipated change in circumstances … . A party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that he or she diligently sought to obtain employment commensurate with his or her earning capacity … .


Here, the father testified that he is unable to pay child support because he lost his prior job in October 2010. More specifically, he stated that he had been working at a restaurant in the dual capacity of manager and head waiter. Following his loss of that employment, he sought and obtained a position as a manager at a restaurant at a lesser salary, but could not find a position working in the dual capacity of manager and head waiter.


Under these circumstances, the father demonstrated that his loss of employment and obtainment of new employment at a lesser salary constituted a substantial and unanticipated change in circumstances, and that he made a good faith effort to obtain new employment which was commensurate with his qualifications and experience… .  Matter of Dimaio v Dimaio, 2013 NY Slip Op 07969, 2nd Dept 11-27-13



New York Had Continuing Exclusive Jurisdiction Re: Custody of Child Living With Mother In Florida Eight Months Per Year


Family Court had continuing jurisdiction over the custody of a child who had been living with mother in Florida.  The custody arrangement included four months per year with the father in New York:


…[T]he Family Court correctly determined that New York had exclusive, continuing jurisdiction to determine custody pursuant to Domestic Relations Law § 76-a. It is undisputed that the initial child custody determination was rendered in New York, and there is " ample evidence of a significant connection by the child with this state for Family Court to retain jurisdiction'" (…see Domestic Relations Law § 76—a[1][a]). The father's extensive parenting time took place in New York, the child has relationships with a half-sibling and extended family in New York, and the father has furthered the child's education and attended to her medical care in New York … . Accordingly, the court correctly concluded that the child has a substantial connection to New York, that there was adequate evidence in this state regarding her present and future well-being, and that jurisdiction in the courts of this state is proper (see Domestic Relations Law § 76-a[1]). Matter of Seminara v Seminara, 2013 NY Slip Op 07978, 2nd Dept 11-27-13





Object’s Fall of 1 ½ Feet Constituted Physically Significant Elevation Differential for Purposes of Requiring a Safety Device Pursuant to Labor Law 240 (1)


In this 240(1) action, the Third Department determined Supreme Court erred when it found that the accident did not arise form a physically significant elevation differential.  Plaintiff was struck by part of a roll carrier (re: a roll of roofing membrane) after the roll fell to the roof. Prior to the incident the roll carrier had been positioned about a foot and a half above the roof:


In determining whether an elevation differential is physically significant or de minimis, we must take into account "'the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent'" … .  Here, for purposes of defendants' motion, plaintiff established that a membrane roll weighing between 600 and 800 pounds was hoisted by the roll carrier to a height of approximately 1½ feet off the roof's surface at the time of the accident.  In our view, despite the relatively short distance that the membrane roll fell, it constituted a significant elevation differential given its substantial weight and the powerful force it generated when it fell, so as to require a safety device as set forth in Labor Law § 240 (1) … .  Accordingly, Supreme Court should not have granted defendants' motion for summary judgment dismissing the Labor Law § 240 (1) cause of action on this basis.  Jackson v Heitman Funds/191 Colonie LLC. 516248, 3rd Dept 11-27-13





Reimbursement Cuts for Profit-Making Nursing Homes Did Not Violate Takings or Equal Protection Clauses


The Third Department determined the plaintiffs---profit-making businesses operating nursing homes---did not raise questions of fact about whether reductions in Medicaid reimbursement rates instituted in 2011 violated the Takings Clause and the Equal Protection Clause:


…"'[W]here a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and thus there can be no taking'"… . * * *


Given [the] fundamental difference in the underlying economic purposes and incentives of proprietary and voluntary facilities, they are not similarly situated as they must be to sustain plaintiffs' equal protection claim … . Bay Park Center for Nursing and Rehabilitation LLC v Shah, 516654, 3rd Dept 11-27-13





NYC Fire Department Cannot Be Compelled to Bargain Over the “Zero Tolerance” Drug-Test Policy for EMS Personnel


In a full-fledged opinion by Justice Richter, the First Department determined the “zero tolerance” policy requiring the termination of emergency medical services personnel who fail or refuse a drug test was not subject to mandatory collective bargaining:


This appeal raises the question of whether the New York City Fire Department's "zero tolerance" policy, requiring automatic termination of certain emergency medical services [EMS] employees who fail or refuse to provide a specimen for a drug test, should have been subject to mandatory collective bargaining. The New York City Board of Collective Bargaining found that this issue was not required to be bargained, and unions representing the employees brought this article 78 proceeding. We now uphold the Board's decision because the City Charter provides that the discipline of these EMS employees is the sole province of the New York City Fire Commissioner, and because the Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety. * * *


The Court of Appeals recently reiterated that a public employer cannot be compelled to bargain over "inherent[] and fundamental[] policy decisions relating to the primary mission of the public employer" … . FDNY's interest in ensuring that its EMS workers are drug-free directly relates to the primary mission of treating and providing transport for sick and injured citizens and ensuring that EMS workers do so safely. This Court of Appeals precedent provides further support for our conclusion that FDNY cannot be compelled to bargain over this fundamental public safety policy decision. Matter of Roberts v NYC Off of Collective Bargaining, 2013 NY Slip Op 07870, 1st Dept 11-26-13





Questions of Fact About Whether Amusement Ride On Sidewalk Created an Inherently Dangerous Condition and Whether the Hazard Was Latent or Open and Obvious


The Second Department determined a question of fact had been raised about whether the placement of an amusement ride on the sidewalk created an inherently dangerous condition.  Plaintiff turned a corner and was injured when he bumped into the machine:


[Defendants’] submissions failed to establish that the Mickey Mouse ride had been placed on the sidewalk in such a manner as to comply with the New York City Administrative Code (see Administrative Code of City of NY § 19-136[a], [j]). Hence, they failed to exclude the possibility that the ride obstructed the sidewalk or otherwise created an inherently dangerous condition. Moreover, "the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question" …. . "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" … . Here, in view of the alleged circumstances of the plaintiff's accident, a triable issue of fact exists as to whether the condition was open and obvious. Toro v Friedland Props Inc, 2013 NY Slip Op 07960, 2nd Dept 11-27-13



Defendant Presented No Evidence When Defective Bar Stool Was Last Inspected and No Evidence the Defect Was Latent---Summary Judgment Properly Denied


The Second Department determined the defendant was not entitled to summary judgment in a premises liability case.  Part of plaintiff’s finger was severed when he sat down on a bar stool.  There was a gap when the stool was lifted by the seat because the screws connecting the seat to the frame were either missing or loose:


In a premises liability case, the defendant property owner who moves for summary judgment has the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence … . To provide constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it… . "[C]onstructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection" … .


Here, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint since the defendant failed to establish, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create the alleged defective condition or have actual or constructive notice of it … . The defendant failed to specify when it last inspected the subject stool prior to the accident. Additionally, the defendant failed to show that the alleged defective condition of the stool was latent. McGough v Cryan Inc, 2013 NY Slip Op 07944, 2nd Dept 11-27-13





Defendant Not Prejudiced by Disposal of Damaged Goods (Spoliation)/Lost Profits Recoverable Where Purchase Price Set at Time of Damage


The Second Department affirmed several rulings made by the trial court in the damages aspect of a trial in which plaintiff alleged defendant’s malfunctioning sprinkler system ruined over $1 million worth of clothing stored in the building. The fact that plaintiff disposed of some of the damaged clothes and sold the remainder for salvage (spoliation) did not prejudice the defendant. And, the fact that a purchase price for some of the goods had already been set at the time of the loss allowed recovery for lost profits because the loss was not speculative:


The Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 3126 to preclude the plaintiff from offering at trial any evidence of damages based upon spoliation of evidence. The defendant failed to establish that it was severely prejudiced by the disposal and sale of the damaged goods, fatally compromising its ability to mount a defense and necessitating such relief as a matter of fundamental fairness… . * * *


"Generally, where property is damaged but not destroyed, the measure of damages is the difference between the market value before the damage and the market value afterwards" … . The market value of a merchant's goods is the price at which they could be replaced in the market, not the retail price at which they could be sold … . This is because allowing recovery of the retail value of damaged goods "would in effect overcompensate the merchant by allowing recovery of unearned profits" (2-248 Warren's Negligence in New York Courts § 248.01[3][b] [2013]).


Here, however, the plaintiff was not holding the goods in stock in anticipation of trying to sell them at retail for "uncertain and indefinite profits which the plaintiff might have made" from their sale … . Rather, the goods were already under contract for a specified price and awaiting delivery. "[W]here . . . a loss of profits is the natural and probable consequence of the [defendant's negligence], and their amount is shown with reasonable or sufficient certainty, there may be a recovery" … .  Ever Win Inc v 1-10 Indus Assoc, 2013 NY Slip Op 07933, 2nd Dept 11-27-13




Driver’s Statement In a Plea Proceeding that She Did Not Have Permission to Use Defendant-Owner’s Vehicle at the Time of the Accident Insufficient to Overcome Statutory Presumption Of Operation with Owner’s Consent


The Second Department determined defendant (Tumbiolo) had not overcome the presumption that the driver (Commisso) of Tumbiolo’s vehicle was operating the vehicle with Tumbiolo’s permission:


Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's permission" … . "Although the rule is not absolute or invariable, in most cases uncontradicted disavowals of permission by both the owner of the vehicle and the driver will constitute substantial evidence negating permissive use and entitle the owner to summary judgment"… . * * *


…[T]o the extent that Tumbiolo seeks to utilize a transcript of a plea proceeding dated October 21, 2011, wherein Commisso answered "[n]o" when asked if she had "permission" to "take" the subject vehicle, Commisso's prior statement is not admissible under the provisions of CPLR 4517. Further, Commisso's prior statement would be admissible as an "admission by a party" only as against Commisso, not as against the plaintiff … . Additionally, Tumbiolo failed to show that Commisso's prior statement would be admissible as a declaration against pecuniary, proprietary, or penal interest, which are exceptions to the rule against hearsay (… Jerome Prince, Richardson on Evidence § 8-403 [Farrell 11th ed 2008]). Diaz v Tumbiolo, 2013 NY Slip Op 07930, 2nd Dept 11-27-13





Strict Foreclosure and Reforeclosure Actions Not Available Against Easement Holder


The Second Department determined that neither a strict foreclosure action (RPAPL 1352) nor a reforeclosure action (RPAPL 1503) can be brought to extinguish an easement where the easement holder was not named in the foreclosure action:


A purchaser of foreclosed property may, under certain circumstances, commence a strict foreclosure action pursuant to RPAPL 1352 … . RPAPL 1352 "authorizes the court to issue a judgment that fixes a time period within which any person having a right of redemption or right to foreclose a subordinate lien must act to redeem or begin a foreclosure action" (id.; see RPAPL 1352). If the person with a right of redemption or subordinate lien fails to redeem the property or commence a foreclosure action within the fixed time period, "all title or interest" this person has in or against "such property shall thereby be extinguished and terminated" (RPAPL 1352…).


A purchaser of a foreclosed property may, under certain circumstances, also commence a reforeclosure action pursuant to RPAPL 1503 … . "When real property has been sold pursuant to a judgment in an action to foreclose a mortgage," a purchaser of a foreclosed property may maintain a reforeclosure action "to determine the right of any person to set aside such judgment, sale or conveyance or to enforce an equity of redemption or to recover possession of the property, or the right of any junior mortgagee to foreclose a mortgage" (RPAPL 1503). * * *


An easement holder, unlike a mortgagee … or a tenant …, does not fall within the class of persons against whom a strict foreclosure or reforeclosure action may be brought (see RPAPL 1352, 1503). An easement is not a lien or a mortgage… . Moreover, an easement holder that is not named in the foreclosure action does not have a right of redemption. An easement holder, unlike a tenant, does not have a possessory interest in the burdened land (…Property § 450; 1 Rasch, New York Law and Practice of Real Property § 18.8 [2d ed]). Thus, such actions cannot be maintained against an easement holder. Bass v D Ragno Realty Corp, 2013 NY Slip Op 07924, 2nd Dept 11-27-13



Purported Deed Was Actually an Usurious Mortgage—All Related Transfers and Encumbrances Void


The Second Department determined a deed purporting to transfer property was actually an usurious mortgage and therefore void.  All further attempted transfers of the property were therefore a nullity.  The deed was provided in return for a $200,000 loan requiring repayment of $220,000 in 90 days. The transaction was therefore an illegal mortgage with a 40% annual interest rate:


Real Property Law § 320 provides, in pertinent part, that a "deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage" (Real Property Law § 320…). In determining whether a deed was intended as security, " examination may be made not only of the deed and a written agreement executed at the same time, but also [of] oral testimony bearing on the intent of the parties and to a consideration [of] the surrounding circumstances and acts of the parties'" … . Thus, " a court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as a security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the actual contract of the parties'"… .  * * *


Real Property Law § 245 provides that a "greater estate or interest does not pass by any grant or conveyance, than the grantor possessed or could lawfully convey, at the time of the delivery of the deed." Thus, "conveyances of land to which the grantors had no title convey no interest to the grantees" … . Likewise, "[i]f a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing"… . Bouffard v Befese LLC, 2013 NY Slip Op 07925, 2nd Dept 11-27-13





Broker Entitled to Commission Based Upon Defendant’s Refusal of a Purchase Offer/Copy of Purchase Offer Properly Put in Evidence


The Third Department determined plaintiff real estate broker was entitled to a commission because he presented a willing buyer at the price agreed to in the listing agreement and one of the property owners, the defendant, refused the offer because he no longer wanted to sell. In the course of the decision, the court noted that a copy of the purchase offer was properly received in evidence (in the absence of the original):


"In the absence of an agreement to the contrary, a real estate broker will be deemed to have earned his [or her] commission when he [or she] produces a buyer who is ready, willing and able to purchase at the terms set by the seller" … . The listing agreement identified the parties, the property, the asking price, and an agreement to pay an 8% commission in exchange for plaintiff producing a buyer.  This was sufficient information to create a valid listing agreement … .  Defendant asserts that the listing agreement is invalid because not all of the property owners signed it … .  However, a contract to pay compensation to a real estate broker or salesperson need not be in writing to be effective (see General Obligations Law § 5-701 [a] [10]).  …


Supreme Court did not err in accepting into evidence a copy of a second version of the offer to purchase.  Although the best evidence rule "requires the production of an original writing where its contents are in dispute and sought to be proven" …, secondary evidence of the contents of an unproduced original document may be admitted where the court finds a sufficient explanation for the absence of the original, that the proponent "has not procured its loss or destruction in bad faith," and that the secondary evidence accurately reflects the original … .  Posson … v Przestrzelski, 516677, 3rd Dept 11-27-13






Tax Exempt Status of Non-Profit Public Parking Lots Should Not Have Been Revoked


The Second Department ruled the tax exempt status of non-profit public parking lots should not have been revoked:


"The crucial issue in determining whether property is tax exempt pursuant to [RPTL 420-a] is whether the primary or principal use of the property is a tax-exempt purpose of its owner" … . The general rule is that the taxpayer bears the burden of proving that a property is tax exempt … . However, where, as here, a municipality seeks " to withdraw a previously granted tax exemption, the municipality bears the burden of proving that the real property is subject to taxation'" … . * * *


Here, the respondents failed to meet their burden of proof for revocation of the tax exemption on the grounds that the petitioners' activity did not conform to a charitable purpose within the meaning of RPTL 420-a. Absent a precise statutory definition of "charitable purpose," courts have interpreted this category to include relief of poverty, advancement of governmental and municipal purposes, and other objectives that are beneficial to the community… . Matter of Greater Jamaica Dev Corp v NYC Tax Comm, 2013 NY Slip Op 07972, 2nd Dept 11-27-13



Tax Lien Foreclosure Upheld Despite Alleged Lack of Notice


The Third Department determined a motion to vacate a tax lien foreclosure was properly denied in the face of claimed lack of notice, finding the motion untimely and finding the statutory notice requirements had been met and the owner had been afforded due process:


Respondent's motion to vacate was untimely as it was brought more than one month after entry of the judgment of foreclosure (see RPTL 1131…).  Notably, "the statute of limitations set forth in RPTL 1131 applies even where, as here, the property owner asserts that he or she was not notified of the foreclosure proceeding"… . …


"[N]otice shall be deemed received unless both the certified mailing and the ordinary first class mailing are returned by the United States postal service within [45] days after being mailed," and the foreclosing agent is required to seek an alternative mailing address for the property owner only when both such notices are returned (RPTL 1125 [1] [b] [i] …).  Accordingly, inasmuch as the notice sent by first class mail to respondent at the 8th Avenue address was not returned, such notice was deemed received …, and "petitioner was not obligated to take additional steps to notify respondent of the foreclosure proceeding"… .


…"[D]ue process does not require actual notice by the property owner, only reasonable efforts to provide notice under the circumstances" …, and petitioner discharged its obligations in this regard by fulfilling the requirements of RPTL 1125 … .  Finally, we note that"[o]wnership carries responsibilities" …, which includes an obligation to apprise the tax enforcing officer of a change in address (see RPTL 1125 [1] [d]…).  There is nothing in the record to suggest that respondent fulfilled that obligation here.  Simply put, "respondent was responsible for protecting his ownership interests and chargeable with notice that failure to pay his taxes could result in foreclosure" … . Matter of Foreclosure of Tax Liens by County of Sullivan…, 516658, 3rd Dept 11-27-13





Surrogate’s Court Has Jurisdiction to Determine the Legal Fees Owed to Out-Of-State Counsel for Services to the Estate


In a full-fledged opinion by Justice Austin, the Second Department determined Surrogate’s Court erred when it held that Surrogate’s Court did not have jurisdiction to determine the legal fees due out-of-state counsel and Surrogate’s Court further erred when it ordered that the fees already paid to out-of-state counsel be returned.  The out-of-state firm (Choate Hall) represented the executor who, at the time the firm was hired, lived in Massachusetts (where the firm is located).  The opinion includes a detailed discussion of the jurisdiction of Surrogate’s Court, as well as the relevant statutory and case law (not summarized here):


…[W]e find that the Surrogate's Court erred in concluding that it lacked subject matter jurisdiction to fix and determine the compensation owed to Choate Hall for services rendered to the estate. Further, the court should have made a determination as to the fair value of Choate Hall's services, rather than direct that the entire fee be returned. Thereafter, the court should have directed only a refund of such fees paid to Choate Hall that it considered to have been paid in excess of what it determined to be the fair value of Choate Hall's services to the estate pursuant to SCPA 2110.  Matter of Askin, 2013 NY Slip Op 07963, 2nd Dept 11-27-13



Family Members Failed to Raise a Question of Fact About Whether Care-Provider Exercised Undue Influence Over Decedent


The Third Department determined Surrogate’s Court properly granted summary judgment dismissing the objections and admitting the will to probate.  The respondents failed to raise a question of fact about whether the decedent’s care-provider had exercised undue influence over the decedent.  The care-provider, by the terms of the will, was allowed to live in decedent’s home rent-free for a designated period after decedent’s death.  The rest of decedent’s estate went to organizations decedent was affiliated with, nothing was allotted to respondent family members:


To establish undue influence, respondents were required to demonstrate that decedent "was actually constrained to act against [her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred" … .  The influence asserted must rise to the level of "a moral coercion" …, and "[m]ere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact" … .


Here, even assuming that respondents' proof was sufficient to establish that [the care-provider] had motive and opportunity to influence decedent's testamentary dispositions, respondents failed to demonstrate that House actually exercised undue influence with respect to the distribution of decedent's assets.  By all accounts, decedent was a very intelligent, private and strongwilled woman who "ran her life the way she wanted to run it." Matter of Stafford…, 516429, 3rd Dept 11-27-13



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