Datasets:

gen-law

/

daniel-cl-extracted

like 0

Follow

genlaw 10

2020-01-17 22:01:54.798236+00

Siefkin

*739OPINION. SiefkiN : As we view this case it is clear that the petitioner is not liable as a transferee under section 280 of the 1926 Act. Section 15 of the New York stock corporation law, under which the Houk .Manufacturing Co. and petitioner were merged in 1917, reads as follows: Sec. 15. Merger. Any domestic stock corporation and any foreign stock corporation authorized to do business in this state lawfully owning" all the stock of any other stock corporation organized for, or engaged in business similar or incidental to that of the possessor corporation may file in the office of the secretary of state, under its common seal, a certificate of such ownership, and of the resolution of its board of directors to merge such other corporation, and thereupon it shall acquire and become, and be possessed of all the estate, property, rights, privileges and franchises of such other corporation, and they shall vest in and be held and enjoyed by it as fully and entirely and without change or diminution as the same were before held and enjoyed by such other corporation, and be managed and controlled by the board of directors of such possessor corporation, and in its name, but iwthout prejudice to any liabilities of such other corporation or the rights of any creditors thereof. Any bridge corporation may be merged under this section with any railroad corporation which shall have acquired the right by contract to run its ears over the bridge of such bridge corporation. Section 15 is now substantially incorporated in section 85 of the laws of 1923. *740Where a corporation is merged into a second corporation under this statute, the first corporation’s “ existence is retained for the one purpose of carrying out in good faith the reservation in the statute of the rights of the creditors thereof * * * the * * * company may be sued,” and a creditor “ obtaining judgment against the * * * company, may by execution or otherwise, reach the assets of such company as though the merger had never taken place.” Irvine v. New York Edison Co., 207 N. Y. 425; 101 N. E. 358. That case held that the merging corporation, which continued in existence, was not liable to the creditors of the merged corporation. The action was not an equitable one, but the court cites Trotter v. Lisman, 199 N. Y. 497; 92 N. E. 1052, to the effect that before such creditors may seek the aid of equity against the merging corporation they must recover judgment against the debtor corporation and show the return of execution thereon unsatisfied. That the Irvine case, sufra, did not lightly reach such conclusion is shown by excerpt from that opinion as follows: The provisions of the merger statute and of the consolidation statute were considered together by the Legislature in 1890, and they have since been considered by it from time to time. There would seem to be little or no objection and much reason for making a corporation which takes all of the assets of other corporations by consolidation or merger liable for the indebtedness of such consolidated or merged corporation. The acceptance of such property could be made an assent to such liab.lity. The whole matter was, however, clearly before the Legislature for its consideration, and it was considered by it, and it made a corporation accepting the assets of other corporations under the státute authorizing the consolidation of corporations liable for the indebtedness of the corporations so consolidated. It declined so to do in the case of corporations transferring assets under the merger statute. The rights of creditors were not overlooked, as the Legislature expressly provided that the rights of such creditors should be preserved and that the merger should be without prejudice as to them. * * ⅜ * * * * * * * The statute, which is the authority for the transfer of the property, if any, from the Block Company to the gas company, does not provide that the possessor company shall assume the indebtedness of the merged company, but expressly provides that the rights of cred.tors of the merged company are preserved. The statute was not carelessly drawn, and the omission to make the possessor company liable for the debts of the merged company was not an oversight. It is the duty of the court to enforce the provisions of the statute without reading into it affirmative provisions. The plaintiff does not claim to recover in equ'ty; but, if he did, he would be required to first take other steps preliminary thereto. Such decision is the settled law of New York State. The later decision in the case of Syracuse Lighting Co. v. Maryland Casualty Co., 226 N. Y. 25; 122 N. E. 723, while it holds the merging corporation for a liability of the merged corporation, merely confirms the holding in the Irvine case, sufra, for in the later decision the pre*741liminary step of obtaining judgment against the merged corporation, followed by return of execution thereon unsatisfied, had been taken. The Federal courts also require that the remedies against a trans-feror be exhausted to no avail before proceedings can be initiated against a transferee. See Swan Land & Cattle Co. v. Frank, 148 U. S. 608, which decision was cited in the report of the Senate Finance Committee (p. 29) on section 280 of the Revenue Act of 1926. In Pierce v. United States, 255 U. S. 398, the court said: A judgment creditor’s bill is in essence an equitable execution comparable to proceedings supplementary to execution. See Ex. parte Boyd, 105 U. S. 647. ******* It is true that the bill to reach and apply the assets distributed among the stockholders cannot, as a matter of equity jurisdiction and procedure, be tiled unt.I the claim has been reduced to judgment and the execution thereon has been returned unsatisfied, Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371. Thus it seems clear that were it not for section 280 the respondent could not have proceeded against petitioner in equity under the trust fund.theory until he had exhausted available remedies against the Houk Company. It seems equally clear that he has not exhausted such remedies. The facts show that deficiency letters were mailed to the Houk Company and such notices were followed by assessments. We are not impressed with respondent’s contention that the assessments were the equivalents of judgment. Even if we assume an assessment to be the equivalent of a judgment, it seems clear from the above cases that (aside from section 286) the respondent had not complied with the prerequisites necessary to maintain a suit against the petitioner. The Houk Company still remained in existence. The cases cited and discussed show that not only must judgment be obtained against it, but that attempt must be made to collect under such judgment. The record does not show any attempt at collection under the assessment, for, so far as we know, notice and demand for payment was never served on that company. There remains section 280, which provides as follows: (a) The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this title (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refund) : (1) The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this title or by any prior income, excess-profits, or war-profits tax Act. (2) The liability of a fiduciary under section 3467 of the Revised Statutes in respect of the payment of any such tax from the estate of the taxpayer. Any *742such liability may be either as to the amount of tax shown on the return or as to any deficiency in tax. In Fostoria Milling & Grain Co., 11 B. T. A. 1401, concerning this provision we said: By this section it will be noted that no new liability is created on the part of the transferee, but merely a method of enforcement of such liability as is already his at law or in equity by reason of the circumstances under which he acquired the property of the taxpayer or by reason of any prior lien attaching to the property at the time of its acquirement. Respecting this section we quote from the Senate Finance Committee’s report, pp. 29 and 30: * * * It is probable that under existing law the Government may proceed in equity by suit against the transferee if the transferor no longer exists (that is, in the case of a corporation, is dissolved, or in the case of an individual, is dead), and if the liability of the transferor has not been judicially established by action against the taxpayer before dissolution or death—Updike v. United States, decided Circuit Court of Appeals, eighth circuit, December 1, 1925. If, however, the transferee is still in existence the Government must proceed to obtain judgment against the transferor in an action at law and then proceed against the transferee in equity by a creditor’s bill to satisfy the judgment. The creditor’s bill is also available if the taxpayer has ceased to exist, but his tax liability was liquidated by judicial action prior to the dissolution or death. — Swan Land and Cattle Co. v. Frank, 148 U. S. 603. In all the above cases the transferee is not liable for the tax of the transferor, but is by reason of the receipt of the assets subject to an independent liability in his own person and payable out of his own estate, arising under the trust fund doctrine or some similar theory. ⅜ * * * ¾'« * * Under existing law proceedings for the enforcement of liability such as those heretofore discussed are solely by court proceedings. No proceedings before the board for the redetermination of a deficiency and for the ultimate enforcement by assessment and distraint may be had. It is the purpose of the committee’s amendment to provide for the enforcement of such liability to the Government by the procedure provided in the act for the enforcement of tax deficiencies. It is not proposed, however, to define or change existing liability. The section merely provides that if the liability of the transferee exists under other law then that liability is to be enforced according to “ the new procedure applicable to tax deficiencies.” Manifestly this section was designed only to allow, and does only allow, the respondent an additional means of procedure against a transferee only if available remedies against a transferor would be unavailing. The same conditions precedent must be met in such a proceeding, however, as must be met before an action in equity to enforce the same liability. No new liability is created and the Act does not purport to provide for a-proceeding against the transferee before action would otherwise lie against such transferee. On the record before us, it is apparent that the respondent is attempting a *743short cut not contemplated by the statute. Since there is no liability, judgment must be entered for the petitioner. Reviewed by the Board. Judgment will he entered for the 'petitioner.

2020-12-02 21:09:44.547074+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07229.htm

People v Smith (2020 NY Slip Op 07229) People v Smith 2020 NY Slip Op 07229 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ. 2018-06225 (Ind. No. 524/17) [*1]The People of the State of New York, respondent, v Tybecca Smith, appellant. Paul Skip Laisure, New York, NY (Sam Feldman of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Joseph N. Ferdenzi, and Hannah X. Scotti of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered April 11, 2018, convicting him of criminal contempt in the first degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is modified, on the law, by reducing the defendant's conviction of criminal contempt in the first degree in violation of Penal Law § 215.51(c) under the first count of the indictment to criminal contempt in the second degree in violation of Penal Law § 215.50(3), and vacating the sentence imposed thereon; as so modified, the judgment is affirmed. As the People concede, the evidence was legally insufficient to establish the defendant's guilt of criminal contempt in the first degree in violation of Penal Law § 215.51(c). An essential element of that crime is that the defendant has violated an order of protection issued pursuant to "sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which requires the respondent or defendant to stay away from the person or persons on whose behalf the order was issued" (Penal Law § 215.51[c]; see People v Coleman, 104 AD3d 1134, 1134-1135). Here, the defendant was accused of violating an order of protection issued pursuant to Criminal Procedure Law § 530.13. Criminal Procedure Law § 530.13, which provides protection to victims of crimes other than family offenses, is not one of the authorities enumerated in Penal Law § 215.51(c). Accordingly, the defendant's conviction of criminal contempt in the first degree was legally insufficient because the People could not prove an essential element of the offense (see People v Dewall, 15 AD3d 498, 501). However, because the evidence was legally sufficient to support a conviction of the lesser included offense of criminal contempt in the second degree (see Penal Law § 215.50[3]), the defendant's conviction is reduced accordingly (see CPL 470.15[2]; People v Dewall, 15 AD3d at 501). There is no need to remit the matter for resentencing because the defendant has already served the maximum time to which he could have been sentenced on the criminal contempt in the second degree conviction (see Penal Law § 70.15[1]; People v Jackman, 8 AD3d 678, 679). The defendant's claim that the order of protection was not properly authenticated is [*2]not preserved for appellate review (see CPL 470.05[2]). In any event, any error in admitting the document was harmless as there was overwhelming evidence of the defendant's guilt, and there is no significant probability the defendant would have been acquitted but for the error in admitting the order of protection (see People v Crimmins, 36 NY2d 230, 241-242; People v Spears, 154 AD3d 783, 787). The defendant contends that he was deprived of a fair trial due to certain statements made by the prosecutor during summation. However, the challenged prosecutorial remarks during summation constitute fair comment on the evidence and the inferences to be drawn therefrom with respect to the charge of criminal contempt in the second degree (see People v Ashwal, 39 NY2d 105, 109-110). In light of the foregoing, we need not address the defendant's remaining contentions. RIVERA, J.P., CHAMBERS, MILLER and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:44.78937+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07228.htm

People v Rowe (2020 NY Slip Op 07228) People v Rowe 2020 NY Slip Op 07228 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS ANGELA G. IANNACCI LINDA CHRISTOPHER, JJ. 2020-00184 (Ind. No. 121/19) [*1]The People of the State of New York, respondent, v Jason Rowe, appellant. Warren S. Hecht, Forest Hills, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and John F. McGoldrick of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered October 21, 2019, convicting him of criminal possession of forgery devices (22 counts), unlawful possession of a skimmer device in the second degree, and operating a motor vehicle with excessively tinted windows, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (John F. Zoll, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence. ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50. The defendant was indicted for criminal possession of a forgery device (22 counts), unlawful possession of a skimmer device in the second degree, aggravated unlicensed operation of a motor vehicle in the second degree, operating a motor vehicle with excessively tinted windows, and operating a vehicle without a license. In his omnibus motion, the defendant moved to suppress physical evidence recovered during a search of his vehicle. At a suppression hearing, the People presented evidence that on the evening of April 26, 2018, a police officer observed the defendant operating a vehicle with excessively tinted windows and stopped the vehicle. The officer requested the defendant's license and registration. Upon learning that the defendant's license was suspended in New York, the officer arrested the defendant. The officer's partner drove the defendant's vehicle back to the precinct. During a subsequent inventory search of the defendant's vehicle, the officers recovered numerous forgery devices. "On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance. Once the People have met their initial burden, the defendant bears the ultimate burden of proving the illegality of the search and seizure" (People v Diaz, 146 AD3d 803, 804 [citations omitted]). "A suppression court's credibility findings are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" (People v Bookman, 131 AD3d 1258, 1260). We agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress physical evidence. The credible evidence at the hearing established [*2]that the police officers lawfully stopped the defendant's vehicle due to an apparent violation of Vehicle and Traffic Law § 375(12-a)(b)(2) (see People v Vanderpool, 157 AD3d 831; People v Bacquie, 154 AD3d 648, 649; People v Brock, 107 AD3d 1025, 1026-1027; People v Collins, 105 AD3d 1378, 1379). The officers had the right to request that the defendant produce his license and registration (see People v Foster, 153 AD3d 853, 854; People v Graham, 54 AD3d 1056, 1058). Upon learning that the defendant had a suspended driver's license, the officers had probable cause to arrest the defendant (see Vehicle and Traffic Law § 511[1][a]; People v Foster, 153 AD3d at 853; People v Clayton, 57 AD3d 557, 558). Finally, the People met their burden of establishing the validity of the inventory search through evidence that the officers properly conducted the search pursuant to established police procedures (see People v Echevarria, 173 AD3d 638; People v Edwards, 163 AD3d 712, 714; People v Taylor, 92 AD3d 961, 962-963). Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's omnibus motion which was to suppress physical evidence. MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:45.026786+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07227.htm

People v Robinson (2020 NY Slip Op 07227) People v Robinson 2020 NY Slip Op 07227 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS JEFFREY A. COHEN FRANCESCA E. CONNOLLY, JJ. 2017-13336 ON MOTION (Ind. No. 504/17) [*1]The People of the State of New York, respondent, v Demort Robinson, appellant. DECISION & ORDER On the Court's own motion, it is ORDERED that the decision and order on motion of this Court dated November 25, 2020, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor: Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Terrence F. Heller of counsel; Isaiah Affron on the memorandum), for respondent. Motion by the defendant for leave to reargue the defendant's appeal, as limited by his motion, from a sentence of the Supreme Court, Kings County (Alexander Jeong, J.), imposed October 17, 2017, upon his plea of guilty, on the ground that the sentence was excessive. Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ORDERED that the motion is granted, and, upon reargument, the decision and order of this Court dated June 17, 2020 (People v Robinson, 184 AD3d 779), in the above-entitled action is recalled and vacated, and the following decision and order is substituted therefor: Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Alexander Jeong, J.), imposed October 17, 2017, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. The defendant's purported waiver of his right to appeal was invalid because the Supreme Court's colloquy and the written waiver mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues (see People v Thomas, 34 NY3d 545; People v Contreras, 183 AD3d 759; People v Howard, 183 AD3d 640). Thus, the purported waiver does not preclude this Court's review of the defendant's excessive sentence claim (see People v Fuller, 163 AD3d 715). In light of the foregoing, we need not reach the defendant's alternate contention concerning the validity of the purported waiver. However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). BALKIN, J.P., CHAMBERS, COHEN and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:45.336349+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07226.htm

People v Ortiz (2020 NY Slip Op 07226) People v Ortiz 2020 NY Slip Op 07226 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX PAUL WOOTEN, JJ. 2016-09729 (Ind. No. 522/15) [*1]The People of the State of New York, respondent, v Miguel A. Ortiz, appellant. Paul Skip Laisure, New York, NY (Michael Arthus of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Joseph N. Ferdenzi, and Danielle S. Fenn of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard Buchter, J.), rendered September 8, 2016, convicting him of course of sexual conduct against a child in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that the evidence was legally insufficient to establish that sexual conduct occurred over a period of time not less than three months in duration prior to the complainant's thirteenth birthday, as required for a conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(b), is only partially preserved for appellate review (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant engaged in sexual conduct with the complainant for a period of not less than three months in duration prior to the complainant's thirteenth birthday (see Penal Law § 130.00[10]; Penal Law § 130.75[1][b]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383; People v Bleakley, 69 NY2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the crime of criminal sexual conduct against a child in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial by improper remarks made by the prosecutor during voir dire, as he either failed to object to the remarks he now challenges or made only general objections (see People v Romero, 7 NY3d 911, 912; People v Wallace, 123 AD3d 1151, 1151). In any event, the prosecutor's remarks during voir dire were not patently improper or unduly prejudicial, and did not misstate the law (see People v Wallace, 123 AD3d at 1151-1152; People v Dashosh, 59 AD3d 731). The defendant's challenges to certain remarks made by the prosecutor during the opening statement and summation are unpreserved for appellate review since he failed to object to the remarks at issue (see CPL 470.05[2]; People v Romero, 7 NY3d at 912). Although many of the comments exceeded the bounds of fair comment and could be characterized as inflammatory and an improper denigration of the defendant's trial strategy, the error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that such error contributed to the defendant's conviction (see People v Jearel, 175 AD3d 565). However, we do remind the People that "summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command," but rather, "[t]here are certain well-defined limits" (People v Ashwal, 39 NY2d 105, 109). Counsel is to "stay within 'the four corners of the evidence' and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused" (People v Bartolomeo, 126 AD2d 375, 390, quoting People v Ashwal, 39 NY2d at 109). Similarly, the defendant's contention that the prosecutor engaged in misconduct while cross-examining him is, for the most part, unpreserved for appellate review (see CPL 470.05[2]). In any event, "[o]nce a defendant testifies and places his [or her] credibility in issue, a prosecutor need not tread lightly in cross-examining" (People v Overlee, 236 AD2d 133, 136; see People v Quezada, 116 AD3d 796, 797). The prosecutor's questioning about the underlying facts of the defendant's prior convictions was "intended to reveal a willingness on the defendant's part to place his self-interest ahead of that of society, proof that was relevant to suggest his readiness as a witness to do so again" (People v Quezada, 116 AD3d at 797; cf. People v Sandoval, 34 NY2d 371, 377). "Such evidence is generally 'both relevant and material to the credibility, veracity and honesty' of the witness and is, therefore, a proper subject for cross-examination" (People v Quezada, 116 AD3d at 797, quoting People v Coleman, 56 NY2d 269, 273). Although we agree with the defendant that, during his cross-examination by the prosecutor, the prosecutor improperly relied upon records which were not admitted into evidence, the Supreme Court sustained defense counsel's objection to the prosecutor reading from a document not in evidence and, in any event, the improper questioning using that document fell short of the sort of egregious misconduct that would have deprived the defendant of a fair trial (see People v Joseph, 145 AD3d 916, 917; People v Quezada, 116 AD3d at 797). Moreover, the Supreme Court's response to the jury note, after both sides were allowed to read the note, of repeating the original instruction given pertaining to the charge of endangering the welfare of a child was meaningful (see People v Santi, 3 NY3d 234, 249; People v Gonsalez, 144 AD3d 841, 842), and the defendant suffered no discernable prejudice from the court's handling of the note (see People v Harriott, 181 AD3d 863, 863-864; People v Battle, 15 AD3d 413, 414). MASTRO, J.P., AUSTIN, HINDS-RADIX and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:45.56704+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07225.htm

People v Miles (2020 NY Slip Op 07225) People v Miles 2020 NY Slip Op 07225 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. SHERI S. ROMAN ROBERT J. MILLER PAUL WOOTEN, JJ. 2018-10501 (Ind. No. 174/17) [*1]The People of the State of New York, respondent, v Tashawn D. Miles, appellant. Carol Kahn, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered April 27, 2018, convicting him of criminal sexual act in the first degree and criminal sexual act in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review (see People v Davis, 24 NY3d 1012; People v Lopez, 71 NY2d 662). In any event, the record reflects that the defendant acknowledged that he understood the charges against him and the rights that he was forfeiting, that he had discussed the plea, and possible defenses and arguments that could be raised at trial with his attorney, that he was satisfied with his attorney's representation, that he was not under the influence of any substances that would impair his thinking, and that he was entering the plea of his own free will. Under these circumstances, we find that the defendant's plea of guilty was knowing, intelligent, and voluntary (see People v Valentin, 173 AD3d 1227; People v Rodriguez-Abreu, 170 AD3d 895; People v Anderson, 138 AD3d 876). Contrary to the defendant's contention, he knowingly, voluntarily, and intelligently waived his right to appeal at the time he entered his plea of guilty (see People v Thomas, 34 NY3d 545; People v Mack, 168 AD3d 1100; People v Moore, 140 AD3d 1091; People v Corbin, 121 AD3d 803). The record reveals that the County Court adequately explained, and the defendant acknowledged that he understood, the separate and distinct nature of the waiver of the right to appeal (see People v Corbin, 121 AD3d 805). The defendant's valid waiver of his right to appeal precludes appellate review of his present challenge to the County Court's adverse suppression determination (see People v Sanders, 25 NY3d 337; People v Kemp, 94 NY2d 831, 833-834) and his contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257; People v Lopez, 6 NY3d 248; People v Lovick, 127 AD3d 1108). RIVERA, J.P., ROMAN, MILLER and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:45.810113+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07232.htm

People v Mejia (2020 NY Slip Op 07232) People v Mejia 2020 NY Slip Op 07232 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL ROBERT J. MILLER COLLEEN D. DUFFY HECTOR D. LASALLE, JJ. 2018-11172 [*1]People of State of New York, respondent, v Oscar Ayala Mejia, appellant. Laurette D. Mulry, Riverhead, NY (Anju M. Alexander of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Kathleen Becker Langlan of counsel), for respondent. DECISION & ORDER Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated August 29, 2018, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C. ORDERED that the order is affirmed, without costs or disbursements. A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [Sex Offender Registration Act (hereinafter SORA)] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see People v Gillotti, 23 NY3d 841, 861; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d at 861; People v Champagne, 140 AD3d 719, 720). Contrary to the defendant's contention, he failed to sustain his burden of proof in support of his application for a downward departure. The defendant's contention that the victim's lack of consent which was due only to her inability to consent by virtue of her age was a mitigating factor which warranted a downward departure is unpreserved for appellate review since the defendant did not assert this contention during the SORA hearing (see CPL 470.05[2]). In any event, the defendant's contention is without merit. Based upon the particular facts and circumstances of this case, including the age disparity between the defendant and the victim, and the fact that the victim was only 12 years old, the defendant failed to demonstrate that the scoring of 25 points under risk factor 2, for sexual contact with the victim, resulted in an overassessment of his risk to the public safety (see People v Fryer, 101 AD3d 835, 836; People v Wyatt, 89 AD3d at 130). The defendant's contention that his due process rights were violated when the County Court failed to adjourn the SORA hearing is unpreserved for appellate review and, in any event, [*2]without merit, inasmuch as the defendant never requested an adjournment (see CPL 470.05[2]; People v Williamson, 73 AD3d 1398; People v LaRock, 45 AD3d 1121, 1122). Accordingly, we agree with the County Court's determination denying the defendant's application for a downward departure and designating him a level two sex offender. MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:46.126366+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07224.htm

People v Lewis (2020 NY Slip Op 07224) People v Lewis 2020 NY Slip Op 07224 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX PAUL WOOTEN, JJ. 2016-12489 (Ind. No. 263/15) [*1]The People of the State of New York, respondent, v Marcus S. Lewis, appellant. Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant, and appellant pro se. Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered November 9, 2016, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant was charged with murder in the second degree arising out of a shooting that occurred in September, 2010. The trial evidence established, inter alia, that on the night of the incident, both the victim and the defendant were present in a strip club in West Babylon. According to the testimony of a witness, the victim left the club along with a friend, and they walked to an adjacent gas station convenience store. Moments after the victim left the club, the defendant left the club along with a female companion, and they entered a car that a witness identified as the defendant's vehicle, with the defendant in the driver's seat. The defendant drove to the parking lot of the gas station, and then reversed and parked on the road in front of the club. This sequence of events was also captured on a surveillance video from the gas station, which was introduced into evidence at trial. As per eyewitness testimony and the surveillance video, the victim then approached the driver's side of the defendant's vehicle. The surveillance video next showed a flash of light and, immediately thereafter, the defendant's vehicle fled the scene, leaving the body of the victim lying nearby. The jury found the defendant guilty of murder in the second degree. We affirm. The defendant has failed to preserve for appellate review his contention regarding the alleged insufficient CPL 710.30(1) notice that was provided by the People with regard to a spontaneous statement he made which was recorded on video (see CPL 470.05[2]; People v Davis, 118 AD3d 1264, 1266). In any event, the record establishes that a videotape which included the disputed statement was annexed to the People's timely CPL 710.30(1) notice sent to the defendant, providing him with sufficient notice of the statement (see People v Wallace, 128 AD3d 866, 866-867; People v Mais, 71 AD3d 1163, 1166). Similarly, the County Court did not err in finding that the videotape was sufficiently audible to be admissible, and that any purported deficiencies in the audibility of portions of the tape went to the weight of that evidence (see People v Perez, 165 AD3d 1294, 1295; People v McCaw, 137 AD3d 813, 815). In addition, the court appropriately instructed the jurors that it was their interpretation of what was said on the videotape that controlled. Contrary to the defendant's contention, the County Court properly admitted at trial certain evidence of alleged "prior bad acts" by the defendant. Evidence of uncharged crimes is inadmissible when it is proffered solely to establish an accused's propensity to commit a crime (see People v Agina, 18 NY3d 600, 603; People v Arafet, 13 NY3d 460, 464-465; People v Alvino, 71 NY2d 233, 241). However, such evidence may be received to establish an element of the charged crime, or because it is relevant to some other material issue in the case (see People v Dorm, 12 NY3d 16, 19; People v Alvino, 71 NY2d at 241; People v Lewis, 69 NY2d 321, 325). Evidence of prior uncharged crimes may also be used, among other purposes, to "provide[ ] necessary background information on the nature of [a] relationship and [to] place[ ] the charged conduct in context" (People v Dorm, 12 NY3d at 19; see People v Leonard, 29 NY3d 1, 7). If the proffered evidence is probative of a relevant issue, the court must then engage in a discretionary balancing of its probative value and the need for the evidence against the potential for prejudice to the defendant (see People v Morris, 21 NY3d 588, 595; People v Dorm, 12 NY3d at 19; People v Alvino, 71 NY2d at 242; People v Ventimiglia, 52 NY2d 350, 359). Here, the proffered "prior bad acts" evidence was probative of the relationship between the defendant and a testifying witness, explained the reluctance of the witness to report the defendant's crime to the police, and served to complete the narrative of events. Furthermore, any prejudice was outweighed by the probative value of this evidence. Under these circumstances, the County Court did not improvidently exercise its discretion either in admitting the evidence (see People v Nieves, 186 AD3d 1260; People v Mack, 183 AD3d 916, 917; People v Gaston, 180 AD3d 429, 431; People v Tebout, 179 AD3d 1099, 1101), or in allowing additional testimony that was relevant to, inter alia, explaining the relationship between the defendant and the witness (see People v Gaston, 180 AD3d at 431; People v Williams, 282 AD2d 297). Contrary to the defendant's contention, the County Court did not improvidently exercise its discretion in denying his application to recall a prosecution witness to testify on the defense case. As the court determined, the defendant received a full and fair opportunity to cross-examine that witness, and the proposed line of questioning merely involved collateral matters (see People v Turner, 145 AD3d 745, 746; People v Seabrook, 76 AD3d 606, 607). The defendant has failed to preserve for appellate review his challenge to the legal sufficiency of the evidence (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484). In any event, the evidence, when viewed in the light most favorable to the People, was sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Contes, 60 NY2d 620, 621), and the testimony of the People's witnesses was not incredible as a matter of law (see People v Bentley, 186 AD3d 844; People v Carmona, 185 AD3d 600, 601-602). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant's claim that he was denied the effective assistance of counsel is unavailing, as the record as a whole demonstrates that he received meaningful representation (see People v Caban, 5 NY3d 143, 152; People v Benevento, 91 NY2d 708). The defendant has failed to preserve for appellate review his contention that the prosecutor committed prejudicial misconduct in his summation remarks (see CPL 470.05[2]; People v Nunez-Garcia, 178 AD3d 1087, 1089; People v Morris, 157 AD3d 827, 828). In any event, the remarks generally constituted fair comment on the evidence and were responsive to the defense [*2]summation (see People v Beaupre, 170 AD3d 1031, 1033; People v Morrow, 143 AD3d 919, 921), and to the extent that any comments may have been improper, they were not so egregious as to have deprived the defendant of a fair trial (see People v Wilson, 163 AD3d 881, 882; People v Coleman, 148 AD3d 717, 718). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). MASTRO, J.P., AUSTIN, HINDS-RADIX and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:46.449367+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07223.htm

People v Jimenez (2020 NY Slip Op 07223) People v Jimenez 2020 NY Slip Op 07223 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX ANGELA G. IANNACCI, JJ. 2019-08487 (Ind. No. 146/09) [*1]The People of the State of New York, appellant, v Luis Jimenez, respondent. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nicoletta J. Caferri, Sharon Y. Brodt, and Kathryn Schultz of counsel), for appellant. Janet E. Sabel, New York, NY (Steven R. Berko of counsel), for respondent. DECISION & ORDER Appeal by the People from an order of the Supreme Court, Queens County (John F. Zoll, J.), dated June 18, 2019. The order, upon reargument, adhered to so much of the original determination in an order of the same court dated May 3, 2019, as, upon reviewing the grand jury minutes, dismissed the indictment on the ground that the grand jury proceeding was defective within the meaning of CPL 210.35(5), with leave to re-present the matter to a new grand jury. ORDERED that the order dated June 18, 2019, is reversed insofar as appealed from, on the law, so much of the original determination in the order dated May 3, 2019, as granted that branch of the defendant's omnibus motion which was to dismiss the indictment is vacated, that branch of the defendant's omnibus motion which was to dismiss the indictment is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings. The defendant was arrested for striking a small dog named Gigi with a stick and causing serious injuries to the animal, including bleeding, a facial fracture, and vision loss to the right eye. The incident took place during an altercation between the defendant and another male. According to certain video surveillance footage of the incident, shortly before the defendant struck the dog, the other person involved in the altercation walked away from the defendant. Family members of that person were present at the scene. An uncle of that individual appeared to be holding the defendant when the dog approached the defendant's leg and the defendant, who appeared to be wearing denim pants or jeans, struck the animal. Before the grand jury, the defendant testified that the dog was "trying" to bite him or was "bitting [sic] [his] pants." The defendant, who admittedly was not "really scared" of the dog, stated that he "mistakenly" hit the dog because the other person's uncle was attempting to remove the stick and that he did not "really mean to hit the dog." A grand jury returned an indictment against the defendant charging him with criminal mischief in the second degree (Penal Law § 145.10), aggravated cruelty to animals (Agriculture and Markets Law § 353-a), and overdriving, torturing or injuring an animal (Agriculture and Markets Law § 353). In an omnibus motion, the defendant moved, inter alia, to dismiss the indictment on the ground that the grand jury proceedings were defective. In an order dated May 3, 2019, the Supreme Court, inter alia, upon reviewing the grand jury minutes, dismissed the indictment, with [*2]leave to re-present the matter to a new grand jury. The court concluded that the grand jury proceeding was defective within the meaning of CPL 210.35(5) based on the prosecutor's failure to instruct the grand jury on the defense of justification. The People moved for leave to reargue. In an order dated June 18, 2019, the court granted reargument and adhered to so much of the original determination as dismissed the indictment. The People appeal. We reverse. "'[A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'" (People v Grant, 113 AD3d 875, 876, quoting People v Wilson, 228 AD2d 708, 709). "The failure to charge justification constitutes reversible error only when the defense is 'supported by a reasonable view of the evidence—not by any view of the evidence, however artificial or irrational'" (People v Rivers, 300 AD2d 63, 64-65, quoting People v Butts, 72 NY2d 746, 750; see People v Forde, 140 AD3d 1085, 1087). Penal Law § 35.05(2) provides that "conduct which would otherwise constitute an offense is justifiable and not criminal when . . . [s]uch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue." The requirement that the impending injury must be imminent and about to occur denotes an "impending harm which constitutes a present, immediate threat—i.e., a danger that is actual and at hand, not one that is speculative, abstract or remote" (People v Craig, 78 NY2d 616, 624; see People v Jing Xiong, 38 AD3d 926, 927). Penal Law § 35.05(2) is often referred to as the "choice-of-evils" defense (People v Rodriguez, 16 NY3d 341, 345). Here, viewing the evidence before the grand jury in the light most favorable to the defendant, there was no reasonable view of the evidence warranting an instruction on the defense of justification under Penal Law § 35.05(2) (see People v Kravitz, 75 AD3d 915, 916; People v Coleman, 256 AD2d 473, 473-474; People v Bolton, 213 AD2d 660, 660-661). There is no reasonable view of the evidence that forcefully striking and injuring the approximate eight-pound terrier poodle in the manner undertaken by the defendant, who was approximately 6 feet tall and weighed 200 pounds, was necessary as an emergency measure to avoid, at most, a bite by this small animal through denim pants. To the extent that the Supreme Court found that the prosecutor was required to instruct the grand jury on the defense of justification under Penal Law § 35.10(6) or Penal Law § 35.15, the language of those statutes "plainly limits the defense to situations where one person uses force against another person, making [the statutes] inapplicable where, as here, a person used force . . . against an animal" (People v Brinkley, 174 AD3d 1159, 1166; see People v George, 16 Misc 3d 74, 76). Accordingly, we reinstate the indictment and remit the matter to the Supreme Court, Queens County, for further proceedings on the indictment. RIVERA, J.P., COHEN and IANNACCI, JJ., concur. HINDS-RADIX, J., dissents and votes to affirm the order appealed from, with the following memorandum: The defendant was arrested after he seriously injured a dog during an altercation with another individual, which also involved that individual's family. The dog, which was unleashed, was staying with that individual's family, and participated in the altercation. A grand jury returned an indictment against the defendant charging him with criminal mischief in the second degree (Penal Law § 145.10), aggravated cruelty to animals (Agriculture and Markets Law § 353-a), and overdriving, torturing or injuring an animal (Agriculture and Markets Law § 353). In the order appealed from, the Supreme Court, upon the motion of the defendant, and upon reviewing the grand jury minutes, dismissed the indictment, with leave to re-present the matter to a new grand jury. The court concluded that the grand jury proceeding was defective within the meaning of CPL 210.35(5) based upon the prosecutor's failure to instruct the grand jury on the defense of justification as defined in Penal Law § 35.05(2). That provision provides a complete defense where "[s]uch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue." Upon reargument, the court adhered to the original determination, noting that, based upon the defendant's testimony before the grand jury, there was a reasonable view of the evidence to support the justification charge. The People appeal. The defendant testified before the grand jury that the other individual involved in the dispute demanded $20 from him, and when the defendant stated he did not have $20, the individual approached the defendant with two metal sticks, talking about killing the defendant. The defendant armed himself with part of a broomstick, and while he was tussling with the other individual, he hit the dog, who was biting at his pants leg, and trying to get the stick. The defendant claimed he hit the dog because it was "bit[ ]ing on the leg" and "trying to pull" the stick away from him. He also claimed that he did not mean to hit or hurt the dog. The dog suffered a blow to the right eye which caused it to lose its sight in that eye. "'[A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'" (People v Tunit, 149 AD3d 1110, 1111, quoting People v Grant, 113 AD3d 875, 876; see People v Valles, 62 NY2d 36, 38). Justification is such a complete defense (see People v Hosein, 221 AD2d 563, 563). In determining whether the evidence supports a justification defense, the record must be viewed in the light most favorable to the defendant (see People v White, 164 AD3d 1480; People v Duka, 173 AD3d 764). The failure to charge justification constitutes reversible error when a reasonable view of the evidence, taken in a light most favorable to the defendant, supports the defense (see People v Reynoso, 73 NY2d 816, 818; People v White, 164 AD3d 1480; People v Forde, 140 AD3d 1085, 1087). Viewing the evidence before the grand jury in the light most favorable to the defendant, there was a reasonable view of the evidence that supported a justification instruction based upon the defendant's testimony that the dog was biting at his pants leg at the time he hit the dog. Although he acknowledged that he did not mean to hit or hurt the dog, that sentiment was not inconsistent with his perception that striking out at the dog was necessary to avoid injury to his own person. In any event, the defendant's entitlement to the justification instruction is not defeated solely by reason of its inconsistency with another defense raised (see People v Butts, 72 NY2d 746, 749), or testimony that the defendant's conduct was not intentional (see People v Padgett, 60 NY2d 142). With the benefit of hindsight, we may feel that the small size of the dog indicated that it was unlikely that the dog could have inflicted serious physical injury upon the defendant. However, the defendant's infliction of serious physical injury upon the dog would be justified to avoid less than serious injury to the defendant, since the interest of the defendant to protect his person cannot be equated with the interest of protecting an animal from injury. The question of whether the injury inflicted upon the dog could be justified to protect the person of the defendant or even his property is generally a question of fact to be determined by the trier of facts based upon the moral standards of the community (see People v Bunt, 118 Misc 2d 904; see also People v Voelker, 172 Misc 2d 564), and not as a matter of law based upon falsely equating the interest of the animal with the interest of a person. My colleagues in the majority contend that the defendant faced, "at most, a bite by this small animal through denim pants," therefore defending himself was not necessary. In effect, my colleagues have concluded, as a matter of law, without reference to any precedent, that the interests of the animal supersede those of the defendant to protect himself from injury from the animal. Accordingly, the order should be affirmed insofar as appealed from. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:47.315332+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07222.htm

People v Hollmond (2020 NY Slip Op 07222) People v Hollmond 2020 NY Slip Op 07222 Decided on December 2, 2020 Appellate Division, Second Department Miller, J., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER ANGELA G. IANNACCI, JJ. 2015-02257 (Ind. No. 2629/13) [*1]The People of the State of New York, respondent, v Tyron Hollmond, appellant. APPEAL by the defendant from a judgment of the Supreme Court (Danny K. Chun, J.), rendered December 3, 2014, in Kings County, convicting him of manslaughter in the first degree and attempted murder in the second degree (two counts), upon his plea of guilty, and imposing sentence. By decision and order of this Court dated March 27, 2019, the matter was remitted to the Supreme Court, Kings County, for further proceedings, including a hearing, on the defendant's application to withdraw his plea of guilty and thereafter for the issuance of a report as to the Supreme Court's findings with respect to whether the defendant established his entitlement to withdrawal of his plea. The appeal was held in abeyance pending receipt of the Supreme Court's report (see People v Hollmond, 170 AD3d 1193). The Supreme Court has now filed a report. Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent. MILLER, J. OPINION & ORDER A guilty plea must be knowingly and intelligently given and, if it is "to any degree induced by fear or coercion, it will not be permitted to stand" (People v Pearson, 55 AD2d 685, 686). Under the circumstances here, and particularly in view of the defendant's substantiated and uncontradicted testimony that he was deprived of his constitutional right to consult with his attorney in advance of trial, the Supreme Court improvidently exercised its discretion in denying the defendant's application pursuant to CPL 220.60(3) to withdraw his plea of guilty. Under the circumstances and for the reasons that follow, we conclude that the interests of justice would have been better served had the defendant been permitted to withdraw his plea of guilty. I. Factual and Procedural Background The defendant was charged, under Indictment No. 4182/12, with attempted murder in the second degree and other related offenses. The defendant was subsequently charged under Indictment No. 2629/13 with, inter alia, murder in the second degree. The crimes charged in the indictments were alleged to have occurred on multiple dates, including on April 22, 2012, and "on or about and between August 1, 2012 and October 1, 2012." The Supreme Court, Kings County (Danny K. Chun, J.), subsequently consolidated the two indictments under Indictment No. 2629/13, to proceed to a single trial. The defendant was confined, pretrial, based on a prior felony conviction, at Coxsackie Correctional Facility, in Coxsackie, approximately 132 miles north of the Kings County Supreme Court in Brooklyn. At a calendar call on October 6, 2014, before the Supreme Court, Kings County (Betty Williams, J.), the clerk noted for the record that the defendant had "not [been] produced by the Department of Corrections." The clerk explained that the defendant was "still at the upstate correctional facility in Coxsackie." The clerk continued: "[t]he facility is claiming they didn't receive the Order to have the defendant produced." Defense counsel asked if the court would order the defendant to be "transferred to a facility closer to this Court." Defense counsel stated that it was "very, very difficult" to communicate with the defendant when he was confined in Coxsackie. Defense counsel stated that he would "try to write the warden a letter," but that the situation had been "a continuing saga." After an off-the-record discussion, the court stated that it would "have [its] court attorney try to intercede," and later indicated it would also attempt to make "phone calls." The matter was adjourned until October 31, 2014, "for trial." On October 31, 2014, the defendant was produced by the Department of Corrections for a calendar call before the Supreme Court, Kings County (Betty Williams, J.). The court stated that the defendant was "going . . . forthwith to Part 19 for trial." Later on that same date, the defendant appeared in the trial part of the Supreme Court, Kings County (Danny K. Chun, J.). The court stated that the matter had been sent there for trial, and that it would "likely start picking a jury on Monday." The court indicated that it first wanted to address the fact that the defendant was "brought in from Ulster County, and not from Rikers." Defense counsel stated that the defendant was "being denied his right to consult with counsel." Defense counsel explained that the defendant had been "up in Coxsackie for quite a while" and that the facility did not permit him adequate communication with the defendant. Defense counsel had written "the warden at Coxsackie" and "indicated to him that [the defendant] was being denied his basic constitutional rights, the right to counsel." In response to his letter, defense counsel "got back this convoluted letter, which reflected basically nothing, that they are going to do what they are going to do." Defense counsel noted that the defendant was set to return to a different prison that night, but that "even when he's at the Newton prison . . . it is such a distant area . . . I am unable to consult with [the defendant] on a regular basis." Defense counsel stated that if the defendant was housed at a facility in the City of New York, he would be able to consult with the defendant in person. Defense counsel emphasized that this was "a very, very serious case." The Supreme Court stated that it would "sign an order directing the Corrections Department to keep the defendant either in Rikers or Brooklyn House . . . during this trial." Later during the same proceeding, the Supreme Court stated that it was willing to offer the defendant a sentence of 20 years to life in prison if he agreed to plead guilty to murder in the second degree, but the court said it could not "do any better than that." Defense counsel stated that the defendant would not accept the court's offer. The defendant next appeared before the court on November 3, 2014. The defendant was produced by the Department of Corrections from the Ulster Correctional Facility. The Ulster Correctional Facility, in Napanoch, is approximately 100 miles north of Brooklyn. Defense counsel stated that the defendant had not been transported to a facility closer to the site of the trial, and that it was his understanding that the defendant "will continue to be housed at Ulster." Defense counsel reiterated that he could not adequately confer with the defendant under such circumstances and set forth the efforts he had made. Defense counsel noted that the response from the Department of Corrections "was very trite" and recommended that defense counsel visit with the defendant in Coxsackie, "a four or five-hour drive" from Brooklyn. Defense counsel stated that it was also "onerous for [the defendant] to come every morning especially when he's on trial from Ulster, which he did this morning, waking up at 4, 5:00 in the morning then come to court here today without adequate preparation and consultation with his attorney." Defense counsel continued: "the Department of Corrections of the State of New York is violating [the defendant's] constitutional rights to consult with his attorney and to defend this case . . . under the New York and the United States Constitution." Defense counsel represented that the Department of Corrections had "made no effort" to respond to him or to the Supreme Court's prior directive. When the court asked the People if they had made any efforts to have the defendant transferred to a closer facility, the prosecutor responded that the People had not made any efforts to have the defendant relocated. The prosecutor stated: "I was told Ulster was going to transport him every single day." Defense counsel stated that without consultation with the defendant, he would "not proceed" unless ordered to do so by the court. After an off-the-record discussion, the Supreme Court stated that it would issue another order, specifically addressed to the Ulster Correctional Facility, directing that the defendant be "sent down to Riker's for the duration of the trial, but before I even do that, I want to visit this possible plea offer one last time." The court then offered the defendant another plea bargain, asking if he would be willing to accept a sentence of 20 years in prison. Defense counsel conveyed that the defendant was not interested in the court's offer. The court stated that it "will not ever approve of a sentence in a case this serious anything less than 20 years." Defense counsel reiterated that the [*2]defendant had no interest in the court's offer. The court adjourned the case until November 6, 2014, "for jury selection." Three days later, on November 6, 2014, the defendant was produced by the Department of Corrections from the Ulster Correctional Facility. Defense counsel stated that it had been "a continuing saga regarding the defendant's production" and that the defendant continued to be held in Ulster. Defense counsel stated that it had taken the defendant six hours to reach the court that day, and that after these proceedings he would be sent back to Ulster again, which would take another "four to six hours." The Supreme Court acknowledged that the defendant had been produced "much later" due to "bad driving conditions." It stated that it had "been trying for the last couple of adjournments to get [the defendant] brought down to . . . Riker's or anywhere else." The court stated that it had issued numerous orders, but that "they have not been adhered to." The court continued: "[p]erhaps [the orders] went to the wrong place, the wrong person, but I intend to write directly to the warden at Coxsackie." The court went on to state that, "if all those efforts fail, bottom line is we're going to have to go to trial wherever he is and it will take longer . . . but counsel will have time before we start, he will have time during the lunch break, and he will have time after we break." The court stated that it would proceed that way "[i]f we must," but that it was "going to do everything [it] can do [to] try to move him." The Supreme Court asked the prosecutor what efforts the People had made to have the defendant moved to a closer facility. The prosecutor stated that the People were "still trying to get him in a facility at Riker's," but that they had been unsuccessful and were "still working on it." The prosecutor went on to say that she had "informed the supervisors that if they don't let him stay at Riker's, they will incur overtime because Your Honor will keep [the defendant] late so that he can speak to his attorney, so hopefully with the idea they will have to do overtime they will keep him at Riker's." Defense counsel suggested that the prospect of overtime "may induce . . . the correction officers from upstate to continue to have him housed at Ulster." Defense counsel stated that he wanted to make "three objections," but the court told him to "save [his] breath." The Supreme Court asked the prosecutor when the trial could begin and suggested "Monday again to start picking if he's moved." The prosecutor indicated that the date would provide "sufficient time" to have the defendant moved, and the matter was adjourned until November 10, 2014. On November 10, 2014, the defendant was again produced from the Ulster Correctional Facility. The Supreme Court asked defense counsel to ask the defendant "where exactly he left from this morning." Defense counsel stated that the defendant was "permanently" at Coxsackie, but that "for some reason when they have court dates they put him at Ulster and he stays at Ulster." Defense counsel stated that the defendant "left Ulster between 5:00 and 5:30 this morning" and had "been on the road some five hours." The Supreme Court stated that "[it] was told that [the defendant] was here around 10:00" but that it had still taken him "close to an hour" to be produced in the courtroom. The court continued: "It's 11:15, but at the earliest defendant could have come up probably around 10:45 or so, and then give [defense counsel] a few minutes, it will be nearly impossible to hold a jury trying the case that way." The Supreme Court stated that it had sent a letter "to the superintendent of Coxsackie expressing [its] concerns why [its] directives have not been complied with." The court noted that "[t]he administrative judge [was] trying to call the counsel at the Department of Corrections." The court then addressed the prosecutor, stating "anything you can do to try to remove the defendant would help the situation." The prosecutor represented that she had spoken with a number of "captains," but that "no one has agreed to let [the defendant] stay anywhere at Riker's." The court stated that it would adjourn the matter and directed defense counsel to amend the date on one of its past orders to "see if that works." The court then asked if there was any possibility of a disposition. The court asked the prosecutor if the People would consent to a plea bargain pursuant to which the defendant would receive a sentence of 18 years in prison. Defense counsel informed the court that the defendant was "not interested in the 18 years at all." Three days later, on Thursday, November 13, 2014, the defendant was again produced by the Department of Corrections from Ulster. The Supreme Court noted for the record that the defendant arrived "late" and that the prosecutor was not present in the courtroom. The court stated that it was "still attempting to house the defendant at Riker's or a New York City facility if at all possible, and we're trying to do that by Monday." The Supreme Court stated that the defendant had been given an opportunity to meet with defense counsel "over lunch." The court stated that defense counsel's "biggest concern was that [*3]during the trial he [would] not have sufficient access with his client." The court stated that it was "trying to assuage that situation by giving him as much time, face time as possible today and tomorrow." Defense counsel stated that he had spent "several hours" with the defendant earlier that day. The defendant said the meeting had lasted for "an hour and-a-half." The Supreme Court set forth its plan for the trial, stating that it "plan[ned] to break sooner than other trials so [defense counsel] will have time at the end of the day . . . before [the defendant] is taken Upstate to speak to him during the trial." The court planned to "finish approximately around 4:00 every day" and indicated that it would not "go until 5:00." The court informed defense counsel: "[t]hat's the plan . . . [and] when the People are here, if you have additional objections you will have a chance to make [them] on the record on Monday." The court was unequivocal, however, in stating "come Monday regardless [of] where he is, we will begin jury selection. The trial will proceed." The defendant was next produced before the court the following Monday, on November 17, 2014—the date set for the beginning of his trial. The Supreme Court did not inquire where the defendant had been produced from. The defendant's attorney stated that his client would enter a guilty plea to one count of manslaughter in the first degree and two counts of attempted murder in the second degree in exchange for concurrent sentences of 18 years' imprisonment on each count, plus five years of postrelease supervision. The court immediately began to conduct the plea colloquy, advising the defendant, at one point, that there was "a jury pool downstairs" and that if the defendant did not wish to plead guilty, the court could "bring up the jury pool and start jury selection and start this trial." After describing the terms of the plea agreement, the court conducted the following colloquy: "THE COURT: Has anybody promised you anything different, or anything other than what I just told you about [the] sentence, to make you plead guilty? THE DEFENDANT: No, sir. THE COURT: Is anybody forcing you or pressuring or coercing you to plead guilty? THE DEFENDANT: No, sir. THE COURT: Are you pleading guilty voluntarily, of your own free will? THE DEFENDANT: Yes, sir." After the defendant's guilty plea was accepted, the court advised the defendant that he was also "being asked to waive [his] right to appeal, which means that if you're sentenced as promised, you will not be able to appeal this conviction, that this would be final." After the defendant purportedly waived his right to appeal, the matter was adjourned for sentencing. About two weeks later, on December 3, 2014, the defendant appeared before the Supreme Court, Kings County (Danny K. Chun, J.), for sentencing. Defense counsel immediately alerted the court that the defendant wanted to "take his plea back." When the court asked defense counsel why the defendant wanted to withdraw his plea, the defendant was permitted to address the court: "on numerous occasions [defense counsel] stated on the record that he refused to proceed with this case due to the lack of attorney/client visitations and trial was still pushed on me which I feared due process." The defendant stated that he felt that defense counsel "couldn't represent [him] . . . due to the lack of knowledge and understanding to this matter." The defendant stated that his attorney had indicated that he thought that the defendant was guilty, and "advised [the defendant] strongly to take this plea." The defendant asked the court to appoint him a new attorney and allow him to proceed to trial. Defense counsel urged the court to appoint a new attorney to represent the defendant in light of his application. The Supreme Court summarily rejected the defendant's application without appointing new counsel and before the People even took a position on the defendant's application. Citing to the terms of the plea agreement, the court stated that the defendant's argument that defense counsel had not adequately represented him was "absolutely inaccurate and incorrect." The court [*4]stated that it had "no reason to [think] that defendant entered into a plea involuntarily or he was tricked into taking a plea or he was forced to take a plea." The court stated that it saw "no legal reason" why the sentence could not be imposed. The court proceeded to sentence the defendant to concurrent determinate terms of 18 years' imprisonment plus five years of postrelease supervision on each of the three convictions. The defendant appealed from the judgment of conviction. On appeal, the defendant contended, inter alia, that the Supreme Court should have granted his application to withdraw his plea. The People asserted that the defendant failed to preserve his contention that his plea was not voluntary. The People further argued that this Court should not review the defendant's contention in the interest of justice because that claim was "speculative and unsupported." On the merits, the People asserted that the record demonstrated that the defendant's plea was voluntary. By decision and order dated March 27, 2019, this Court recognized that "[t]he record substantiates the defendant's claim that his plea was effectively coerced by the ongoing violation of his Sixth Amendment right to counsel and, thus, a genuine factual issue as to the voluntariness of the plea existed that could only be resolved after a hearing" (People v Hollmond, 170 AD3d 1193, 1195). This Court determined that the Supreme Court "should have conducted a hearing to explore the defendant's allegations in order to make an informed determination" (id.). Accordingly, this Court remitted the matter "to the Supreme Court, Kings County, for further proceedings, including a hearing, on the defendant's application to withdraw his plea of guilty, for which the defendant should be appointed new counsel" (id.). This Court directed that the appeal be held "in abeyance pending receipt of the Supreme Court's report" (id.). This Court expressed "no opinion as to the merits of the defendant's application" and "decide[d] no other issues at th[at] time" (id.). On remittitur, the Supreme Court, Kings County (Danny K. Chun, J.), appointed the defendant new counsel, and held a hearing over the course of several days. At the hearing, the defendant testified on his own behalf. The People presented the testimony of an officer employed by the New York State Department of Corrections, and an officer employed by the New York City Department of Corrections. The defendant testified that when his case went to trial posture in October 2014, he was transferred to Ulster Correctional Facility. The defendant was brought down from Ulster Correctional Facility for each court date. He was never housed at Rikers Island or any other facility within New York City. The defendant was asked to describe a "typical" transfer from the prison in Ulster to the Kings County courthouse. The defendant said he was awakened at about 3:00 a.m. on days that he was scheduled to appear in court. He was not provided with breakfast or medical care, although he had been prescribed certain medications to treat his asthma, and for his mental health. The defendant was typically transported from Ulster to the "Downstate" Correctional Facility, located in Beacon, at about 6:30 or 7:00 a.m. The trip from Ulster to Beacon would take about two hours. The defendant was transported in "the back of a van." The defendant was placed in an all-metal cage in the back of the van. The cage was referred to as "the dog cage." This name was used because it was "a metal cage where you would put a K-9 in." The defendant was placed in the cage "handcuffed and shackled." There was no car seat in the cage, only "a metal bench." The defendant testified that the cage was "very, very small" and that he could not sit in it unless he was "sideways." The defendant stated that he was unable to sleep in the cage, and he described the physical discomfort and injuries that he sustained while being transported in that manner. Once the defendant arrived at the Beacon facility, his handcuffs and shackles were removed and he was placed "in the bullpen." The defendant was not provided with any food at that facility. He was given the opportunity to use a toilet and he would get dressed for court while he waited for transportation to Brooklyn. When the transport arrived, he was handcuffed and shackled and placed into another "identical" van with the "same . . . cage." It typically took the defendant three or four hours to get to the courthouse in Brooklyn from the Downstate facility in Beacon. His total travel time from Ulster to Brooklyn typically took about five hours. The defendant was not provided with any food at the courthouse until there was a lunch break, usually around 1:00 p.m. For lunch at the courthouse, the defendant would receive a "peanut butter and jelly sandwich." This was typically the first time that the defendant would receive any food on dates that he was to appear in court. The defendant stated that after a court appearance, he would "go back to the pen until around 5:30, 6:00." The defendant was transported back to the Downstate facility in Beacon in the same type of van, with the same type of "dog cage" in the back. The defendant was handcuffed and shackled during his return trip. Once at the Downstate prison, he waited to be transported back to [*5]the Ulster prison. Once he was transported to Ulster, he went through a security search and was processed "through medical." The defendant testified that he would typically get back to his cell at about midnight. The defendant was not provided with a hot dinner or any other food when he returned to Ulster that late. He was able to eat food that he had purchased through the "commissary" at that time, typically a "bag of chips, pack of tuna." If he had court the next day, he would be woken up about three hours later, at about 3:00 a.m., to get ready for his transport. The defendant was aware that his attorney in 2014 had made several efforts to have him transferred from Ulster to Rikers for the duration of the trial. The defendant was also aware that the court had made several efforts to have him moved. However, it was made clear to the defendant that on Monday, November 17, 2014, the trial was going to proceed regardless of where he was confined. When he arrived at court on that date, he was still being held in Ulster. The defendant was never housed at Rikers Island. It was apparent to the defendant that the case was going to trial, regardless of where he was held. At that point, the defendant accepted the plea offer of 18 years in prison because he did not have enough time to "consult with [his] lawyer" and because his lawyer "wasn't ready for trial and they [were] forcing [him] to trial anyway." The defendant testified that the "[s]tress, duress [and] physical hurt" that resulted from the methods and timing of his daily transportation schedule also played a role in his decision to plead guilty. The defendant recalled accepting the plea offer on November 17, 2014. On the next court date, he sought to withdraw his plea. The defendant understood that if his plea was vacated, he would be facing the possibility of consecutive sentences, and significantly more prison time if he were convicted after a trial. On cross-examination, the defendant testified that, on some dates before the case went into the trial part, he would stay at the Downstate facility for several days after a court appearance, before eventually returning to the Coxsackie Correction Facility. The defendant agreed that at the November 3, 2014, court appearance, his attorney said that the defendant had been woken up at the Ulster Correctional Facility at 4:00 or 5:00 a.m. that morning. The defendant testified that he was "familiar with pleading guilty" as he had done so on approximately 10 previous occasions. The defendant testified that he had sometimes pleaded guilty in the past, even though he was not actually guilty. When the Supreme Court asked the defendant "why did you plead guilty when you were innocent?", the defendant replied: "Because I'm not naive to the system, sir. Sometimes I know people get found guilty and they [are] innocent. People get found guilty and do a lot of time and they [are] innocent. Central Park five." The defendant had never before asked to withdraw a guilty plea. Upon questioning by the Supreme Court, the defendant admitted that he was not telling the truth when he spoke to the court during the colloquy at the plea proceeding on November 17, 2014. When the court asked the defendant "[i]s there any particular reason why you were not being truthful that day?", the defendant answered: "My lawyer said if you don't take the plea, you go to trial and we are not properly prepared and I blow [the] trial, I get a whole, whole lot of time." The defendant stated that he "pled guilty here because [he] was under stress and duress and [he hadn't] been able to consult with [his] lawyer." The defendant continued: "Your Honor said that the trial was going on, regardless of whether we [were] able to consult or not, that's why I pled guilty." Lieutenant Jason Callender was called to testify by the People. He was employed by the New York State Department of Corrections, where he had worked for over 24 years. He worked at the Ulster Correctional Facility, and his duties were "transportation and inmate disciplin[e]." He had held that position for "[a]pproximately a month." In 2014, Lieutenant Callender worked at the Ulster Correctional Facility. At that time, "[he] did staffing, medical information for officers, and [he] was also doing the inmate disciplinary program." Lieutenant Callender testified that he was familiar with the transportation of prisoners from Ulster to "a courthouse down in the city." In October and November 2014, inmates who were to be transported would be woken up sometime before Lieutenant Callender began his shift at 5:00 a.m. The "midnight tour" was responsible for waking up the prisoners. Lieutenant Callender's "tour" would then escort the inmates to the "draft building" where they were "stripped first," then "searched" and "put into court clothes." Lieutenant Callender testified that it was "standard practice" to "feed them breakfast" at the draft department. The inmates were held in that location until "the Rikers [van] came up to pick them up, or county came to pick up for the courts." The New York State Department of Corrections was not responsible for providing transportation to Rikers Island. The New York State Department of Corrections had a number of vehicles that it used when transporting prisoners from Ulster to other state facilities, including a van, [*6]a mini bus that holds 20 inmates, and bigger buses that can hold approximately 44 inmates. Lieutenant Callender testified on cross-examination that he did not recognize the defendant and did not have any personal involvement in the defendant's transportation in 2014. He had no independent information as to when the defendant had actually left Ulster in October or November 2014. He had no personal information as to the vehicle used to transport the defendant in 2014. The van used by the New York State Department of Corrections had seats "in the front for the officer[s]" and in the back, behind a "shield," there was "the cage." Lieutenant Callender had never heard the cage referred to as a "dog cage." Inmates were shackled inside the van, and they sat on "factory" "benches" that "come with the van." Captain Leon Britton was also called by the People to testify at the hearing on remittitur. He had been employed by the New York City Department of Corrections for 29 years. His current position was "State Captain for transportation." In that capacity, his duties included overseeing the transportation of inmates "to and from state facilit[ies]." Captain Britton was asked about the procedure used in 2014 to transport inmates from the state facilities in Ulster to the courthouse in Brooklyn. One team of officers would be assigned "for Ulster [and] one for Downstate." These teams would "come at 4 o'clock in the morning, go straight to that facility, get the inmates who are on the calendar for court." They would usually arrive at Ulster or Downstate at "approximately six, after 6:00 a.m." Captain Britton testified that this general transportation procedure would have been used on the days that the defendant appeared in court on October 31, 2014, November 3, 2014, November 6, 2014, November 10, 2014, November 13, 2014, and November 17, 2014. The defendant's infraction history was admitted into evidence at the hearing without objection. Captain Britton testified that it reflected that the defendant had been cited for "harassing staff" on December 4, 2007, and for "assaulting staff" on March 9, 2008, and May 19, 2008. The defendant was cited for a "positive urinalysis" on November 7, 2012, and cited for "tampering with urine" on January 8, 2013. The exhibit reflected that the defendant was found "guilty" of all of the administrative infractions cited. Captain Britton testified that he did not have access to the infraction history records in connection with his day-to-day duties. The "Office of Special Investigation Unit" (hereinafter the OSIU) would review such records. The OSIU was responsible for making the determination as to where an inmate would be housed prior to trial. Over the defendant's objection, Captain Britton opined that, given the defendant's infraction history, the OSIU would have determined that the defendant would be "transport[ed] back and forth" each day from a facility upstate to the courthouse in Brooklyn. The New York City Department of Corrections assigned the defendant a classification score of 28, which took into account the defendant's criminal and disciplinary history. Captain Britton stated that 28 was a "high" score. In light of that score, the defendant would have been placed "in a cage by himself" if he was transported in a van. On cross-examination, Captain Britton testified that Rikers Island was able to house inmates charged with murder and inmates with high classification scores. Captain Britton did not have any information or records that pertained to the decision to house the defendant upstate during his trial in Brooklyn. After the hearing testimony, defense counsel, and the People, made oral arguments. On January 8, 2020, the Supreme Court issued a report in accordance with this Court's directive. The Supreme Court made factual findings, in which it apparently credited the bulk of the defendant's testimony. The court also appeared to credit the testimony of the People's witnesses, whose testimonies were largely consistent with the defendant's account. However, the court was clear that it "[did] not credit the defendant's testimony that he pleaded guilty only because he did not have sufficient time to speak to his lawyer." In reaching this conclusion, the Supreme Court cited to the colloquy at the plea proceeding, during which the defendant acknowledged, among other things, "that he had not been promised anything to make him plead guilty" and "that he was not forced, pressured or coerced to plead guilty." The court found that the defendant "clearly answered that he was pleading guilty voluntarily of his own free will" and he "did not object to the sentence [the] court was promising." The court concluded that "[i]t clearly was the defendant's decision to enter into a guilty plea" and he "unequivocally demonstrated that he was fully aware of the plea proceeding and the implications of his guilty plea." The Supreme Court further concluded, that "the record is clear that on Thursday, November 13, 2014 and Friday, November 14, 2014 . . . the defendant had sufficient time to consult [*7]with his attorney." The court continued: "On Thursday, the defendant spoke with his lawyer for 'a few hours' and on Friday, the defendant was produced to court solely to speak to his lawyer. Therefore, this court is not convinced by the defendant's argument that he did not have sufficient time to consult with his lawyer prior to taking the plea. In addition, the defendant was not brought to court on weekends and therefore, did not have to get up early in the mornings. Therefore, the defendant's argument that he could not function on the Monday he took the plea because of his court schedule is not convincing either." The Supreme Court went on to state that it had "made it clear that in the event that the defendant was not housed in New York City during the trial, [it] would start the trial later in the morning and end the trial earlier in the afternoon in order to give the defendant time to consult with his lawyer." "[A]t no point did [it] force or compel the defendant and his attorney to start trial when there was an issue with production." The court concluded that "the defendant's argument that his counsel forced him to take the plea because he did not have enough time to speak to the defendant [was] without merit." The court ultimately denied the defendant's application pursuant to CPL 220.60(3) to withdraw his plea. We reverse. II. Discussion New York, like most other jurisdictions, has long accepted the practice of plea bargaining, noting that it "serves important functions for both prosecutors and defendants" (Matter of Hynes v Tomei, 92 NY2d 613, 624-625, cert denied 527 US 1015; see People v Grant, 61 AD3d 177, 182). "Indeed, plea bargaining is predicated on mutuality of advantage" (People v Grant, 61 AD3d at 182-183; see Brady v United States, 397 US 742, 752; People v Seaberg, 74 NY2d 1, 7). "In return for surrendering the right to put the prosecution to its proof at a trial and for giving up the possibility of acquittal, the defendant receives consideration, almost always in the form of a sentence more lenient than might reasonably be expected upon a conviction after trial" (People v Grant, 61 AD3d at 183; see People v Pena, 50 NY2d 400, 412). "And, in return for agreeing to the more lenient sentence, the prosecution obtains the certainty of conviction and punishment without having to expose witnesses to the rigors of trial or to establish the defendant's guilt to a jury's satisfaction beyond a reasonable doubt" (People v Grant, 61 AD3d at 183; see People v Selikoff, 35 NY2d 227, 233). "Unlike a verdict, which must necessarily be based exclusively on the evidence submitted at trial, a defendant's decision to plead guilty may be based on any factor inside or outside the record" (People v Grant, 45 NY2d 366, 379). "[A] decision to plead guilty is one of the most solemn and personal rights that a person has" and, regardless of his or her underlying motivations, the decision is "[the defendant's] alone to make" (People v Rolston, 66 AD2d 617, 628, affd 50 NY2d 1048). "[I]n order to be valid and enforceable, a guilty plea must be entered voluntarily, knowingly and intelligently" (People v Brown, 14 NY3d 113, 116). "A guilty plea is voluntary only if it represents an informed choice freely made by defendant among other valid alternatives" (id.; see North Carolina v Alford, 400 US 25, 31; People v Grant, 61 AD3d at 182). Even after a defendant pleads guilty, the Criminal Procedure Law provides that "[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty . . . to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored" (CPL 220.60[3]). "The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" (People v Jacob, 94 AD3d 1142, 1143; see People v Alexander, 97 NY2d 482, 485). In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 AD2d 529, 530; see People v Nettles, 30 NY2d 841, 841-842; People v Englese, 7 NY2d 83, 87; People v Haffiz, 77 AD3d 767, 768, affd 19 NY3d 883; People v Smith, 54 AD3d 879, 880). As relevant here, a guilty plea may be vacated on the ground that it was "coerced, either by actual physical compulsion, threats and the like or 'by the duress of circumstances'" (People v White, 32 NY2d 393, 399, quoting People v Flowers, 30 NY2d 315, 317). Of course, bare and unsubstantiated claims of coercion or duress, without more, are insufficient to warrant vacatur of a guilty plea (see e.g. People v Henderson, 145 AD3d 1554, 1554-1555; People v Nash, 288 [*8]AD2d 937; People v Hanley, 255 AD2d 837, 838; see also People v Fisher, 28 NY3d 717, 726). However, vacatur may be warranted where the record substantiates a defendant's claim that a guilty plea was motivated, at least in part, by some unduly coercive circumstance (see People v Flowers, 30 NY2d at 318-319; People v Grant, 61 AD3d at 183-184; People v Griffin, 77 AD2d 666). In deciding whether to grant a defendant's motion to withdraw a guilty plea, additional factors may be relevant. For instance, the time that has elapsed between the guilty plea and the motion to vacate it has been described as a "significant" factor (People v Nixon, 21 NY2d 338, 355). In addition, a court should consider the prejudice, if any, that would result to the People if the motion to withdraw the plea is granted (see People v Leslie, 98 AD2d 977; People v Griffin, 77 AD2d 666; People v Arcuri, 64 AD2d 1028, 1028-1029; People v McIntyre, 40 AD2d 1038; People v East, 39 AD2d 606). In this case, the defendant contends that he was not provided with an adequate opportunity to consult with his attorney due to the circumstances of his confinement at an upstate facility prior to trial and that, as a result, his attorney was not prepared to try the case. The defendant testified that he felt compelled to plead guilty because the trial was set to commence on Monday, November 17, 2014, regardless of whether his attorney was prepared and notwithstanding the challenges posed by the daily transportation schedule that was utilized by the Department of Corrections. The Court of Appeals has long recognized that the deprivation of a fundamental constitutional right may effectively compel a defendant to plead guilty "out of necessity" (People v Seaberg, 74 NY2d at 9), in order to avoid the risk of "a trial that is unfair" (People v Blakley, 34 NY2d 311, 315). A guilty plea that is obtained under such circumstances must be vacated (id. at 315). As relevant here, "[t]he right to counsel . . . is inherent in the concept of a fair trial" (People v Cooper, 307 NY 253, 259). It is protected "under both the Federal and State Constitutions" (People v Koch, 299 NY 378, 381; see US Const 6th Amend; NY Const, Art I, § 6). To give the right to counsel "life and effect," a defendant must be afforded "a private interview with . . . counsel prior to the trial" (People ex rel. Burgess v Risley, 66 How Prac 67, 68; see People v McLaughlin, 291 NY 480, 482-483). The fundamental right to counsel "is denied to a defendant unless [the defendant] gets reasonable time and a fair opportunity . . . to prepare for trial" with "counsel's assistance" (People v McLaughlin, 291 NY at 482-483). "It is well settled that [this] fundamental right . . . includes 'the right to consult counsel in private, without fear or danger that the People . . . will have access to what has been said'" (People v Gamble, 18 NY3d 386, 396, quoting People v Cooper, 307 NY at 259). The right to counsel, "based as it is on a fundamental principle of justice, must be protected by the trial judge" (People v McLaughlin, 291 NY at 482), "'not . . . as a mere matter of rote, but with sound and advised discretion, . . . and with a caution increasing in degree as the offenses dealt with increase in gravity'" (Glasser v United States, 315 US 60, 71, quoting Patton v United States, 281 US 276, 312-313). In this case, the record demonstrates that the Supreme Court undertook numerous efforts to protect the defendant's fundamental right to consult with his attorney. Indeed, in addition to other efforts, the record shows that Justice Chun himself issued numerous orders directing that the defendant be transferred. The court's own actions in this case thus underscore the gravity and urgency of the defendant's allegations. While the record demonstrates the Supreme Court's commitment to protecting the defendant's constitutional rights, the court's orders were either refused or ignored by the Department of Corrections, without explanation. Although the Department of Corrections might have had administrative reasons for its intransigence, the defendant's constitutional right to counsel may not be extinguished by administrative fiat. We note that the court here took no steps to enforce the various orders it issued, and it declined to exercise the full scope of its authority (see Judiciary Law article 19). In any event, we cannot say, on this record, that the court was ultimately successful in protecting the defendant's right to counsel. As an initial matter, it is appropriate to emphasize the correct legal standard in this case, as the Supreme Court's report indicates confusion on this point. As previously indicated, the court ultimately stated that it "[did] not credit the defendant's testimony that he pleaded guilty only because he did not have sufficient time to speak to his lawyer" (emphasis added). The Supreme Court's characterization of the defendant's testimony is inaccurate, as he never testified to that effect, but rather, cited to other factors that played a role in his decision to accept the plea bargain. In any event, the Court of Appeals has clarified that "[a] guilty plea may not stand, even if only in part it was indisputably motivated by [some undue cause]" (People v Flowers, 30 NY2d at 319 [emphasis added]). Accordingly, "[i]t is immaterial that the hearing court did not [*9]believe that the alleged [coercion] was the only motivation for the plea" (id.). Rather, "as a matter of law, [a] plea is tainted if it appears on the uncontradicted evidence that it was motivated in part by [some undue cause]" (id. [emphasis added]). The defendant's testimony at the hearing was largely uncontradicted. To be sure, the People presented evidence that prisoners were generally offered breakfast in the morning, and testimony about estimated travel times varied somewhat, but the People's witnesses otherwise largely confirmed the defendant's account of the methods and timing of his daily transportation schedule. Neither of the People's witnesses was actually involved in transporting the defendant during the relevant times, and neither had any personal knowledge about the defendant's case. Furthermore, the People presented no evidence at the hearing to contradict the defendant's central claim that the conditions of his confinement and transportation deprived him of meaningful access to his attorney in the time leading up to the trial. This basic contention, uncontradicted by the People, was amply supported by the contemporaneous record of the proceedings that occurred in the weeks leading up to the defendant's plea. Indeed, as this Court has already recognized, "[t]he record substantiates the defendant's claim that his plea was effectively coerced by the ongoing violation of his Sixth Amendment right to counsel" (People v Hollmond, 170 AD3d at 1195). The defendant's testimony at the hearing on remittitur further confirmed that he accepted the plea offer of 18 years in prison because he did not have enough time to "consult with [his] lawyer" and because his lawyer "wasn't ready for trial and they [were] forcing [him] to trial anyway." The defendant testified that the "[s]tress, duress [and] physical hurt" that resulted from the methods and timing of his daily transportation schedule also played a role in his decision to plead guilty. The Supreme Court nevertheless rejected the defendant's testimony that he did not have sufficient time to consult with his lawyer before taking the plea. In reaching this conclusion, the court stated "the record is clear that on Thursday, November 13, 2014 . . . the defendant spoke with his lawyer for 'a few hours' and on Friday [November 14, 2014], the defendant was produced to court solely to speak to his lawyer." The court did not find, and it was not alleged by the People, that the defendant had any other opportunity to consult with his attorney on this case. The record supports the Supreme Court's finding that the defendant was given some time to consult with his attorney on Thursday, November 13, 2014. The transcript of the proceedings on that day includes a statement by defense counsel that he had spent "several hours" with the defendant earlier that day. The defendant said the meeting lasted for "an hour and-a-half." However, although the Supreme Court stated on November 13, 2014, that it was "trying to assuage that situation by giving [the defendant] as much . . . face time as possible today and tomorrow," there is no confirmation in the record that the defendant was actually afforded time to meet with his attorney on Friday, November 14, 2014. No transcript for that date was included in the record on appeal, there was no testimony elicited to that effect at the hearing on remittitur, and the court's record of the defendant's appearances fails to reflect that the defendant was actually produced on that date. In its report, the Supreme Court did not claim personal knowledge of any meeting between the defendant and defense counsel on November 14, 2014, and it did not purport to take judicial notice of any records or court documents. Notably, the court failed to specify how long the defendant was supposed to have met with his attorney on that date. There is no reason to doubt that the Supreme Court intended to have the defendant transported to the courthouse on Friday, November 14, 2014, in order to afford him time to meet with his attorney. However, given that the court's orders were routinely ignored by the Department of Corrections in this case, there is no reason to assume that the court's intention was actually effectuated, even if it was eventually committed to a written order. Absent such an assumption, there is nothing in the record to support the finding that the defendant had an opportunity to consult with his attorney on November 14, 2014. Accordingly, under the circumstances, we decline to adopt the court's factual finding that the defendant "was produced to court solely to speak to his lawyer" for some unspecified amount of time on Friday, November 14, 2014. The Supreme Court did not find that the defendant had any other opportunity to meet with his attorney to prepare for this trial, and it cited no other evidence to contradict the defendant's testimony that he had not been given adequate time to consult with his attorney. In sum, contrary to the court's conclusion, "the record does not establish that there must have been adequate consultation between lawyer and client" (People v Nixon, 21 NY2d at 351). Instead of citing to evidence showing that the defendant's constitutional right to counsel had been adequately safeguarded, the Supreme Court, like the People at the hearing on remittitur, relied heavily on the transcript of the plea proceeding. In this regard, the court cited to [*10]an instance in the colloquy where the defendant generally acknowledged, among other things, "that he had not been promised anything to make him plead guilty" and "that he was not forced, pressured or coerced to plead guilty." Notably, however, despite the pretrial history of this case, the court never asked the defendant if he had been given enough time to consult with his attorney—a fairly standard inquiry at any plea colloquy, let alone one where access to counsel was an ongoing issue at every previous court appearance. The Supreme Court, again relying on the transcript of the plea proceedings, went on to conclude that "[i]t clearly was the defendant's decision to enter into a guilty plea" and he "unequivocally demonstrated that he was fully aware of the plea proceeding and the implications of his guilty plea." The court noted that "the defendant was not brought to court on weekends and therefore, did not have to get up early in the mornings." Accordingly, the court concluded that "the defendant's argument that he could not function on the Monday he took the plea because of his court schedule is not convincing." The Supreme Court's characterization of the defendant's argument evinces a basic misapprehension of his claims. At no point did the defendant seek to withdraw his plea on the ground that he was unable to understand what transpired at that court appearance. Rather, the defendant unequivocally testified at the hearing on remittitur that he fully understood the plea bargain. He simply felt compelled to accept it because he had not been given an adequate opportunity to consult with his attorney and he was not prepared to go to trial. The rote colloquy that occurred at the defendant's plea proceeding, which was before this Court prior to the hearing on remittitur, should be accorded comparatively little weight in the context of the entire record. "The pleading took place in one of the busiest criminal courts in the land, a circumstance requiring more, not less, care by the pleading . . . court" (People v Nixon, 21 NY2d at 350-351). However, at the plea proceeding in this case, the Supreme Court never made any genuine inquiry into whether the defendant had been given adequate time to consult with his attorney and prepare for trial. The inexplicable failure to meaningfully address the central ongoing issue in this case undermines the significance of the handful of generalized responses during the plea colloquy that were relied upon by the court in denying the defendant's application. The defendant also provided an explanation for his inconsistent statements at the plea proceeding, stating that if he did not take the plea bargain, he would have been forced to "go to trial" even though he and his attorney were "not properly prepared." In this respect, the defendant's explanation is not particularly unique. We have already observed that the deprivation of a fundamental constitutional right may unduly coerce a defendant to plead guilty "out of necessity" (People v Seaberg, 74 NY2d at 9), in order to avoid the risk of "a trial that is unfair" (People v Blakley, 34 NY2d at 315). Under such circumstances, "there is reason to suspect that many pleading defendants are prepared to give the categorical answers only because they know that this is the route to eligibility for the . . . plea [bargain]" (People v Nixon, 21 NY2d at 355). The defendant's testimony in this case is consistent with the practical realities acknowledged in these past cases. The defendant's explanation at the hearing on remittitur was also consistent with his conduct during the pre-plea proceedings. In the weeks leading up to the eventual plea bargain, the defendant consistently and routinely rejected the plea offers that were advanced by the Supreme Court and the People at nearly every court appearance. Most significantly, the defendant specifically rejected an offer of 18 years' imprisonment at a time when the court still held out the prospect of transferring the defendant to a closer facility so that he could consult with his attorney. At that point, defense counsel informed the court that the defendant was "not interested in the 18 years at all." It was only after the court unequivocally informed the defendant and his counsel that the trial would begin on Monday, November 17, 2014, regardless of the circumstances of his confinement, that the defendant agreed to accept the same sentence that he had explicitly rejected just one week earlier. In addition, although it was not cited by the Supreme Court in its analysis, the timing of the defendant's application to withdraw his plea was itself "a significant factor to be considered" (People v Nixon, 21 NY2d at 355). The Court of Appeals has indicated, on a number of occasions, that "where initial inquiry exposes difficulties or subsequent interpositions by defendant on sentencing raise questions, the court should be quick to offer the defendant an opportunity to withdraw his plea" (People v Nixon, 21 NY2d at 355; see People v McClain, 32 NY2d 697, 697-698; People v McKennion, 27 NY2d 671, 672-673). Here, the defendant made the application to withdraw his plea at the beginning of the very next appearance before the Supreme Court about two weeks after he pleaded guilty and before the sentence was imposed. The prompt timing of the defendant's application weighed heavily in his favor. This was not a case where the defendant's claims of coercion were belatedly raised (cf. People v Henderson, 145 AD3d at 1554-1555; People v Nash, 288 AD2d 937; People v Hanley, 255 AD2d [*11]at 838). In addition, the People failed to allege, let alone demonstrate, any prejudice that would have befallen them had the court permitted the defendant to withdraw his plea prior to sentencing (see People v Leslie, 98 AD2d 977; People v Arcuri, 64 AD2d at 1028-1029; People v McIntyre, 40 AD2d 1038; People v East, 39 AD2d 606). III. Conclusion This Court has recognized that "[s]imple justice . . . mandates that a plea must be knowingly and intelligently given and, if it be to any degree induced by fear or coercion, it will not be permitted to stand" (People v Pearson, 55 AD2d 685, 686). Under the circumstances here, and particularly in view of the defendant's substantiated and uncontradicted testimony that he was deprived of his constitutional right to consult with his attorney in advance of trial, the Supreme Court improvidently exercised its discretion in denying the defendant's application pursuant to CPL 220.60(3) to withdraw his plea of guilty (see People v De Jesus, 199 AD2d at 531; People v Paulk, 142 AD2d 754, 754-755; People v Leslie, 98 AD2d 977; People v Arcuri, 64 AD2d at 1028-1029; People v McIntyre, 40 AD2d 1038; People v East, 39 AD2d 606; cf. People v Flowers, 30 NY2d at 318-319; People v Grant, 61 AD3d at 183-184; People v Griffin, 77 AD2d 666). In our view, "the interests of justice would have been better served had he been permitted to withdraw his guilty plea" (People v Arcuri, 64 AD2d at 1029; see People v Outlaw, 73 AD2d 677). Accordingly, the defendant's application to withdraw his plea is granted, the guilty plea is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment. Under the particular circumstances of this case, we deem it appropriate to direct that such proceedings take place before a different Justice. In light of the foregoing, we need not address the parties' remaining contentions. BALKIN, J.P., CHAMBERS, and IANNACCI, JJ., concur. ORDERED that the judgment is reversed, on the law, the facts, and as a matter of discretion in the interest of justice, the defendant's application to withdraw his plea is granted, the guilty plea is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment before a different Justice. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:47.543647+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07221.htm

People v Guevara-Lopez (2020 NY Slip Op 07221) People v Guevara-Lopez 2020 NY Slip Op 07221 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS VALERIE BRATHWAITE-NELSON LINDA CHRISTOPHER, JJ. 2018-14940 (Ind. No. 1673/18) [*1]The People of the State of New York, respondent, v Salvador Guevara-Lopez, appellant. Laurette D. Mulry, Riverhead, NY (Anju M. Alexander of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Nicole L. Gallo of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen Braslow, J.), rendered December 4, 2018, convicting him of aggravated driving while intoxicated with a child (2 counts), driving while intoxicated, per se, driving while intoxicated, endangering the welfare of a child, and operating a motor vehicle the wrong way on a one-way roadway, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's purported waiver of his right to appeal was invalid, as the County Court's colloquy mischaracterized the scope of the waiver (see People v Thomas, 34 NY3d 545, 565-566). Moreover, even a valid waiver of the right to appeal would not preclude review of the defendant's claim with respect to the voluntariness of his plea (see People v Murphy, 114 AD3d 704, 704-705). The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to vacate his plea prior to the imposition of sentence or otherwise raise the issue before the County Court (see People v Pray, 183 AD3d 842, 842; People v Karadag, 181 AD3d 620; People v Palladino, 140 AD3d 1194, 1194-1195). In any event, the defendant's contention is without merit. The chronology in which the County Court conducted the plea allocution does not render his plea invalid (see People v Pray, 183 AD3d at 842; People v Martinez, 159 AD3d 836, 836). Moreover, "[a] guilty plea is not invalid solely because the trial court failed to recite a defendant's constitutional rights under Boykin v Alabama" (People v Pellegrino, 26 NY3d 1063, 1063; accord People v Conceicao, 26 NY3d 375, 379). "The County Court's failure to recite all of the Boykin rights does not warrant vacatur of the defendant's guilty plea, as the record as a whole affirmatively demonstrates that the defendant entered his plea understandingly and voluntarily" (People v Karadag, 181 AD3d at 621; see People v Conceicao, 26 NY3d at 383). Here, the court's express advisement to the defendant that by pleading guilty he was waiving certain constitutional rights, taken together with the rationality of the plea and the other assurances of voluntariness provided on the record, demonstrate that the [*2]defendant's plea of guilty was knowing, voluntary, and intelligent (see People v Harris, 61 NY2d at 21-22; People v Pray, 183 AD3d at 843; People v Jackson, 114 AD3d 807, 808). MASTRO, J.P., CHAMBERS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:47.999765+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07219.htm

People v Cullins (2020 NY Slip Op 07219) People v Cullins 2020 NY Slip Op 07219 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN BETSY BARROS, JJ. 2018-10795 2019-03423 (Ind. No. 1478/17) [*1]The People of the State of New York, respondent, v Ivan Cullins, appellant. Judah Maltz, Kew Gardens, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Kevin C. King and Andrew Fukuda of counsel), for respondent. DECISION & ORDER Appeals by the defendant from (1) a judgment of the Supreme Court, Nassau County (Angelo A. Delligatti, J.), rendered August 1, 2018, convicting him of assault in the second degree, assault in the third degree, criminal possession of a weapon in the third degree, attempted criminal contempt in the second degree, and aggravated family offense, after a nonjury trial, and imposing sentence, and (2) a resentence of the same court imposed September 21, 2018. The appeal from the judgment brings up for review the denial, after a hearing (William J. O'Brien, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials. ORDERED that the appeal from so much of the judgment as imposed the sentence is dismissed, as that portion of the judgment was superseded by the resentence; and it is further, ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the third degree and dismissing that count of the indictment; as so modified, the judgment is affirmed insofar as reviewed; and it is further, ORDERED that the resentence is modified, on the law, by vacating the resentence imposed on the conviction of assault in the third degree; as so modified, the resentence is affirmed. The defendant's contention that the Supreme Court erred in failing to suppress physical evidence and statements he made to law enforcement officials is unpreserved for appellate review (see CPL 470.05[2]) and, in any event, without merit. At the suppression hearing, the evidence established that the police responded to a report of a "violent domestic" between a man, later identified as the defendant, and his sister, and that the defendant had stabbed her. Upon arrival, there was a crowd gathered outside the home, and a bystander informed the police that the complainant was being held inside the home by the defendant. The police discovered that the front door to the home was locked. The complainant then exited the premises in a distressed emotional state with a large contusion on her eye, and blood running down her leg. The police entered the home and saw the defendant within arm's reach of a knife. The defendant was placed under arrest. Contrary to the defendant's contention, the record [*2]supports the Supreme Court's determination that the police were presented with an emergency situation that justified a warrantless entry into his home (see People v Mitchell, 39 NY2d 173, 177-178; People v Anglin, 178 AD3d 839, 840; People v Timmons, 54 AD3d 883, 884). However, as the People concede, the defendant's conviction of assault in the third degree must be vacated as an inclusory concurrent count of assault in the second degree (see CPL 300.40[3][b]; Penal Law §§ 120.05[2]; 120.00[1]; People v Bussey, 186 AD3d 618, 619; People v Paguay, 132 AD3d 1014, 1014-1015). Accordingly, we vacate the conviction of assault in the third degree and the resentence imposed thereon, and dismiss that count of the indictment. The defendant's remaining contention is without merit. AUSTIN, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:50.265941+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07214.htm

People v Ambrosio (2020 NY Slip Op 07214) People v Ambrosio 2020 NY Slip Op 07214 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ. 2017-06276 (Ind. No. 1682/14) [*1]The People of the State of New York, respondent, v Joseph Ambrosio, appellant. Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Hannah X. Scotti of counsel) for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Charles S. Lopresto, J.), rendered January 5, 2017, convicting him of robbery in the first degree and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. After a jury trial, the defendant was convicted, inter alia, of robbery in the first degree based on evidence that he had stolen property from the complainant. The complainant testified that the defendant accosted her from behind, threatened to cut her, and did in fact cut her on the hand with a sharp instrument that she did not see but that felt to her like a very sharp blade. An investigating police officer testified that he subsequently observed an injury to the complainant's hand. The defendant was arrested following his identification from surveillance videos and photographs of the incident, which were disseminated to the media by police. The defendant's challenge to the legal sufficiency of the evidence supporting his conviction of robbery in the first degree is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of robbery in the first degree beyond a reasonable doubt (see People v Pena, 50 NY2d 400, 406-409; People v Hallums, 157 AD2d 800, 801). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). Furthermore, given the complainant's account of the crime, the Supreme Court did not err in denying the defendant's request to charge robbery in the third degree as a lesser included offense of robbery in the first degree since, viewing the evidence in the light most favorable to the defendant (see People v Martin, 59 NY2d 704, 705), there was no reasonable view of the evidence that would have supported a finding that the defendant committed the lesser offense but not the greater (see People v Rivera, 23 NY3d 112, 121; People v Minard, 125 AD3d 691; People v Mitchell, 59 AD3d 739, 740; People v Monroe, 212 AD2d 374). Contrary to the defendant's contention, the Supreme Court did not deprive him of the right to self-representation. The defendant's request to proceed pro se was made in the context of his claim of dissatisfaction with counsel, and was not unequivocal (see People v Evans, 116 AD3d 879, 880; People v Jackson, 97 AD3d 693, 694; People v Scivolette, 40 AD3d 887, 887-888). Moreover, since the defendant's subsequent conduct indicated his satisfaction with his assigned counsel, he abandoned any previous request to represent himself (see People v Gillian, 8 NY3d 85, 88; People v Little, 151 AD3d 531, 531-532; People v Jackson, 97 AD3d at 694). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). MASTRO, J.P., CHAMBERS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2011-08-23 09:34:07+00

http://bulk.resource.org/courts.gov/c/F2/732/732.F2d.939.83-1683.html

732 F.2d 939 *Walter E. Heller & Co. v. Tyger Equipment-International 83-1683 United States Court of Appeals, Fifth Circuit. 4/19/84 1 N.D.Tex. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 5th Cir.R. 34.2.

2020-06-05 13:08:15.720152+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007178PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:08 AM CDT - 868 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 William Sellers, appellee, v. Reefer Systems, Inc., appellant. ___ N.W.2d ___ Filed May 22, 2020. No. S-19-082. 1. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 2. Judgments: Statutes: Rules of the Supreme Court: Appeal and Error. Because Nebraska Supreme Court rules are construed in the same manner as statutes, an appellate court does so independently of the conclusion of the lower court. 3. Attorney Fees: Appeal and Error. A court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 4. Attorney Fees: Statutes: Rules of the Supreme Court: Affidavits: Appeal and Error. In order to recover statutory “reasonable” attor- ney fees under Neb. Rev. Stat. § 48-125 (4)(b) (Cum. Supp. 2018), the details of the attorney-client agreement is not a necessary component of the affidavit submitted pursuant to Neb. Ct. R. App. P. § 2-109(F) (rev. 2014) for justification of appellate attorney fees. 5. Statutes: Legislature: Intent. The intent of the Legislature may be found through its omission of words from a statute as well as its inclu- sion of words in a statute, and courts are not permitted to read addi- tional words into a clear and unambiguous statute. 6. Workers’ Compensation: Attorney Fees. When Neb. Rev. Stat. § 48-125 (4)(b) (Cum. Supp. 2018) of the Nebraska Workers’ Compensation Act does not specify that reasonable attorney fees must have been “incurred,” it is improper for a court to add it. 7. Workers’ Compensation. The Nebraska Workers’ Compensation Act should be construed liberally to carry out its spirit and beneficent pur- pose of providing compensation to employees injured on the job.  - 869 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 8. Attorney Fees: Legislature: Public Policy. The Legislature determined as a matter of public policy that the “reasonable attorney’s fee” man- dated by Neb. Rev. Stat. § 48-125 (4)(b) (Cum. Supp. 2018) does not depend on the terms of any fee agreement. 9. Attorney Fees. Statutory “reasonable” attorney fees taxed as costs do not go directly to the attorney. 10. ____. In order to determine proper and reasonable attorney fees, a court considers several factors, including the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, the customary charges of the bar for similar services, and the general equities of the case. Petition for further review from the Court of Appeals, Riedmann, Bishop, and Arterburn, Judges, on appeal thereto from the Workers’ Compensation Court, J. Michael Fitzgerald, Judge. Judgment of Court of Appeals reversed and remanded with directions. Tanya J. Hansen, of Smith, Johnson, Allen, Connick & Hansen, for appellant. Joel D. Nelson, of Keating, O’Gara, Nedved & Peter, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE In an appeal of a workers’ compensation case, wherein the award to the employee was affirmed, the Nebraska Court of Appeals denied the employee’s motion for attorney fees for his counsel’s appellate work, despite the statutory mandate under Neb. Rev. Stat. § 48-125 (4)(b) (Cum. Supp. 2018) that reason- able attorney fees shall be allowed to the employee by the appellate court if the employer files an appeal from a workers’ compensation award and fails to obtain any reduction in the  - 870 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 amount of such award. We hold that the affidavit submitted by the employee’s attorney, which mentioned a contingency fee agreement, presented the total number of hours worked on the appeal with a couple of examples of tasks performed, set forth an hourly rate, averred that the total hours claimed were calculated from business records itemizing the same, and averred in the attorney’s expert opinion that the hours and rate were reasonable, sufficiently justifies under Neb. Ct. R. App. P. § 2-109(F) (rev. 2014) reasonable attorney fees to which the employee has a statutory right. We reverse the judgment and remand the matter to the Court of Appeals to determine the amount of the fee. BACKGROUND William Sellers was injured while working for Reefer Systems, Inc., in 2007. In 2019, the Workers’ Compensation Court awarded him permanent total disability benefits. Reefer Systems appealed the award to the Court of Appeals. The Court of Appeals affirmed the award in all respects in a memo- randum opinion issued on October 8, 2019. 1 Sellers timely filed a motion in the Court of Appeals for an award of reasonable attorney fees pursuant to § 48-125(4)(b) for the reason that the employer appealed the trial court deci- sion and there was no reduction in the amount of the award on appeal. Attached to the motion is the affidavit of Sellers’ counsel who worked on the appeal. Counsel avers that he spent 37.8 hours in total on the appeal, beginning April 18, 2019, and end- ing May 7, and opines that was “a reasonable amount of time for the work involved.” Counsel describes that he has been an attorney since 1997 and that since 1999, a substantial por- tion of his practice has been workers’ compensation cases. He avers that his hourly rate ranges from $140 to $245 per hour, that he is generally familiar with hourly rates charged by other 1 Sellers v. Reefer Systems, No. A-19-082, 2019 WL 4940200 (Neb. App. Oct. 8, 2019) (selected for posting to court website).  - 871 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 litigation attorneys in this geographic area, and that an hourly rate of $200 per hour for his work on Sellers’ appeal would be reasonable and consistent with fees charged in this area for attorneys of similar background and skill. Counsel avers, further, that he derived the number of hours spent on the appeal from an audit of records maintained by his law firm’s staff and himself, consistent with their regular and established business practices. He notes that the audit revealed its first entry on April 18, 2019, as reviewing the bill of excep- tions, and, as its last entry, revising Sellers’ brief. The hours assigned to these particular tasks is not set forth. No other tasks are specifically delineated. The referenced records were not attached to the affidavit. Counsel notes in the affidavit that he represented Sellers “on a contingent fee.” The details of that arrangement are not otherwise described. The Court of Appeals denied the motion for attorney fees on the ground that counsel’s affidavit did not provide suffi- cient information to justify the reasonableness of the attorney fees sought. The Court of Appeals issued the following minute entry: [Sellers’] motion for attorney fees denied. Affidavit fails to justify amount of attorney fees sought. See Neb. Ct. R. App. P. § 2-109(F). See also St. John v. Gering Public Schools, 302 Neb. 269 , 923 N.W.2d 68 (2019) (in seeking attorney fee[s], lawyer has burden of proving not only extent and value of services provided, but also exis- tence and terms of fee contract). We granted Sellers’ petition for further review of this order of the Court of Appeals which overruled his motion for attor- ney fees. ASSIGNMENTS OF ERRORS Sellers assigns that the Court of Appeals erred in (1) over- ruling Sellers’ motion for statutory attorney fees and (2) impos- ing a burden of proof regarding attorney fees derived from fee disputes between attorneys or between an attorney and client.  - 872 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 STANDARD OF REVIEW [1] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an inde- pendent conclusion irrespective of the decision made by the court below. 2 [2] Because Nebraska Supreme Court rules are construed in the same manner as statutes, an appellate court does so inde- pendently of the conclusion of the lower court. 3 [3] A court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 4 ANALYSIS Section 48-125(4)(b) provides for mandatory attorney fees for appellate work in circumstances where the employer appeals and fails to obtain any reduction in the award: If the employer files an appeal from an award of a judge of the compensation court and fails to obtain any reduc- tion in the amount of such award, the Court of Appeals or Supreme Court shall allow the employee a reasonable attorney’s fee to be taxed as costs against the employer for such appeal. (Emphasis supplied.) Section 2-109(F) of the Supreme Court rules sets forth the general procedure by which an employee must request the attorney fees allowable under § 48-125(4), 5 inasmuch as it sets forth the procedure for any litigant seeking from our appellate courts attorney fees to which there is a right under law or cus- tom. Section 2-109(F) provides in relevant part: Any person who claims the right under the law or a uni- form course of practice to an attorney fee in a civil case appealed to the Supreme Court or the Court of Appeals 2 Saylor v. State, 304 Neb. 779 , 936 N.W.2d 924 (2020). 3 See Hotz v. Hotz, 301 Neb. 102 , 917 N.W.2d 467 (2018). 4 See State ex. Rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606 , 924 N.W.2d 664 (2019). 5 See Escobar v. JBS USA, 25 Neb. App. 527 , 909 N.W.2d 373 (2018).  - 873 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 must file a motion for the allowance of such a fee sup- ported by an affidavit which justifies the amount of the fee sought for services in the appellate court. (Emphasis supplied.) Sellers’ motion for attorney fees pursuant to § 48-125(4)(b) was timely under § 2-109(F), but the parties dispute whether the supporting affidavit adequately justifies “reasonable” attorney fees. In denying Sellers’ motion, the Court of Appeals concluded that the affidavit submitted under § 2-109(F) was inadequate because it did not provide the details of the fee agreement between Sellers and his attorney. This was in error. We have never held that in order to recover statutory “reasonable” attorney fees, the attorney must submit the details of the attorney-client agreement. Neither is such evidence specified in § 2-109(F) as a necessary component to the justification of an appellate attorney fees. We have affirmed allowances of statutory attorney fees for trial work despite a lack of proof as to any fee agreement. In Dale Electronics, Inc. v. Federal Ins. Co., 6 we held under a statute setting forth the right to “reasonable” attorney fees that the attorney-fee allowance for the work of in-house counsel should be for the time actually engaged in the work to the same extent as outside counsel; evidence of counsel’s annual salary was not required. And in Black v. Brooks, 7 we affirmed the lower court’s award of statutory “reasonable attorney’s fees” 8 to which the successful tenant was entitled under Nebraska’s Uniform Residential Landlord and Tenant Act (URLTA), 9 even though the tenant was represented on a pro bono basis without any provision under the agreement for payment to the attorney in the event of an award of statutory fees. 6 See Dale Electronics, Inc. v. Federal Ins. Co., 205 Neb. 115 , 286 N.W.2d 437 (1979). 7 Black v. Brooks, 285 Neb. 440 , 827 N.W.2d 256 (2013). 8 Neb. Rev. Stat. § 76-1425 (2) (Reissue 2009). 9 Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2009).  - 874 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 In Black, we indicated that the tenant “need only present some evidence to the trial court upon which the court can make a meaningful award.” 10 We observed, “We have never said a fee agreement or any other agreement showing an obligation of the client to pay the attorney fees to the attorney is part of the proof that must be proffered in order to support an award of statutory attorney fees.” 11 We reasoned in Black that the amount of the statutory attorney fees under URLTA is not directly tied by the statute to the amount due under a fee agreement and that the public policy goals of encouraging compliance with laws serving the public interest and encouraging settlements are effectively furthered only when the statutory attorney fees under URLTA are awarded for fee-based and pro bono work alike. A land- lord who violates URLTA should not “reap the benefits of free representation to the other party.” 12 There was nothing in the statutory language of “reasonable attorney’s fees” in URLTA that made the recovery of such fees dependent upon a billing obligation, and we held it would be improper to insert the addi- tional term “incurred” into the statute. 13 [4-6] We now hold that in order to recover statutory “rea- sonable” attorney fees under § 48-125(4)(b), the details of the attorney-client agreement is not a necessary component of the affidavit submitted pursuant to § 2-109(F) for justification of appellate attorney fees. The intent of the Legislature may be found through its omission of words from a statute as well as its inclusion of words in a statute, and we are not permitted to read additional words into a clear and unambiguous statute. 14 Several attorney fee statutes, such as the one recently addressed 10 Black, supra note 7, 285 Neb. at 451, 827 N.W.2d at 264. 11 Id. 12 Id. at 454, 827 N.W.2d at 266. 13 See Black, supra note 7. 14 See Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010 , 885 N.W.2d 723 (2016).  - 875 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 in TransCanada Keystone Pipeline v. Nicholas Family, 15 spec- ify that to be recoverable, the reasonable attorney fees must have been “incurred.” 16 When § 48-125(4)(b) of the Nebraska Workers’ Compensation Act does not specify that reasonable attorney fees must have been “incurred,” it is improper for us to add it. [7,8] We have repeatedly said that the Nebraska Workers’ Compensation Act should be construed liberally to carry out its spirit and beneficent purpose of providing compensation to employees injured on the job. 17 It is apparent that the Legislature determined as a matter of public policy that the “reasonable attorney’s fee” mandated by § 48-125(4)(b) does not depend on the terms of any fee agreement. Thus, the affi- davit submitted under § 2-109(F) in support of attorney fees pursuant to § 48-125(4)(b) does not need to set forth the exis- tence and terms of a fee contract between the employee and the attorney in order to “justify” statutorily mandated “reasonable” attorney fees for the appeal. The Court of Appeals’ reliance on St. John v. Gering Public Schools 18 to conclude otherwise is misplaced. St. John did not involve attorney fees taxed as costs under a statute or custom. Instead, it involved the question of the attorneys’ entitlement under their attorneys’ liens for services rendered pursuant to their fee agreements. In an analysis centered around the profes- sional responsibility rules, we held that “while a lawyer with a valid fee agreement is entitled to recover from a client what a 15 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276 , 908 N.W.2d 60 (2018). 16 See, e.g., Neb. Rev. Stat. § 1-148 (Reissue 2012); Neb. Rev. Stat. § 21-281 (Cum. Supp. 2018); Neb. Rev. Stat. § 30-4020 (Supp. 2019); Neb. Rev. Stat. § 50-1515 (Cum. Supp. 2018); Neb. Rev. Stat. § 53-223 (Reissue 2010); Neb. Rev. Stat. § 76-726 (Reissue 2018); Neb. Rev. Stat. § 81-3537 (Reissue 2014); Neb. Rev. Stat. § 85-1510 (Reissue 2014). 17 Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219 , 933 N.W.2d 851 (2019). See Neb. Rev. Stat. § 48-101 (Reissue 2010). 18 St. John v. Gering Public Schools, 302 Neb. 269 , 923 N.W.2d 68 (2019).  - 876 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 fee agreement allows to the extent that amount is reasonable, a lawyer is not entitled to recover from a client more than a fee agreement allows.” 19 Neb. R. of Prof. Cond. § 3-501.5 provides in part that “[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” In so holding in St. John, we cited to Hauptman, O’Brien v. Turco 20 for the proposition which states: In a suit to recover an unpaid fee, “the lawyer has the burden of persuading the trier of fact, when relevant, of the existence and terms of any fee contract, the making of any disclosures to the client required to render a con- tract enforceable, and the extent and value of the lawyer’s services.” Like St. John, Hauptman, O’Brien did not involve statutory “reasonable” attorney fees to be taxed as costs in favor of the litigant-client. It was an action to enforce an attorney lien in an amount computed in accordance with the contingent fee agree- ment. The client asserted that recovery under the contingent fee agreement was excessive for the amount of work actually done, and we held that because the law firm failed to present any evidence in support of its motion for summary judgment as to the “extent and value of the professional services which it performed” during the period of its representation, there was “no factual basis upon which to determine whether or not the claimed fee computed pursuant to the contingent fee agreement is reasonable.” 21 This was because collection by the attorney of attorney fees computed pursuant to a contingent fee agreement is still subject to the ethical principle embodied in § 3-501.5 of the professional conduct rules that prohibits a 19 Id. at 277, 923 N.W.2d at 75. 20 See Hauptman, O’Brien v. Turco, 273 Neb. 924 , 931, 735 N.W.2d 368 , 374 (2007) (emphasis supplied), quoting Restatement (Third) of the Law Governing Lawyers § 42(2) (2000). 21 Hauptman, O’Brien, supra note 20 , 273 Neb. at 932 , 735 N.W.2d at 374 .  - 877 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 lawyer from making an agreement for, charging, or collecting an unreasonable fee. [9] But, as we pointed out in Black, statutory “reason- able” attorney fees taxed as costs do not go directly to the attorney. 22 The award of fees for an unsuccessful appeal by an employer in a workers’ compensation case is “for the ben- efit of the claimant employee.” 23 Within constitutional limits, the Legislature is free to set statutory attorney fees under the Nebraska Workers’ Compensation Act in any amount it deems fit to further the public policy of the act. Attorney fees under § 48-125(4)(b) shall be allowed in an amount that is reasonable. That determination depends on the extent and value of services provided and is not dependent upon a fee agreement. [10] We find that the affidavit submitted on Sellers’ behalf contains sufficient justification of the extent and value of the attorney services provided on appeal to make a meaningful determination of the amount of “reasonable” attorney fees to which Sellers is entitled. In order to determine proper and reasonable attorney fees, a court considers several fac- tors, including the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, the customary charges of the bar for similar services, and the general equities of the case. 24 Sellers’ affidavit did not need to set forth a detailed log of all tasks and the amount of time spent on each task in order to be considered under § 2-109(F) in determining reason- able attorney fees. The affidavit by Sellers’ attorney stated 22 See Black, supra note 7. 23 Neeman v. Otoe County, 186 Neb. 370 , 376, 183 N.W.2d 269 , 273 (1971). 24 See, Pan v. IOC Realty Specialist, 301 Neb. 256 , 918 N.W.2d 273 (2018); Kercher v. Board of Regents, 290 Neb. 428 , 860 N.W.2d 398 (2015).  - 878 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELLERS v. REEFER SYSTEMS Cite as 305 Neb. 868 the total number of hours and the applicable rate, and it presented an expert opinion that both were reasonable. The attorney noted a couple of tasks performed and stated that the number of hours claimed had been carefully logged in his law firm’s business records. We also note that the evidence supporting a meaningful determination of reasonable attorney fees on appeal is not lim- ited to the affidavit required under § 2-109(F). It also includes the court’s general experience in matters of litigation and what has been produced by the attorney for the appellate court’s direct consumption. 25 The Court of Appeals abused its discretion in concluding that it could not meaningfully determine a “reasonable attor- ney’s fee” pursuant to § 48-125(4)(b), because Sellers’ affi- davit failed to adequately “justify” one. We reverse the denial of Seller’s motion for appellate attorney fees and remand the matter with directions for the Court of Appeals to determine the amount of reasonable attorney fees. Nothing in this opinion should be read as expressing an opinion as to what the amount of attorney fees should be. CONCLUSION For the foregoing reasons, we reverse the judgment and remand the matter to the Court of Appeals with directions. Reversed and remanded with directions. 25 See, e.g., Rinderknecht v. Rinderknecht, 204 Neb. 648 , 284 N.W.2d 569 (1979); Lippincott v. Lippincott, 152 Neb. 374 , 41 N.W.2d 232 (1950); Specht v. Specht, 148 Neb. 325 , 27 N.W.2d 390 (1947); Yost v. Yost, 143 Neb. 80 , 8 N.W.2d 686 (1943).

2020-12-02 21:09:50.780062+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07213.htm

People ex rel. Smith v Fields (2020 NY Slip Op 07213) People ex rel. Smith v Fields 2020 NY Slip Op 07213 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. MARK C. DILLON HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2020-03809 (Index No. 51164/20) [*1]The People etc., ex rel. Edward E. Smith, on behalf of Jose Colon, appellant, v Leroy Fields, etc., et al., respondents. Laurette D. Mulry, Riverhead, NY (Edward E. Smith, pro se, and Anju Alexander of counsel), for appellant. Letitia James, Attorney General, New York, NY (Steven C. Wu and Blair J. Greenwald of counsel), for respondents. DECISION & ORDER In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Hal B. Greenwald, J.), dated May 7, 2020. The judgment denied the petition and, in effect, dismissed the proceeding. ORDERED that the appeal is dismissed as academic, without costs or disbursements. In 2012, petitioner was convicted, upon his plea of guilty, of, among other crimes, criminal sex act in the first degree (two counts) and sexual abuse. The petitioner was sentenced, inter alia, to a determinate term of imprisonment of 8 years with a period of postrelease supervision of 20 years. The petitioner's maximum expiration date for his term of imprisonment expired in October 2019, whereupon his period of postrelease supervision commenced. However, the Department of Corrections and Community Supervision (hereinafter DOCCS) did not release the petitioner on that date due to his inability to find housing that complied with the requirements of the Sexual Assault Reform Act (hereinafter SARA) (see Executive Law § 259-c[14]; Penal Law § 220.00[14]). DOCCS placed him into a residential treatment facility until he could locate housing that complied with SARA. The petitioner commenced this habeas corpus proceeding in April 2020. The thrust of his petition was predicated upon his contention that his confinement in the residential treatment facility constituted cruel and unusual punishment due to the COVID-19 virus. However, his petition also questioned whether SARA's residency restrictions apply to persons, such as himself, who were serving periods of postrelease supervision after completing their determinate terms of imprisonment. While arguing that the statutory provisions exclude him from SARA's coverage, he did not argue, until a reply, that a contrary statutory construction would be unconstitutional. The Supreme Court denied the petition and, in effect, dismissed the proceeding. It is undisputed that, during the pendency of this appeal, the petitioner was released from the residential treatment facility. It is a fundamental principle of this Court's jurisprudence that "[t]he power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" (People v Barizone, 179 AD3d 713, 715; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713). "This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary" (Matter of Hearst Corp. v Clyne, 50 NY 2d at 713-714). "Thus, '[t]he mootness doctrine precludes courts from considering questions which, although once active, have become academic by the passage of time or by a change in circumstances'" (Matter of Abbygail G. [Christine Y.-Karen M.], 177 AD3d 878, 880, quoting Matter of Melinda D., 31 AD3d 24, 28; see People ex rel. Rosario v Superintendent, Fishkill Corr. Facility, 180 AD3d 920, 921; People ex rel. Booth v Warden, Otis Bantum Corr. Ctr., 157 AD3d 711, 711-712; People ex rel. Kneitel v Warden, Rikers Is. Corr. Facility, 120 AD3d 1274). "'If academic, an appeal is not to be determined unless it falls within the exception to the doctrine that permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would otherwise be nonreviewable'" (Matter of Abbygail G. [Christine Y.-Karen M.], 177 AD3d at 880, quoting Matter of Melinda D., 31 AD3d at 28). "'The exception to the mootness doctrine requires the existence of three common factors: (1) a likelihood the issue will repeat, either between the same parties or among other members of the public, (2) an issue or phenomenon typically evading appellate review, and (3) a showing of significant or important questions not previously passed upon'" (Matter of Abbygail G. [Christine Y.-Karen M.], 177 AD3d at 880, quoting Matter of Melinda D., 31 AD3d at 28; see People ex rel. Rosario v Superintendent, Fishkill Corr. Facility, 180 AD3d at 921). Here, the precise issue of statutory construction raised by the petitioner was resolved against him by this Court in Matter of Khan v Annucci (186 AD3d 1370, 1372), which held that SARA's school-grounds requirement unambiguously applies equally to certain sex offenders, such as petitioner here, serving periods of postrelease supervision beyond the maximum date of their release from prison, as it does to those "on parole or conditionally released." We further held in Khan that enforcement of the SARA school-grounds requirement did not violate substantive due process (see id. at 1373). In view of Khan, and the fact that any remaining constitutional arguments were not timely raised in the Supreme Court (see Pesce v Fernandez, 144 AD3d 653, 655; Guiterrez v Iannacci, 43 AD3d 868; Johnston v Continental Broker-Dealer Corp., 287 AD2d 546), it cannot be said that there are any issues properly before us which are "significant or important questions not previously passed upon" (Matter of Abbygail G. [Christine Y.-Karen M.], 177 AD3d at 880). SCHEINKMAN, P.J., DILLON, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:51.326521+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07211.htm

PennyMac Corp. v Barbosa (2020 NY Slip Op 07211) PennyMac Corp. v Barbosa 2020 NY Slip Op 07211 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY, JJ. 2018-07582 (Index No. 17954/10) [*1]PennyMac Corp., appellant, v Edgar Barbosa, etc., respondent, et al., defendants. Blank Rome LLP, New York, NY (Jacquelyn A. DiCicco, Diana M. Eng, and Andrea Roberts of counsel), for appellant. Brian McCaffrey, Attorney at Law, P.C., Jamaica, NY, for respondent. DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals, by permission, from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered April 23, 2018. The order, insofar as appealed from, granted the cross motion of the defendant Edgar Barbosa pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him to the extent of directing a hearing to determine the validity of service of process. ORDERED that the order is affirmed insofar as appealed from, with costs. This is an action to foreclose a mortgage on property located in College Point (hereinafter the subject property). The action was commenced in July 2010. According to an affidavit of service, on August 6, 2010, at 11:20 a.m., the summons and complaint were served upon the defendant Edgar Barbosa pursuant to CPLR 308(4). Barbosa neither appeared in the action nor answered the complaint. In an order dated December 8, 2014, the plaintiff was granted an extension of time to serve Barbosa pursuant to CPLR 306-b. Pursuant to that order, Barbosa allegedly was served with process at the subject property on February 11, 2015, pursuant to CPLR 308(2) by leaving the summons and complaint with a person of suitable age and discretion at the subject property and mailing the summons and complaint to the subject property, which was his purported dwelling place or usual place of abode. Barbosa did not serve an answer to the complaint, but he and/or his attorney appeared for mandatory settlement conferences. On May 24, 2017, the Supreme Court issued an order of reference, which did not indicate whether Barbosa was in default. The plaintiff then moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. Barbosa cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In an affidavit submitted in support of his cross motion, Barbosa averred that during the relevant time period when service was allegedly effected, he did not reside at the subject property and resided at his mother's residence in Kew Gardens. In support of this assertion, Barbosa submitted affidavits of his wife and his mother in which they attested to his residing with his mother during the relevant time period. The court granted Barbosa's cross motion to the extent of directing a hearing to determine the validity of service of process on Barbosa and held [*2]the plaintiff's motion in abeyance pending the outcome of the hearing. The plaintiff appeals by permission. We reject the plaintiff's contention that Barbosa waived his personal jurisdiction defense as a result of participation in mandatory settlement conferences (see HSBC Bank USA, N.A. v Slone, 174 AD3d 866, 867), since that participation did not constitute active litigation of the action or participation in the action on the merits (see id. at 867). Since Barbosa was not held in default, we also reject the plaintiff's contentions that he is barred from asserting his lack of personal jurisdiction defense either pursuant to the law of the case doctrine or due to a failure to seek vacatur of his default pursuant to CPLR 5015(a)(4). "Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308" (FV-1, Inc. v Reid, 138 AD3d 922, 923; see Wells Fargo Bank, NA v Spaulding, 177 AD3d 817, 819). "The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void" (Federal Natl. Mtge. Assn. v Alverado, 167 AD3d 987, 988 [internal quotation marks omitted]). "A defendant's eventual awareness of pending litigation will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308. Thus, a defect in service is not cured by the defendant's subsequent receipt of actual notice of the commencement of the action" (FV-1, Inc. v Reid, 138 AD3d at 923 [citation and internal quotation marks omitted]). Ordinarily, a process server's affidavit of service constitutes prima facie evidence of valid service (see American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Velez v Forcelli, 125 AD3d 643, 644). A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit (see Matter of Romero v Ramirez, 100 AD3d 909, 910; Scarano v Scarano, 63 AD3d 716, 716). In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service (see Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985; Machovec v Svoboda, 120 AD3d 772). Here, contrary to the plaintiff's contention, since Barbosa's sworn denial of receipt of process contained specific facts to rebut the statements in the affidavit of service, the presumption of proper service was rebutted, and we agree with the Supreme Court's determination to direct a hearing to determine whether he was properly served (see FV-1, Inc. v Reid, 138 AD3d at 924; Velez v Forcelli, 125 AD3d at 644). CHAMBERS, J.P., ROMAN, HINDS-RADIX and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:51.767683+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07209.htm

Pennini v Shooting Stars (2020 NY Slip Op 07209) Pennini v Shooting Stars 2020 NY Slip Op 07209 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. SHERI S. ROMAN BETSY BARROS LINDA CHRISTOPHER, JJ. 2018-05547 (Index No. 70329/12) [*1]Erika Pennini, etc., et al., appellants, v Shooting Stars, et al., defendants, Candace Anne Muñoz, defendant third-party plaintiff-respondent; Town of Mount Pleasant, third-party defendant-respondent. Hausner & Montanile, PLLC, New York, NY (Joseph A. Montanile of counsel), for appellants. Morris Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka and Kevin G. Faley of counsel), for third-party defendant-respondent. DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated March 30, 2018. The order granted the third-party defendant's motion for summary judgment dismissing the third-party complaint and the complaint. ORDERED that the appeal from so much of the order as granted that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint is dismissed, without costs or disbursements; and it is further, ORDERED that the order is reversed insofar as reviewed, on the law,without costs or disbursements, and that branch of the third-party defendant's motion which was for summary judgment dismissing the complaint is denied. In March 2007, the infant plaintiff, Erika Pennini, then 10 years old, allegedly sustained personal injuries while participating in a cheerleading course run by the defendants Candace Anne Muñoz and Luis Alexander Muñoz, in a facility operated by the third-party defendant, Town of Mount Pleasant. In December 2012, Erika, by her mother, the plaintiff Marisa Ann Pennini, and Marisa Ann Pennini, individually, commenced this action against the defendants. The defendants defaulted in answering the complaint. In June 2014, the Supreme Court granted the plaintiffs' motion for leave to enter a default judgment against the defendants. The defendants then moved to vacate the default judgment, and that motion was denied by the court in January 2015. In February 2015, the defendant third-party plaintiff, Candace Anne Muñoz, commenced a third-party action against the Town, alleging, inter alia, that the Town was vicariously liable for her in her capacity as the Town's employee. The Town moved for summary judgment dismissing the third-party complaint against it, and dismissing the complaint against the defendants. In an order dated March 30, 2018, the court granted the Town's motion, and directed dismissal of both the third-party complaint and the complaint. The plaintiffs appeal. The plaintiffs are not aggrieved by the portion of the order which granted that branch of the Town's motion which was for summary judgment dismissing the third-party complaint (see CPLR 5511; Marion v City of New York, 153 AD3d 691; Ahrorgulova v Mann, 108 AD3d 581). Therefore, we dismiss the plaintiffs' appeal from the portion of the order granting that branch of the Town's motion. Given that the defendant third-party plaintiff, Candace Anne Muñoz, had not interposed an answer to the complaint, and that the plaintiffs had been awarded a default judgment against the defendants in the main action, the third-party defendant was not entitled to an order dismissing the plaintiffs' complaint (see CPLR 1007, 1008). BALKIN, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:52.001536+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07208.htm

Pabon v Long Is. R.R. Co. (2020 NY Slip Op 07208) Pabon v Long Is. R.R. Co. 2020 NY Slip Op 07208 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. MARK C. DILLON HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2020-00097 (Index No. 707250/17) [*1]Julian Pabon, etc., respondent, v Long Island Railroad Company, appellant, et al., defendant. Paige Graves, Jamaica, NY (Andrew Muccigrosso of counsel), for appellant. Cellino & Barnes, P.C., Garden City, NY (John E. Lavelle of counsel), for respondent. DECISION & ORDER In an action to recover damages for wrongful death, the defendant Long Island Railroad Company appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered December 6, 2019. The order, insofar as appealed from, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Long Island Railroad Company. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Long Island Railroad Company is granted. On or about January 9, 2017, at approximately 8:00 p.m., the decedent allegedly was attempting to drive her vehicle across the railroad tracks at the Fourth Street railroad crossing in Brentwood, when her vehicle was struck by an oncoming train. The decedent sustained fatal injuries as a result of the accident. The plaintiff, as administrator of the decedent's estate, commenced this action against the defendants Long Island Railroad Company (hereinafter LIRR) and Metropolitan Transportation Authority, seeking to recover damages for wrongful death. After issue was joined, the defendants moved for summary judgment dismissing the complaint. In an order entered December 6, 2019, the Supreme Court, inter alia, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the LIRR. The LIRR appeals. "'[A] train operator may be found negligent if he or she sees a person on the tracks from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person'" (Neenan v Quinton, 110 AD3d 967, 968, quoting Soto v New York City Tr. Auth., 6 NY3d 487, 493 [internal quotation marks omitted]). Here, the LIRR established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the train's engineer was operating the train at a lawful speed at the time of the accident, that he sounded the horn repeatedly, and that he immediately applied the emergency brakes upon seeing the decedent's vehicle, but at that point, it was impossible to avoid the accident (see Estate of Umali v Long Is. R.R., 182 AD3d 581; Neenan [*2]v Quinton, 110 AD3d at 968; Mirjah v New York City Tr. Auth., 48 AD3d 764, 764-765). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's speculative assertions that the train's engineer should have seen the decedent's vehicle in time to stop the train, and that the train should have been equipped with positive train control were insufficient to raise a triable issue of fact (see Neenan v Quinton, 110 AD3d at 969). Moreover, the unsworn report of the plaintiff's expert was not in admissible form, and should not have been considered by the Supreme Court (see Jaklitsch v Kelly, 176 AD3d 792, 793; Yuan Gao v City of New York, 145 AD3d 939; Hoffman v Mucci, 124 AD3d 723; Mazzola v City of New York, 32 AD3d 906). In light of our determination, we need not reach the LIRR's remaining contention. Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the LIRR. SCHEINKMAN, P.J., DILLON, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2021-01-26 21:12:56.58244+00

http://www.tsc.state.tn.us/sites/default/files/devin_torquin_watkins_cca_opinion.pdf

01/26/2021 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs August 26, 2020 DEVIN TORQUIN WATKINS v. STATE OF TENNESSEE Appeal from the Criminal Court for Knox County No. 105420 Bobby R. McGee, Judge ___________________________________ No. E2020-00090-CCA-R3-PC ___________________________________ The Petitioner, Devin Torquin Watkins, appeals the denial of his petition for post- conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Following our review, we affirm the judgment of the post- conviction court denying the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined. Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Devin Torquin Watkins. Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Phillip Morton, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS In 2012, the Petitioner was convicted by a Knox County Criminal Court jury of two counts of the sale and delivery of .5 grams or more of a substance containing cocaine within 1,000 feet of a public park. After merging the delivery counts into the sale counts, the trial court sentenced the Petitioner to an effective sentence of fourteen years in the Department of Correction. This Court affirmed the convictions on appeal, and our supreme court dismissed the Petitioner’s application for permission to appeal as untimely. State v. Devin Torquin Watkins, No. E2013-00420-CCA-R3-CD, 2014 WL 1329278 , at *1 (Tenn. Crim. App. Apr. 3, 2014), perm. app. dismissed (Tenn. July 15, 2014). Our direct appeal opinion provides the following summary of the case: Richard Langster testified that, in January 2011, he was working as a confidential informant for Officer Michael Geddings of the Knoxville Police Department (“KPD”). Langster agreed to participate in a controlled purchase of narcotics from [the Petitioner], whom Langster knew only by his nickname, “Black.” Langster testified that officers searched him thoroughly before the purchase. Officer Geddings gave him one-hundred dollars and instructed him to purchase “crack or weed or whatever.” Langster went to a residence where he knew [the Petitioner] commonly sold drugs, and [the Petitioner] answered the door. [The Petitioner] told Langster that he had some crack, but “it wasn't hardening right.” Langster asked him if it was “hard enough to buy,” and [the Petitioner] answered that it was. At that point, Langster purchased an “eight ball” of crack from [the Petitioner]. After the purchase, he gave the crack to officers and once again was searched to confirm that he did not have any remaining money or drugs. The audio and video recordings of the purchase were played at trial and admitted into evidence. The following day, at the direction of Officer Geddings, Langster went back to the residence to attempt to make another controlled purchase of “some powder [cocaine] and some marijuana.” Langster testified that he was wearing audio and video recording devices during this purchase as well. On this second occasion, Langster purchased three bags of powder cocaine from [the Petitioner] for ninety dollars as well as some marijuana from another individual at the house. Similarly, to the day before, Langster was searched before and after the purchase. The audio and video recordings of the second transaction also were played at trial and admitted into evidence. On cross-examination, Langster admitted that he was an “[o]ff and on” drug user around the time he made the purchases from [the Petitioner]. However, he testified that he was not using any type of drugs while working with the KPD because Officer Geddings had forbidden him from “using any type of drugs or doing anything illegal” during the “process.” Officer Michael Geddings testified that, at the time of the events in question, he was working as part of the KPD’s “Repeat Offender Squad,” which “target[ed] street-level narcotics.” Officer Geddings testified that he -2- employed Langster as a confidential informant to make some controlled drug purchases at 1613 Lombard Place. He testified that, in addition to audio and video recording devices, Langster also was wearing a device that transmitted audio to Officer Geddings while he listened to the events in real time from a nearby, unmarked police vehicle. Officer Geddings testified that, as a result of Langster’s first purchase, he recovered “a plastic baggie which inside of it had a - - white almost a waxy-type substance that was stuck to a piece of Styrofoam.” He testified that, “the actual substance was almost stuck onto the Styrofoam.” Therefore, when he weighed the substance, he “tore off as much excess Styrofoam as [he] could and just left the Styrofoam that was actually attached to the substance.” He weighed the substance at 4.1 grams which he characterized as a “gross weight” because it “t[ook] into account the weight of the baggie as well.” He also performed a field test on the substance, and the test indicated positive for the presence of cocaine. Langster’s second purchase yielded “three baggies with [a] white powder substance and [a] baggie with [a] green leafy substance.” Officer Geddings field-tested the powder, and it also indicated positive for the presence of cocaine. All of the substances were then sealed and sent to the Tennessee Bureau of Investigation (“TBI”) to be analyzed. Shortly after these controlled buys, Officer Geddings executed a search warrant for the residence at 1613 Lombard Place. [The Petitioner] was not present at the residence during that search. At a later date, Officer Geddings received a tip from Langster that the individual he knew as “Black” was driving a specific vehicle at a specific location. Officer Geddings testified that, shortly after receiving this tip, he and KPD Officer Stryker located the vehicle and conducted a traffic stop. Officer Geddings stated that [the Petitioner] was riding in the rear passenger seat, and Officer Geddings “immediately identified” him from the video recordings of the earlier controlled purchases. [The Petitioner] had marijuana on his person, and Officer Geddings issued him a citation. Subsequently, Officer Geddings prepared a photo-array, and Langster positively identified [the Petitioner] as the person whom he knew as “Black” and from whom he had purchased crack and powder cocaine. On cross-examination, Officer Geddings clarified that the three bags of powder cocaine weighed a total of 1.7 grams. -3-  Sharon Norman testified that, at the time of the events in question, she was working as a forensic drug chemist for the TBI. Norman identified the sealed envelopes submitted to the TBI by Officer Geddings containing the crack and powder cocaine as those which she had tested previously. According to Norman, after removing the crack cocaine from its packaging, it weighed 1.3 grams. She tested the substance and confirmed that it was “cocaine base.” She also tested each of the three bags of powder cocaine and confirmed that they also contained cocaine. The total weight of the of powder cocaine was 1.1 grams. On cross-examination, Norman confirmed that crack often contains “cutting agents” in addition to cocaine, such as baking soda or baking powder. She therefore acknowledged that the actual amount of cocaine contained in a substance possibly could be less than the overall weight; however, she “did not perform a quantitation on this [sample].” Regarding the powder cocaine, she confirmed that it was cocaine, but she was “unable to determine the salt form” because it was “so heavily cut.” Therefore, she testified that she could not confirm the precise amount of cocaine contained in the powder substance, although she stated that the amount was too much to be merely “contamination” or “residue.” Trevor McMurray testified that he worked for the Knoxville Geographic Information System. He prepared a map which showed that the residence at 1613 Lombard Place was 562 feet from Babe Ruth Park. Mike Harris testified that he worked for the City of Knoxville Parks and Recreation Department and identified Babe Ruth Park on the map as a City of Knoxville park. Id. at *1-3. On May 1, 2015, the Petitioner filed a pro se petition for post-conviction relief in which he raised a claim of ineffective assistance of counsel. Specifically, he alleged that trial counsel was ineffective for, among other things, failing to conduct a reasonable pretrial investigation, failing to file a motion to suppress video evidence, failing to adequately meet with or communicate with the Petitioner, and failing to call an essential witness at trial. He alleged that appellate counsel was ineffective for failing to file a timely application for permission to appeal to the supreme court. Following the appointment of post-conviction counsel, the Petitioner filed an amended petition for post-conviction relief on October 28, 2015, in which he requested -4- that the post-conviction court grant him a delayed Rule 11 appeal due to appellate counsel’s failure to either withdraw from representation or to timely filed the Rule 11 application for permission to appeal. On December 17, 2015, the post-conviction court entered an order granting the Petitioner a delayed Rule 11 appeal. On January 5, 2016, the court entered a corrected order with the correct docket number. At the December 11, 2019 evidentiary hearing, the Petitioner testified that trial counsel was appointed to represent him while he was in pretrial custody. Trial counsel never visited him while he was incarcerated. However, after he was released on bond, he met with trial counsel in trial counsel’s office for approximately nine or ten minutes, for the only meeting they ever had before trial. The Petitioner testified that trial counsel told him there were audio and video recordings of the drug sales but that he could not play them for the Petitioner because he was experiencing technical difficulties with his computer. The Petitioner testified that the only thing he and counsel talked about during that brief office meeting were the facts of the case. Trial counsel did not provide him with any discovery, did not bring up any potential plea offers, and did not discuss any defense strategy or potential defense witnesses. The Petitioner stated that he later called trial counsel’s office 15 to 20 times in an attempt to talk with him but was never successful. He said he did not see the video of the drug sales until the day that they were selecting a jury for his trial. Because there were not enough “backup jurors,” the jury was not impaneled, and the actual trial did not start until approximately a week later. The Petitioner stated that he did not learn until the day he first saw the videos that there was a discrepancy in the dates on the videos. He explained that the copy of the video provided to trial counsel was dated 2011 while the copy of the State’s video was dated 2010. He, therefore, believed that trial counsel should have filed a motion to suppress the video based on the State’s having allegedly tampered with it. Trial counsel, however, did not do so. Moreover, although trial counsel cross-examined Officer Geddings about the discrepancy in the dates, “he allowed [Officer] Geddings to wiggle his way off the hook by just saying that it was a slip of the tongue.” The Petitioner testified that trial counsel did not mention anything about a possible plea offer until the day that they began selecting a jury, when trial counsel told him the State had offered eight years at one hundred percent. He said he did not know if that plea offer was still good at the time his trial began but that he probably would have accepted it if he could have entered a best interest guilty plea. He stated that he told trial counsel that his co-defendant, his uncle, was “willing to take the charge” because the Petitioner had merely handled the transaction on behalf of his uncle, who was passed out on the couch at the time. The Petitioner testified that by the time of his trial, his uncle had already pled -5- guilty in connection to the charges. He said he asked trial counsel to subpoena his uncle as a witness at his own trial, but counsel failed to do so. The Petitioner testified that trial counsel informed him that one of the State’s witnesses against him was a confidential informant. The Petitioner did not, however, learn of the informant’s identity until the day of trial. To his knowledge, trial counsel never investigated the informant’s background and never interviewed him. The Petitioner testified that it was obvious that pieces of the Styrofoam packaging were embedded in some of the drugs. He said trial counsel never filed a motion to suppress the drug evidence on that basis and never cross-examined the chemist about not having removed all of the Styrofoam before she weighed the samples. The Petitioner also complained about trial counsel’s failure to move to suppress photographs of the currency used in the drug transactions and evidence of his co- defendant’s drug transaction history with the confidential informant. He said that he thought evidence of the cash should have been excluded because no cash was recovered from his person and that evidence of his co-defendant’s history with the informant was irrelevant to his case. He additionally objected to the manner in which trial counsel cross- examined the State’s witnesses, testifying that he felt that trial counsel just reinforced the State’s case by merely asking the witnesses “the same questions that the prosecution asked, but just worded differently.” The Petitioner further complained about trial counsel’s failure to introduce evidence related to the Petitioner’s charges in another case, involving the same law enforcement officers, that had been dismissed. The Petitioner explained that he had alibi proof in the form of hotel credit card receipts for the dates of the alleged drug sales in the other case. In his opinion, trial counsel should have introduced the evidence about the dismissed charges and alibi in the other case in order to attack the credibility of the officers. He said that counsel’s failure to introduce that evidence relating to the dismissed case indicated to him that there was “a high probability that [trial counsel was] on [the prosecution’s] side.” On cross-examination, the Petitioner refused to admit that he either sold or delivered the cocaine at issue in this case, testifying that he merely ushered the undercover informant into the house and showed him where the drugs were because his uncle was “drunk on the couch.” He also denied that the informant ever handed him any cash for the drugs. He acknowledged that he had prior convictions for possession of cocaine for resale and aggravated assault. He said that the State’s witnesses against him at this trial all offered perjured testimony and that he refused to return for the second day of trial because he realized that “the fix was in.” Moreover, when he asked trial counsel at the end of the first day of trial what would happen if he did not return the next day, trial counsel told him that -6- a mistrial would be declared. Because trial counsel had already “sold [him] out,” he thought it was “in [his] best interest not to come back.” Trial counsel testified that he had been a criminal defense attorney for 13 years and had handled several trials over the years. He said he received discovery from the State, which included the videos that clearly showed the Petitioner not only conducting the drug sales but also explaining how to make crack cocaine on a kitchen stove. He stated that he did not hear from the Petitioner after the Petitioner made bond in July. He, therefore, was forced to make multiple attempts to reach him via telephone and mail before the Petitioner finally responded to a letter he sent on November 29, 2011, and came to his office to meet him. Trial counsel testified that he reviewed with the Petitioner the evidence against him, the enhancements based on the location of the drug sales, and the maximum punishments the Petitioner faced if convicted at trial. He said the Petitioner was adamant that he would not accept an eight-year plea offer and kept expressing his belief that the offenses should not have been enhanced based on their location. Trial counsel, like the Petitioner, recalled that the trial was delayed due to the lack of a sufficient jury pool. Unlike the Petitioner, his memory was that the Petitioner refused to return to the courtroom after the lunch break on the first day of trial rather than on the second day of trial. He was adamant that he never instructed or encouraged the Petitioner to absent himself from the trial. On cross-examination, trial counsel testified that he recalled one meeting with the Petitioner at his office, but there could have been a second meeting as well. He said the Petitioner never left any telephone messages for him. He stated that both he and the Petitioner knew the identity of the confidential informant from the very beginning of the case, that he investigated the informant’s criminal history and background, and that he believed that he brought out the informant’s background during cross-examination. He testified that he and the Petitioner never discussed calling the Petitioner’s co-defendant as a witness and that he would not have wanted to call him because his understanding was that part of his plea agreement with the State “would have been testifying against [the Petitioner].” At the conclusion of the hearing the post-conviction court denied the petition, finding, among other things, that the State’s proof against the Petitioner, which included the “amazing[ly]” clear video evidence, was “very, very solid.” The court further found that the Petitioner failed to present any evidence in support of his allegations that the witnesses perjured themselves or that the district attorney was corrupt. The court, therefore, concluded that the Petitioner failed to meet his burden of showing by clear and convincing evidence that he was denied the effective assistance of trial counsel. -7-  ANALYSIS Post-conviction relief “shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The petitioner bears the burden of proving factual allegations by clear and convincing evidence. Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless the evidence preponderates against them. See Wiley v. State, 183 S.W.3d 317 , 325 (Tenn. 2006). When reviewing factual issues, the appellate court will not reweigh the evidence and will instead defer to the post-conviction court’s findings as to the credibility of witnesses or the weight of their testimony. Id. However, review of a post-conviction court’s application of the law to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95 , 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450 , 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453 , 461 (Tenn. 1999). To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show both that trial counsel’s performance was deficient and that counsel’s deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668 , 687 (1984); see State v. Taylor, 968 S.W.2d 900 , 905 (Tenn. Crim. App. 1997) (noting that the same standard for determining ineffective assistance of counsel that is applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong test: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 466 U.S. at 687 . The deficient performance prong of the test is satisfied by showing that “counsel’s acts or omissions were so serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad v. State, 938 S.W.2d 363 , 369 (Tenn. 1996) (citing Strickland, 466 U.S. at 688 ; Baxter v. Rose, 523 S.W.2d 930 , 936 (Tenn. 1975)). Moreover, the reviewing court must indulge a strong presumption that the conduct of -8- counsel falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690 , and may not second-guess the tactical and strategic choices made by trial counsel unless those choices were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4 , 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 . Courts need not approach the Strickland test in a specific order or even “address both components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697 ; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.”). The Petitioner argues on appeal that trial counsel was ineffective for not adequately meeting with him before trial to discuss and prepare a defense and not challenging the authenticity of the State’s video evidence in light of the discrepancy in the dates. He additionally argues that even if counsel’s various alleged deficiencies are not alone sufficient to prejudice the outcome of his case, the cumulative effect of these various alleged errors is enough to warrant his being granted a new trial on the basis of ineffective assistance of counsel. In support of his claims, the Petitioner cites his own testimony about the single brief meeting he had with counsel in which counsel was unable to show him the video evidence. The post-conviction court, however, found that the Petitioner, who obviously thought he got a “raw deal,” failed to present clear and convincing evidence in support of his allegations. The record fully supports the findings and conclusions of the post- conviction court. Trial counsel’s testimony, which was implicitly accredited by the post- conviction court, established that he reviewed discovery, investigated and discussed the case with the Petitioner, and made well-informed strategic decisions about witnesses and trial strategy. The Petitioner has failed to show that trial counsel was in any way deficient in his performance or that he was prejudiced as the result of any alleged deficiency on the part of counsel. As such, the Petitioner is not entitled to post-conviction relief. -9-  CONCLUSION Based on the foregoing authorities and reasoning, we affirm the denial of the petition. ____________________________________ ALAN E. GLENN, JUDGE - 10 -

2020-12-02 21:09:52.306156+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07207.htm

P.J. 37 Food Corp. v George Doulaveris & Son, Inc. (2020 NY Slip Op 07207) P.J. 37 Food Corp. v George Doulaveris & Son, Inc. 2020 NY Slip Op 07207 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN BETSY BARROS, JJ. 2019-00154 (Index No. 18214/13) [*1]P.J. 37 Food Corp., respondent, v George Doulaveris & Son, Inc., appellant. Coran Ober P.C., Flushing, NY (Steven T. Beard of counsel), for appellant. Michael W. Holland, Williston Park, NY, for respondent. DECISION & ORDER In an action for declaratory relief, the defendant appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered November 27, 2018. The order, insofar as appealed from, denied those branches of the defendant's motion which were for summary judgment with respect to the complaint, on its counterclaims, and dismissing the plaintiff's affirmative defenses to the counterclaims, and for leave to renew its prior two motions for summary judgment on its counterclaim for ejectment, which had been denied in orders of the same court dated June 24, 2015, and December 23, 2016. ORDERED that the order entered November 27, 2018, is affirmed insofar as appealed from, with costs. The plaintiff, P.J. 37 Food Corp. (hereinafter the tenant), leased a certain commercial property from the defendant, George Doulaveris & Sons, Inc. (hereinafter the owner). The tenant commenced this action for a judgment declaring, inter alia, that it was not in default of the lease. The owner answered and asserted counterclaims. The tenant replied and asserted affirmative defenses to the counterclaims. The owner twice moved for summary judgment on its counterclaim for ejectment, and the Supreme Court denied both motions. Thereafter, the owner moved, among other things, for summary judgment with respect to the complaint, on its counterclaims, and dismissing the plaintiff's affirmative defenses to the counterclaims, and for leave to renew its prior motions for summary judgment on its counterclaim for ejectment. In an order entered November 27, 2018, the Supreme Court denied those branches of the owner's motion. The owner appeals. We agree with the Supreme Court's determination to deny that branch of the owner's motion which was for leave to renew its prior motions for summary judgment on its counterclaim for ejectment. "A motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d 454, 454-455; see Okumus v Living Room Steak House, Inc., 112 AD3d 799, 800). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2], [3]; see Bukhtiyarova v Cohen, 172 AD3d 1153, 1155-1156; Phoenix Grantor Trust v Exclusive Hospitality, LLC, 172 AD3d 927, 927). "While a court has discretion to entertain renewal based on facts known to the movant at the [*2]time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance" (Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 AD3d 772, 773-774 [internal quotation marks omitted]). "When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal" (id. at 774 [internal quotation marks omitted]; see Zelouf Intl. Corp. v Rivercity, LLC, 123 AD3d 1116, 1116). Here, the owner failed to provide a reasonable justification for its failure to present the evidence supporting its renewal motion as part of its prior motions (see Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 AD3d at 774; Zelouf Intl. Corp. v Rivercity, LLC, 123 AD3d at 1116). We also agree with the Supreme Court's determination to deny those branches of the owner's motion which were for summary judgment. "Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d 474, 475 [internal quotation marks omitted]). "Successive motions for summary judgment should not be entertained in the absence of good cause, such as a showing of newly discovered evidence" (Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020). "However, evidence is not newly discovered simply because it was not submitted on the prior motion; rather, the evidence must not have been available to the party at the time it made its initial motion and could not have been established through alternate evidentiary means" (id. at 1020; see Vinar v Litman, 110 AD3d 867; Coccia v Liotti, 101 AD3d 664, 666). Here, the owner failed to establish that the evidence it submitted in support of those branches of its motion which were for summary judgment was not available to it when it previously moved for summary judgment on two occasions and could not have been submitted on the prior motions. Accordingly, we agree with the Supreme Court's determination to deny those branches of the owner's motion which were for summary judgment (see Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d at 475; Vinar v Litman, 110 AD3d at 869). AUSTIN, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:52.617014+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07205.htm

OneWest Bank N.A. v Muller (2020 NY Slip Op 07205) OneWest Bank N.A. v Muller 2020 NY Slip Op 07205 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JOSEPH J. MALTESE BETSY BARROS FRANCESCA E. CONNOLLY, JJ. 2017-12208 (Index No. 17127/10) [*1]OneWest Bank N.A., respondent, v Kathryn Muller, etc., et al., appellants, et al., defendants. Andrew D. Brodnick, Rye Brook, NY, for appellants Peter Zander and David Zander. Bryan Cave Leighton Paisner LLP, New York, NY (Nafiz Cekirge and Catherine E. Welker of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendants Kathryn Muller and Mark Zander, as executors and heirs of the estate of Arthur J. Zander, and Peter Zander, Margaret Orling, Jane Sussman, and David Zander, as heirs of the estate of Arthur J. Zander, appeal from a judgment of foreclosure and sale of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 26, 2017. The judgment of foreclosure and sale, upon an order of the same court dated December 31, 2015, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against those defendants, to strike those defendants' answer, and for an order of reference, among other things, confirmed the referee's report and directed the sale of the subject property. ORDERED that the appeal by the defendants Kathryn Muller and Mark Zander, as executors and heirs of the estate of Arthur J. Zander, and Margaret Orling and Jane Sussman, as heirs of the estate of Arthur J. Zander, is dismissed as abandoned, without costs or disbursements; and it is further, ORDERED that the judgment of foreclosure and sale is modified, on the law, by deleting the provision thereof directing that the estate of Arthur J. Zander shall pay the amount of any deficiency provided that a motion for a deficiency judgment is made in accordance with RPAPL 1371; as so modified, the judgment of foreclosure and sale is affirmed on the appeal by the defendants Peter Zander and David Zander, as heirs of the estate of Arthur J. Zander, without costs or disbursements. The appeal by the defendants Kathryn Muller and Mark Zander, as executors and heirs of the estate of Arthur J. Zander, and Margaret Orling and Jane Sussman, as heirs of the estate of Arthur J. Zander, must be dismissed as abandoned, since the appellate brief has been submitted only on behalf of the defendants Peter Zander and David Zander, as heirs of the estate of Arthur J. Zander (see Lindo v Lindo, 185 AD3d 914; JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1512, 1513). Arthur J. Zander (hereinafter the decedent) owned real property in Pound Ridge, subject to a reverse mortgage. The decedent died on December 17, 2007. In his will, the decedent [*2]directed the payment of his funeral expenses and all of his debts as soon after his death as practicable. He devised his "entire estate, real or personal, of whatever nature and wherever located . . . in equal shares to [his] children." The decedent further directed that in calculating the shares to be distributed to each of his issue, any outstanding principal on loans that he had made to his sons Peter Zander and Mark Zander shall be considered to have been given to those individuals as part of their shares they would be entitled to under the will and that those shares "shall be adjusted to reflect such prior gift(s) as being a part of his or their share(s)." Pursuant to the terms of the reverse mortgage and the loan agreement and note, the death of the borrower constituted a "maturity event," upon which the total amount due under the loan became due and payable. In July 2010, the plaintiff commenced this action against, among others, two of the decedent's children, Kathryn Muller and Mark Zander, in their capacity as executors of the decedent's estate (hereinafter together the executors), to foreclose the reverse mortgage. In an answer dated August 24, 2010, the executors raised as an affirmative defense the plaintiff's failure to include as necessary parties the decedent's six children in their capacity as named devisees in his will, Kathryn Muller, Mark Zander, Peter Zander, Margaret Orling, Jane Sussman, and David Zander (hereinafter collectively the heirs). In 2014, the executors moved pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against them on the ground that the heirs were necessary parties and the plaintiff had not named them as parties to the action. The plaintiff cross-moved, inter alia, to compel the executors to provide the last known addresses of Peter Zander, Margaret Orling, Jane Sussman, and David Zander so that they could be named as defendants. The Supreme Court denied the executors' motion to dismiss the complaint, granted that branch of the plaintiff's cross motion which was, in effect, for leave to amend the complaint to add the heirs as defendants, and denied that branch of the plaintiff's cross motion which was to compel production of the last known addresses of Peter Zander, Margaret Orling, Jane Sussman, and David Zander. In a supplemental summons and amended complaint dated November 5, 2014, the plaintiff named the heirs as defendants and amended the caption to reflect that the plaintiff was suing Kathryn Muller and Mark Zander in their capacity as heirs, in addition to their capacity as executors. In their answer, the executors and the heirs raised as an affirmative defense that the action was "barred by the applicable statute of limitations." The plaintiff moved, inter alia, for summary judgment on the amended complaint insofar as asserted against the executors and the heirs, to strike their answer, and for an order of reference. The Supreme Court granted the plaintiff's motion and appointed a referee to compute the amount due to the plaintiff. After the referee issued his report, the plaintiff moved, among other things, to confirm the report and for a judgment of foreclosure and sale. In a judgment of foreclosure and sale dated September 26, 2017, the court, inter alia, confirmed the referee's report and directed the sale of the subject property. Peter Zander and David Zander (hereinafter together the Zanders) appeal. We agree with the Supreme Court's determination that the relation-back doctrine applies and therefore, contrary to the Zanders' contention, the action is not time-barred insofar as asserted against them in their capacity as heirs. An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). "A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading" (CPLR 203[f]). The relation-back doctrine "enables a plaintiff to correct a pleading error—by adding either a new claim or a new party—after the statutory limitations period has expired" (Buran v Coupal, 87 NY2d 173, 177). "The doctrine thus gives courts the sound judicial discretion to identify cases that justify relaxation of limitations strictures . . . to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff's adversary" (id. at 177-178 [citation and internal quotation marks omitted]). "A plaintiff must establish the applicability of the relation-back doctrine by demonstrating that (1) the causes of action arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining his [or] her defense on the merits; and (3) the new defendant knew [*3]or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against him or her as well" (Petruzzi v Purow, 180 AD3d 1083, 1084; see Buran v Coupal, 87 NY2d at 178). With respect to the third prong, which is the only prong at issue on appeal, the mistake need not be excusable (see Buran v Coupal, 87 NY2d at 176, 179-181). "The linchpin of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period" (Petruzzi v Purow, 180 AD3d at 1084 [internal quotation marks omitted]). Here, contrary to the Zanders' contention, the plaintiff established the third prong of the relation-back doctrine, which focuses, among other things, on "whether the defendant could have reasonably concluded that the failure to sue within the limitations period meant that there was no intent to sue that person at all 'and that the matter has been laid to rest as far as he [or she] is concerned'" (Buran v Coupal, 87 NY2d at 181 [emphasis omitted], quoting Brock v Bua, 83 AD2d 61, 70). Here, the Zanders, in their capacity as heirs, could not have reasonably concluded that there was no intent to sue them, given that the probate petition naming each of the heirs was annexed to the plaintiff's initial complaint (see Petruzzi v Purow, 180 AD3d 1083). Furthermore, such a conclusion would be unreasonable in light of the provisions of the reverse mortgage and loan agreement and note, as well as the provisions of the decedent's will, and the fact that the plaintiff sued the executors in their capacity as the executors of the decedent's will. The relevant provisions of the will, loan agreement and note, and reverse mortgage reflect that it was anticipated that the property would be sold to satisfy the amount due on the loan, and that the executors of the decedent's estate would pay the decedent's debts and calculate the shares to be distributed to each of the decedent's children after adjusting for prior gifts to certain children. Moreover, the plaintiff was not required to show that the mistake was excusable (see Buran v Coupal, 87 NY2d 173). Therefore, the relation-back doctrine applied, and the action was not untimely with respect to the Zanders in their capacity as heirs (cf. Reverse Mtge. Solutions, Inc. v Fattizzo, 172 AD3d 768). However, the Supreme Court should not have included in the judgment of foreclosure and sale a provision requiring the decedent's estate to pay the amount of any deficiency following the sale of the subject property. As the Zanders contend, the loan agreement and note contained a provision that the debt was nonrecourse, such that the lender was not permitted to "use or attach any of [the decedent's] other assets or property [other than the subject property] to satisfy the Loan obligation." Accordingly, we modify the judgment of foreclosure and sale by deleting the provision directing that the decedent's estate shall pay the amount of any deficiency provided that a motion for a deficiency judgment is made in accordance with RPAPL 1371. DILLON, J.P., MALTESE, BARROS and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:52.929626+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07204.htm

NGU, Inc. v City of New York (2020 NY Slip Op 07204) NGU, Inc. v City of New York 2020 NY Slip Op 07204 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2019-00057 (Index No. 150891/13) [*1]NGU, Inc., etc., et al., respondents, v City of New York, et al., defendants, Masterpiece U.S., Inc., et al., appellants. Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY (Manny A. Frade and Adam P. Wald of counsel), for appellants. Zetlin & De Chiara, LLP, New York, NY (James H. Rowland of counsel), for respondents. DECISION & ORDER In an action, inter alia, to foreclose mechanic's liens, the defendants Masterpiece U.S., Inc., and Hudson Insurance Company appeal from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated September 6, 2018. The order, insofar as appealed from, denied those branches of the motion of the defendants Masterpiece U.S., Inc., and Hudson Insurance Company which were for summary judgment dismissing the first, seventh, eighth, and fourteenth causes of action insofar as asserted against them. ORDERED that the order is affirmed insofar as appealed from, with costs. The defendant New York City Housing Authority (hereinafter NYCHA), as owner, entered into a written agreement (hereinafter the agreement) with the defendant Masterpiece U.S., Inc. (hereinafter Masterpiece), as general contractor, for a window replacement project for a building located at 70 New Lane, Staten Island. Masterpiece entered into a subcontract with the plaintiff Citiquiet (hereinafter Citi), as subcontractor, to remove the existing windows and install the new windows, and a subcontract with Industrial Window Corp. (hereinafter Industrial), as subcontractor, to supply the new windows for the project. On or about March 14, 2012, Industrial sub-subcontracted with the plaintiff NGU, Inc. (hereinafter NGU), as sub-subcontractor or materialman, to manufacture the new windows for the project. On or about March 29, 2013, after certain production and work issues arose among the parties, Masterpiece entered into an agreement (hereinafter the cure agreement) with Citi and NGU, among others, in an attempt to resolve those issues. On or about May 23, 2013, NGU filed two mechanic's liens against Industrial and Masterpiece in the amounts of $55,000 and $96,448.30, respectively, for its manufacture of new windows and associated labor costs. On the same date, Citi filed a mechanic's lien against Masterpiece in the amount of $80,100 for its work on the project. On or about May 29, 2013, the defendant Hudson Insurance Company (hereinafter Hudson), as surety for Masterpiece, issued bonds discharging NGU's $55,000 mechanic's lien, NGU's $96,448.30 mechanic's lien, and Citi's $80,100 mechanic's lien. Subsequently, on or about June 4, 2013, Masterpiece terminated Industrial and Citi from the project. Thereafter, on December 6, 2013, the plaintiffs commenced this action, inter alia, to foreclose on the mechanic's liens against Masterpiece and Hudson, among others. Masterpiece and Hudson moved, inter alia, for summary judgment dismissing the first, seventh, eighth, and fourteenth causes of action, to foreclose on the plaintiffs' mechanic's liens, insofar as asserted against them. In an order dated September 6, 2018, the Supreme Court, inter alia, denied those branches of the motion which were for summary judgment dismissing the first, seventh, eighth, and fourteenth causes of action insofar as asserted against Masterpiece and Hudson. Masterpiece and Hudson appeal. We agree with the Supreme Court's determination denying those branches of Masterpiece and Hudson's motion which were for summary judgment dismissing the first, seventh, eighth, and fourteenth causes of action insofar as asserted against them, as Masterpiece and Hudson failed to establish their prima facie entitlement to judgment as a matter of law. Lien Law § 3 provides that a contractor who performs labor or furnishes materials for the improvement of real property with the consent, or at the request of, the owner "shall have a lien for the principal and interest, of the value, or the agreed price, of such labor . . . or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien." "The lienor must establish the amount of the outstanding debt by submitting proof of either the price of its contract or the value of the labor and materials supplied" (DHE Homes, Ltd. v Jamnik, 121 AD3d 744, 745; see Peri Formwork Sys., Inc. v Lumbermens Mut. Cas. Co., 112 AD3d 171, 175). The amount of the lien is limited by the contract under which it is claimed, and ordinarily a lienor is bound by the price term contained in the contract to which it is a party (see Peri Formwork Sys., Inc. v Lumbermens Mut. Cas. Co., 112 AD3d at 175). The lienor's right to recover is further limited by principles of subrogation (see id. at 176; 8 Warren's Weed New York Real Property § 92.11[1], [4]). Thus, no individual mechanic's lien can exceed the total amount owed by the owner to the general contractor at the time of the filing of the notice of lien (see Lien Law § 4[1]; Peri Formwork Sys., Inc. v Lumbermens Mut. Cas. Co., 112 AD3d at 176). The subcontractor's right to recover is derivative of the right of the general contractor to recover, and if the general contractor is not owed any amount under its contract with the owner at the time the subcontractor's notice of lien is filed, then the subcontractor may not recover (see Timothy Coffey Nursery/Landscape v Gatz, 304 AD2d 652, 653-654). "[T]he principle of subrogation applies to all tiers of subcontractor liens" (Peri Formwork Sys., Inc. v Lumbermens Mut. Cas. Co., 112 AD3d at 176-177). "Each party is subrogated to the rights of the contractor or subcontractor on the contracting tier above him" (id. at 177 [internal quotation marks omitted]). Despite their contentions to the contrary, Masterpiece and Hudson failed to establish that there were no funds due and owing to Industrial, the subcontractor, to which the liens of NGU, the sub-subcontractor, could attach (see C.C.C. Renovations, Inc. v Victoria Towers Dev. Corp., 168 AD3d 664, 666; Bryan's Quality Plus, LLC v Dorime, 112 AD3d 870, 870; L & W Supply Corp. v A.D.F. Drywall, Inc., 55 AD3d 1026, 1027). In addition, Masterpiece and Hudson failed to establish that NGU and Citi's liens were invalid, as they failed to demonstrate that the costs of completing the work for which NGU and Citi were retained exceeded the outstanding sum otherwise due to the plaintiffs (see L & W Supply Corp. v A.D.F. Drywall, Inc., 55 AD3d at 1027; Westbury S & S Concrete v Manshul Constr. Corp., 212 AD2d 596). Since Masterpiece and Hudson failed to satisfy their prima facie burden, we need not address the sufficiency of NGU's and Citi's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). SCHEINKMAN, P.J., MALTESE, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:53.241127+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07188.htm

Mortgage Elec. Registration Sys., Inc. v Congregation Shoneh Halochos (2020 NY Slip Op 07188) Mortgage Elec. Registration Sys., Inc. v Congregation Shoneh Halochos 2020 NY Slip Op 07188 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. HECTOR D. LASALLE VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ. 2019-04735 (Index No. 31813/09) [*1]Mortgage Electronic Registration System, Inc., etc., et al., appellants, v Congregation Shoneh Halochos, etc., respondent, et al., defendants. McLaughlin & Stern LLP, Great Neck, NY (Todd Harris Hesekiel and Benjamin S. Kaplan of counsel), for appellants. DECISION & ORDER In an action pursuant to RPAPL article 15 to quiet title to real property and for declaratory relief, the plaintiffs appeal from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated August 30, 2018. The order, insofar as appealed from, denied that branch of the plaintiffs' motion which was for leave to renew their opposition to those branches of the motion of the defendant Congregation Shoneh Halochos which were pursuant to CPLR 5015(a)(4) to vacate so much of an order and judgment (one paper) of the same court (Ellen M. Spodek, J.) dated April 16, 2011, as granted the plaintiffs' motion for leave to enter a default judgment against the defendant Congregation Shoneh Halochos, and to dismiss the amended complaint insofar asserted against that defendant for lack of personal jurisdiction, which had been granted in an order of the same court (Devin P. Cohen, J.) dated June 23, 2017, and, in effect, upon reargument, adhered to so much of the prior determination in the order dated June 23, 2017, as granted those branches of the motion of Congregation Shoneh Halochos. ORDERED that the order dated August 30, 2018, is affirmed insofar as appealed from, without costs or disbursements. The plaintiffs commenced this action pursuant to RPAPL article 15 to quiet title to certain real property in Brooklyn and for declaratory relief against Congregation Shoneh Halochos (hereinafter the Congregation), which the plaintiffs alleged to be a New York religious corporation, and Ay One Corporation (hereinafter Ay One), which the plaintiffs alleged to be a New Jersey corporation doing business in New York. The plaintiffs subsequently filed an amended complaint adding "John Doe d/b/a Congregation Shoneh Halochos a/k/a Shoneh Halochos" as a party defendant. The affidavits of service in the action characterized the Congregation as a religious corporation and recited that service had been made pursuant to Not-For-Profit Corporation Law § 307 by delivering four copies of the amended complaint to the Secretary of State, and sending copies of the amended complaint by registered mail, return receipt requested, to the last four known addresses of the Congregation. The Congregation never answered the amended complaint. By order and judgment (one paper) dated April 16, 2011, the Supreme Court granted the plaintiffs' motion for leave to enter a default judgment against the Congregation and Ay One. In April 2017, the Congregation moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate its default in appearing or answering the amended complaint and to dismiss the amended complaint insofar as asserted against it, contending that the method of service upon it was improper [*2]because it was a domestic religious corporation. The plaintiffs opposed the motion, asserting that the Congregation was an unauthorized foreign religious corporation and, therefore, was properly served. In an order dated June 23, 2017, the Supreme Court granted those branches of the Congregation's motion which were to vacate its default in answering and to dismiss the amended complaint insofar as asserted against it, vacated the order and judgment dated April 16, 2011, as against both the Congregation and Ay One, and directed dismissal of the amended complaint in its entirety. The plaintiffs then moved for leave to renew and reargue their opposition to the Congregation's motion, submitting additional affidavits of service. In an order dated August 30, 2018, the court denied that branch of the motion which was for leave to renew. The court, in effect, granted leave to reargue, and, upon reargument, vacated so much of the order dated June 23, 2017, as vacated Ay One's default and directed dismissal of the amended complaint insofar as asserted against Ay One, and reinstated the default judgment against Ay One. However, the court, in effect, upon reargument, adhered to the prior determination in the order dated June 23, 2017, granting those branches of Congregation's motion which were to vacate its default and to dismiss the amended complaint insofar as asserted against it. The plaintiffs appeal. Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Vega v Gambino, 184 AD3d 600; Fardin v 61st Woodside Assoc., 125 AD3d 593, 595). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Worrell v Parkway Estates, LLC, 43 AD3d 436, 437; see Fardin v 61st Woodside Assoc., 125 AD3d at 595). Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew. The plaintiffs failed to demonstrate a reasonable justification for their failure to present the additional affidavits of service at the time the Congregation's motion was made (see Singh v Weisberg, 178 AD3d 873, 874; Abrams v Berelson, 94 AD3d 782, 784; Beyl v Franchini, 37 AD3d 505, 506). In any event, the additional affidavits of service would not have changed the prior determination (see CPLR 2221[e]). We also agree with the Supreme Court's determination, in effect, upon reargument, to adhere to so much of the prior determination in the order dated June 23, 2017, as granted those branches of the Congregation's motion which were to vacate its default in appearing or answering the amended complaint and to dismiss the amended complaint insofar as asserted against it. "'It is axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void'" (Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889, quoting McMullen v Arnone, 79 AD2d 496, 499). A defect in service is not cured by the defendant's subsequent receipt of actual notice of the commencement of the action (see Feinstein v Bergner, 48 NY2d 234, 241; Krisilas v Mount Sinai Hosp., 63 AD3d at 889; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344). "When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" (Roberts v Anka, 45 AD3d 752, 753). "The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff" (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; see Washington Mut. Bank v Holt, 71 AD3d 670). While the method of service employed by the plaintiffs in this action to serve process upon the Congregation is authorized for the service of process upon an unauthorized foreign religious corporation (see Religious Corporations Law § 2-b[1][c]; N-PCL 307), the evidence submitted by the Congregation in support of its motion, inter alia, to vacate its default established that the Congregation is a domestic religious corporation. Further, the plaintiffs specifically alleged that the Congregation is a domestic religious corporation. Accordingly, the method of service employed by the plaintiffs failed to acquire personal jurisdiction over the Congregation (see CPLR 311[a][1]; Religious Corporations Law § 2-b[1][c]; Daniel Perla Assoc., L.P. v Cathedral Church [*3]of St. Lucy's, 39 Misc 3d 1205(A), 2013 NY Slip Op 50499[U] [Sup Ct, Kings County]; Schoenthal v Beth Jacob Teachers Seminary of Am., Inc., 176 Misc 2d 958 [Sup Ct, Kings County]). While CPLR 306-b permits a court, in the exercise of its discretion, to extend the time to serve process upon good cause shown or in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101), the plaintiffs did not move for, or otherwise request, an extension in the Supreme Court (see CPLR 306-b; Bank of N.Y. Mellon v Dyer, 172 AD3d 1293, 1294; DeMartino v Harris, 167 AD3d 568, 569; cf. Pinzon v IKEA N.Y., LLC, 163 AD3d 733, 734). The issue is thus not properly before this Court (see Aronson v City of Mount Vernon, 116 AD2d 613, 613-614). SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2021-01-26 21:12:38.36522+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487544

CLAUDE C. ARNOLD NON-OPERATED ROYALTY INTEREST PROPERTIES v. CABOT OIL & GAS CORP. Skip to Main Content Accessibility Statement OSCN Found Document:CLAUDE C. ARNOLD NON-OPERATED ROYALTY INTEREST PROPERTIES v. CABOT OIL & GAS CORP. Previous Case Top Of Index This Point in Index Citationize Next Case Print Only CLAUDE C. ARNOLD NON-OPERATED ROYALTY INTEREST PROPERTIES v. CABOT OIL & GAS CORP. 2021 OK 4 Case Number: 115807 Decided: 01/26/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 4, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CLAUDE C. ARNOLD NON-OPERATED ROYALTY INTEREST PROPERTIES, L.L.C.; WILLIAM V. YORK & GALEETA M. YORK REVOCABLE TRUST; GUNN LIVING TRUST DATED 12-17-91; and SHARON L. MARTIN, Plaintiffs/Appellees, v. CABOT OIL & GAS CORPORATION, Defendant/Appellant. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 4; ON APPEAL FROM THE DISTRICT COURT OF BEAVER COUNTY HONORABLE JON PARSLEY, TRIAL JUDGE ¶0 Plaintiffs held an overriding royalty interest in oil and gas produced under mineral leases executed in 1973. In 2012, defendant began producing oil and gas from a new geologic formation on lands covered under those same leases. Plaintiffs sought payment of their share of royalty from the new production, defendant refused, and plaintiffs brought this lawsuit. Finding they continued to hold a valid overriding royalty interest under the 1973 leases, the district court granted judgment to the plaintiffs after a bench trial. The Court of Civil Appeals, however, reversed after determining that a statute of limitations barred plaintiffs' claims in full due to a purported cloud on their interest arising from subsequently recorded oil-and-gas leases. Because the later-recorded leases did not reasonably give plaintiffs notice of any interest adverse to their own, we hold that their cause of action did not accrue until defendant refused to pay royalties on the new production in 2012. Plaintiffs filed a timely lawsuit. On certiorari granted upon plaintiffs' petition, THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE TRIAL COURT'S JUDGMENT IS AFFIRMED. Thomas G. Wolfe, Catherine L. Campbell, and John M. Bunting, Phillips Murrah, P.C., Oklahoma City, Oklahoma, for Plaintiffs/Appellees. Jesse R. Pierce, Pierce & O'Neill, LLP, Houston, Texas, Douglas D. Dale, Wright & Dale, Guymon, Oklahoma, Mark D. Christiansen, Edinger Leonard & Blakley PLLC, Oklahoma City, Oklahoma, and Michael F. Smith, McAfee & Taft, Tulsa, Oklahoma, for Defendant/Appellant. Kraettli Q. Epperson, Maris A. Skinner, Mee Hoge PLLP, Oklahoma City, Oklahoma, Amicus Curiae. GURICH, J. 1 This appeal asks us to decide whether the plaintiffs in this case waited too long in asserting their right to payment of an overriding royalty interest in an oil-and-gas-producing formation. In other words, does a statute of limitations defeat their claim for payment of oil-and-gas royalties? The Court of Civil Appeals reversed the trial court's judgment in favor of the plaintiffs on those grounds. We do not agree. ¶2 For reasons we explore below, this litigation could not have arisen until the defendant first developed the disputed formation--which proved productive and profitable--in 2012, and then refused the plaintiffs' request for payment of royalties from that production. Nothing preceding that sequence of events could reasonably have foreclosed the plaintiffs' ability to press their claim for the payments to which they were entitled under valid mineral leases. Accordingly, we hold that the plaintiffs filed a timely lawsuit to enforce their valid overriding royalty interest. Facts and Procedural History 3 The dispute in this case centers around two oil-and-gas-producing formations--known as the Chester and the Marmaton--located in Beaver County, Oklahoma.1 In 1973, a company called Arnold Petroleum, Inc.--the predecessor in interest of the plaintiffs, whom we collectively refer to as Arnold--obtained six oil-and-gas leases covering land in Beaver County. Each of these 1973 leases was filed in the county land records. The leases had a primary term of three years, plus a five-year extension period. ¶4 In all of the leases, however, the provisions on lease expiration were modified by the following clause, which has often been described in this litigation as unusual and is termed by the parties as the exception clause. It says: "provided, however, that Lessee shall not be obligated to release any formation, horizon or zone, the production from which would conflict with any existing producing horizon, formation or zone." The leases also allowed the lessee to surrender the leases "as to any part or parts of the leased premises by delivering or mailing a release thereof to lessor, or by placing a release of record in the proper County." ¶5 Over the course of 1973 and 1974, Arnold Petroleum assigned its leases to Dyco Petroleum Corporation, expressly reserving an overriding royalty interest in any oil and gas produced under the leases.2 Dyco then assigned the leases to Harold Courson--the predecessor in interest of the defendant, Cabot Oil & Gas Corporation. This assignment, too, was expressly subject to Arnold's overriding royalty interest. Before the end of the leases' primary term, Courson drilled and completed two vertical wells in the Chester formation, which underlies the lands covered by the 1973 leases. Importantly--and indisputably--the two wells drilled in the Chester formation have produced "mostly gas with some oil" continuously since the mid-1970s, and at no point since then has Arnold ever stopped receiving payments on its overriding royalty interest in those producing wells. ¶6 The 1973 leases' primary term ended in 1976, and their additional five-year extended term as to open formations expired in 1981. In 1984, Courson obtained several new leases from the mineral owners who had granted the 1973 leases. These 1984 leases purported to cover the same rights as the original 1973 leases, but were silent as to any particular geologic formation or zone. The 1984 leases were recorded in the county land records, but Arnold was not told about them. Arnold did not become aware of the 1984 leases at all until 1999. In that year, Arnold and other royalty holders received a letter from Courson explaining he had recompleted a well in the Chester formation that had originally been drilled into the separate Lower Chester formation by another company, Natural Gas Anadarko, Inc. (NGA). NGA derived its interest in the Lower Chester formation from the 1984 leases. Having learned that Courson's recompleted well would now be producing from the Chester (where Arnold retained an overriding royalty interest), Arnold's landman contacted a Courson representative for further explanation. In the 1999 conversation, the Courson employee told the Arnold landman that the 1984 leases covered only the "deep rights" or "lower depths" that had expired under the 1973 leases. This assertion would exclude the Marmaton, which is a shallow formation. For the next 13 years, the matter of the Marmaton formation would remain dormant. ¶7 Courson assigned his leases to Cabot in August 2011, and Cabot soon set about drilling and completing two horizontal wells (to be followed later by a third well) in the Chester's neighboring formation, the Marmaton.3 Cabot's initial two horizontal wells began producing in the first half of 2012.4 In July 2012, Arnold contacted Cabot to request payment, taking the position that its rights in the Marmaton formation were held by virtue of the 1973 leases' exception clause. Arnold maintained that the Marmaton had always been capable of producing oil and gas in commercial quantities, but was prevented from doing so by a conflict caused by simultaneous (and continuous) production from the 1970s-era vertical wells drilled in the Chester.5 Because the exception clause allowed such a formation to be held by the conflicting production in a different zone, then (in Arnold's view) the 1973 leases preserved its interest in the Marmaton.6   ¶8 Cabot rejected Arnold's request for payment, and Arnold sued in October 2012. Arnold sought damages against Cabot for nonpayment of royalties and asked the district court to quiet title to the overriding royalty interest as to the Marmaton. Cabot, in turn, argued Arnold's claims were barred because the applicable statute of limitations began to run with the filing of the new leases in 1984, which event (in Cabot's view) should have put Arnold on notice of an adverse claim to the Marmaton. After a four-day bench trial, the district court--having found that Arnold's cause of action accrued on July 20, 2012, the date Arnold's representative contacted Cabot to request payment of the override--granted judgment in favor of Arnold.7 The district court quieted title to the overriding royalty interest in Arnold and awarded $769,000 in actual damages and $493,000 in prejudgment interest, plus postjudgment interest, attorney fees, and costs.   ¶9 Cabot appealed. Agreeing with Cabot that Arnold's claim accrued in 1984 upon the filing of the new leases in the county land records, the Court of Civil Appeals reversed the trial court's judgment on the grounds that 12 O.S. 2011 § 93(4)'s 15-year statute of limitations barred Arnold's claims as untimely.8 According to the Court of Civil Appeals, Arnold would have needed to sue no later than 1999 to avoid the 15-year statute of limitations and to keep its Marmaton rights. We granted certiorari to examine the application of the statute of limitations based on purported notice of a recorded lease, where the parties' lengthy course of business conduct indicated neither awareness nor acknowledgement of the lease's effect on the oil-and-gas formation at issue. Standard of Review 10 This matter comes to us as an appeal from a judgment rendered following a bench trial in a quiet-title action, which "may be used as an equitable proceeding to determine ownership of oil and gas lease or mineral rights." Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, ¶ 35, 911 P.2d 1205, 1213. In this case, "[t]he judgment presented for review is a compilation of both findings of facts and conclusions of law." K & H Well Serv., Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223. "When, as here, the case is tried to the court, its determination of facts [is] accorded the same force as those made by a well-instructed jury." Id. Our caselaw instructs that where "any competent evidence supports the trial court's findings of fact, the same will be affirmed." Id. ¶11 At the same time, we review issues of law de novo, "since an appellate court has plenary, independent and non-deferential authority to reexamine a trial court's legal rulings." Id. Here, the Court of Civil Appeals treated the statute-of-limitations issue as dispositive and reversed the trial court's judgment on that basis alone. "Although limitation issues may involve mixed questions of law and fact, they are ordinarily reviewed in this Court as questions of law." Scott v. Peters, 2016 OK 108, ¶ 19, 388 P.3d 699, 704; Calvert v. Swinford, 2016 OK 100, ¶ 19, 382 P.3d 1028, 1036 (same). Likewise, "the application of the discovery rule and its effect on limitation issues present questions of law" that receive de novo review. Woods v. Prestwick House, Inc., 2011 OK 9, ¶ 14, 247 P.3d 1183, 1188. Analysis 12 This case boils down to one main question: when did Arnold's cause of action arise? Put simply, "[a] cause of action accrues when the injury occurs." Calvert, 2016 OK 100, ¶ 11, 382 P.3d at 1033. That is, "the cause of action accrues when a litigant first could have maintained his action to a successful conclusion." MBA Commercial Constr., Inc. v. Roy J. Hannaford Co., 1991 OK 87, ¶ 13, 818 P.2d 469, 473; see also Horton v. Hamilton, 2015 OK 6, ¶ 9, 345 P.3d 357, 360 ("The accrual date . . . can only be present when each element of the cause of action has materialized."); 12 O.S. 2011 § 92 ("Civil actions can only be commenced . . . after the cause of action shall have accrued . . . ."). So, when was Arnold "injured," such that it could successfully sue to establish its rights in the Marmaton formation? We conclude that no injury occurred to Arnold before July 2012, when it first requested payment of its overriding royalty interest. ¶13 Cabot contends that--once the 1984 leases were filed in the Beaver County land records--two things supposedly happened right away: (1) Arnold was put on notice about an adverse interest that jeopardized the ongoing validity of its overriding royalty interest; and (2) the clock began to run on any potential cause of action to quiet title to that interest, based on 12 O.S. 2011 § 93(4)'s 15-year statute of limitations. Endorsing that reasoning, the Court of Civil Appeals reversed the district court. We think, however, that the district court reached the correct result: the existence of the subsequent 1984 leases--notwithstanding the fact of their recording--did not reasonably cast doubt on the viability of Arnold's interest in the as-yet-undeveloped Marmaton formation. The extent of that interest (and any adverse claims thereto) would not be put at issue until 2012, when horizontal drilling began and the Marmaton finally began to prove profitable for all parties concerned. No cause of action accrued until Arnold asserted its right to payment under the still-operative 1973 leases in 2012, and Cabot refused to pay. ¶14 The evidence at trial established that (1) simultaneous vertical-well production from the Marmaton would have conflicted with existing development in the Chester alone, thereby permitting both formations to be held by production in the Chester under the plain language of the leases' exception clause, (2) the Chester formation has produced continuously since drilling began in the mid-1970s, (3) Arnold has never stopped receiving its overriding royalty on that production, and (4) neither Cabot nor Courson ever surrendered or otherwise released their interests in the specific manner required by the 1973 leases. The filing of the 1984 leases did not alter those facts. As earlier stated by this Court: "it is difficult to see wherein the [subsequent] recording of defendant's mineral deed . . . could have any effect on plaintiff's rights or constitute notice to plaintiff of such deed." Straub v. Swaim, 1956 OK 97, ¶ 9, 296 P.2d 147, 149 (rejecting argument of defendant that plaintiff had constructive notice of a later-filed adverse mineral deed after the passage of 25 years, because--as in this case--plaintiff "was not a subsequent purchaser and such recording therefore afforded no notice to him"); see also Cunnius v. Fields, 1969 OK 8, ¶ 14, 449 P.2d 703, 707 ("The statute of limitations does not begin to run in the case of unexplored minerals until the legal effect of the reservation is questioned or disputed."). ¶15 That sets this case apart from the situation discussed in our more recent decisions in Scott v. Peters, 2016 OK 108, 388 P.3d 699, and Calvert v. Swinford, 2016 OK 100, 382 P.3d 1028. In those cases, the plaintiffs attempting to avoid the effect of the statute of limitations were the grantors of the mineral deeds in question. There, we held the statute-of-limitations period began to run when the deeds were filed with the county clerk. It is completely reasonable to expect that the grantor who negotiates, reads, and signs the instrument should be "on notice" of what it says from the time of filing onward. Scott, 2016 OK 108, ¶ 19, 388 P.3d at 704; see also Calvert, 2016 OK 100, ¶ 19, 382 P.3d at 1036. ¶16 But here, Arnold had no role in drafting or recording the 1984 leases, which were entirely silent about the Marmaton formation. This compels us to wonder what injury--or what "cloud"--the plaintiffs should have reasonably been expected to uncover in 1984, in 1999, or at the start of 2012. Nothing in the 1984 leases suggested the parties (who are unquestionably sophisticated about the oil-and-gas business) considered the 1973 leases terminated as to the Marmaton; nothing in the 1984 leases said anything about the Marmaton at all. The parties' business relationship continued as before, with Arnold receiving uninterrupted royalty payments from the Chester production. When Arnold spoke to Courson in 1999 about the 1984 leases, the Marmaton never came up because the status of that formation was not at issue. The fact that wells were drilled under the 1984 leases to the Lower Chester--a formation that no party has ever argued was held by production under the 1973 leases' exception clause--could not, by itself, tell Arnold anything about its Marmaton interest. From 1984 to 2012, nothing could reasonably alert even a sophisticated party like Arnold about an adverse claim to its Marmaton interest. We decline to impose a notice requirement on a party some three decades before that party, in fact, has anything whatsoever to sue over.9   ¶17 An oil-and-gas lease "is a contract to be construed like any other agreement." Pitco Prod. Co. v. Chaparral Energy, Inc., 2003 OK 5, ¶ 12, 63 P.3d 541, 545. We must give effect to the bargained-for "exception clause" in the 1973 leases. Under its plain terms, a nonproducing zone capable of producing hydrocarbons in commercial quantities--here, the Marmaton formation--but unable to do so because of a conflict with existing production in another zone--here, the Chester formation--would nevertheless remain held by production in that latter zone for the duration of the lease. Before it began horizontal drilling in the Marmaton, Cabot had acquired title opinions cautioning: "This [1973] lease contains numerous unusual provisions. You should obtain a copy of this lease, review it, and ensure compliance with all of its terms, conditions and requirements." At trial, the district court found that Cabot "entirely ignored" the title opinion's warning until after it began drilling operations in the Marmaton. We emphasize that "we cannot give a defendant the benefit of some other contract he in hindsight might wish he had made. We can only interpret the plain language of the contract now before us." Bank of Okla., N.A. v. Red Arrow Marina Sales & Serv., Inc., 2009 OK 77, ¶ 40, 224 P.3d 685, 700.   ¶18 In any event, the 1984 leases could not have unilaterally surrendered or else rewritten the 1973 leases in their entirety. Collins v. Chappell, 1958 OK 302, ¶ 12, 333 P.2d 578, 582 ("To be effectual, however, such act or acts [of surrendering a previous lease] must be inconsistent with the continuance of such former estate or interest, and must, moreover, be actually accepted and acted upon by the other, and, in fact, all the parties concerned.") (quotation omitted) (emphasis in Collins). One would be hard-pressed to think of anything more consistent with continuing the 1973 leases than paying royalties to Arnold for nearly forty years on production from the Chester formation. ¶19 The trial judge pointedly and succinctly identified the ultimate problem with Cabot's theory of the case when it asked Cabot's counsel at trial: "Why do you today get to decide which part was released and which part wasn't[?] . . . Why do you get to decide which part was or wasn't if it wasn't expressed?" The answer, of course, is that Cabot does not get to decide that question in a way that goes against the plain words of the 1973 leases and the parties' decades-long course of conduct. Arnold should have been secure in its good-faith belief that the terms of the 1973 leases continued to control its interest as to both formations until the actual injury to its interest in the Marmaton occurred in 2012. We hold that Arnold brought a timely lawsuit in 2012 to enforce its valid overriding royalty interest in the Marmaton formation under the oil-and-gas leases executed in 1973. Conclusion 20 Words matter, and so does conduct. The words of the 1973 leases allowed the Marmaton formation to be held by the neighboring Chester formation's conflicting and continuous production. The conduct of the parties (and their predecessors in interest) showed a consistent intent--for almost forty years--to keep paying an overriding royalty to Arnold under the same 1973 leases. The recording of the 1984 leases did not change that. Nothing in law or equity supports requiring a plaintiff, in effect, to sue no later than 1999 for an injury that would not happen until 2012. Arnold filed a timely lawsuit to vindicate a valid interest. The judgment of the district court is affirmed in all respects. THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE TRIAL COURT'S JUDGMENT IS AFFIRMED. Kauger, Edmondson, Colbert, Combs and Gurich, JJ.; Bass, S.J., concur; Darby, C.J., concurs in result; Winchester, J., dissents; Kane, V.C.J., not participating. FOOTNOTES 1 The Marmaton formation is a distinct geologic zone situated above--or, in the parlance of the oil-and-gas industry, "uphole" from--the Chester formation. The record indicates that the Chester formation sits about 7,300 feet underground, while the Marmaton begins at around the 6,200-foot mark. 2 An overriding royalty, "as generally understood and accepted within the industry, is a percentage carved out of the lessee's working interest, free and clear of any expense incident to production and sale of oil and gas produced from the leasehold." De Mik v. Cargill, 1971 OK 61, ¶ 7, 485 P.2d 229, 232. 3 Vertical and horizontal oil-and-gas wells differ in how they are drilled, and in how they function. "Horizontal wells represent a relatively recent technological advance in the oil and gas industry." Cont'l Res., Inc. v. Farrar Oil Co., 559 N.W.2d 841, 843 n.1 (N.D. 1997). "[V]ertical wells . . . effectively drain[] a surrounding area exhibiting high natural porosity and permeability." Murphy Expl. & Prod. Co.--USA v. Adams, 560 S.W.3d 105, 110 (Tex. 2018) (quotation omitted). On the other hand, "horizontal drilling in conjunction with hydraulic fracturing allows developers to profitably extract oil and gas directly from the less permeable source rock." Id. at 111; see also 52 O.S. Supp. 2017 § 87.6(B)(6) (defining horizontal well). 4 Cabot's first two horizontal wells began producing from the Marmaton on February 29 and June 12, 2012, respectively. 5 Briefly stated, the "conflict" contemplated under the exception clause would arise if a producing well in one formation prevented simultaneous production in a nearby zone. The evidence at trial showed that the 1970s-era vertical drilling in the Chester created such a conflict with the Marmaton. The trial court identified three separate conflicts--described as ownership, reservoir, and mechanical conflicts--each of which had foreclosed concurrent development in the Marmaton. 6 As previously noted, the 1973 leases also permitted the lessee to surrender the leases "as to any part or parts of the leased premises by delivering or mailing a release thereof to lessor, or by placing a release of record in the proper County." Assuming some intention on their part to release the Marmaton before 2012, it is undisputed that Courson and Cabot never took any step to do so, notwithstanding the straightforward surrender provision of the 1973 leases. 7 This case has involved exhaustive litigation for much of the past decade. The parties introduced hundreds of exhibits at trial, and the trial transcript itself spans 700 pages. The trial court's findings of fact and conclusions of law encompass 82 single-spaced paragraphs. We commend the capable efforts of counsel on both sides of this dispute. 8 "Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter: . . . . An action for the recovery of real property not hereinbefore provided for, within fifteen (15) years." 12 O.S. 2011 § 93(4). 9 Even had the claim accrued in 1984, the discovery rule would have tolled the time for bringing this action. See Calvert, 2016 OK 100, ¶ 11, 382 P.3d at 1033 ("Oklahoma also follows the discovery rule allowing limitations . . . to be tolled until the injured party knows or, in the exercise of reasonable diligence, should have known of the injury."). Arnold alleged that, when it inquired about the scope of the 1984 leases in 1999, Courson's employee said that the 1984 leases covered only the "deep rights" or "lower depths"--in other words, not the shallower Chester or Marmaton formations. That representation would not prompt the need for further inquiry by Arnold because the statement aligns with how the parties had been operating under the 1973 leases all along. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases  CiteNameLevel  1991 OK 87, 818 P.2d 469, 62 OBJ 2744, MBA Commercial Const., Inc. v. Roy J. Hannaford Co., Inc.Discussed  1956 OK 97, 296 P.2d 147, STRAUB v. SWAIMDiscussed  1958 OK 302, 333 P.2d 578, COLLINS v. CHAPPELLDiscussed  2002 OK 62, 51 P.3d 1219, K & H WELL SERVICE, INC. v. TCINA, INC.Discussed  1969 OK 8, 449 P.2d 703, CUNNIUS v. FIELDSDiscussed  1971 OK 61, 485 P.2d 229, DE MIK v. CARGILLDiscussed  2003 OK 5, 63 P.3d 541, PITCO PRODUCTION COMPANY v. CHAPARRAL ENERGY, INC.Discussed  1996 OK 13, 911 P.2d 1205, 67 OBJ 529, Voiles v. Santa Fe Minerals, Inc.Discussed  2009 OK 77, 224 P.3d 685, BANK OF OKLAHOMA v. RED ARROW MARINA SALES & SERVICEDiscussed  2011 OK 9, 247 P.3d 1183, WOODS v. PRESTWICK HOUSE, INC.Discussed  2015 OK 6, 345 P.3d 357, HORTON v. HAMILTONDiscussed  2016 OK 100, 382 P.3d 1028, CALVERT v. SWINFORDDiscussed at Length  2016 OK 108, 388 P.3d 699, SCOTT v. PETERSDiscussed at Length Title 12. Civil Procedure  CiteNameLevel  12 O.S. 92, Commencement of Civil ActionsCited  12 O.S. 93, Limitation of Real ActionsDiscussed at Length Title 52. Oil and Gas  CiteNameLevel  52 O.S. 87.6, Short Title - DefinitionsCited

2021-01-26 21:12:38.858493+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487538

AMENDMENT OF RULES 3, 4 5 and 7 OF RULES GOVERNING ADMISSION TO PRACTICE OF LAW Skip to Main Content Accessibility Statement OSCN Found Document:AMENDMENT OF RULES 3, 4 5 and 7 OF RULES GOVERNING ADMISSION TO PRACTICE OF LAW Previous Case Top Of Index This Point in Index Citationize Next Case Print Only AMENDMENT OF RULES 3, 4 5 and 7 OF RULES GOVERNING ADMISSION TO PRACTICE OF LAW 2021 OK 2 Case Number: SCBD-7013 Decided: 01/21/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 2, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE: Amendment of Rules Three, Four Five and Seven of Rules Governing Admission to the Practice of Law, 5 O.S. 2011, ch.1, app.5 SECOND CORRECTED ORDER This matter comes on before this Court upon an Application to Amend Rules Three, Four, Five and Seven of Rules Governing Admission to the Practice of Law, 5 O.S. 2011, ch.1, app. 5 (hereinafter "Rules") filed on January 13, 2021. This Court finds that it has jurisdiction over this matter and the Rules are hereby amended as set out in Exhibit A attached hereto, effective immediately. DONE IN CONFERENCE the 19th day of January, 2021. /S/CHIEF JUSTICE     EXHIBIT A RULE THREE EXAMINATION COMPULSORY No person other than those referred to in Rule Two shall be admitted to the practice of law in this state except upon recommendation of the Board of Bar Examiners obtained after such person shall have successfully taken the examination in writing, or as otherwise prescribed or be allowed to transfer a Uniform Bar Exam (UBE) score. Only those persons possessing the qualifications and fulfilling the conditions hereinafter prescribed shall be permitted to take an examination or seek UBE score transfer for admission to the practice of law in the State of Oklahoma. RULE FOUR ADMISSION BY EXAMINATION OR UBE SCORE TRANSFER Section 1. When examination of an attorney of another jurisdiction is required of one who is not eligible for admission upon motion as provided in Rule Two hereof, such attorney may be permitted by the Board of Bar Examiners to take an examination or may transfer a verified UBE score within 3 years. Applicants with UBE scores older than 3 but less than 5 years may apply for admission based on the UBE score plus a period of active law practice for at least 2 years immediately preceding their Oklahoma application. The applicant shall be required to provide at his or her own expense a report by the National Conference of Bar Examiners (NCBE). Section 2. Registration as a law student may be accomplished by the filing of a verified application for registration by the 15th day of October of the student's second year of law school on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires including: (a) Certificate of graduation with a Bachelor of Arts or Science degree (with a minimum of 120 college hours, at least 90 hours representing resident study) from a college whose credit hours are transferable to the University of Oklahoma, Oklahoma City University or University of Tulsa with transcript attached of undergraduate college work; (b) Two (2) sets of fingerprints which may be submitted to both the Oklahoma State Bureau of Investigation and the Federal Bureau of Investigation for appropriate record reviews. (c) Recent photograph. (d) NCBE Student Application Report for Character and Fitness at his or her own expense. The Board may, in its discretion, register nunc pro tunc students who have been enrolled in a law school accredited by the American Bar Association upon compliance with all applicable rules herein. The application provided by this section shall be valid for a period of ten (10) years. In the event the applicant has not activated the application within this ten (10) year period, the application will no longer be valid and the file containing the application and required information will be destroyed. Section 3. Application to take a bar exam shall be filed at least six months prior to the date of examination on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires. Such application shall contain proof of law school study with a certified transcript attached and a certificate of the law school dean or associate dean that the applicant has met the requirements for graduation with a Juris Doctor degree from a law school in the United States of America, its territories and possessions, accredited by the American Bar Association. A person who matriculates at a law school which was accredited when applicant enrolled therein, and who completes the course of study and is graduated therefrom, shall be deemed a graduate of an accredited law school, even though the school's accreditation was withdrawn while the applicant was enrolled therein. No applicant may be admitted by examination or UBE score transfer until he or she shall furnish evidence that a score satisfactory to the Board of Bar Examiners on the Multistate Professional Responsibility Examination has been attained. Admission must be effected within one year after the date the applicant successfully completes the bar examination unless extended by the Board of Bar Examiners. RULE FIVE EXAMINATION In effect on March 1, 2021; All applicants for admission by examination who score at least a 264 on the Uniform Bar Examination (UBE), either in Oklahoma or by transfer of the score from a UBE administered in another UBE jurisdiction authorized by the NCBE and are otherwise qualified under these rules shall be recommended by the Board of Bar Examiners to the practice of law in this state. There shall be held two bar examinations each year, at dates, times, places and duration to be prescribed by the Board of Bar Examiners. RULE SIX ADDITIONAL EXAMINATIONS In the event of the failure of an applicant to pass any examination, such applicant, if otherwise qualified under these Rules, may be permitted to take any number of subsequent examinations upon filing an additional application with the Board of Bar Examiners proving continued good moral character and fitness to practice law. The application shall be filed by May 15 for the July examination and by December 15 for the February examination. RULE SEVEN FEES The following non-refundable fees shall be paid to the Board of Bar Examiners at the time of filing of the application: (a) Registration: Regular . . . . . . . . . . . . $125 Nunc Pro Tunc . . . . . . . $500 (b) By each applicant for admission upon motion: the sum of $2,000. (c) By each applicant for admission by examination under Rule Four, §1: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . $1,250 1 October . . . . . . $1,300 1 November . . . . $1,400 JULY BAR EXAM Application filed on or before: 1 February . . . . .$1,250 1 March . . . . . . .$1,300 1 April . . . . . . . .$1,400 or applicants for admission by UBE score transfer only who are licensed in another jurisdiction or have not previously registered as a law student: the sum of $1,250 (d) By each applicant for a Special Temporary Permit under Rule Two, §5: the sum of $750. (e) By each applicant for admission by a Special Temporary Permit under Rule Two, §6: the sum of $100. (f) For each applicant for a Special Temporary Permit under Rule Two, §7, there will not be any fee charged to the applicant. (g) By each applicant for a Temporary Permit under Rule Nine: $150. (h) By each applicant for admission by examination who have previously registered as a law student: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . . . $650 1 October . . . . . . . . $700 1 November . . . . . . . $800 In effect until May 31, 2021; JULY BAR EXAM Application filed on or before: 1 February . . . . . . . $400 1 March . . . . . . . . . $450 1 April . . . . . . . . . . $550 In effect on June 1, 2021; JULY BAR EXAM Application filed on or before: 1 February . . . . . . . $650 1 March . . . . . . . . . $700 1 April . . . . . . . . . . $800      EXHIBIT A RULE THREE EXAMINATION COMPULSORY No person other than those referred to in Rule Two shall be admitted to the practice of law in this state except upon recommendation of the Board of Bar Examiners obtained after such person shall have successfully taken the examination in writing, or as otherwise prescribed or be allowed to transfer a Uniform Bar Exam (UBE) score. Only those persons possessing the qualifications and fulfilling the conditions hereinafter prescribed shall be permitted to take an examination or seek UBE score transfer for admission to the practice of law in the State of Oklahoma. RULE FOUR ADMISSION BY EXAMINATION OR UBE SCORE TRANSFER Section 1. When examination of an attorney of another jurisdiction is required of one who is not eligible for admission upon motion as provided in Rule Two hereof, such attorney may be permitted by the Board of Bar Examiners to take an examination prescribed in Rule Five or may transfer a verified UBE score within 3 years. Applicants with UBE scores older than 3 but less than 5 years may apply for admission based on the UBE score plus a period of active law practice for at least 2 years immediately preceding their Oklahoma application. upon meeting the requirements of this Rule, except that such attorney shall not be required to register as a law student. However, such attorney The applicant shall be required to provide at his or her own expense a report by the National Conference of Bar Examiners (NCBE). Section 2. No person shall be entitled to take an examination for admission to practice law in this state unless such person shall have been registered Registration as a law student may be accomplished by the filing of a the verified application for registration by the 15th day of October of the student's second year of law school on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires including: (a) Certificate of graduation with a Bachelor of Arts or Science degree (with a minimum of 120 college hours, at least 90 hours representing resident study) from a college whose credit hours are transferable to the University of Oklahoma, Oklahoma City University or University of Tulsa with transcript attached of undergraduate college work; (b) Two (2) sets of fingerprints which may be submitted to both the Oklahoma State Bureau of Investigation and the Federal Bureau of Investigation for appropriate record reviews. (c) Recent photograph. (d) NCBE Student Application Report for Character and Fitness at his or her own expense. The Board may, in its discretion, register nunc pro tunc students who have been enrolled in a law school accredited by the American Bar Association upon compliance with all applicable rules herein. The application provided by this section shall be valid for a period of ten (10) years. In the event the applicant has not activated the application within this ten (10) year period, the application will no longer be valid and the file containing the application and required information will be destroyed. Section 3. Application to take a bar exam shall be filed at least six months prior to the date of examination on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires. Such application shall contain proof of law school study with a certified transcript attached and a certificate of the law school dean or associate dean that the applicant has met the requirements for graduation with a Juris Doctor degree from a law school in the United States of America, its territories and possessions, accredited by the American Bar Association. A person who matriculates at a law school which was accredited when applicant enrolled therein, and who completes the course of study and is graduated therefrom, shall be deemed a graduate of an accredited law school, even though the school's accreditation was withdrawn while the applicant was enrolled therein. No applicant may be admitted by examination or UBE score transfer until he or she shall furnish evidence that a score satisfactory to the Board of Bar Examiners on the Multistate Professional Responsibility Examination has been attained. Admission must be effected within one year after the date the applicant successfully completes the bar examination unless extended by the Board of Bar Examiners. RULE FIVE EXAMINATION In effect on March 1, 2021; All applicants for admission by examination who: A) Shall have attained a grade of at least 75% in the subject of Oklahoma Rules of Professional Conduct; and B) Shall have attained a combined grade equivalent to at least 75% on the examination given by the Board of Bar Examiners which shall include: 1) the Multistate Bar Examination (MBE); and 2) essay questions which cover combinations of the subjects hereinafter specified: 1. Oklahoma Rules of Professional Conduct 2. Commercial Law, which may include: (a) Contracts (b) Uniform Commercial Code (c) Consumer Law (d) Creditor's rights, including bankruptcy 3. Property 4. Procedural Law, which may include: (a) Pleadings (b) Practice (c) Evidence (d) Remedies (damages, restitution and equity) 5. Criminal Law 6. Business Associations, which may include: (a) Agency (b) Partnerships (including joint ventures) (c) Corporations (d) Limited Liability Companies 7. Constitutional and Administrative Law 8. Torts 9. Intestate Succession, wills, trusts, estate planning, which may include federal estate and gift taxation 10. Conflicts of Law 11. Family Law score at least a 264 on the Uniform Bar Examination (UBE), either in Oklahoma or by transfer of the score from a UBE administered in another UBE jurisdiction authorized by the NCBE and C) are otherwise qualified under these rules shall be recommended by the Board of Bar Examiners to the practice of law in this state. Any applicant who is otherwise qualified to be recommended for admission to the Bar except by reason of failure to pass satisfactorily the section of the Oklahoma Bar Examination concerning the Oklahoma Rules of Professional Conduct shall be eligible for re-examination in the subject Oklahoma Rules of Professional Conduct. Such re-examination shall be conducted by the Board at a time and place to be fixed by the Board and may be written or oral or both. If, upon such reexamination, the applicant receives a satisfactory grade in the subject Oklahoma Rules of Professional Conduct and is found by the Board to have otherwise qualified to be recommended for admission to the Bar, such applicant shall thereupon be so recommended. Any applicant who fails to receive a satisfactory grade upon such re-examination shall be required to reapply for permission to take a further examination concerning the Oklahoma Rules of Professional Conduct, which may be given at the discretion of the Board. There shall be held two bar examinations each year, at dates, times, places and duration to be prescribed by the Board of Bar Examiners. RULE SIX ADDITIONAL EXAMINATIONS In the event of the failure of an applicant to pass any examination, such applicant, if otherwise qualified under these Rules, may be permitted to take any number of subsequent examinations upon filing an additional application with the Board of Bar Examiners proving continued good moral character and fitness to practice law. The application shall be filed by May 15 for the July examination and by December 15 for the February examination. RULE SEVEN FEES The following non-refundable fees shall be paid to the Board of Bar Examiners at the time of filing of the application: (a) Registration: Regular . . . . . . . . . . . . $125 Nunc Pro Tunc . . . . . . . $500 (b) By each applicant for admission upon motion: the sum of $2,000. (c) By each applicant for admission by examination under Rule Four, §1: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . .$1,100 $1,250 1 October . . . . . . .$1,150 $1,300 1 November . . . . .$1,250 $1,400 JULY BAR EXAM Application filed on or before: 1 February . . . . . .$1,100 $1,250 1 March . . . . . . . .$1,150 $1,300 1 April . . . . . . . . .$1,250 $1,400 or applicants for admission by UBE score transfer only who are licensed in another jurisdiction or have not previously registered as a law student: the sum of $1,250 (d) By each applicant for a Special Temporary Permit under Rule Two, §5: the sum of $750. (e) By each applicant for admission by a Special Temporary Permit under Rule Two, §6: the sum of $100. (f) For each applicant for a Special Temporary Permit under Rule Two, §7, there will not be any fee charged to the applicant. (g) By each applicant for a Temporary Permit under Rule Nine: $150. (h) By each applicant for admission by examination other than those under subparagraph (c) hereof who have previously registered as a law student: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . . $400 $650 1 October . . . . . . . $450 $700 1 November . . . . . $550 $800 In effect until May 31, 2021; JULY BAR EXAM Application filed on or before: 1 February . . . . . . . $400 1 March . . . . . . . . . $450 1 April . . . . . . . . . . $550 In effect on June 1, 2021 JULY BAR EXAM Application filed on or before: 1 February . . . . . . $400 $650 1 March . . . . . . . . $450 $700 1 April . . . . . . . . . $550 $800           Citationizer© Summary of Documents Citing This Document Cite Name Level Title 5. Attorneys and the State Bar  CiteNameLevel  5 O.S. Rule 3, Examination CompulsoryCited  5 O.S. Rule 4, Admission by Examination or UBE Score TransferCited  5 O.S. Rule 5, ExaminationCited  5 O.S. Rule 7, FeesCited Citationizer: Table of Authority Cite Name Level None Found.

2021-01-26 21:12:39.384244+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487537

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. JACK Skip to Main Content Accessibility Statement OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. JACK Previous Case Top Of Index This Point in Index Citationize Next Case Print Only STATE ex rel. OKLAHOMA BAR ASSOCIATION v. JACK 2021 OK 1 Case Number: SCBD-6896 Decided: 01/19/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 1, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. STATE OF OKLAHOMA ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. TARA K. JACK, Respondent. BAR DISCIPLINARY PROCEEDING ¶0 Complainant, State of Oklahoma ex rel. Oklahoma Bar Association, charged Respondent, Tara K. Jack, with three counts of professional misconduct, all involving her failure to properly supervise nonlawyer employees under her direct supervision and allowing them to engage in the unauthorized practice of law. The Professional Responsibility Tribunal recommended Respondent be publicly censured. We hold there is clear and convincing evidence that the totality of Respondent's conduct warrants public censure. Respondent is ordered to pay the costs as herein provided within ninety days after this opinion becomes final. RESPONDENT PUBLICLY CENSURED AND ORDERED TO PAY COSTS Gina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant. Allen M. Smallwood, Smallwood Law Office, Tulsa, Oklahoma, for Respondent. ROWE, J.: ¶1 Complainant, State of Oklahoma ex rel. Oklahoma Bar Association began disciplinary proceedings pursuant to Rule 6, Rules Governing Disciplinary Proceedings ("RGDP"), 5 O.S.2011 ch. 1, app. 1-A, alleging three counts of professional misconduct against Respondent, Tara K. Jack. Respondent is an active member of the Oklahoma Bar Association and is currently in good standing. Complainant's allegations arise from Respondent's allowance of unlicensed prosecutors under her direct supervision at the Tulsa County District Attorney's office to engage in the unauthorized practice of law. Complainant alleges Respondent's actions are in violation of the Oklahoma Rules of Professional Conduct ("ORPC"), 5 O.S.2011, ch. 1, app. 3-A, and the RGDP and are cause for professional discipline. Procedural History ¶2 Complainant filed its formal Complaint with the Office of the Chief Justice on January 23, 2020, which contained three counts of alleged misconduct related to Respondent's supervision of five individuals engaged in the unauthorized practice of law. Respondent filed an answer to the Complaint on February 11, 2020. ¶3 On March 11, 2020, the Professional Responsibility Tribunal ("Tribunal") held a hearing on the allegations contained in the Complaint, pursuant to Rule 6, RGDP. On June 5, 2020, the Tribunal filed its report wherein it found that Complainant had established by clear and convincing evidence that Respondent violated Rules 5.3(b), 5.3(c), 5.5(a), 8.4(a), and 8.4(d), ORPC, and Rule 1.3, RGDP. The Tribunal unanimously recommended that Respondent be publicly censured. Standard of Review ¶4 This Court possesses exclusive jurisdiction in Bar Association disciplinary proceedings. State ex rel. Okla. Bar Ass'n v. Holden, 1995 OK 25, ¶10, 895 P.2d 707, 711. We review the evidence de novo to determine whether the allegations of misconduct have been established by clear and convincing evidence. Rule 6.12(c), RGDP; State ex rel. Okla. Bar Ass'n v. Bolusky, 2001 OK 26, ¶7, 23 P.3d 268, 272. Clear and convincing evidence is "that measure or degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." State ex rel. Okla. Bar Ass'n v. Green, 1997 OK 39, ¶5, 936 P.3d 947, 949. ¶5 Our goals in disciplinary proceedings are to protect the interests of the public and to preserve the integrity of the courts and the legal profession, not to punish attorneys. State ex rel. Okla. Bar Ass'n v. Kinsey, 2009 OK 31, ¶15, 212 P.3d 1186, 1192. We consider the discipline previously imposed for similar professional misconduct to ensure that discipline is administered uniformly. Id. at ¶16, 212 P.3d at 1192 (citing State ex rel. Okla. Bar Ass'n v. Doris, 1999 OK 94, ¶37, 991 P.2d 1015, 1025). Discipline, however, is decided on a case-by-case basis to account for differences in the offending conduct and mitigating circumstances. Id. Background ¶6 Throughout the summer and fall of 2018, Tulsa County District Attorney Steve Kunzweiler was engaged in a contested reelection campaign. Concerns over a change in leadership, and consequently job security related to the campaign, prompted a number of assistant district attorneys to seek employment elsewhere. This exodus left the Tulsa County District Attorney's office shorthanded and forced the remaining assistant district attorneys to take on additional responsibilities. At that time, Respondent was employed as an Assistant District Attorney and serving as the Director of the Traffic and Misdemeanor Division. In that role, Respondent had direct supervisory authority of lawyer and non-lawyer employees in the division. I. Count I: The Sweeney Grievance ¶7 Among the employees under Respondent's supervision was Kelly Sweeney. Sweeney was hired as a Provisional Assistant District Attorney by the Tulsa County District Attorney's office on August 1, 2018, and assigned to the Traffic and Misdemeanor division. The "Provisional Assistant District Attorney" title was an unofficial designation applied within the Tulsa County District Attorney's office to individuals who were hired as Assistant District Attorneys but were not yet licensed to practice law. At the time of her hiring, Sweeney had recently graduated from The University of Tulsa College of Law and taken the July 2018 Oklahoma Bar Exam. Sweeney was not a licensed legal intern1 at the time, or at any time previously, and she did not hold any special permit to practice law in Oklahoma. On September 7, 2018, Sweeney learned that she failed the Oklahoma Bar Exam, but she remained employed at the Tulsa County District Attorney's office. ¶8 Despite not having a legal intern license, Sweeney began representing the State of Oklahoma in criminal proceedings shortly after her employment began. In the period from August 1, 2018 to November 13, 2018, Sweeney made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On October 12, 2018, Sweeney represented the State in a non-jury trial in Tulsa County, during which she cross-examined witnesses and presented arguments to the court. On November 6, 2018, Sweeney, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Sweeney questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented closing arguments. ¶9 On November 13, 2018, Sweeney presented a complaint about a defense attorney to Special Judge April Seibert, who had presided over the jury trial the previous week. During her conversation with Judge Seibert, Sweeney indicated that she was not licensed to practice as an attorney, legal intern, or otherwise. Judge Siebert directed Sweeney to immediately cease engaging in any activities that would constitute the practice of law. Judge Siebert then contacted Respondent and First Assistant District Attorney Erik Grayless and advised them of what Sweeney had told her. Both Respondent and Grayless indicated to Judge Seibert that they were not aware Sweeney was practicing without a license. ¶10 Following his conversation with Judge Seibert, Grayless initiated an internal investigation in the District Attorney's office to determine if other employees were engaging in the unauthorized practice of law. The internal investigation revealed that at least two other employees, Randall Young and Michael Shouse, had engaged in the unauthorized practice of law. At some point in November 2018, Grayless contacted the Oklahoma Bar Association and submitted a voluntary disclosure that employees of the District Attorney's office who were not licensed to practice law had represented the State of Oklahoma in criminal proceedings. II. Count II: The Young Grievance ¶11 In or around April 2018, Randall Young was hired by the District Attorney's office and assigned to Respondent's division. At the time of his hiring, Young was a third year law student at the University of Tulsa College of Law. Young graduated from law school in May 2018 and took the July 2018 Oklahoma Bar Exam. Young learned that he passed the Bar Exam on September 7, 2018, and was sworn in on September 25, 2018. Prior to his swearing-in, Young had never held a license to practice law in Oklahoma, as a legal intern or otherwise. ¶12 Despite being unlicensed at the time, Young began representing the State of Oklahoma in criminal proceedings in August 2018. Prior to his swearing-in on September 25, 2018, Young made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On August 27 and 28, 2018, Young, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Young questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented a closing argument. On September 7, 2018, Young represented the State in a non-jury trial, during which he examined witnesses and presented evidence to the court. III. Count III: The James, Deane and Shouse Grievance ¶13 In September 2017, Johnnie James was hired by the Tulsa County District Attorney's office and assigned to Respondent's division. At the time of his hiring, James was a licensed attorney in North Carolina, but he was not licensed in Oklahoma. James applied for a temporary permit2 to practice in Oklahoma until he could take the Oklahoma Bar Exam. His application was initially denied, but after appealing the decision, James was granted a temporary permit to practice on November 13, 2017. He was sworn in on November 14, 2017. However, prior to receiving his temporary license, James began representing the State of Oklahoma in criminal proceedings. Between October 9, 2017, and November 13, 2017, James made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. ¶14 In March 2018, Christopher Deane was hired by the Tulsa County District Attorney's office and assigned to Respondent's division. At the time of his hiring, Deane had recently graduated from the University of Tulsa College of Law. He had taken the February 2018 Oklahoma Bar Exam and was awaiting his results. Deane was not a licensed legal intern at the time of his hiring or at any time previously, and he did not hold any special permit to practice law in Oklahoma. Deane passed the Bar Exam and was sworn into the practice of law on April 17, 2018. However, prior to receiving his license to practice, Deane began representing the State of Oklahoma in criminal proceedings. Between March 28, 2018, and April 11, 2018, Deane made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. ¶15 In May 2018, Michael Shouse was hired by the Tulsa County District Attorney's office and assigned to Respondent's division. At the time of his hiring, Shouse had recently graduated from the University of Tulsa College of Law. Shouse was not a licensed legal intern at the time of his hiring or at any time previously, and he did not hold any special permit to practice law in Oklahoma. Shouse took and passed the July 2018 Oklahoma Bar Exam. He was sworn into the practice of law in Oklahoma on September 25, 2018. However, prior to receiving his license to practice, Shouse began representing the State of Oklahoma in criminal proceedings. Between May 21, 2018, and September 14, 2018, Shouse made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. ¶16 With respect to Sweeney, Young, James, Deane, and Shouse, Respondent assigned their cases and assisted and supervised them in their work. Discussion ¶17 In all three counts, and with all five of the individuals above, Respondent stands accused of the same misconduct and violations of the ORPC and RGDP. Specifically, Complainant alleges that Respondent neglected her supervisory role over these five individuals and, in doing so, violated Rules 5.3(b), 5.3(c), 5.5(a), 8.4(a), and 8.4(d), ORPC, and Rule 1.3, RGDP. For the sake of simplicity, we will examine Respondent's alleged misconduct on a rule-by-rule basis. ¶18 Rule 5.3 sets out a lawyer's professional obligations as to nonlawyers with whom they are associated.3 Rule 5.3(b) in particular requires that a lawyer make reasonable efforts to ensure that the conduct of nonlawyer employees under the lawyer's supervision are compatible with the lawyer's professional obligations. Respondent has stipulated to the fact that she was the direct supervisor of Sweeney, Young, James, Deane, and Shouse. Respondent has further stipulated that she assigned work to these five individuals and that she was aware that they were engaged in the practice of law despite being unlicensed. Based on these stipulations, Respondent not only failed to make reasonable efforts to ensure these individuals' conduct was consistent with her professional obligations, but also actively facilitated their unauthorized practice. Allowing unlicensed individuals to engage in the practice of law was not compatible with Respondent's professional obligations. Accordingly, we find by clear and convincing evidence that Respondent violated Rule 5.3(b). ¶19 Rule 5.3(c) holds a lawyer responsible for the misconduct of their nonlawyer employees or associates under two circumstances: (1) when the lawyer orders or ratifies the conduct; or (2) when the lawyer has managerial or supervisory authority and knows of the misconduct but fails to prevent it. Based on Respondent's stipulations, she knew of the misconduct by the five individuals under her supervision and failed to stop it or take any other remedial action. Additionally, given that Respondent assigned these five individuals their work, she directed, or at the very least ratified, their misconduct. Accordingly, we find by clear and convincing evidence that Respondent violated Rule 5.3(c). ¶20 Rule 5.5(a) clearly forbids an unlicensed attorney from practicing law.4 When Respondent assigned casework to Sweeney, Young, James, Deane, and Shouse, she knowingly and willfully assisted them in the unauthorized practice of law in violation Rule 5.5(a).5 ¶21 Rule 8.4(a) makes it professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.6 Respondent's conduct violated Rule 8.4 for the same reasons it violated Rule 5.5(a).7 Respondent, at best, failed to adequately supervise Sweeney, Young, James, Deane, and Shouse, and at worst, assisted or induced their unauthorized practice of law. ¶22 Rule 8.4(d) makes it professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. We have previously held that in order for an attorney's misconduct to be considered prejudicial to the administration of justice it must include some element of "deceit, dishonesty, misrepresentation, criminality, sexual misbehavior or other morally reprehensible conduct." State ex rel. Okla. Bar Ass'n v. Moody, 2017 OK 30, ¶10, 394 P.3d 223, 225 (citing State ex rel. Okla. Bar Ass'n v. Minter, 2001 OK 69, ¶24, 37 P.3d 763, 774). By failing to adequately supervise those in her department and allowing nonlawyers to engage in the unauthorized practice of law, Respondent was complicit in and responsible for a pattern of dishonesty and misrepresentation to Oklahoma courts, defendants, and opposing counsel. Judge Siebert testified at Respondent's hearing before the Tribunal that she was "shocked and embarrassed" to know that nonlawyers had been appearing in her court room. Judge Siebert also testified to her belief that Respondent's conduct and that of the District Attorney's office has undermined public trust in the legal process. More troubling than matters of trust and reputation, for those defendants whose cases were prosecuted by unlicensed prosecutors, is that Respondent's conduct placed in jeopardy their constitutional rights.8 ¶23 Based on the foregoing, with respect to Counts I, II, and III, we find that Complainant has established by clear and convincing evidence that Respondent engaged in misconduct in violation of Rules 5.3(b), 5.3(c), 5.5(a), 8.4(a), and 8.4(d), ORPC. Furthermore, we find that Respondent has engaged in acts contrary to prescribed standards of conduct and which bring discredit upon the legal profession, in violation of Rule 1.3, RGDP.9 Mitigation ¶24 Respondent has practiced law for approximately 20 years and has not previously been the subject of any formal discipline. Respondent has been removed from her supervisory role, and since her misconduct came to light, the District Attorney's office has implemented various safeguards to ensure that unlicensed individuals do not engage in the practice of law in the future. The office has instituted a color-coded badge system that clearly identifies which individuals are licensed to practice law, and that system has been communicated to the courts in Tulsa County. The office has abandoned the designation of "Provisional Assistant District Attorney" for new hires who have not yet been admitted to practice. Finally, the office has updated their handbook for legal interns to more clearly identify the scope of tasks that unlicensed individuals are allowed to perform. ¶25 For purposes of mitigation, we must also note that responsibility for the misconduct in question does not lie exclusively with Respondent. While she was the primary supervisor of her division, the office was generally supervised by First Assistant District Attorney Erik Grayless and District Attorney Steve Kunzweiler. During his testimony before the tribunal, Grayless acknowledged his responsibility for the five individuals in question but stated that he had little involvement in their daily activities. While we recognize the need for delegation in large offices like that in the Tulsa County District Attorney's office, Respondent was a supervisor who was nonetheless subject to supervision herself. Furthermore, each of the five unlicensed individuals were at the time of the alleged misconduct seeking admission to the Oklahoma Bar. As such, they must have--or should have--understood on some level the significance of admission to the Bar, namely that one cannot practice law prior to admission, absent special permission from this Court. Discipline ¶26 Our goals in bar disciplinary matters are to protect the interests of the public and preserve the integrity of the legal profession, not to punish attorneys. Kinsey, 2009 OK 31, ¶15, 212 P.3d at 1192. With these goals in mind, we must weigh all relevant factors including those that justify severe sanctions and those that would mitigate the severity of discipline. State ex rel. Okla. Bar Ass'n v. Stewart, 2003 OK 13, ¶19, 71 P.3d 1, 4. We must also weigh the deterrent effect of our discipline on the Respondent and the Oklahoma Bar as a whole. State ex rel. Okla. Bar Ass'n v. Taylor, 2003 OK 56, ¶22, 71 P.3d 18, 29. ¶27 We have previously considered cases involving failures of supervision and unauthorized practice of law by unlicensed individuals. The majority of these cases, however, involve lawyers in private practice allowing administrative staff to engage in the practice of law on the lawyer's behalf or other conduct inconsistent with the lawyer's professional obligations. For example in State ex rel. Okla. Bar Ass'n v. Hill, 2012 OK 66, 281 P.3d 1264, the respondent failed to adequately supervise administrative staff, including his ex-wife, who were commingling client funds with the respondent's personal funds and drawing on the respondent's operating and trust accounts for personal benefit. The respondent also failed to act with diligence in representing other clients, failed to communicate with clients, and failed to maintain good accounting practices. Id. at ¶¶31-32, 281 P.3d at 1270-72. Taking into account mental health issues that the respondent was experiencing at the time, we found that the respondent's misconduct warranted a public censure. Id. at ¶42, 281 P.3d at 1274. ¶28 In State ex rel. Okla. Bar Ass'n v. Martin, 2010 OK 66, 240 P.3d 690, the respondent failed to supervise a paralegal who entered into an agreement with a client to perform legal services without the respondent's knowledge or consent; made misrepresentations to the client about the respondent's involvement in the case; and engaged in the unauthorized practice of law. The respondent had not previously been subjected to any prior discipline, cooperated with the OBA during its investigation, and made restitution to the clients harmed by the paralegal's conduct. Id. at ¶20, 240 P.3d at 700. We found that the respondent's misconduct warranted a public reprimand. Id. at ¶32, 240 P.3d at 702. ¶29 In State ex rel. Okla. Bar Ass'n v. Sheridan, 2003 OK 80, 84 P.3d 710, the respondent failed to adequately supervise his ex-wife who worked as an administrative assistant and who made misrepresentations to clients, forged filing stamps, and hid correspondence from the OBA directed to the respondent. In other instances, the respondent failed to render competent and diligent representation, charged unreasonable fees, and mishandled client property. Id. at ¶¶31-35, 84 P.3d at 717. We determined that the respondent's misconduct warranted a six-month suspension. Id. at ¶46, 84 P.3d at 719. ¶30 While these prior decisions are instructive, we must account for the unique circumstances of the present case. Kinsey, 2009 OK 31, ¶16, 212 P.3d at 1192. Most importantly, we must consider the nature of the work being done by Respondent, her superiors, and those under her supervision. In the ORPC, the role of a public prosecutor is considered distinct from that of other lawyers: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."10 ¶31 The facts of this case reveal that Respondent, and the unlicensed prosecutors she supervised, not only failed to accomplish justice for the defendants whose cases they prosecuted, but also worked an injustice themselves. The rules and standards governing the practice of law in Oklahoma are set out by law in Title 5 of the Oklahoma Statutes, and it is clear that Respondent, and consequently the District Attorney's office, failed to comply with those rules and standards.11 ¶32 One of our primary interests in disciplinary proceedings is preserving the integrity of the courts and the legal profession. Kinsey, 2009 OK 31, ¶15, 212 P.3d at 1192. Incidents like those at issue here are precisely the type that undermine public trust in the legal system and profession. As such, the discipline imposed must reflect to the public the seriousness with which we treat this misconduct. Accordingly, we find that public censure is appropriate to protect the public interest and preserve the integrity of the legal profession. Assessment of Costs ¶33 On June 5, 2020, Complainant filed an application to assess the costs of the disciplinary proceedings, in the amount of $4,801.58, to Respondent. Respondent did not file an objection to the application. Rule 6.16, RGDP, provides that in disciplinary proceedings where discipline actually results, "the cost of the investigation, the record, and disciplinary proceedings shall be surcharged against the disciplined lawyer unless remitted in whole or in part by the Supreme Court for good cause shown." Respondent is hereby ordered to pay costs in the amount of $4,801.58 within ninety days of the effective date of this opinion. RESPONDENT PUBLICLY CENSURED AND ORDERED TO PAY COSTS Darby, C.J., Kane, V.C.J., Kauger, Winchester, Edmondson, Combs (by separate writing), Gurich, JJ., concur; Colbert, J., not present. FOOTNOTES 1 A "licensed legal intern" refers to an individual who holds a limited license to practice law under the supervision of a licensed attorney pursuant to 5 O.S.supp.2018, ch. 1, app. 6. The purpose of the licensed legal internship program is "to provide supervised practical training in the practice of law, trial advocacy and professional ethics to law students and to law graduates who have applied to take the first Oklahoma Bar Examination after graduation." 5 O.S.supp.2018, ch. 1, app. 6, § 1.1. 2 Temporary permits to practice law are provided for under Rule 9 of the Rules Governing Admission to the Practice of Law in the State of Oklahoma, which states: Temporary permits to practice law until the conclusion of the next succeeding bar examination and report of the results thereof may be granted upon the recommendation of the Board of Bar Examiners after a showing of public convenience and necessity, which shall include but not be limited to a showing by a qualified legal services provider as defined in subsection B of this rule, or in the private sector where a case of extreme hardship is shown, provided the applicant has taken and passed the Multistate Professional Responsibility Examination. All applicants for temporary permit to practice law shall file with the Board of Bar Examiners an application for such temporary permit in addition to regular application for admission to the bar examination. The Board shall, as soon as practicable, report its recommendation on such application for temporary permit to the Supreme Court, together with a copy of such application. 5 O.S.supp.2016, ch. 1, app. 5, Rule 9. The temporary permit is immediately revoked upon announcement of the results for applicants who fail the bar exam, or expires on the date successful applicants are sworn into practice. Id. at Rule 10. 3 Rule 5.3, ORPC, provides: With respect to a nonlawyer employed or retained by or associated with a lawyer: [...] (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 4 Rule 5.5(a), ORPC, provides: A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. Comment 2 to Rule 5.5, ORPC, states: The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. 5 Our opinion today does not negate the individual responsibility of Sweeney, Young, James, Deane, and Shouse, who were all seeking admission to the Bar at the time of the incidents in question, but whose actions are not before us at this time. 6 Rule 8.4, ORPC, provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; [...] (d) engage in conduct that is prejudicial to the administration of justice; [....] 7 "A lawyer violates the O.R.P.C. when a failure to supervise a nonattorney employee enables the employee to engage in the unauthorized practice of law by performing legal services without proper supervision by a licensed lawyer. See, e.g., O.R.P.C., Rules 5.3, 5.5(a), and 8.4(a)." State ex rel. Okla. Bar Ass'n v. Gaines, 2016 OK 80, ¶13, 378 P.3d 1212, 1218-19 (citing State ex rel. Okla. Bar Ass'n, 2010 OK 66, ¶¶12-14, 240 P.3d 690, 697-98.) 8 We note with particularity that Sweeney, acting as an unlicensed prosecutor, participated in the non-jury trial of defendant Bryan Christopher O'Rourke, in the District Court in and for Tulsa County, Case No. CM-2017-1946, on October 12, 2018. Defendant O'Rourke was convicted on October 17, 2018, on one of two counts and sentenced to 90 days in the Tulsa County Jail. 9 Rule 1.3, RGDP, provides: The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline. 10 Comment 1 to Rule 3.8, ORPC. 11 The unauthorized practice of law in Oklahoma is not a criminal offense, but rather a violation of the ORPC. COMBS, J., with whom Darby, C.J. and Gurich, J., join, concurring: ¶1 I concur in the imposition of discipline for Ms. Jack's violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A and the Rules Governing Disciplinary Proceedings (RGDP) 5 O.S. 2011, ch. 1, app. 1-A. I write to emphasize the complicity of others within the district attorney's office for Tulsa County, specifically First Assistant District Attorney Erik Grayless. Ms. Jack was not the only supervisor responsible for the actions of the five individuals who intentionally violated the rules authorizing the practice of law in the State of Oklahoma. Mr. Grayless was in charge of the intern program in the office. Mr. Grayless was the person listed as the supervising attorney on any licensed legal interns paperwork. Ms. Jack relied on Grayless and the "interns" to know what they could or could not do. She did not receive any paperwork confirming the employees licensing status but only relied upon her First Assistant Grayless and the Human Resources director. Ms. Jack's first mistake was relying on her supervisor, Mr. Grayless. For Ms. Jack to take the entire blame for the office failure to supervise is unfortunate and fundamentally unfair. From this record, Mr. Grayless should bear blame as well. Ultimately the buck must stop with the District Attorney himself, Steve Kunzweiler; none of the leadership of the Tulsa County District Attorney's office should be allowed to escape blame. ¶2 The five individuals practicing without a license, Kelly Sweeney, Randall Young, Christopher Deane, Michael Shouse and Johnnie James, each have begun their legal careers in Oklahoma by committing fraud upon the courts they appeared before. As to each of them, this fraud cannot be ignored, allowed to fade away or be forgotten.   Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases  CiteNameLevel  2001 OK 26, 23 P.3d 268, 72 OBJ 832, STATE ex. rel. OKLAHOMA BAR ASSN. v. BOLUSKYDiscussed  1997 OK 39, 936 P.2d 947, 68 OBJ 1288, State ex rel. Oklahoma Bar Ass'n v. GreenCited  2001 OK 69, 37 P.3d 763, 72 OBJ 2604, STATE EX. REL. OKLAHOMA BAR ASSN. v. MINTERDiscussed  1995 OK 25, 895 P.2d 707, 66 OBJ 1108, State ex rel. Oklahoma Bar Assn. v. HoldenDiscussed  2003 OK 13, 71 P.3d 1, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. STEWARTDiscussed  2003 OK 56, 71 P.3d 18, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. TAYLORDiscussed  2003 OK 80, 84 P.3d 710, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. SHERIDANDiscussed  2009 OK 31, 212 P.3d 1186, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. KINSEYDiscussed at Length  2010 OK 66, 240 P.3d 690, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MARTINDiscussed at Length  2012 OK 66, 281 P.3d 1264, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. HILLDiscussed  2016 OK 80, 378 P.3d 1212, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. GAINESDiscussed  2017 OK 30, 394 P.3d 223, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MOODYDiscussed  1999 OK 94, 991 P.2d 1015, 70 OBJ 3622, State ex. rel. Oklahoma Bar Association v. DorisDiscussed

2020-01-17 22:01:55.160606+00

Maequette

OPINION. Maequette: The petitioner herein, a corporation organized under the laws of Maine, with its principal office and place of business at Memphis, Tenn., filed an income and profits-tax return for the calendar year 1918 on June 14,1919, and on May 7,1920, it filed an income and profits-tax return for the calendar year 1919. The tax shown due on the returns was duly paid. In November, 1920, the then Commissioner of Internal Revenue assessed additional taxes against the petitioner in the amount of $14,856.27 for 1918, and $8,526.27 for 1919. On December 23, 1920, the petitioner filed claims for abatement of said additional tax accompanied by bonds in the amounts of $14,856.27 and $8,526.27, *775respectively, signed by the petitioner as principal and the United States Fidelity & Guaranty Company as. surety, conditioned, “* * * Now, TheReeoee, the condition of the foregoing obligation is such that if the principal shall on notice and demand by the Collector duly pay any part of such tax found to be due by the Commissioner with interest at the rytte of six per cent per annum from the time such tax would have been due had no such claim been filed, and shall otherwise well and truly perform and observe all the provisions of the law and regulations, then this obligation is to be void, but otherwise to remain in full force and virtue.” The action taken by the Commissioner with respect to said claims for abatement and with respect to the collection of said additional tax is shown by the following letter from the collector at Nashville, Tenn., to the respondent under date of December 13, 1928, which by agreement of the parties hereto was introduced in evidence and made a part of the record herein: ******* First notice and demand was issued on December 13, 1920, as evidenced by the attached copies. On December 23, 1920, claims for abatement were filed in the respective amounts of $14,856.27 and $8,526.27, and were forwarded to the Bureau for consideration on December 24, 1920. These claims were officially rejected on January 5, 1922, but due to additional information having been submitted by the taxpayer the cases were reconsidered. On November 14, 1924, as a result of advice received from the Bureau a first notice and demand was issued and you will note from the copies enclosed that interest was computed from December 23, 1920, to November 24, 1924. There is enclosed, herewith, a copy of the telegram received from the Commissioner dated November 22d, authorizing the deferring of collection of these taxes thirty days, provided, the interests of the Government were not jeopardized. It might be well to state at this time that surety bonds were executed by the taxpayer in the respective amounts of $14,856.27 and $8,526.27 on December 21, 1920, to secure the payment of taxes in the event its claim for abatement was rejected. The original bonds, which were cancelled on March 11, 1926, are attached. On November 28, 1924, a second notice and demand was issued, covering tax 6 per cent interest, 5 per cent penalty and 12 per cent interest. Copies of these notices are enclosed, together with a copy of my letter of the 28th of November, in which they were informed that in view of the information received from the Commissioner that collection would be withheld for a period of thirty days, that the notices were merely sent to comply with the law and regulations in such cases. Under date of January 27, 1925, I inquired of the Commissioner whether or not to proceed with the collection of these taxes and on February 9, 1925, I was advised that I should not further delay collection of the tax due. A copy of Bureau letter containing this information is enclosed. Accordingly, on February 12, 1925, second notice and demand was again issued, copies of which are attached and forwarded with my letter dated February 12, 1925, a copy of which is also attached, with the request that payment be made on or before February 23d. On account of failure to pay the tax within the time allowed on the second, second notice and demand issued on February *77624th, warrants for distraint were forwarded to my deputy collector at Memphis, for the collection of the tax and interest and there are attached hereto true and correct copies of these warrants. As a result of a conference held in this office on August 10, 1925, it was agreed that the taxpayer would make payment of $7,500 on the distraint warrants held by the deputy and no further action would be taken toward collection until September 10, 1925. This extension was given in order that the taxpayer would have an opportunity to get some definite action from the Bureau/ or Appeal Board, with reference to the reopening of their case. It was understood at that time that if this office did not receive any official information from either the Bureau or the Board of Tax Appeals, that collection of the balance due under the warrants would proceed. On September 16, 1925, a letter was directed to this office by the Commissioner, a copy of which is attached, suggesting that collection be withheld for a period of sixty days, provided the interests of the Government were not jeopardized. On December 2, 1925, the Bureau furnished me with the amounts the taxpayer had been over-assessed for the years 1909 to 1919, inclusive, and this information was immediately transmitted to the Deputy with the request that collection be made of the unpaid balance, less the credits for these years. There is enclosed a copy of my letter dated February 15, 1926, instructing the deputy holding these warrants to proceed by distraint, if he thought proper. This letter was written as a result of a telegram from the taxpayer dated February 15, 1928. On February 19, I was advised by wire from Washington by a representative of the corporation that the Bureau would issue a 60-day letter immediately and advise this office to delay collection. $ * * # * # * On December 8, 1925, the collector at Nashville mailed to the petitioner a letter which is as follows: American Bag Company, American Finishing Company, Memphis, Tennessee Sirs : Further reference is made to the outsanding assessments of additional tax for the years 1918 and 1919 in the sums of $7,356.27 and $8,526.27, respectively. You will recall that collection of these amounts has been withheld pending adjustment by the Bureau at Washington for the years 1909 to 1919, inclusive. I am today in receipt of a letter from the Bureau advising that audit of these years has been completed, and overassessments found as follows: 1909_ $84.78 1911_ 10.42 1912_ 91. 65 1913_ . 96. 60 1915_ 14. 28 1918_ 3,109. 92 1919- 1,268.49 Total. 4,676.14 *777You will note from the above that there is a total credit due for these years of $4,676.14, which will be applied to the total outstanding of $15,882.54, leaving a balance of $11,206.40, together with interest. I am today notifying my deputy at Memphis^ who holds warrants for the collection of this tax to deduct this credit and allow you to pay the balance, together with the interest. On December 28, 1925, the petitioner appealed to this Board from the action set forth in the collector’s letter of December 8, 1925. The said additional tax was paid or abated as follows: 1918 August 12, 1925, Paid---$7, 500.00 December 24, 1925, Credit- 297.73 ■December 24, 1925, Abatement_ 3,109. 92 March 2, 1926, Paid- 3,948. 62 Total_ 14, 856.27 March 2, 1926, Interest Paid_1- 2, 800.00 March 2, 1926, Penalty Paid (in part)- 170.19 March 11, .1926, Balance of Penalty paid-- 27.24 1919 December 24, 1925, Abatement_$1, 268.49 March 3, 1926, Paid_ 7,257.78 Total_ 8, 526.27 The petitioner, in the petition filed herein, originally alleged that the respondent, in determining its tax liability for 1918 and 1919, erred in two particulars with respect to its income and invested capital. At the hearing counsel for the petitioner stated that the petitioner “wishes to waive the contentions set forth in petition,” and upon motion duly granted they amended the petition by adding the allegation that assessment and collection of the additional tax for 1918 and 1919 are barred by the statute of limitations. This allegation was denied by the respondent.- We are of opinion that the collector’s letter of December 8, 1925, is not the deficiency notice contemplated by the statute, and that we have no jurisdiction to determine the merits of the controversy. Reviewed by the Board. Order of dismissal will be entered accordingly.

2011-08-23 09:34:07+00

http://bulk.resource.org/courts.gov/c/F2/732/732.F2d.939.83-2413.html

732 F.2d 939 *Spell v. Woodward-Clyde, Inc. 83-2413 United States Court of Appeals, Fifth Circuit. 4/23/84 1 S.D.Tex. DISMISSED 2 --------------- * Fed.R.App.P. 34(a); 5th Cir.R. 34.2.

2020-12-02 21:09:53.460937+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07187.htm

Mortgage Elec. Registration Sys., Inc. v Congregation Shoneh Halochos (2020 NY Slip Op 07187) Mortgage Elec. Registration Sys., Inc. v Congregation Shoneh Halochos 2020 NY Slip Op 07187 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. HECTOR D. LASALLE VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ. 2017-13298 (Index No. 31813/09) [*1]Mortgage Electronic Registration System, Inc., etc., et al., appellants, v Congregation Shoneh Halochos, etc., respondent, et al., defendants. McLaughlin & Stern LLP, Great Neck, NY (Todd Harris Hesekiel and Benjamin S. Kaplan of counsel), for appellants. DECISION & ORDER In an action pursuant to RPAPL article 15 to quiet title to real property and for declaratory relief, the plaintiffs appeal from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated June 23, 2017. The order granted those branches of the motion of the defendant Congregation Shoneh Halochos which were pursuant to CPLR 5015(a)(4) to vacate so much of an order and judgment (one paper) of the same court (Ellen M. Spodek, J.) dated April 16, 2011, as granted the plaintiffs' motion for leave to enter a default judgment against the defendant Congregation Shoneh Halochos, and to dismiss the amended complaint insofar as asserted against it for lack of personal jurisdiction, and thereupon, directed dismissal of the amended complaint in its entirety. ORDERED that the appeal from the order is dismissed, without costs or disbursements, as the order appealed from was superseded by an order of the same court dated August 30, 2018, made upon reargument (see Mortgage Electronic Registration System, Inc. v Congregation Shoneh Halochos, _____ AD3d _____ [Appellate Division Docket No. 2019-04735; decided herewith]). SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:53.702362+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07186.htm

McCarthy v Sea Crest Health Care Ctr., LLC (2020 NY Slip Op 07186) McCarthy v Sea Crest Health Care Ctr., LLC 2020 NY Slip Op 07186 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL BETSY BARROS PAUL WOOTEN, JJ. 2018-05427 (Index No. 517729/17) [*1]Maria McCarthy, etc., appellant, v Sea Crest Health Care Center, LLC, et al., respondents. D.F. Truhowsky (Alexander J. Wulwick, New York, NY, of counsel), for appellant. DECISION & ORDER In an action, inter alia, to recover damages for negligence and violation of Public Health Law § 2801-d, the plaintiff appeals from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated April 2, 2018. The order, insofar as appealed from, granted that branch of the defendants' motion which was to compel the plaintiff to arbitrate the claims against them, and thereupon directed dismissal of the complaint. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a framed-issue hearing in accordance herewith, and a new determination of the defendants' motion thereafter. Dennis McCarthy (hereinafter Dennis) allegedly was injured while he was a resident at the defendants' nursing home. The instant action was commenced on Dennis's behalf, inter alia, to recover damages for negligence and violation of Public Health Law § 2801-d. The defendants moved, inter alia, to compel arbitration of those claims pursuant to arbitration provisions contained in an admission agreement signed by Dennis's wife, Maria McCarthy (hereinafter Maria), allegedly as his "designated representative," upon his admission to the nursing home. In opposition, the plaintiff challenged Maria's authority to sign the agreement on Dennis's behalf, noting that, about seven months before Dennis's admission to the nursing home, he had executed a power of attorney designating his son as his agent. In response, the defendants did not contend that Maria had actual authority to sign the agreement on Dennis's behalf, but, rather, contended that Dennis was bound by the agreement and its arbitration provisions under the direct benefits theory of estoppel. In an order dated April 2, 2018, the Supreme Court granted that branch of the defendants' motion, concluding, under the direct benefits theory of estoppel, that the plaintiff could not avoid arbitration. Further, the Supreme Court, in effect, denied other branches of the defendants' motion as academic, and directed dismissal of the complaint. The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was to compel arbitration, and thereupon dismissed the complaint. We agree with the plaintiff's contention on appeal that the Supreme Court erred in summarily granting that branch of the defendants' motion which was to compel arbitration, under the direct benefits theory of estoppel. "Arbitration is a matter of contract," and thus, "notwithstanding the public policy favoring arbitration, nonsignatories are generally not subject to [*2]arbitration agreements" (Matter of Belzberg v Verus Invs. Holdings Inc., 21 NY3d 626, 630 [citation omitted]). Nevertheless, "[u]nder the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory knowingly exploits the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement" (id. at 631 [internal quotation marks omitted]; see Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 AD3d 1138, 1141). Here, questions of fact existed as to Dennis's mental state at the time of his admission to and residency in the defendants' facility, such that it could not be determined, as a matter of law, that he had the mental capacity to "knowingly exploit[ ]" benefits flowing from the agreement containing the arbitration clauses (Matter of Belzberg v Verus Invs. Holdings Inc., 21 NY3d at 631; see KPMG LLP v Kirschner, 182 AD3d 484; Arboleda v White Glove Enter. Corp., 179 AD3d 632, 633). Accordingly, a hearing is required to determine whether the plaintiff, as executor of Dennis's estate, is bound by the arbitration provisions of the admission agreement (see CPLR 7503[a]). We therefore remit the matter to the Supreme Court, Kings County, for a hearing, and thereafter, a new determination of the defendants' motion. BALKIN, J.P., LEVENTHAL, BARROS and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:53.929676+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07201.htm

Matter of Syncere R. (Imeisha P.) (2020 NY Slip Op 07201) Matter of Syncere R. (Imeisha P.) 2020 NY Slip Op 07201 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ. 2019-09761 (Docket Nos. N-3510-18, N-3511-18, N-3512-18, N-3513-18, N-3514-18, N-3515-18, N-3516-18, N-3517-18, N-3518-18) [*1]In the Matter of Syncere R. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Sir'Vonte S. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Alyijah S. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Aiden S. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 4) In the Matter of Amari S. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 5) In the Matter of Tahjir S. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 6) In the Matter of Amir C. S. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 7) In the Matter of Nyasia J. (Anonymous). Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 8) In the Matter of Nyomi P. (Anonymous). [*2]Administration for Children's Services, respondent; Imeisha P. (Anonymous), appellant. (Proceeding No. 9) Kyle Sosebee, Brooklyn, NY, for appellant. James E. Johnson, Corporation Counsel, New York, NY (Jane L. Gordon and MacKenzie Fillow of counsel), for respondent. Jeffrey C. Bluth, New York, NY, attorney for the children Syncere R., Sir'Vonte S., Alyijah S., Aiden S., Amari S., Tahjir S., and Amir C. S. Robert Marinelli, New York, NY, attorney for the child Nyasia J. Christine Theodore, Spring Valley, NY, attorney for the child Nyomi P. DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding of the Family Court, Kings County (Elizabeth Barnett, J.), dated July 16, 2019. The order, after a fact-finding hearing, found that the mother neglected the child Nyasia J., and derivatively neglected the other subject children. ORDERED that the order of fact-finding is affirmed, without costs or disbursements. The petitioner commenced these related proceedings pursuant to Family Court Act article 10, alleging that the mother neglected the subject child Nyasia J., and derivatively neglected the other subject children. Following a fact-finding hearing, the Family Court found that a preponderance of the evidence established that the mother neglected Nyasia J., and derivatively neglected the other children. The mother appeals. At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i]; Matter of Tammie Z., 66 NY2d 1, 3; Matter of Brianna M. [Corbert G.], 152 AD3d 600; Matter of Desiree P. [Michael H.], 149 AD3d 841). The Family Court's findings with respect to credibility are entitled to great weight (see Matter of Brianna M. [Corbert G.], 152 AD3d at 601; Matter of Monica M. [Mary M.], 151 AD3d 1705; Matter of Jamel T. [Gemayel T.], 120 AD3d 504). Here, a preponderance of the evidence adduced at the fact-finding hearing established that the mother neglected Nyasia J. by using excessive corporal punishment (see Family Ct Act 1012[f][i][B]; Matter of Michele S. [Yi S.], 157 AD3d 551; Matter of Genesis F. [Xiomaris S.], 121 AD3d 526; Matter of James S. [Kathleen S.], 88 AD3d 1006). Moreover, since the mother's conduct toward Nyasia J. demonstrated a fundamental defect in her understanding of parental duties relating to the care of children, there was sufficient evidence from which to make a derivative neglect finding as to the other children (see Matter of James S. [Kathleen S.], 88 AD3d 1006; Matter of Devontay M., 56 AD3d 561; Matter of Nicholas L., 50 AD3d 1141). In light of our determination, we need not address the mother's remaining contention. DILLON, J.P., CHAMBERS, MILLER and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:54.151284+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07199.htm

Matter of Nyomi P. (Imeisha P.) (2020 NY Slip Op 07199) Matter of Nyomi P. (Imeisha P.) 2020 NY Slip Op 07199 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ. 2019-06342 (Docket Nos. N-8386-19, N-8387-19, N-8388-19, N-8389-19, N-8390-19, N-8391-19, N-8392-19, N-8393-19, N-8394-19) [*1]In the Matter of Nyomi P. (Anonymous). Administration for Children's Services, petitioner- respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Syncere R. (Anonymous). Administration for Children's Services, petitioner- respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 2) In the Matter of Amir C. S. (Anonymous). Administration for Children's Services, petitioner- respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 3) In the Matter of Amari S. (Anonymous). Administration for Children's Services, petitioner- respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 4) In the Matter of Nyasia J. (Anonymous). Administration for Children's Services, petitioner; Imeisha P. (Anonymous), et al., respondents. (Proceeding No. 5) In the Matter of Tahjir S. (Anonymous). Administration for Children's Services, petitioner- respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 6) In the Matter of Sir'Vonte S. (Anonymous). Administration for Children's Services, petitioner- respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 7) In the Matter of Alyijah S. (Anonymous). Administration for Children's Services, petitioner- [*2]respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 8) In the Matter of Aiden S. (Anonymous). Administration for Children's Services, petitioner- respondent; Imeisha P. (Anonymous), appellant, et al., respondent. (Proceeding No. 9) Kyle Sosebee, Brooklyn, NY, for respondent-appellant. James E. Johnson, Corporation Counsel, New York, NY (Jane L. Gordon and MacKenzie Fillow of counsel), for petitioner-respondent. Jeffrey C. Bluth, New York, NY, attorney for the children Syncere R., Amir C. S., Amari S., Tahjir S., Sir'Vonte S., Alyijah S., and Aiden S. Christine Theodore, Spring Valley, NY, attorney for the child Nyomi P. DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Kings County (Elizabeth Barnett, J.), dated April 30, 2019. The order, after a hearing pursuant to Family Court Act § 1028, denied the mother's application to return the subject children to her custody during the pendency of the proceedings. ORDERED that the order is affirmed, without costs or disbursements. The petitioner commenced these related proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected her two-year old son, Syncere R., by failing to provide him with adequate medical care after he sustained severe burns as a result of his skin coming into contact with a drain cleaner, and derivatively neglected the other subject children. After commencing these proceedings, the petitioner temporarily removed the subject children from the mother's home. The mother made an application pursuant to Family Court Act § 1028 for the return of the children to her custody, and the Family Court conducted a hearing on the application. After the hearing, the court denied the mother's application. A parent's application pursuant to Family Court Act § 1028 for the return of a child who has been temporarily removed "shall" be granted unless the Family Court finds that "the return presents an imminent risk to the child's life or health" (Family Ct Act § 1028[a]; see Matter of Cheryl P. [Ayanna M.], 168 AD3d 1062, 1063; Matter of Tatih E. [Keisha T.], 168 AD3d 935; Matter of Saad A. [Umda M.], 167 AD3d 596, 597; Matter of Chloe W. [Tara W.], 165 AD3d 681). In making its determination, the court "must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal" and "must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests" (Nicholson v Scoppetta, 3 NY3d 357, 378; see Matter of Romeo O. [Sita P.-M.], 163 AD3d 574, 575). "'Evidence that the children who are the subject of the proceeding were previously harmed while in the parent's care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent's care'" (Matter of Tatih E. [Keisha T.], 168 AD3d at 936, quoting Matter of Rosy S., 54 AD3d 377, 378). Here, there exists a sound and substantial basis in the record for the Family Court's determination that the return of the children to the mother would present an imminent risk to the children, and that the risk could not be mitigated by reasonable efforts to avoid removal (see Matter of Tatih E. [Keisha T.], 168 AD3d at 936; Matter of Gavin G. [Carla G.], 165 AD3d 1258, 1259; Matter of Chloe W. [Tara W.], 165 AD3d at 682). The court's determination as to the mother's lack of credibility should not be disturbed, as it is supported by the record (see Matter of Zephyr D. [Luke K.], 148 AD3d 1013; Matter of Iris G. [Angel G.], 144 AD3d 908). Accordingly, we agree with the Family Court's determination denying the mother's application pursuant to Family Court Act § 1028 for the return of the subject children to her custody. DILLON, J.P., CHAMBERS, MILLER and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2013-10-30 07:23:05.110561+00

525 So. 2d 325 (1988) Jack O'NEAL v. CHRIS STEAK HOUSE, INC., d/b/a Ruth's Chris Steak House, Jackson, Mississippi, and Thomas J. Moran. No. 87 CA 0374. Court of Appeal of Louisiana, First Circuit. April 19, 1988. *326 Gerald G. Metzer, and Anthony C. D'Antonio, Metairie, and Alfred W. Speer, Baton Rouge, for plaintiff-appellant Jack O'Neal. J. David Bourland, Baton Rouge, for defendant-appellee Chris Steak House, Inc., et al. Before SHORTESS, LANIER and CRAIN, JJ. SHORTESS, Judge. These proceedings commenced after the demise of a business arrangement between Jack O'Neal (plaintiff) and Thomas J. Moran (defendant). The trial court dismissed plaintiff's suit after trial and assigned oral reasons for judgment. Plaintiff has brought this devolutive appeal. Defendant owns more than one Ruth's Chris Steak House (Steak House) in Louisiana. Plaintiff is originally from Jackson, Mississippi, and had previously worked for defendant as a salesman in New Orleans and then in San Antonio. Defendant's net worth at the time of trial was approximately two million dollars. Plaintiff's net worth is not evident from the record, but an officer of the lending institution that financed property purchases and construction costs with regard to the opening of the business testified that plaintiff would not have qualified for the loans that were made to the business. These facts as well as testimony from witnesses of both parties that plaintiff was a talented "P.R. man" or "front man" reflect an agreement more consistent with defendant's testimony: that he (Moran) wished to open a Steak House in Jackson, Mississippi and because of plaintiff's connections in Jackson as well as his salesmanship ability, he selected plaintiff to assist in bringing it about. Real estate was purchased and improvements made with funds borrowed on defendant's personal guaranty. Defendant testified that at the outset he agreed with plaintiff to a salary of $1,200.00 monthly until the business started, then one percent of the gross and five percent of the net profits monthly. Defendant further testified that they agreed that upon discharge of the debt incurred in starting the business, twentyfive percent of the business would be given to plaintiff. Plaintiff testified that his understanding of the agreement was that he had twentyfive percent of the business from its inception. When asked why he did not complain when all of the stock of Chris Steak House, Inc., was issued to defendant, plaintiff replied that he was unaware of the incorporation of the business notwithstanding its appearance as an incorporated entity on operational licenses.[1] The trial court accepted defendant's version of the arrangement, finding that there existed an agreement between the parties wherein the obligation to transfer twentyfive percent of the business was conditional. The specie of condition (suspensive or resolutory, see LSA-C.C. art. 2021 (1870), now LSA-C.C. art. 1767) was not specified, but it is clear from the court's characterization of the condition[2] that it was suspensive. *327 With this finding plaintiff assigns error. A review of the record supports the finding of an agreement between the parties. Both defendant and plaintiff testified that there was an agreement as to plaintiffs managing the business for a salary. This manner of contract is the lease of labor, governed generally by the codal articles of Title IV, LSA-C.C. articles 1761 through 2291 (1870) and specifically by Title IX, LSA-C.C. articles 2745 through 2750 (1870). Plaintiff received compensation in the form of a salary for his services.[3] Defendant alone bore the risk of failure of the business. Plaintiffs personal guaranty was neither asked for nor given. This arrangement is inconsistent with the existence of a partnership. Plaintiff was guaranteed a sum of money for his services. He risked nothing and was paid for his time.[4] A contract for the letting of labor for an indefinite term is terminable at the will of either of the parties. LSA-C.C. articles 2746 and 2747 (1870); Baynard v. Guardian Life Insurance Company of America, 399 So. 2d 1200 (La.App. 1st Cir. 1981). A contract for "permanent" employment is considered one of indefinite duration and therefore terminable at will. Griffith v. Sollay Foundation Drilling, Inc., 373 So. 2d 979 (La.App.3d Cir.1979). The parties in the instant case contemplated employment of indefinite duration. Plaintiff's employment was therefore terminable at will. We note, additionally, that the record is replete with evidence from which the trial court could have found "good cause," within the meaning of LSC.C. articles 2748 and 2749 (1870), for plaintiff's termination had his employment been specified for a term. Witnesses, including employees and customers of the restaurant, testified as to plaintiff's drinking while on the job and incidents reflecting a lack of responsibility in his daily operation of the business. The trial court noted "problems in the operation of this business" attributable to plaintiff. We are unable to say that this finding is clearly wrong. Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978). This suit was not brought to redress the termination. The agreement between defendant and plaintiff, though, contemplated not only the lease of services for a salary, but the transfer at some future time of a portion of the business. All of the witnesses, except plaintiff himself, testified that the twenty-five percent "would be" plaintiff's.[5] Only plaintiff testified that he was a twenty-five percent interest *328 owner. The distinction is important. The weight of the testimony to the effect that the twenty-five percent interest was not yet plaintiff's but would become his is consistent with defendant's version of the agreement and inconsistent with plaintiff's. Defendant's explanation of the terms of the agreement was: He would also receive one percent over break even and five percent of the net, in addition to his salary. Not to pay off the debt. That would come out of profit. Because we had—I mean, there was a substantial debt and I was the only signature, and I wanted the debt removed before I gave anybody anything. That's just good business. I don't give anything away nor does any other businessman that I know of, give things before they happen. They don't give rewards for not doing things. And I don't think that that was misunderstood ever. Plaintiff, on the other hand, when asked whether he was compensated during the months he spent overseeing the renovations prior to the restaurant's opening, was vague and unresponsive: A. I believe I told you I must have been because I can't imagine me staying up there with absolutely no compensation. But if I was compensated I do not have a record of it. Q. But you're not saying that you weren't compensated then? A. No, I'm not saying that I was either. I have no record of it. The trial court noted this apparent lapse of memory in its reasons for judgment, and we certainly are not in a position based on the record to say that he clearly erred in this regard. The obligation to transfer the twenty-five percent of the business is distinct from plaintiff's contract for employment but related, inasmuch as the occurrence of the event upon which the transfer was conditioned (the reduction of the debt) depended upon plaintiff's performance under the contract. It is clear from the testimony of both of the parties that they envisioned plaintiff's successful management of the business, profits, and eventual reduction of the debt. Upon plaintiff's termination, the occurrence became impossible. When the occurrence of the suspensive event in the context of a conditional obligation becomes impossible, the obligation ceases to exist.[6]Cheramie v. Stiles, 215 La. 682, 41 So. 2d 502 (1949); Bonfanti Marine, Inc. v. Clement, 439 So. 2d 537 (La.App. 1st Cir.1983). We are mindful that an obligor cannot be permitted to benefit from his having prevented the fulfillment of the condition upon which his obligation rests and that in such instance the condition is to be considered fulfilled. LSA-C.C. art. 2040 (1870); Moss v. Guarisco, 459 So. 2d 1 (La.App. 1st Cir. 1984), writ denied, 462 So. 2d 1247 (La. 1985). We have noted that although the employment contract involved herein was terminable at will, sufficient reasons existed for plaintiff's termination as were found by the trial court. It was not clearly wrong in so finding. Defendant did not prevent the fulfillment of the condition such that it must be considered fulfilled. Plaintiff, if anyone, prevented the occurrence of the event. For reasons expressed hereinabove, the judgment of the trial court is affirmed at plaintiff's costs. AFFIRMED. LANIER, J., concurs in the result. NOTES [1] Additionally we note that the written "agreement" dated March, 1979, submitted as plaintiffs exhibit 3, which purports to reflect the business agreement between the parties, though it was never signed by defendant, provides for "Chris Steak House, Inc.," as well as "Thomas J. Moran, Individually," as signatories. Plaintiff testified that he signed the original of this document and forwarded it to defendant. [2] In oral reasons for judgment issued by the trial court it is characterized as follows: The condition of the obligation was that the plaintiff would go up there and would run the restaurant in a reasonable manner and an efficient manner and that they would get the business paid for and things would be happy everafter. [3] The compensation was an amount in dollars, although it appears that defendant contemplated that at some time in the future compensation would be based on a percentage of net and gross profits. [4] Commentary suggests that the mode of remuneration is determinative of the type of contract, whether its object be things or work. 2 M. Plainol "Traite Elementaire de Droit Civil" § 1827, n. 5 (11 ed. 1939) (La.St.L.Inst.Trans. 1959). Furthermore, Plainol observes that the "essence" of partnership is the community of risks and gains, and that the fixing of a participant's share in a business resulting in insuring that party against loss is a contract of not partnership but letting of work: The essence of the partnership is the community of risks and gains: as soon as the share of one of the collaborators is fixed, or he is insured against the chances of loss and deprived of the chances of gain, the latter is not a partner, he is a salaried worker; there is in effect not a contract of partnership, but a contract of letting of work. Id. at § 1827. [5] Elizabeth O'Neal testified that defendant told her that she and her husband "would get twenty-five percent." When asked what she understood to be exchange for which defendant would give them the interest, she responded: A. Jack was to go up there to open up the business, renovate the building and he was also to manage it and we were to get a percentage of it. . . . . . . Q. Did he reaffirm the terms upon which he had offered it to Jack to you? A. We were talking about the 25 percent, plus the salary and what have you. Q. No. In terms of what Jack had to do, did he reemphasize to you what Jack's obligation was to get the 25 percent? He obviously wasn't just going to give it to Jack, was he? A. The things that he had to do, sure. Q. Which were? A. To find a place, renovate it and also to open it up, managing it and then we would get the percentage. [6] LSA-C.C. art. 2021 (1870) provided, in pertinent part: "If the obligation is not to take effect until the event [happens], it is a suspensive condition." This implies that the obligation exists in some manner of unenforceable state until the occurrence of the event. Plainol suggests: As long as the condition is still pending, one may say that the obligation which it suspends does not exist; one has only the hope that some day it will come into existence. (Footnote omitted.) 2 M. Plainol at § 375.

2020-12-02 21:09:54.462897+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07194.htm

Matter of Margaret K.K. (Alicia A.) (2020 NY Slip Op 07194) Matter of Margaret K.K. (Alicia A.) 2020 NY Slip Op 07194 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. ROBERT J. MILLER BETSY BARROS FRANCESCA E. CONNOLLY, JJ. 2019-03475 (Docket Nos. B-762-18, B-763-18, B-764-18, B-765-18) [*1]In the Matter of Margaret K. K. (Anonymous). Rockland County Department of Social Services, respondent; Alicia A. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Elain K. (Anonymous). Rockland County Department of Social Services, respondent; Alicia A. (Anonymous), appellant. (Proceeding No. 2) In the Matter of William K. (Anonymous). Rockland County Department of Social Services, respondent; Alicia A. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Patrick T. K. (Anonymous). Rockland County Department of Social Services, respondent; Alicia A. (Anonymous), appellant. (Proceeding No. 4) Salvatore C. Adamo, New York, NY, for appellant. Thomas E. Humbach, County Attorney, Pomona, NY (Barbara M. Wilmit of counsel), for respondent. Donna M. Genovese, White Plains, NY, attorney for the child Elain K. Pat Bonanno, White Plains, NY, attorney for the child Patrick T. K. DECISION & ORDER In related proceedings pursuant to Social Services Law § 384-b, the mother appeals from an order of the Family Court, Rockland County (Rachel E. Tanguay, J.), dated January 14, 2019. The order granted the petitions to terminate the mother's parental rights to the four subject children on the ground of mental illness. ORDERED that the appeal from so much of the order as granted the petitions to terminate the mother's parental rights as to the children William K. and Margaret K. K. is dismissed as academic, without costs or disbursements, as those children have since reached the age of majority (see Matter of Winston Lloyd D., 7 AD3d 706, 707); and it is further, ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements. The Rockland County Department of Social Services (hereinafter the petitioner) commenced these proceeding to terminate the mother's parental rights to the four subject children. As is pertinent, after a fact-finding hearing, the Family Court found, pursuant to Social Services Law § 384-b(4)(c), that the mother is presently and for the foreseeable future unable to care for the children and terminated her parental rights. The mother appeals. Contrary to the mother's contention, the record shows that she was afforded the effective assistance of counsel in connection with this proceeding. '"A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel which encompasses the right to the effective assistance of counsel"' (Matter of Adam M.M., 179 AD3d 801, 802 [citation omitted], quoting Matter of Deanna E.R., 169 AD3d 691, 692; see Family Ct Act § 262[a][iv]; Matter of Ella B., 30 NY2d 352, 356 [1972]). "[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings" (Matter of Nassau County Dept. of Social Servs. v King, 149 AD3d 942, 943). "An attorney representing a client is entitled to make 'strategic and tactical decisions concerning the conduct of trials'" (Matter of Deanna E.R. [Latisha M.], 169 AD3d at 692, quoting People v Colon, 90 NY2d 824, 826). Thus, "what constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case" (People v Rivera, 71 NY2d 705, 708). To prevail on a claim of ineffective assistance of counsel, it is incumbent on the respondent to "demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings (id. at 709; see People v Mendoza, 33 NY3d 414, 418). In a proceeding to terminate parental rights, the respondent is "entitled to have a court-appointed attorney [present] at [a] court-ordered psychological examination" (Matter of Tiffany S., 302 AD2d 758, 759; see Matter of Alexander L., 60 NY2d 329, 336; Matter of John Lawrence M., 142 AD2d 950, 951). However, the mother did not show that the failure of her counsel to attend the court-ordered psychological examination denied her the effective assistance of counsel in this matter. The record shows that the mother's counsel was provided with notice of the psychological evaluation, received the evaluator's report and conducted a detailed cross-examination of the court-ordered evaluator, and successfully moved for the appointment of an independent psychiatric evaluator. The record, in totality, showed that the mother's counsel provided her with effective representation. Under these circumstances, the mother did not show that she was denied the effective assistance of counsel (see Matter of Adam M.M. [Sophia M.], 179 AD3d 801, 802-803; Matter of Vincent N.B. [Gregory B.], 173 AD3d 855, 856; Matter of Deanna E.R. [Latisha M.], 169 AD3d at 692). In a proceeding to terminate parental rights on the ground of mental illness, the Family Court's inquiry is whether the agency has proven by clear and convincing evidence that the parent is "presently and for the foreseeable future unable, by reason of mental illness . . . to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the date on which the petition is filed" (Social Services Law § 384-b[4][c]; see Matter of Joyce T., 65 NY2d 39, 48; Matter of Zahyre A. [Faye A.], 183 AD3d 724, 724-725; Matter of Christopher T.L. [Sayid L.], 179 AD3d 685, 686). The petitioner presented the testimony of an expert psychiatrist who conducted a forensic evaluation of the mother and reviewed records, including mental health records. That expert psychiatrist opined that the mother suffered from bipolar disorder, attention deficit-hyperactivity disorder, and post-traumatic stress disorder. The mother's treating therapist, a licensed social worker, did not testify to a diagnosis of bipolar disorder. However, that therapist testified that the mother suffered from major depressive disorder, anxiety disorder NOS, and attention deficit-hyperactivity disorder. The record showed, inter alia, that at the time of the hearing, the mother resided in a supportive facility for adults with mental-health challenges, and she was not employed. The mother's treating therapist testified that the mother's mental health challenges are related to prior "significant" trauma. That therapist also testified that the mother has made progress in addressing these mental health challenges in therapy. The record showed, inter alia, that shortly prior to the hearing, the mother had moved to an apartment in a program with less-intensive support, and that the mother had been placed on a waiting list for a residence where she would be permitted to live with children. However, as the Family Court found, the expert forensic psychiatrist testified, essentially, that the mother continued to lack insight into the emotional needs of the subject children. The treating therapist testified that as of the hearing date, the mother's treatment was focused on her own mental health issues. That treating therapist acknowledged that as of the time of the hearing, "mental health barriers" to reunification continued to exist. The treating therapist did not opine that the mother would be able to properly and adequately care for the children, at any definite future point. The expert psychiatrist testified that the children would be neglected if left in the care of the mother, for the foreseeable future. Under these circumstances, we agree with the Family Court's finding that there was clear and convincing evidence that the mother is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the children, and determination to terminate her parental rights (see Matter of Zahyre A. [Faye A.], 183 AD3d at 725; Matter of Eliyah I.M. [Angel C.M.], 154 AD3d 696, 697; Matter of Zachary R. [Duane R.], 118 AD3d 1479). AUSTIN, J.P., MILLER, BARROS and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:54.774823+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07198.htm

Matter of Luthmann (2020 NY Slip Op 07198) Matter of Luthmann 2020 NY Slip Op 07198 Decided on December 2, 2020 Appellate Division, Second Department Per Curiam. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. REINALDO E. RIVERA MARK C. DILLON RUTH C. BALKIN JOHN M. LEVENTHAL, JJ. 2020-04047 [*1]In the Matter of Richard Luthmann, admitted as Richard Albert Luthmann, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Richard Luthmann, respondent. (Attorney Registration No. 4272423) MOTION by the Grievance Committee for the Tenth Judicial District to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), based upon his conviction of a felony. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 29, 2006, under the name Richard Albert Luthmann. Catherine A. Sheridan, Hauppauge, NY (Ian P. Barry of counsel), for petitioner. PER CURIAM. OPINION & ORDER On March 18, 2019, in the United States District Court for the Eastern District of New York, the respondent pleaded guilty to one count of conspiracy to commit wire fraud, in violation of 18 USC §§ 1343 and 1349, and conspiracy to extortionate collection of credit, in violation of 18 USC § 894(a). The respondent was sentenced to a term of imprisonment of 48 months, to be followed by three years of supervised release, and ordered to pay $599,911.26 in restitution and a $200 special assessment. The respondent consented to the entry of a forfeiture judgment in the sum of $130,000. The Grievance Committee for the Tenth Judicial District now moves to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), based upon his conviction of a felony. Although the respondent was duly served, he has neither opposed the motion nor requested additional time in which to do so. Pursuant to Judiciary Law § 90(4)(a), "[a]ny person being an attorney and counsellor-at-law who shall be convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law." Judiciary Law § 90(4)(e) provides that, "[f]or purposes of this subdivision, the term felony shall mean any criminal offense classified as a felony under the laws of this state or any criminal offense committed in any other state, district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state." A felony committed in another jurisdiction need not be a mirror image of a New York felony, but it must have "essential similarity" (Matter of Margiotta, 60 NY2d 147, 150). In determining whether a federal felony is essentially similar to a New York felony, this Court may consider, inter alia, the attorney's plea allocution (see Matter of Woghin, 64 AD3d 5). The Grievance Committee asserts, among other things, that the respondent's [*2]conviction of conspiracy to commit wire fraud, in violation of 18 USC §§ 1343 and 1349, a federal felony, is essentially similar to the New York felony of scheme to defraud in the first degree, in violation of Penal Law § 190.65, a class E felony. Pursuant to Penal Law § 190.65, a person is guilty of scheme to defraud in the first degree by engaging in a scheme with intent to defraud one or more persons by false pretenses, thereby obtaining property in excess of $1,000. During the respondent's plea allocution, he admitted that between August 2015 and February 2016, he, together with others, intentionally conspired to defraud one or more businesses, including five companies, to obtain money and property from them by means of materially false and fraudulent pretenses, representations, and promises. Specifically, the respondent admitted that he represented a company that was "ripping off Chinese people and Chinese companies in the scrap metal business." As a result of his conduct, the respondent was ordered to pay restitution of $599,911.26. These facts satisfy the elements of the New York felony of scheme to defraud in the first degree. Under the circumstances of this case, we conclude that the respondent's conviction of conspiracy to commit wire fraud, in violation of 18 USC §§ 1343 and 1349, constitutes a felony within the meaning of Judiciary Law § 90(4)(e). Accordingly, by virtue of his federal felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a). Accordingly, the Grievance Committee's motion to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), is granted to reflect the respondent's disbarment as of March 18, 2019. SCHEINKMAN, P.J., RIVERA, DILLON, BALKIN and LEVENTHAL, JJ., concur. ORDERED that the Grievance Committee's motion to strike the name of the respondent, Richard Luthmann, admitted as Richard Albert Luthmann, from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), is granted; and it is further, ORDERED that pursuant to Judiciary Law § 90(4)(a), the respondent, Richard Luthmann, admitted as Richard Albert Luthmann, is disbarred, effective March 18, 2019, and his name is stricken from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b); and it is further, ORDERED that the respondent, Richard Luthmann, admitted as Richard Albert Luthmann, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law § 90, the respondent, Richard Luthmann, admitted as Richard Albert Luthmann, is commanded to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that if the respondent, Richard Luthmann, admitted as Richard Albert Luthmann, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f). ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:55.001634+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07202.htm

Matter of Lisa A.S. v Ray A.T. (2020 NY Slip Op 07202) Matter of Lisa A.S. v Ray A.T. 2020 NY Slip Op 07202 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. ROBERT J. MILLER BETSY BARROS FRANCESCA E. CONNOLLY, JJ. 2018-15065 (Docket No. G-3503-16) [*1]In the Matter of Lisa A. S. (Anonymous), petitioner- respondent, v Ray A. T. (Anonymous), respondent, Deborah A. F. (Anonymous), appellant. Joseph J. Artrip, Cornwall, NY, for appellant. Gloria Marchetti-Bruck, White Plains, NY, attorney for the child. DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated November 19, 2018. The order, insofar as appealed from, after a hearing, granted that branch of the mother's petition which was to modify a prior order of visitation of the same court dated March 27, 2018, so as to terminate visitation between the maternal grandmother and the subject child. ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements. By order dated March 27, 2018, the maternal grandmother was awarded supervised visitation with the subject child, who was born in 2007, for a three-hour period, at least once every three weeks. The mother thereafter commenced this proceeding, inter alia, to modify the order of visitation so as to terminate the maternal grandmother's visitation with the child based on a change in circumstances. The petition alleged that, since the entry of the prior order of visitation, there had been a "change of circumstances" in that the mother had been offered a promotion that necessitates that she relocate with the child to Germany. "'A visitation order may be modified upon a showing of sufficient change in circumstances since the entry of the prior order such that modification is warranted to further the child's best interests'" (Matter of Peralta v Irrizary, 91 AD3d 877, 879, quoting Matter of Balgley v Cohen, 73 AD3d 1038, 1038; see Family Ct Act § 467(b)(ii); Matter of Wilson v McGlinchey, 2 NY3d 375, 380; Matter of Condon v Verdile, 151 AD3d 849, 850, citing Matter of Weiss v Rosenthal, 120 AD3d 505, 506). "When making a determination with respect to visitation, the most important factor is the best interests of the child" (Matter of Balgley v Cohen, 73 AD3d at 1038). The best interests of the child are determined by an examination of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171-172). "Since weighing the factors relevant to any custody determination depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence" (Weisberger v Weisberger, 154 AD3d 41, 51 [internal quotation marks omitted]). Here, the mother demonstrated that the move would result in the child gaining beneficial opportunities, including not only those resulting from the mother's increased salary, but also those attendant to living in a foreign country, including learning the language of that country. The child also expressed interest in the opportunities afforded by the relocation with the mother to the foreign country. In addition, the mother testified that her relationship with the maternal grandmother had become "increasingly toxic" and that the maternal grandmother's recurring unfounded allegations against the mother to child protective services had a negative impact on both the mother and the child. Accordingly, the Family Court's determination that the child's best interests would be served by terminating the maternal grandmother's supervised visitation with the child has a sound and substantial basis in the record. AUSTIN, J.P., MILLER, BARROS and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:55.225203+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07197.htm

Matter of Lanni v New York City Employees' Retirement Sys. (2020 NY Slip Op 07197) Matter of Lanni v New York City Employees' Retirement Sys. 2020 NY Slip Op 07197 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN BETSY BARROS, JJ. 2018-00464 (Index No. 512533/17) [*1]In the Matter of Louis Lanni, respondent, v New York City Employees' Retirement System, et al., appellants. James E. Johnson, Corporation Counsel, New York, NY (Richard Dearing, Jonathan Popolow, and Claude S. Platton of counsel), for appellants. Seelig Law Offices, LLC, New York, NY (Philip H. Seelig of counsel), for respondent. DECISION & ORDER In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated March 10, 2017, denying the petitioner's application for accidental disability retirement benefits, the appeal is from a judgment of the Supreme Court, Kings County (Lawrence Knipel, J.), dated October 27, 2017. The judgment granted the petition to the extent of, in effect, annulling the determination and remitting the matter to the New York City Employees' Retirement System for further proceedings. ORDERED that the judgment is affirmed, with costs. On May 9, 2015, the petitioner allegedly injured his right knee, left hip, and back while working as a Sanitation General Superintendent, Deputy Chief, with the New York City Department of Sanitation. On February 26, 2016, the petitioner applied to the New York City Employees' Retirement System (hereinafter NYCERS) for accidental disability retirement (hereinafter ADR) benefits under Retirement and Social Security Law § 605-b. The Medical Board of the NYCERS (hereinafter the Medical Board) evaluated the petitioner and reviewed medical records and determined that, although the petitioner was disabled due to his right knee injury, the incident that caused the petitioner's injuries was not an accident. The Medical Board recommended that the petitioner be denied ADR benefits and be granted an ordinary disability retirement. On March 10, 2017, the Board of Trustees of the NYCERS (hereinafter the Board of Trustees) adopted the recommendation of the Medical Board and denied the petitioner's application for ADR benefits. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the Board of Trustees. In the judgment appealed from, the Supreme Court, finding that the petitioner's injury was caused by an accident, granted the petition to the extent that the determination was, in effect, annulled and the matter was remitted to the NYCERS to process the petitioner's application consistent with the court's determination. The NYCERS, the Board of Trustees, the Medical Board, and the City of New York appeal. A Department of Sanitation worker who "is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an [*2]accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service . . . shall be retired for accidental disability" (Retirement and Social Security Law § 605-b[b][1]). An accident is a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [internal quotation marks omitted]; see Matter of Walsh v Scopetta, 73 AD3d 1192, 1193, affd 18 NY3d 850). However, not every injury that occurs while a worker is performing his or her ordinary duties will support an award of ADR benefits. "[A]n injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties . . . is not an accidental injury" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d at 1011-1012; see Matter of McCambridge v McGuire, 62 NY2d 563, 568). Here, the petitioner's account of the incident underlying his application was that he tripped and fell due to stepping on a loose and broken sidewalk outside the refuse-strewn lot he was photographing. This was not a risk of his ordinary employment duties, but rather a sudden, fortuitous, and unexpected precipitating event (see Matter of McCambridge v McGuire, 62 NY2d at 568; Matter of Walsh v Scopetta, 73 AD3d at 1193-1194; Matter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547, 549). Moreover, in light of the unrefuted credible evidence regarding the petitioner's ordinary employment duties, the challenged determination was made without sound basis in regard to the facts, and thus, the determination was arbitrary and capricious (see Matter of Shapiro v Planning Bd. of the Town of Ramapo, 155 AD3d 741, 743). Accordingly, we agree with the Supreme Court's determination granting the petition to the extent of, in effect, annulling the determination and remitting the matter for further proceedings. AUSTIN, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:55.573808+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07196.htm

Matter of Labate v DeChance (2020 NY Slip Op 07196) Matter of Labate v DeChance 2020 NY Slip Op 07196 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. RUTH C. BALKIN JEFFREY A. COHEN HECTOR D. LASALLE, JJ. 2019-00447 (Index No. 3380/18) [*1]In the Matter of Vincent Labate, appellant, v Paul M. DeChance, etc., et al., respondents. Fredrick P. Stern, P.C., Nesconset, NY, for appellant. Annette Eaderesto, Town Attorney, Farmingville, NY (John Doyle of counsel), for respondents. DECISION & ORDER In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven dated May 18, 2018, which, after a hearing, denied the petitioner's application for a certificate of existing use, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated October 30, 2018. The judgment denied the petition and dismissed the proceeding. ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the matter is remitted to the Zoning Board of Appeals of the Town of Brookhaven for the issuance of the requested certificate of existing use. The petitioner is the owner of real property on Prince Road, in Rocky Point, Suffolk County. Prior to the petitioner's ownership, the property had been used to provide water to a private water company owned by Anthony Sini. According to Anthony Sini's wife, Emily Sini, the property had been used to store construction equipment, such as trucks, trench diggers, backhoes, and cars, since 1947. This type of use was later prohibited by the Code of the Town of Brookhaven. The petitioner contracted to buy the property in 1998, and closed the sale in August 2001. The petitioner operates a construction company, and continued to store construction equipment on the property. According to the petitioner, aside from a three-month gap between the water company's departure from the property and his arrival, the property had been used continuously to store construction equipment. On June 28, 2012, the petitioner applied for a certificate of existing use, to allow him to continue storing construction equipment on the property as a prior nonconforming use. At the ensuing hearing before the respondent Zoning Board of Appeals of the Town of Brookhaven (hereinafter the Board), the petitioner and Emily Sini testified. The petitioner also submitted an affidavit from 87-year-old Mary De Marco, who was familiar with the property, and who stated: "To the best of my knowledge [the property] has been in use as a pump house for the sini water co. and outdoor storage of trucks and miscellaneous equipment and materials continuously since 1947. I am not a family member or have any relationship with the present owner of said property." In opposition, without objection, the Board accepted aerial photographs of the property taken in 1962, [*2]1984, and 2001, showing the property devoid of construction equipment. In a determination dated May 18, 2018, the Board denied the petitioner's application, concluding that the petitioner "failed in his burden to prove that the subject nonconforming use existed without interruption since its inception." On June 22, 2018, the petitioner commenced the instant CPLR article 78 proceeding to annul the Board's determination. In a judgment dated October 30, 2018, the Supreme Court denied the petition and dismissed the proceeding, finding that the Board's determination had a rational basis, and was not arbitrary or capricious. The petitioner appeals. A determination of a zoning board should be sustained on judicial review if it has a rational basis, and is not arbitrary and capricious (see Matter of Kaye v Zoning Bd. of Appeals of the Vil. of N. Haven, 185 AD3d 820, 821; Matter of Schweig v City of New Rochelle, 170 AD3d 863). Where a rational basis for the determination exists, "a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record" (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 196). "It is the law of this state that nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance" (Matter of Cinelli Family Ltd. Partnership v Scheyer, 50 AD3d 1136, 1137 [internal quotation marks omitted]). "[T]he determination of a zoning board regarding the continuation of a preexisting nonconforming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result" (Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683, 685). As relevant to the property at issue, Code of the Town of Brookhaven § 85-883(A)(6) states that "[t]he substantial discontinuance of any nonconforming use for a period for one year or more terminates such nonconforming use of a structure." We disagree with the Supreme Court's conclusion that the Board's determination had a rational basis. The testimony of Emily Sini and of the petitioner, as well as De Marco's affidavit, established that the property had been used to store construction equipment continuously since 1947, except for a three-month gap between the water company's departure from the property and the petitioner's arrival (see Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 AD3d 1216, 1217; Walter v Harris, 163 AD2d 619, 621). The aerial photographs submitted in opposition did not rebut this evidence, inasmuch as they failed to demonstrate a one-year cessation in storage activity on the property. Thus, the Board should have granted the petitioner's application. Since the Board's determination was irrational, and arbitrary and capricious, the Supreme Court should have granted the petition, annulled the Board's determination, and remitted the matter to the Board for the issuance of the requested certificate of existing use (see Matter of Abbatiello v Town of N. Hempstead Bd. of Zoning Appeals, 164 AD3d 785, 787; Matter of Cinelli Family Ltd. Partnership v Scheyer, 50 AD3d at 1138; Matter of Keller v Haller, 226 AD2d 639). SCHEINKMAN, P.J., BALKIN, COHEN and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:55.83262+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07195.htm

Matter of Kings Park 148, LLC v New York State Div. of Hous. & Community Renewal (2020 NY Slip Op 07195) Matter of Kings Park 148, LLC v New York State Div. of Hous. & Community Renewal 2020 NY Slip Op 07195 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. MARK C. DILLON JOSEPH J. MALTESE COLLEEN D. DUFFY, JJ. 2019-06943 (Index No. 8079/18) [*1]In the Matter of Kings Park 148, LLC, appellant, v New York State Division of Housing and Community Renewal, respondent. Horing Welikson Rosen & Digrugilliers P.C., Williston Park, NY (Jillian N. Bittner of counsel), for appellant. Mark F. Palomino, New York, NY (Kathleen Lamar of counsel), for respondent. DECISION & ORDER In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal dated August 30, 2018, which, among other things, affirmed a determination of a Rent Administrator dated November 8, 2017, the petitioner appeals from a judgment of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered March 28, 2019. The judgment denied the petition and dismissed the proceeding. ORDERED that the judgment is affirmed, with costs. The petitioner, the owner of a rent-stabilized apartment building in Jamaica, Queens, appeals from a judgment of the Supreme Court entered March 28, 2019. The judgment denied the petitioner's CPLR article 78 petition seeking to annul a determination of the New York State Division of Housing and Community Renewal (hereinafter the DHCR) and dismissed the proceeding. The DHCR affirmed a determination of a Rent Administrator in favor of a tenant in the building in connection with two complaints she had filed: an overcharge complaint and a lease violation complaint. The Rent Administrator found in favor of the tenant on the ground that the petitioner's attempt to collect a rent increase pursuant to a new vacancy lease which added the tenant's son as a tenant of record was not authorized because the new vacancy lease was null and void. We affirm. In reviewing a determination of the DHCR, the court must uphold the determination unless it is arbitrary and capricious and without a rational basis (see Matter of 65-61 Saunders St. Assoc., LLC v New York State Div. of Hous. & Community Renewal, 154 AD3d 930, 931; Matter of Velasquez v New York State Div. of Hous. & Community Renewal, 130 AD3d 1045, 1046-1047). Here, the DHCR's determination—that a rent-stabilization vacancy lease executed by the petitioner and the tenant was null and void and that the previous lease between the petitioner and the tenant governed the parties—had a rational basis in the record and was not arbitrary and capricious (see Matter of Buchanan v New York State Div. of Hous. & Community Renewal, 163 AD3d 961, 961-962; 164-03, LLC v Poblete, 66 Misc 3d 150[A], 2020 NY Slip Op 50280[U] [App Term, 2d, 11th & 13th Jud Dists]). The petitioner's remaining contentions are without merit. RIVERA, J.P., DILLON, MALTESE and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:56.14154+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07203.htm

Matter of Jesse W. (2020 NY Slip Op 07203) Matter of Jesse W. 2020 NY Slip Op 07203 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL BETSY BARROS PAUL WOOTEN, JJ. 2019-08628 2019-08629 (Docket Nos. N-22880-17, N-22881-17) [*1]In the Matter of Jesse W. (Anonymous). Administration for Children's Services, respondent; Jesse W. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Aja W. (Anonymous). Administration for Children's Services, respondent; Jesse W. (Anonymous), appellant. (Proceeding No. 2) Cheryl Charles-Duval, Brooklyn, NY, for appellant. James E. Johnson, Corporation Counsel, New York, NY (Scott Shorr and Eric Lee of counsel), for respondent. Seth Arthur Myles, Brooklyn, NY, attorney for the children. DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) a decision of the Family Court, Richmond County (Alison M. Hamanjian, J.), dated January 16, 2019, and (2) an order of disposition of the Family Court, Kings County (Erik S. Pitchal, J.), dated May 31, 2019. The order of disposition, upon an order of fact-finding dated January 30, 2019, finding that the father neglected the subject children, released the children to the mother's care and placed the father under the supervision of the Administration for Children's Services for a period of 12 months. ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Matter of Ariana M. [Edward M.], 179 AD3d 923); and it is further, ORDERED that the appeal from so much of the order of disposition as released the children to the mother's care and placed the father under the supervision of the Administration for Children's Services for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further, ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements. By petitions dated August 18, 2017, the Administration for Children's Services (hereinafter ACS) alleged that the father had neglected the subject children. Following a fact-finding hearing, in a written decision, the Family Court found that the father had neglected the children. In an order of fact-finding, the court adjudged the children to be neglected children. In an order of disposition, the court released the children to the mother's care and placed the father under the supervision of ACS for a period of 12 months. The father appeals from the decision and from the order of disposition. The appeal from the decision must be dismissed, as no appeal lies from a decision (see Matter of Ariana M. [Edward M.], 179 AD3d 923, 923). The appeal from so much of the order of disposition as released the children to the mother's care and placed the father under the supervision of ACS for a period of 12 months must be dismissed as academic, as those portions of the order have expired (see Matter of Ava A. [Steven A.], 179 AD3d 666, 667). However, because the adjudication of neglect constitutes a permanent and significant stigma that might indirectly affect the father's status in future proceedings, the appeal from so much of the order of disposition as brings up for review the finding of neglect is not academic (see id.). In a child neglect proceeding under Family Court Act article 10, the petitioner must establish by a preponderance of the evidence that the subject child is neglected (see Family Court Act § 1046[b][i]; Matter of Kailey Z. [Nancy Z], 185 AD3d 832, 833-834). A neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care" due to, inter alia, "misusing a drug or drugs" (Family Ct Act § 1012[f][i][B]). Additionally, pursuant to Family Court Act § 1046(a)(iii), "proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of . . . such person is a neglected child except that such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program" (Family Ct Act § 1046[a][iii]). "In cases where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm" (Matter of Kailey Z. [Nancy Z.], 185 AD3d at 834). Here, although we agree with the father's contention that ACS did not prove by a preponderance of the evidence that he neglected the subject children through acts of domestic violence, we conclude that the evidence supports the Family Court's determination that ACS met its burden of proving that the father neglected the subject children as a result of his misuse of drugs (see Family Ct Act § 1046[b][i]). The evidence demonstrated that the father regularly misused PCP and marijuana, that his misuse of drugs produced in him "a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality," and that he was not participating in a drug rehabilitation program (Family Ct Act § 1046[a][iii]). Contrary to the father's argument, because this presumption of neglect was triggered under Family Court Act § 1046(a)(iii), ACS was "not required to establish that the [children] suffered actual harm or [were] at imminent risk of harm" (Matter of Kailey Z. [Nancy Z.], 185 AD3d at 834). Accordingly, we agree with the Family Court's determination adjudging the children to be neglected children under Family Court Act § 1046(a)(iii). BALKIN, J.P., LEVENTHAL, BARROS and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:56.458842+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07189.htm

Matter of Jahnya (Cozbi C.--Camesha B.) (2020 NY Slip Op 07189) Matter of Jahnya (Cozbi C.--Camesha B.) 2020 NY Slip Op 07189 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. SHERI S. ROMAN BETSY BARROS LINDA CHRISTOPHER, JJ. 2019-03041 2019-03053 (Docket Nos. A-11980-15, V-1727-16) [*1]In the Matter of Jahnya (Anonymous). Cozbi C. (Anonymous), et al., petitioners-respondents; Camesha B. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Camesha Barton, appellant, Amilcar Cabrera, et al., respondents-respondents, et al., respondent. (Proceeding No. 2) Jeffrey C. Bluth, New York, NY, for appellant. Rosin Steinhagen Mendel PLLC, New York, NY (Douglas H. Reiniger of counsel), for petitioner-respondents in Proceeding No. 1 and respondents-respondents in Proceeding No. 2. Tennille M. Tatum-Evans, New York, NY, attorney for the child. DECISION & ORDER In an adoption proceeding and a related proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Kings County (Dean T. Kusakabe, J.), dated October 15, 2018, and (2) an amended order of the same court dated October 31, 2018. The order and the amended order, insofar as appealed from, after a hearing, in effect, dismissed the mother's custody petition and determined that the mother's consent to the adoption of the subject child was not required. ORDERED that the appeal from the order is dismissed, without costs or disbursements, as the order was superseded by the amended order; and it is further, ORDERED that the amended order is affirmed insofar as appealed from, without costs or disbursements. In 2015, Cozbi C. and Amilcar C. (hereinafter together the petitioners) filed a petition to adopt the subject child, alleging, inter alia, that the mother's consent was not required because she had abandoned the child. In 2016, the mother filed a petition seeking custody of the child, alleging that the petitioners obtained custody of the child when the mother allowed the child to live with them temporarily. The Family Court held a combined hearing on the adoption petition and the custody petition. After four days of testimony between August 2017 and October 2017 on the adoption petition, the petitioners rested. On November 27, 2017, the mother completed the first day of her direct testimony on the custody petition, but she failed to appear on July 18, 2018, the second hearing day on the custody petition. The court denied the request of the mother's attorney for an [*2]adjournment and granted the application of the petitioners and the attorney for the child to strike the mother's testimony. In an amended order dated October 31, 2018, the court, in effect, dismissed the mother's custody petition and determined that the petitioners had proven, by clear and convincing evidence, that the mother's consent to the adoption was not required because she had abandoned the child. The mother appeals. Contrary to the mother's contention, the Family Court providently exercised its discretion in denying her attorney's request for an adjournment on July 18, 2018, the second hearing day on her custody petition. "The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Demetrious L.K. [James K.], 157 AD3d 796, 796; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907, 908). "In making such a determination, the court must undertake a balanced consideration of all relevant factors" (Matter of Sicurella v Embro, 31 AD3d 651, 651; see Matter of Demetrious L.K. [James K.], 157 AD3d at 797; Matter of Tripp, 101 AD3d 1137, 1138). Here, the mother failed to appear on July 18, 2018, when the case was called, claiming through her attorney that she was currently in the area and was looking for parking. The court properly weighed the mother's right to an adjudication on the merits against the child's need for permanency by noting that the mother had been frequently late and/or absent from prehearing appearances and that the mother had failed to appear for two of the four hearing dates on the petitioners' adoption petition, despite sending word that she was en route and would appear. Furthermore, while the court denied the request for an adjournment, it stated that it would revisit the issue if the mother did appear late. However, even after 1½ hours past the scheduled time for the second hearing day on her custody petition, the mother had not appeared. We agree with the Family Court's conclusion that the mother's absence on the second hearing day precluded cross-examination of her direct testimony and its determination to strike the mother's testimony (see Schwartz v 38 Town Assoc., 187 AD2d 377, 377; Diocese of Buffalo v McCarthy, 91 AD2d 213, 220). Contrary to the mother's contention, the petitioners met their burden of establishing, by clear and convincing evidence, that she abandoned the child, and thus, that her consent to the adoption was not required (see Domestic Relations Law § 111[2][a]; Matter of Tyler [Tudian C.P.—Tyler S.O.], 134 AD3d 1130, 1131; Matter of Tiara G. [Theresa G.—Norman A.], 73 AD3d 920; Matter of Luke, 65 AD3d 550). Under Domestic Relations Law § 111(2)(a), consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so (see Matter of Tyler [Tudian C.P.—Tyler S.O.], 134 AD3d at 1131). Here, the evidence established that between September 2013 and July 2015, when the adoption petition was filed, there were no visits between the mother and the child except for one visit in September 2013 on the mother's birthday, the mother did not send any cards or letters to the child, and the mother made no calls asking about the child's well-being. BALKIN, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. 2019-03041 DECISION & ORDER ON MOTION 2019-03053 In the Matter of Jahnya (Anonymous). Cozbi C. (Anonymous), et al., petitioners-respondents; Camesha B. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Camesha Barton, appellant, v Amilcar Cabrera, et al., respondents-respondents, et al., respondent. (Proceeding No. 2) (Docket Nos. A-11980-15, V-1727-16) Motion by Cozbi C. and Amilcar C. to dismiss appeals from an order of the Family Court, Kings County, dated October 15, 2018, and an amended order of the same court dated October 31, 2018, on the ground that no appeals lie from orders entered upon the default of the appealing party. By decision and order on motion of this Court dated June 17, 2019, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof. Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is ORDERED that the motion is denied. BALKIN, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:56.678421+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07193.htm

Matter of Hoffman & Sons Realty, Inc. v City of New York (2020 NY Slip Op 07193) Matter of Hoffman & Sons Realty, Inc. v City of New York 2020 NY Slip Op 07193 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. MARK C. DILLON LEONARD B. AUSTIN ROBERT J. MILLER, JJ. 2018-04122 (Index No. 512218/17) [*1]In the Matter of Hoffman & Sons Realty, Inc., appellant, v City of New York, et al., respondents. Jacob Ginsburg, Esq., PLLC, Monsey, NY, for appellant. James E. Johnson, Corporation Counsel, New York, NY (Jamison Davies and Scott Shorr of counsel), for respondents City of New York, Fidel F. Del Valle, Rick Chandler, Environmental Control Board, Office of Administrative Trials and Hearings, New York City Department of Buildings, and New York City Department of Finance. Kenneth D. Litwack, Counselor at Law, P.C. (Law Offices of Bernard D'Orazio & Associates, P.C., New York, NY [Steven G. Yudin], of counsel), for respondent New York City Marshal Martin A. Bienstock. DECISION & ORDER In a proceeding pursuant to CPLR article 78, inter alia, to vacate judgments and stay enforcement of execution on 67 notices of violation issued by the respondent New York City Department of Buildings, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated February 15, 2018. The order and judgment, insofar as appealed from, denied those branches of the petition which concerned certain notices of violation other than notices of violation numbered 35057044R and 35190222N, dismissed those portions of the proceeding, and denied, as academic, the cross motion of the respondent New York City Marshal Martin A. Bienstock to collect poundage and fees. ORDERED that the appeal from so much of the order and judgment as denied, as academic, the cross motion of the respondent New York City Marshal Martin A. Bienstock to collect poundage and fees is dismissed; and it is further, ORDERED that the order and judgment is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs. The petitioner owns certain real property located on Meserole Street in Brooklyn. Between 2012 and 2016, the New York City Department of Buildings (hereinafter DOB) issued 67 notices of violation (hereinafter NOVs) against the properties for a variety of infractions. The DOB attempted to serve the NOVs at the subject properties, but either no one answered or the individuals present refused to accept the NOVs . Thereafter, the DOB served the NOVs using the affix and mail method. The petitioner defaulted or unsuccessfully challenged the NOVs, and civil judgments were entered against it. The judgments were referred to New York City Marshal Martin A. Bienstock (hereinafter the City Marshal), who issued notices of levy and sale as to the petitioner's accounts and [*2]personal property. The petitioner commenced the instant proceeding, alleging, inter alia, that the DOB failed to properly serve the NOVs. The City Marshal cross-moved to collect poundage and fees. In an order and judgment dated February 15, 2018, the Supreme Court, inter alia, denied those branches of the petition which concerned certain NOVs other than NOVs numbered 35057044R and 35190222N, dismissed those portions of the proceeding, and denied the City Marshal's cross motion as academic. The petitioner appeals. The appeal from so much of the order and judgment as denied, as academic, the City Marshal's cross motion to collect poundage and fees must be dismissed, as the petitioner is not aggrieved by that portion of the order and judgment (see CPLR 5511; Fabbricatore v Lindenhurst Union Free School Dist., 259 AD2d 656). "New York City Charter § 1049-a(d)(2) permits the use of affix and mail service of [NOVs] issued by [DOB] inspectors who discover building code violations, but only after there has been 'a reasonable attempt' to deliver the notice 'to a person in such premises upon whom service may be made as provided for by article three of the civil practice law and rules or article three of the business corporation law' (see NY City Charter § 1049-a [d][2][b])" (Matter of Mestecky v City of New York, 30 NY3d 239, 241-242). The petitioner contends that the DOB failed to properly serve the NOVs at issue because it did not make a single reasonable service attempt before resorting to affix and mail service. Contrary to the petitioner's contention, the affidavits of service establish that the DOB made the reasonable service attempts necessary to permit affix and mail service (see Matter of Mestecky v City of New York, 30 NY3d at 242; City of New York v Bay Ridge Prince, LLC, 168 AD3d 808). The petitioner's remaining contention is without merit. SCHEINKMAN, P.J., DILLON, AUSTIN and MILLER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2012-04-17 06:25:02+00

http://bulk.resource.org/courts.gov/c/F3/71/71.F3d.882.94-6887.html

71 F.3d 882 King v. Herring** NO. 94-6887 United States Court of Appeals, Eleventh Circuit. Nov 14, 1995 1 Appeal From: M.D.Ala., No. 92-00950-CV-V-N 2 AFFIRMED. ** Local Rule 36 case

2020-12-02 21:09:57.456332+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07191.htm

Matter of Ciccotelli v Johnson (2020 NY Slip Op 07191) Matter of Ciccotelli v Johnson 2020 NY Slip Op 07191 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. ROBERT J. MILLER BETSY BARROS FRANCESCA E. CONNOLLY, JJ. 2019-14523 (Docket No. F-5895-16) [*1]In the Matter of Andrea Ciccotelli, respondent, v Brian Lamarr Johnson, appellant. William A. Sheeckutz, East Meadow, NY, for appellant. Andrea Ciccotelli, Glen Cove, NY, respondent pro se. DECISION & ORDER In a proceeding pursuant to Family Court Act article 4, the father appeals from a corrected order of commitment of the Family Court, Nassau County (Robin M. Kent, J.), dated November 7, 2019. The corrected order of commitment, in effect, confirmed an order of disposition of the same court (Nadine J. Satterthwaite, S.M.) dated October 31, 2019, made after a hearing, finding that the father willfully violated a prior order of child support, and committed him to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $3,500. ORDERED that the appeal from so much of the corrected order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 90 days is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Brewster v Davidson, 173 AD3d 1176, 1176; Matter of Dezil v Garlick, 136 AD3d 904, 905); and it is further, ORDERED that the corrected order of commitment is affirmed insofar as reviewed, without costs or disbursements. The mother, the custodial parent of the parties' child, commenced this proceeding alleging that the father was in willful violation of an order of child support dated July 14, 2016. Following a hearing, the Support Magistrate issued an order of disposition, finding that the father's failure to pay child support was willful. In a corrected order of commitment dated November 7, 2019, the Family Court, in effect, confirmed the Support Magistrate's finding and committed the father to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $3,500. The father appeals from the corrected order of commitment. Although the appeal from so much of the corrected order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount must be dismissed as academic, the appeal from so much of the corrected order of commitment as, in effect, confirmed the finding that the father was in willful violation of the child support order is not academic in light of the enduring consequences which could flow from the finding that he violated that order (see Matter of Brewster v Davidson, 173 AD3d at 1176; Matter of Dezil v Garlick, 136 AD3d at 905). We agree with the Family Court's determination, in effect, to confirm the Support Magistrate's finding that the father willfully violated the order of support. "At a hearing pursuant to Family Court Act § 454 to determine whether a respondent has 'willfully failed to obey [a] lawful order of support,' the burden is on the petitioner to establish that the respondent willfully violated the terms of the [order] by failing to pay the required support" (Matter of Yuen v Sindhwani, 137 AD3d 1155, 1156, quoting Family Ct Act § 454[3]). Evidence that the respondent failed to pay child support as ordered constitutes prima facie evidence of a willful violation and shifts the burden to the respondent to present competent, credible evidence of his or her financial inability to comply (see Family Ct Act § 455[5]; Matter of Grace v Amabile, 181 AD3d 602, 604; Matter of Yuen v Sindhwani, 137 AD3d at 1156). Here, the mother established, prima facie, that the father failed to meet his support obligation set forth in the order of support, and the father failed to come forward with competent, credible evidence to establish his defense of an inability to pay (see Brewster v Davidson, 173 AD3d at 1177; cf. Matter of Merritt v Merritt, 160 AD3d 870, 871-872). Contrary to the father's contention, the Support Magistrate's determination to admit into evidence copies of a canceled check and an invoice for the child's nursery school tuition did not violate the best evidence rule (see generally Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639; Nappi v Gerdts, 103 AD2d 737, 737). In any event, any error in admitting these documents into evidence does not require reversal of the Family Court's corrected order of commitment, in effect, confirming the Support Magistrate's finding that the father willfully violated the prior support order, since the Support Magistrate did not rely on the documents in question to reach her determination and did not direct the father to contribute to the costs of nursery school tuition. Accordingly, we affirm the corrected order of commitment insofar as reviewed. AUSTIN, J.P., MILLER, BARROS and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:57.680782+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07190.htm

Matter of Burns v Cooke (2020 NY Slip Op 07190) Matter of Burns v Cooke 2020 NY Slip Op 07190 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2019-02044 (Index No. 1007/18) [*1]In the Matter of Trevor Burns, appellant, v Brenda Cooke, etc., et al., respondents. Trevor Burns, Otisville, NY, appellant pro se. James E. Johnson, Corporation Counsel, New York, NY (Devin Slack and Claude S. Platton of counsel), for respondents. DECISION & ORDER In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals from a judgment of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered January 14, 2019. The judgment denied the petition and, in effect, dismissed the proceeding. ORDERED that the judgment is affirmed, without costs or disbursements. The petitioner made two requests pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) to the New York City Department of Correction (hereinafter DOC), one in October 2017 and the other in November 2017, for various records concerning a former inmate who had sworn in an affidavit dated January 6, 2017, that he did not testify against the petitioner at the petitioner's second-degree murder trial on June 3 and 4, 1997. In October 2017, the petitioner sought, inter alia, the DOC admission and discharge dates, transportation orders, and the "Master Index" listing of all records maintained by the DOC pertaining to the former inmate (hereinafter the October 2017 FOIL request). The DOC responded to the October 2017 FOIL request, ultimately providing some of the records requested but withholding records related to the former inmate's dates of admission and discharge and transportation orders pursuant to Public Officers Law § 87(2)(f), on the ground that such disclosure could endanger the life and safety of any person. The petitioner administratively appealed the DOC's partial denial of the October 2017 FOIL request and offered to "compromise" his request for transportation orders. Thereafter, the DOC provided the petitioner with certain records requested pursuant to his offer to compromise, but declined to provide the petitioner with records related to the former inmate's dates of admission and discharge. In November 2017, the petitioner sought various documents from 1995 to 1997 pertaining to the former inmate, including, inter alia, the institutional register of prisoner, the transfer log book for June 3 and 4, 1997, the movement log book for June 3 and 4, 1997, the attorney, counsel, and visitor log, and the inmate transfer file (hereinafter the November 2017 FOIL request). The petitioner administratively appealed the "constructive denial" of the November 2017 FOIL request before the DOC responded to the request. In December 2017, the DOC responded to November 2017 FOIL request, advising the petitioner to provide a written authorization from the former inmate in order for the DOC to consider his request. The petitioner commenced this CPLR article 78 proceeding to compel the production of the requested records. In a supplemental affirmation submitted in further support of its answer, the DOC stated that it had withheld the requested records because the information contained therein could lead to retaliation. The Supreme Court denied the petition and, in effect, dismissed the proceeding, finding that the DOC had established that the records requested were exempt from disclosure under Public Officers Law § 87(2)(f), which provides an exemption from disclosure if disclosure could endanger the life or safety of any person. The petitioner appeals. We affirm. We agree with the Supreme Court's determination denying the petition and, in effect, dismissing the proceeding. "Public Officers Law § 87(2)(f) permits an agency to deny access to records, that, if disclosed, would endanger the life or safety of any person. The agency in question need only demonstrate a possibility of endanger[ment] in order to invoke this exemption" (Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875, affd 20 NY3d 1028 [internal quotation marks omitted]). Here, the DOC met its burden of establishing that the records that were not provided to the petitioner are exempt from disclosure pursuant to Public Officers Law § 87(2)(f) based on the fear of retaliation (see Matter of Exoneration Initiative v New York City Police Dept., 114 AD3d 436, 439; Matter of Howard v Malone, 247 AD2d 665, 665). The petitioner's remaining contention is without merit. SCHEINKMAN, P.J., MALTESE, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:57.900549+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07185.htm

Luzuriaga v FDR Servs. Corp. (2020 NY Slip Op 07185) Luzuriaga v FDR Servs. Corp. 2020 NY Slip Op 07185 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. SHERI S. ROMAN BETSY BARROS LINDA CHRISTOPHER, JJ. 2018-00822 (Index No. 708563/14) [*1]Felix Luzuriaga, appellant, v FDR Services Corp., et al., respondents. Elefterakis, Elefterakis & Panek (Cherney & Podolsky, PLLC, Brooklyn, NY [Oliver R. Tobias], of counsel), for appellant. Mulholland Minion Davey McNiff & Beyrer, Williston Park, NY (Matthew Williams of counsel), for respondents. DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pam B. Jackman-Brown, J.), entered November 29, 2017. The order granted the defendants' motion for an adverse inference charge on the ground of spoliation of evidence. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries, alleging that he was injured when a vehicle owned and operated by the defendants struck his vehicle. At the plaintiff's deposition, the defendants made an oral request on the record for the plaintiff to preserve 271 photographs on his cell phone that depicted his post-accident activities, and later made a written demand for these photographs. The plaintiff produced 232 photographs from his cell phone and later admitted at a second deposition that the remaining photographs had been inadvertently erased from his cell phone after he lent it to his wife. The defendants then moved for an adverse inference charge against the plaintiff for spoliation of the 39 missing photographs. The Supreme Court granted the motion, and the plaintiff appeals. "'A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" (Cantey v City of New York, 184 AD3d 618, 620, quoting Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]). "'A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence'" (Hirschberg v Winthrop-University Hosp., 175 AD3d 556, 557, quoting VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45). "'[I]f the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense'" (Delmur, Inc. v School Constr. Auth., 174 [*2]AD3d 784, 787, quoting Pegasus Aviation I, Inc. v Varig Logistica, S.A., 26 NY3d at 547-548). "'[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence and may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness'" (Delmur, Inc. v School Constr. Auth., 174 AD3d at 786, quoting Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 846 [internal quotation marks omitted]). Here, the defendants demonstrated that the plaintiff had an obligation to preserve the photographs at the time of their destruction, negligently failed to do so, and that the destroyed photographs were relevant to the defendants' defense on the issue of damages. Contrary to the plaintiff's contentions, the Supreme Court providently exercised its discretion in imposing a sanction of an adverse inference charge against the plaintiff at trial with respect to the deleted photographs (see Squillacioti v Independent Group Home Living Program, Inc., 167 AD3d 673, 676; SM v Plainedge Union Free Sch. Dist., 162 AD3d 814, 818; Smith v Cunningham, 154 AD3d 681, 683). The plaintiff's remaining contention is without merit. BALKIN, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:58.126308+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07184.htm

Law Offs. of Joel J. Ziegler, P.C. v Stellaccio (2020 NY Slip Op 07184) Law Offs. of Joel J. Ziegler, P.C. v Stellaccio 2020 NY Slip Op 07184 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX FRANCESCA E. CONNOLLY, JJ. 2018-14655 (Index No. 21196/14) [*1]Law Offices of Joel J. Ziegler, P.C., respondent, v Francis Stellaccio, et al., appellants. Pergolizzi & Associates, Brooklyn, NY (Victor A. Carr of counsel), for appellants. Law Offices of Joel J. Ziegler, P.C., Riverhead, NY, respondent pro se. DECISION & ORDER In an action, inter alia, in effect, to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Suffolk County, entered August 31, 2018. The judgment, insofar as appealed from, upon a decision of the same court (Martha L. Luft, J.) dated April 23, 2018, made after a nonjury trial, is in favor of the plaintiff and against the defendants in the principal sum of $25,000. ORDERED that the judgment is affirmed insofar as appealed from, with costs. The defendant Francis Stellaccio and his wife, the defendant Nancy Stellaccio (hereinafter together the Stellaccios), commenced a medical malpractice action (hereinafter the underlying matter) in 2007, appearing pro se. In September 2008, they retained Joel J. Ziegler and his law firm to represent them in the matter. Their retainer agreement provided for a contingency fee amounting to a percentage of the "net amount recovered," which was defined as the "total dollar amount obtained through settlement or trial" less costs and disbursements. The agreement further provided that if "no money" was recovered, there would be no attorneys' fee, and the Stellaccios "could be responsible for repaying disbursements and/or costs," but Ziegler's law firm was waiving "any rights to exercise this option." The underlying matter was ultimately settled for the sum of $25,000, and Ziegler informed the Stellaccios that he would accept the settlement proceeds in satisfaction of his costs and disbursements. However, the Stellaccios did not sign the settlement paperwork which would have released the $25,000. After the Stellaccios failed to respond to Ziegler's inquiries as to the settlement paperwork, Ziegler's law firm commenced the instant action, inter alia, in effect, to recover damages for breach of contract, seeking to recover the alleged actual sum of the costs and disbursements, which amounted to over $31,000. After a nonjury trial, the Supreme Court found in favor of the plaintiff on its breach of contract cause of action in the principal sum of $25,000, the amount of the settlement, and a judgment was thereafter entered based upon that determination. The Stellaccios appeal. "Courts 'give particular scrutiny to fee arrangements between attorneys and clients,' placing the burden on attorneys to show the retainer agreement is 'fair, reasonable, and fully known [*2]and understood by their clients'" (Matter of Lawrence, 24 NY3d 320, 336, quoting Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 176). While "the law requires that an agreement between client and attorney be construed most favorably for the client" (Shaw v Manufacturers Hanover Trust Co., 68 NY2d at 176), this rule "is inapplicable in the absence of a true construction problem" (Greenberg v Bar Steel Constr. Corp., 22 NY2d 210, 213). Thus, "[t]he threshold question then is whether this retainer agreement warrants interpretation" (id. at 213). Here, the provision of the final paragraph of the retainer agreement, which provides for a waiver of costs or disbursements in the event that "there is no money recovered" in the underlying matter was not applicable here, where there was a recovery of $25,000. Therefore, as the Supreme Court found, the plaintiff was entitled to costs or disbursements to the extent of that recovery. The Stellaccios' remaining contentions are without merit. BALKIN, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:58.438558+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07182.htm

Koyko v City of New York (2020 NY Slip Op 07182) Koyko v City of New York 2020 NY Slip Op 07182 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2018-13612 2018-13649 (Index No. 514247/15) [*1]Georgiy Koyko, etc., respondent-appellant, v City of New York, et al., appellants-respondents. James E. Johnson, Corporation Counsel, New York, NY (Jeremy W. Shweder and Anna B. Wolonciej of counsel), for appellants-respondents. Palant & Shapiro, P.C., New York, NY (Alexander Shapiro of counsel), for respondent-appellant. DECISION & ORDER In an action, inter alia, to recover damages for wrongful death, etc., the defendants appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated October 12, 2018, and an amended order of the same court dated October 15, 2018, and the plaintiff cross-appeals from the amended order. The order and the amended order denied the defendants' motion, in effect, for summary judgment dismissing the complaint and granted the plaintiff's cross motion for leave to amend the complaint. ORDERED that the appeal from the order is dismissed, as that order was superseded by the amended order; and it is further, ORDERED that the cross appeal from the amended order is dismissed, as the plaintiff is not aggrieved by that order (see CPLR 5511); and it is further, ORDERED that the amended order is reversed, on the law, the defendants' motion, in effect, for summary judgment dismissing the complaint is granted, and the plaintiff's cross motion for leave to amend the complaint is denied; and it is further, ORDERED that one bill of costs is awarded to the defendants. The plaintiff, individually and as administrator of the estate of his wife, Marina Koyko (hereinafter the decedent), commenced this action, inter alia, to recover damages for wrongful death against the defendants. The plaintiff alleged, among other things, that the defendants were negligent in their provision of emergency medical services to the decedent. The defendants moved, in effect, for summary judgment dismissing the complaint. The plaintiff cross-moved for leave to amend the complaint. In an amended order dated October 15, 2018, the Supreme Court denied the defendants' motion and granted the plaintiff's cross motion. The defendants appeal. Where it is determined that an agency of the government was exercising a governmental function at the time of the alleged negligence, a municipality may not be held liable [*2]unless it owed a special duty to the injured party (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 425; Estate of Gail Radvin v City of New York, 119 AD3d 730, 732). Here, we agree with the Supreme Court's determination that the defendants were engaged in a governmental function as a provider of emergency medical services pursuant to a municipal emergency response 911 system such that the defendants could not be held liable to the plaintiff unless they owed the plaintiff or the decedent a special duty (see Applewhite v Accuhealth, Inc., 21 NY3d at 426; Halberstam v Port Auth. of N.Y. & N.J., 175 AD3d 1264, 1266). Such a special duty can arise, as relevant here, where "the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally" (Applewhite v Accuhealth, Inc., 21 NY3d at 426). A municipality will be held to have voluntarily assumed a special duty where there is: "(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" (Cuffy v City of New York, 69 NY2d 255, 260; see Halberstam v Port Auth. of N.Y. & N.J., 175 AD3d at 1266). Of the four factors, the "justifiable reliance" element is particularly "critical because it provides the essential causative link between the special duty assumed by the municipality and the alleged injury" (Valdez v City of New York, 18 NY3d 69, 81 [internal quotation marks omitted]). Here, the defendants established, prima facie, that they did not owe a special duty to the plaintiff (see Holloway v City of New York, 141 AD3d 688, 690). Even assuming that the defendants assumed an affirmative duty to act on behalf of the decedent, the defendants demonstrated, prima facie, that the decedent and the plaintiff did not rely to their detriment on the defendants' affirmative undertaking, and, in opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted affidavits stating that he could have taken the decedent by car to a nearby hospital or called a private ambulance service, instead of waiting for medical assistance from the defendants. However, on this record, it cannot be said that the plaintiff was induced by the defendants' agents to forgo these alternative avenues to transport the decedent to the hospital or that reliance on the defendants placed the decedent in a worse position than she would have been in if they never assumed the duty to help (see Halberstam v Port Auth. of N.Y. & N.J., 175 AD3d at 1267; Dixon v Village of Spring Val., 50 AD3d 943, 944). Further, in view of our determination that no special duty existed, the plaintiff's cross motion for leave to amend the complaint should have been denied (see CPLR 3025[b]; cf. Freeman v City of New York, 111 AD3d 780, 782-783). Accordingly, the Supreme Court should have granted the defendants' motion, in effect, for summary judgment dismissing the complaint and denied the plaintiff's cross motion for leave to amend the complaint. MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:58.65797+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07181.htm

Kirton v County of Westchester (2020 NY Slip Op 07181) Kirton v County of Westchester 2020 NY Slip Op 07181 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. 2018-07983 (Index No. 70522/17) [*1]Glenn Kirton, appellant, v County of Westchester, respondent. Aaron G. Baily, Hawthorne, NY, for appellant. John M. Nonna, County Attorney, White Plains, NY (Linda Trentacoste and Justin R. Adin of counsel), for respondent. DECISION & ORDER In an action for declaratory relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated June 7, 2018. The order, insofar as appealed from, granted that branch of the defendant's motion which was, in effect, for summary judgment declaring that it is entitled to a lien on the plaintiff's settlement proceeds in the amount of $14,890.76. ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment declaring that the defendant is entitled to a lien on the plaintiff's settlement proceeds in the amount of $14,890.76. In 2010, the plaintiff was injured when he tripped and fell on a sidewalk. He commenced a personal injury action against the alleged tortfeasors and, in February 2016, obtained a settlement in the amount of $125,000. From that award, his attorney was entitled to attorney's fees and costs in the amount of $42,124. From the date of the accident through the date of the settlement, the plaintiff received $31,734.42 in temporary public assistance benefits. After receiving partial reimbursement from the Social Security Administration, the defendant asserted a lien on the settlement proceeds in the amount of $14,890.76. Thereafter, the plaintiff commenced this action seeking, among other things, a judgment declaring that the amount of the lien be reduced pro rata to account for the attorney's fees and costs incurred by him in pursuing the personal injury settlement. He alleged that enforcement of the lien, without any reduction, constituted a taking in violation of the Fifth Amendment. He also alleged that pro rata reduction of the lien was necessary to avoid unjust enrichment. The defendant moved, inter alia, in effect, for summary judgment declaring that it is entitled to a lien on the plaintiff's settlement proceeds in the amount of $14,890.76. The Supreme Court granted that branch of the defendant's motion, and the plaintiff appeals. The lien placed pursuant to Social Services Law § 104-b on the proceeds of the plaintiff's personal injury settlement did not have to be reduced pro rata to compensate for attorney's [*2]fees and costs he incurred (see Pasciuta v Forbes, 190 AD2d 375, 378; Mendelson v Transport of N.J., 113 AD2d 202, 210; Rahl v Hayes 73 Corp., 99 AD2d 529). Moreover, the plaintiff has no viable Fifth Amendment taking claim because he did not have a property interest in that portion of the settlement proceeds that were subject to the defendant's lien (see American Economy Ins. Co. v State of New York, 30 NY3d 136, 155; Monroe Equities, LLC v State of New York, 145 AD3d 680, 683). Nor is there unjust enrichment on the part of the defendant, since it is only entitled to recover the medical expenses it paid on the plaintiff's behalf (see Social Services Law § 367-a[2][b]). Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendant's motion which was, in effect, for summary judgment declaring that it is entitled to a lien on the plaintiff's settlement proceeds in the amount of $14,890.76. Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of a judgment declaring that the defendant is entitled to a lien on the plaintiff's settlement proceeds in the amount of $14,890.76 (see Lanza v Wagner, 11 NY2d 317, 334). RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:58.973588+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07180.htm

Kelley v Garuda (2020 NY Slip Op 07180) Kelley v Garuda 2020 NY Slip Op 07180 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. RUTH C. BALKIN JEFFREY A. COHEN HECTOR D. LASALLE, JJ. 2017-11420 2017-11421 (Index No. 7016/04) [*1]Edward Kelley, etc., et al., respondents, v Aruna Garuda, etc., et al., defendants, Nikhil Gupta, etc., appellant; Board of Trustees of the International Society for Krishna Consciousness, Inc., et al., nonparty-appellants. G. Oliver Koppell, New York, NY (Daniel F. Schreck of counsel), for appellant Nikhil Gupta, also known as Nimai Pandit Das. Chittur Law Offices, P.C., Ossining, NY (Krishnan S. Chittur of counsel), for nonparty-appellants. La Reddola, Lester & Associates, LLP, Garden City, NY (Steven M. Lester of counsel), for respondent Edward Kelley, also known as Adarsi Das, and Stepanovich Law, PLLC, Nanuet, NY (John G. Stepanovich of counsel), for respondents International Society for Krishna Consciousness, Inc., and Governing Body Commission of the International Society for Krishna Consciousness (one brief filed). DECISION & ORDER In an action to enjoin an alleged trespass and usurpation of corporate authority, and for a judgment declaring the rights and interests of the respective parties in the temple of the plaintiff International Society for Krishna Consciousness, Inc., in Freeport, the defendant Nikhil Gupta, also known as Nimai Pandit Das, appeals, and nonparties Board of Trustees of the International Society for Krishna Consciousness, Inc., Charles Lee, also known as Raja Vidya Das, Balarama Das, Braj Aggarwal, Madhusudan R.S., and David Sbordoni separately appeal, from (1) an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated October 2, 2017, and (2) a judgment of the same court entered October 31, 2017. The order, after an inquest, inter alia, denied that branch of the motion of the defendant Nikhil Gupta, also known as Nimai Pandit Das, which was to vacate his default in answering the complaint. The judgment, upon the order, declared that possession of the subject temple be awarded to the plaintiffs and directed the issuance of a warrant of eviction. ORDERED that the appeals of nonparties Board of Trustees of the International Society for Krishna Consciousness, Inc., Charles Lee, also known as Raja Vidya Das, Balarama Das, Braj Aggarwal, Madhusudan R.S., and David Sbordoni from the order and the judgment are dismissed; and it is further, ORDERED that the appeal of the defendant Nikhil Gupta, also known as Nimai Pandit Das, from the order is dismissed; and it is further, ORDERED that the judgment is reversed insofar as reviewed on the appeal by the defendant Nikhil Gupta, also known as Nimai Pandit Das, on the law and in the exercise of discretion, that branch of the motion of the defendant Nikhil Gupta, also known as Nimai Pandit Das, which was to vacate his default in answering the complaint is granted, the order is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith; and it is further, ORDERED that one bill of costs is awarded to the defendant Nikhil Gupta, also known as Nimai Pandit Das. As a threshold matter, nonparties Board of Trustees of the International Society for Krishna Consciousness, Inc., Charles Lee, also known as Raja Vidya Das, Balarama Das, Braj Aggarwal, Madhusudan R.S., and David Sbordoni (hereinafter collectively the nonparties), are not aggrieved by the order and the judgment, and lack standing to maintain these appeals (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144). The nonparties did not move in the Supreme Court to intervene in this action, notwithstanding that they had notice thereof, and their respective interests in the temple of the plaintiff International Society for Krishna Consciousness, Inc. (hereinafter ISKCON), are adequately represented by the defendant Nikhil Gupta, also known as Nimai Pandit Das (hereinafter the defendant), the purported president and trustee of ISKCON (see Weiss v Monaco, 245 AD2d 443, 443; cf Auerbach v Bennett, 64 AD2d 98, mod on other grounds 47 NY2d 619). Accordingly, we dismiss the nonparties' appeals from the order and the judgment. The defendant's appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the defendant's appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). We disagree with the Supreme Court's determination to deny that branch of the defendant's motion which was to vacate his default in answering the complaint. "CPLR 320(a) provides that a defendant may appear in an action in one of three ways: (1) by serving an answer, (2) by serving a notice of appearance, or (3) making a motion which has the effect of extending the time to answer" (Tsionis v Eriora Corp., 123 AD3d 694, 695; see Household Fin. Realty Corp. of N.Y. v Adeosun-Ayegbusi, 156 AD3d 870, 871; USF & G. v Maggiore, 299 AD2d 341, 342). Here, the defendant appeared in the action in May 2008, when he, among others, moved pursuant to CPLR 3211(a) to dismiss the complaint, which extended his time to serve an answer (see CPLR 320[a]; 3211[f]). Although the defendant did not serve an answer to the complaint following the denial of his motion, the record demonstrates that the defendant actively participated in the litigation during the ensuing years and that the plaintiffs never moved for leave to enter a default judgment against him. Under these circumstances, it was an improvident exercise of discretion for the court to, sua sponte, deem the defendant to be in default (see City of Newburgh v 96 Broadway LLC, 72 AD3d 632, 633; see also USF & G v Maggiore, 299 AD2d 341, 343). Moreover, we discern no potential prejudice to the plaintiffs in permitting the defendant to adopt the answer and affirmative defenses of the original defendants to this action. Accordingly, the court should have granted that branch of the defendant's motion which was to vacate his default. Nevertheless, we reject the defendant's additional contention that the plaintiffs' failure to join certain necessary parties required dismissal of this action. "CPLR 1001(a) provides that '[p]ersons . . . who might be inequitably affected by a judgment in the action' are necessary parties whose joinder is required" (Schwimmer v Welz, 56 AD3d 541, 544, quoting CPLR 1001[a]). "'When a person who should be joined under [CPLR 1001(a)] has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned'" (Schwimmer v Welz, 56 AD3d at 544, quoting CPLR 1001[b]; see Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d 725, 726). However, "[u]pon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action" (CPLR 1018). "The determination to substitute or join a party pursuant to CPLR 1018 is within the discretion of the trial court" (Citicorp Mtge. v Adams, 153 AD3d 779, 780; see GRP Loan, LLC v Taylor, 95 AD3d 1172, 1174). Contrary to the defendant's [*2]contention, the Supreme Court did not improvidently exercise its discretion in permitting the plaintiffs to continue this action against the original defendants, despite any alleged changes to the composition of the purported board of trustees of ISKCON over the course of this 16-year litigation, in order to avoid any further unnecessary delays (see GRP Loan, LLC v Taylor, 95 AD3d at 1174; Bey v Flushing Hosp. Med. Ctr., 95 AD3d 1152, 1152). The defendant's remaining contention is without merit. SCHEINKMAN, P.J., BALKIN, COHEN and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-09-04 20:03:11.704997+00

https://www.courts.ca.gov/opinions/nonpub/C085620A.PDF

Filed 9/4/20 P. v. Hubbard CA3 (opinion on rehearing) NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ---- THE PEOPLE, C085620 Plaintiff and Respondent, (Super. Ct. Nos. 13F6066, 16F3752) v. GINA ELIZABETH HUBBARD, Defendant and Appellant. Following a negotiated plea agreement, defendant Gina Elizabeth Hubbard was convicted of possessing methamphetamine and found in violation of a previously imposed probation. Pursuant to the terms of her plea agreement, defendant was sentenced to a split sentence of seven years eight months. On appeal, defendant contends the trial court erred in denying her motion to suppress evidence. She further contends her prior conviction for transporting methamphetamine was void and thus the sentence imposed in this matter is unlawful. She claims in the alternative that she received 1 ineffective assistance of counsel because her trial counsel failed to challenge the prior conviction and erroneously advised her to admit violating her probation. As to her search claim, we conclude there was no error. Of her remaining claims, only one is cognizable on appeal without a certificate of probable cause, the rest are not. BACKGROUND In October 2013, in Shasta County Superior Court case No. 13F6066 (case No. 066), defendant pleaded guilty to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)),1 with the allegation she was transporting for purposes of sale stricken from the information, and admitted to a prior narcotics conviction (§ 11370.2, subd. (c)). The trial court suspended imposition of sentence and placed defendant on three years’ formal probation. On May 12, 2016, Shasta County Sheriff’s Deputy Gregory Ketel stopped defendant while she was driving a motorcycle on Highway 44 in Shasta County. Defendant told Deputy Ketel she was on searchable probation. Deputy Ketel searched defendant and found .069 grams of methamphetamine and a methamphetamine pipe in her pocket. He also found multiple bags of methamphetamine (one weighing .83 grams and the rest weighing a combined total of approximately 13 grams) and another glass pipe in her backpack, as well as bottles of alcohol in the motorcycle’s “saddle bags.” In Shasta County Superior Court case No. 16F3752 (case No. 752), the People charged defendant with possession of methamphetamine for sale (§ 11378) and transportation of methamphetamine (§ 11379, subd. (a)). To both charges, the People appended allegations that defendant was previously convicted of possession for sale and possession for sale or transportation (§ 11370.2). The People further alleged defendant was ineligible for probation as a result of these prior convictions. 1 Undesignated statutory references are to the Health and Safety Code. 2  Defendant moved to suppress evidence pursuant to Penal Code section 1538.5. According to Deputy Ketel’s testimony at the hearing on her motion, on May 12, 2016, at approximately 8:00 p.m., he was on routine patrol in Shasta County. He was driving on Highway 44 and came upon two cars trailing behind defendant, who was driving a motorcycle. Defendant was driving approximately 15 miles per hour below the posted speed limit of 65 miles per hour. In addition to the two cars ahead of Deputy Ketel and directly behind defendant, two other cars were behind Deputy Ketel. The lighting at that time was “good” and the road “pretty straight.” Based on his experience and training, these factors led Deputy Ketel to suspect defendant was under the influence of drugs or alcohol. He continued behind the two vehicles and defendant for approximately two miles. When defendant exited Highway 44, Deputy Ketel followed. He then activated his overhead lights to initiate a vehicle stop. Defendant pulled over; she told Deputy Ketel she was on searchable probation, and he found the illegal narcotics. Defendant negotiated a plea agreement to resolve both pending cases. In case No. 752, defendant pleaded no contest to possession of a controlled substance and admitted to one prior narcotics conviction; she agreed to serve eight months for the possession conviction and three years for the sentencing enhancement. Defendant also admitted to violating her probation in case No. 066 and agreed to serve four years for that conviction. In sum, defendant agreed to a split sentence totaling seven years eight months: one year in county jail and six years eight months on mandatory supervision. The court sentenced defendant in accordance with the terms of her plea agreement. DISCUSSION A. Motion to Suppress Defendant moved to suppress all evidence seized as a result of the traffic stop initiated by Deputy Ketel and now contends the trial court erred in denying her motion. 3 She argues the traffic stop was unreasonable under the Fourth Amendment to the United States Constitution and therefore all evidence seized as a result of that stop should have been suppressed. We conclude there was no error. “[A] police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law.” (People v. Miranda (1993) 17 Cal. App. 4th 917 , 926.) The “ ‘possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal—to “enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.” ’ ” (People v. Leyba (1981) 29 Cal. 3d 591 , 599.) “When discussing how reviewing courts should make reasonable-suspicion determinations, [the United States Supreme Court has] repeatedly said they must look at the ‘totality of the circumstances’ of each case to see whether the officer has ‘a particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266 , 273 [ 151 L. Ed. 2d 740 ].) We review the court’s denial of defendant’s suppression motion under the following well-established standard: “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal. 4th 354 , 362; accord, People v. Leyba, supra , 29 Cal.3d at pp. 596-597; People v. Lawler (1973) 9 Cal. 3d 156 , 160.) Here, Deputy Ketel stopped defendant’s vehicle because she was driving 15 miles per hour under the posted speed limit, on a relatively straight road that was well-lit. She continued at that slow speed for two miles, with at least five cars trailing behind her, 4 including Deputy Ketel. Based on his training and experience, driving slowly without any obvious explanation, Deputy Ketel suspected defendant may have been driving under the influence of drugs or alcohol. This was a reasonable conclusion. (See People v. Gibson (1963) 220 Cal. App. 2d 15 , 20 [that a driver proceeds at a speed slower than the speed limit under circumstances where he or she might normally proceed at the higher speed is a factor that justifies an officer’s investigation].) We find no error. B. Certificate of Probable Cause On appeal, defendant argued that her conviction for transportation of methamphetamine in case No. 066 is void following the 2013 amendments to section 11379, which clarified that transporting methamphetamine for personal use was not a crime. (See Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013.) Accordingly, she argued, the agreed-upon sentence is unauthorized. We agreed with the People that defendant was required to obtain a certificate of probable cause to raise this claim on appeal. Defendant petitioned for rehearing and asked this court to strike the prior drug offense enhancement included in her stipulated prison term pursuant to Senate Bill No. 180 (2017-2018 Reg. Sess.) and terminate the probation on her 2013 conviction for drug transportation based on changes in the law. She argued no certificate of probable cause was needed to raise these claims. We granted rehearing to address the certificate of probable cause issue. In a recent decision, our Supreme Court ruled that even when a defendant has stipulated to a particular sentence, if he or she “seeks relief because the law subsequently changed to his [or her] potential benefit,” that defendant is not required to obtain a certificate of probable cause. (People v. Stamps (2020) 9 Cal. 5th 685 , 698 (Stamps).) On the other hand, the court affirmed that “when the parties reach an agreement in the context of existing law, a claim that seeks to avoid a term of the agreement, as made, 5 is an attack on the plea itself,” and a certificate of probable cause is required. (Stamps, supra , 9 Cal.5th at p. 695.) 1. Senate Bill No. 180 Here, defendant admitted to being previously convicted of section 11379 and, as part of her negotiated plea, agreed to be sentenced to an additional three years as a result of that conduct under former section 11370.2, subdivision (c). Subsequent to her plea, the Legislature enacted Senate Bill No. 180, which removed sentencing enhancements based upon prior violations of other drug statutes, including the statute defendant was previously convicted under. (Stats. 2017, ch. 677, § 1; People v. Millan (2018) 20 Cal. App. 5th 450 , 454-455; People v. Camba (1996) 50 Cal. App. 4th 857 , 865-866 [absent an urgency clause, new legislation is operative January 1 of the year following enactment].) Defendant, therefore, is seeking “relief because the law subsequently changed to [her] potential benefit.” (Stamps, supra , 9 Cal.5th at p. 698.) Accordingly, no certificate of probable cause is required to consider her claim relative to Senate Bill No. 180.2 (Stamps, at p. 698.) The People properly concede defendant is entitled to the benefit of the change to section 11370.2. Furthermore, because Senate Bill No. 180 “rendered the conduct to which [defendant] admitted no longer punishable as an enhancement, the three-year enhancement must be stricken. On remand the trial court is to resentence [defendant] in accordance with the applicable statutes and rules, provided the aggregate term does not 2 Our decision here is limited to circumstances where either the Legislature or the electorate eliminate a crime or enhancement, thereby rendering a stipulated sentence invalid or unauthorized. We do not consider circumstances such as those presented in People v. Hurlic (2018) 25 Cal. App. 5th 50 (Hurlic) and People v. Fox (2019) 34 Cal. App. 5th 1124 , review granted July 31, 2019, S256298, where the courts considered the impact of statutory amendments that give trial courts newfound sentencing discretion, on a stipulated sentence. 6 exceed the stipulated sentence. [Citations.]” (People v. Wright (2019) 31 Cal. App. 5th 749 , 756, superseded by statute on another ground as stated in People v. Barton (2020) 52 Cal. App. 5th 1145 , 1153.) 2. Health and Safety Code section 11379 Defendant also contends her conviction for transportation of methamphetamine in case No. 066 is void following the 2013 amendments to section 11379, which clarified that transporting methamphetamine for personal use was not a crime. (See Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013.)3 Accordingly, she contends, the agreed upon sentence is unauthorized and she asks us to terminate her probation. Relying on People v. Baldivia (2018) 28 Cal. App. 5th 1071 and Hurlic, supra , 25 Cal. App. 5th 50 , defendant argues she is not required to obtain a certificate of probable cause to challenge her conviction in case No. 066. We disagree. Here, defendant seeks to benefit from a change in the law that occurred three years before she negotiated her plea agreement in case No. 752. (See Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013.) In short, she is seeking to avoid a term of her plea agreement that was reached under the law as it existed at the time of her plea negotiations. Such a claim is an attack on the plea itself and requires a certificate of probable cause on appeal. (Stamps, supra , 9 Cal.5th at p. 695.) 3 “[Assembly Bill No.] 721 would clarify the Legislature’s intent to only apply felony drug transportation charges to individuals involved in drug trafficking or sales. Currently, an ambiguity in state law allows prosecutors to charge drug users—who are not in any way involved in drug trafficking—with TWO crimes for simply being in possession of drugs. . . . [P]rosecutors are using this wide interpretation to prosecute individuals who are in possession of drugs for only personal use, and who are not in any way involved in a drug trafficking enterprise. [¶] This bill makes it expressly clear that a person charged with this felony must be in possession of drugs with the intent to sell. . . .” (Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013, p. 2.) 7  C. Leave to Amend Prior Request On rehearing defendant also asks for leave to amend her “prior request for a certificate [of probable cause] based on new grounds discovered after this Court ordered the record prepared in case No. 13F6066.” Her request is denied. DISPOSITION The true finding on the section 11370.2, subdivision (c) enhancement is reversed, and the matter is remanded to the trial court for resentencing. The judgment is affirmed in all other respects. Upon resentencing, the trial court shall prepare an amended abstract of judgment and forward a certified copy of the same to the appropriate department. /s/ RAYE, P. J. We concur: /s/ MAURO, J. /s/ RENNER, J. 8

2020-09-04 20:03:12.829542+00

https://www.courts.ca.gov/opinions/nonpub/E071762.PDF

Filed 9/4/20 O’Ferral v. SRP 2012-4, LLC CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO VICTORIA O’FERRAL, Plaintiff and Appellant, E071762 v. (Super.Ct.No. CIVDS1719674) SRP 2012-4, LLC et al., OPINION Defendants and Respondents. APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed. Victoria O’Ferral, in pro. per., for Plaintiff and Appellant. ZBS Law, and Bradford E. Klein, for Defendants and Respondents. 1  I. INTRODUCTION Plaintiff and appellant, Victoria O’Ferral, appeals a judgment of dismissal of her wrongful foreclosure action against defendants and respondents, SRP 2012-4, LLC and 1 Sortis Financial, Inc. Plaintiff’s action was dismissed after the trial court sustained defendants’ demurrer to plaintiff’s second amended complaint (SAC), without leave to amend. Plaintiff contends defendants did not have legal authority to foreclose on her residence (the Property) under a junior home loan (second loan), secured by a second deed of trust (second DOT). She argues defendants did not provide proper notice of the foreclosure sale, the foreclosure sale was void because it was based on fabricated documents, and the foreclosure documents and procedures did not comply with state and federal foreclosure laws. Plaintiff further argues she did not owe anything on the second loan. She asserts the first and second trust deeds on the Property were consolidated and she then made single monthly payments toward the consolidated loan. Nevertheless, defendants, as the holder and servicer of the second DOT, foreclosed on the Property, claiming she had defaulted on the second loan. Plaintiff further contends that the trial court should have permitted her to amend her complaint to clarify her claims. 1 Sortis Financial, Inc. was erroneously sued as Clear Springs Loan Management, LLC. Sortis Financial, Inc. was formerly known as Clear Springs Loan Management, LLS, which was the servicer of the second loan. 2  We conclude, based on the facts alleged in the SAC and attached loan and foreclosure documents, that plaintiff failed to allege a viable claim against defendants and has not demonstrated an ability to successfully amend her complaint. Therefore, the trial court did not err in sustaining defendants’ demurrer without leave to amend. The judgment of dismissal is thus affirmed. II. FACTS AND PROCEDURAL BACKGROUND The following facts are taken from plaintiff’s operative complaint, the SAC, and from the documents attached to the SAC. In November 2006, plaintiff executed two loans, both secured by the Property. The senior loan (first loan) was for $287,920. The junior loan (second loan) was for $71,980. Both loans were secured by deeds of trust naming plaintiff as the borrower; Resmae Mortgage Corporation (Resmae) as the lender; Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary and nominee for the lender; and First American Title Company (First American) as the trustee. Both deeds of trust were recorded in November 2006. Plaintiff alleged that until 2009, she made monthly installment payments on the two loans in accordance with the terms of the original financing agreements. In 2009, plaintiff stopped making payments on the second loan because she believed the loan had been paid in full. 3  A. Foreclosure Proceedings In May 2016, MERS assigned the beneficial interest in the second loan and second DOT to SRP 2012-4, LLC (SRP), in place of the lender, Resmae. The assignment was recorded on July 21, 2016. In September 2016, T.D. Service Company (T.D.) was substituted in as trustee for the second DOT, in place of First American. The Substitution of Trustee was recorded in November 2016. On November 21, 2016, T.D. recorded a notice of default on the second loan and election to sell (NOD). The notice advised plaintiff that the Property was in foreclosure because she was behind in her payments on the second loan, with plaintiff owing $77,007.50. The notice further stated that plaintiff had not made any payments on the second loan since May 1, 2008. In February 2017, T.D. executed a Notice of Trustee’s Sale (NOTS), recorded the following day. The NOTS stated plaintiff was in default on the second loan and a nonjudicial foreclosure sale was therefore scheduled for March 15, 2017. The trustee’s sale was postponed multiple times. On September 18, 2017, the trustee’s sale proceeded as noticed. SRP, as the foreclosing beneficiary, bought back the Property. On September 19, 2017, T.D. executed a Trustee’s Deed Upon Sale, which stated that, as a result of plaintiff’s default on the second loan, the trustee sold the Property to SRP at a public auction on September 18, 2017, for $74,000. The Trustee’s Deed Upon Sale was recorded on September 20, 2017. 4  B. Plaintiff’s Wrongful Foreclosure Complaint On October 6, 2017, plaintiff filed the instant lawsuit against defendants. Plaintiff attempted to allege 13 causes of action. Defendants demurred to plaintiff’s complaint, first amended complaint, and second amended complaint (the SAC). Plaintiff initially named as defendants Clear Springs Loan Management, LLs (Clear Springs); SRP; Strategic Recovery Group; and Ocwen Loan Servicing, LLC (Ocwen). Plaintiff later named Sortis Financial, Inc., erroneously sued as Clear Springs, and added First American as a doe defendant. Plaintiff’s SAC includes the following causes of action: (1) breach of contract; (2) breach of good faith and fair dealing; (3) estoppel; (4) fraudulent misrepresentation; (5) negligent misrepresentation; (6) fraudulent promise without intention to perform; (7) quiet title; (8) cancellation of instruments pursuant to 2 Civil Code section 3412; (9) violation of Commercial Code section 3118; (10) unfair debt collection practices; (11) negligence; (12) unfair business practices; and (13) wrongful foreclosure. Plaintiff attached to her verified SAC, the second DOT, assignment of the second DOT to SRP, substitution of T.D. as Trustee, NOD under the second DOT, NOTS, and Trustee’s Deed Upon Sale. 2 Unless otherwise indicated, all further statutory references are to the Civil Code. 5  Plaintiff’s SAC stated the following facts and conclusory allegations. In 2006, plaintiff purchased the Property. In March 2007, Popular Mortgage Servicing, Inc. (Popular) allegedly either purchased or began servicing the second loan. In 2008, plaintiff hired a law firm to assist her in modifying the first loan. In 2009, Popular advised plaintiff that the second loan no longer existed because it was paid off by the first loan. A few days later, plaintiff’s attorney sent her a letter reiterating that the second loan had been paid off by the first loan. Thereafter, for over seven years, defendants and their predecessors did not attempt to collect on the second loan. On October 23, 2016, an attorney contacted plaintiff at the Property and told her the Property was in foreclosure because she had defaulted on the second loan. The attorney advised plaintiff to contact the servicer of the first loan, Ocwen, and ask who was foreclosing on the Property. In the presence of the attorney, plaintiff contacted Ocwen, which informed her that the attorney who told her she was in default was “a fraud” and there was no junior lien. An Ocwen representative further told her that only Ocwen could foreclose on the Property under the first loan, and plaintiff was current on her payments on the first loan. On March 5, 2017, the attorney returned and told plaintiff the Property was going to be sold. Plaintiff called Ocwen in the presence of the attorney. An Ocwen representative yelled at the attorney to get off the Property, claiming no other entity had the right to foreclose. A week before the Property was scheduled to be sold, plaintiff received a NOTS. On March 10, 2017, she called Ocwen. An Ocwen representative told her no entity other than Ocwen could foreclose on the Property and 6 there was no junior lien. The Ocwen representative said the trustee notice was a fraud and to ignore it. Plaintiff received calls from representatives of SRP, Sortis Financial, Inc. (Sortis), 3 and Strategic Recovery Group (Strategic), who fraudulently told her that the trustee’s sale of the Property would not take place. Specifically, on September 17, 2017, the day before the noticed trustee’s sale, SRP’s representative, Eric Hammar, fraudulently told plaintiff the trustee’s sale wound not go forward and that she should disregard all notices that threatened the sale of the Property. Contrary to these representations, the trustee’s sale proceeded on September 18, 2017, as noticed. SRP, as the foreclosing beneficiary, bought back the Property. Plaintiff called Ocwen and reported that the Property had been sold unlawfully. An Ocwen representative told plaintiff she should retain counsel because defendants had fraudulently foreclosed on the Property. On September 19, 2017, plaintiff called Sortis to determine whether the trustee’s sale could be rescinded. Plaintiff told the Sortis representative, Erica Simmons, plaintiff could pay $10,000 to settle the matter. Simmons said that amount might be deemed acceptable and sent plaintiff a loss mitigation application. On September 21, 2017, SRP representative, Hammar, told plaintiff that $10,000 was insufficient to settle the matter but $20,000 would be sufficient to rescind the Property sale. Hammar also said plaintiff would have to attest that there was no fraud in connection with the Property sale. Plaintiff was falsely led to believe that if she paid this amount, the matter would be 3 Strategic’s alleged involvement in this matter is unclear from the record. 7 settled, the sale rescinded, and SRP’s unlawful detainer action to remove plaintiff from the Property withdrawn. Plaintiff further alleged in the SAC that she believed there was no second loan in default, the trustee’s sale was unlawful, defendants did not have authority to foreclose on the Property, Hammar defrauded her, and the sale of the Property would not be rescinded even upon plaintiff paying $20,000. Therefore, on October 6, 2017, plaintiff filed the instant lawsuit against defendants. Plaintiff alleged the tender rule, requiring payment of the outstanding debt, did not apply and, even if it did, she was willing and able to tender an amount deemed necessary by the court in order to proceed with her lawsuit. Plaintiff further alleged that the NOD was fraudulent, invalid, and failed to provide the required notice. Also, defendants were not authorized to collect on the second loan because it had already been paid in full by the first loan in 2009. Plaintiff alleged the NOD did not comply with the second DOT provision which stated that, before accelerating the loan, the lender must give notice to the borrower of the alleged breach, the opportunity to cure the breach, and the borrower’s right to bring court action to assert the non-existence of a default or other defense. Plaintiff alleged that the NOD was fraudulent because it stated that, after expiration of the 10-day period to cure the breach, plaintiff only had the right to stop the sale of the Property by paying the entire amount demanded, and was not notified she also had the right to challenge the default in court. In addition, the NOTS was invalid because it was provided after an invalid and 8 fraudulent NOD, and defendants did not have authority to proceed with the trustee’s sale of the Property. C. Hearing on Defendants’ Demurrer to the SAC On September 24, 2018, the trial court heard defendants’ demurrer to the SAC. Plaintiff acknowledged at the hearing that she had not filed opposition but requested a continuance to allow her to file a third amended complaint in response to defendants’ demurrer. The court denied plaintiff’s request to continue the hearing and her request to file a third amended complaint. In response to the court asking if she had anything she wanted to say in opposition to the demurrer, plaintiff indicated she had new evidence and documents but did not elaborate. The court responded that the matter was ordered taken under submission. Thereafter, the court sustained defendants’ demurrer without leave to amend and dismissed the action with prejudice. On October 2, 2018, plaintiff filed a motion to set aside the dismissal under Code of Civil Procedure section 437, subdivision (c), based on excusable error in failing to file opposition to defendants’ demurrer to the SAC. Defendants filed opposition, and the trial court denied the motion as to defendants, but reinstated the action as to Ocwen. 9  III. LAW APPLICABLE TO REVIEWING ORDER SUSTAINING A DEMURRER Our sole task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120 , 125.) When reviewing a ruling on a demurrer, “‘“[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]’” (Zelig v. County of Los Angeles (2002) 27 Cal. 4th 1112 , 1126; see Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal. App. 4th 101 , 107.) “‘On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law.’” (Westamerica Bank v. City of Berkeley (2011) 201 Cal. App. 4th 598 , 607.) “If the plaintiff cannot show an abuse of discretion, the trial court’s order sustaining the demurrer without leave to amend must be affirmed. [Citation.]” (Lazar v. Hertz Corp. (1999) 69 Cal. App. 4th 1494 , 1501; see Westamerica Bank v. City of Berkeley, supra , at p. 607.) 10  IV. DISCUSSION We begin with the following basic concepts applicable to real property loans also commonly known as property mortgages. “A real property loan generally involves two documents, a promissory note and a security instrument. The security instrument secures the promissory note. This instrument ‘entitles the lender to reach some asset of the debtor if the note is not paid. In California, the security instrument is most commonly a deed of trust (with the debtor and creditor known as trustor and beneficiary and a neutral third party known as trustee).’” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226 , 1235, quoting Bernhardt, Cal. Mortgage and Deed of Trust Practice (Cont.Ed.Bar 2d ed.1990) § 1.3, p. 5; see Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428 , 438-439.) “‘A security interest cannot exist without an underlying obligation, and therefore a mortgage or deed of trust is generally extinguished by either payment or sale of the property in an amount which satisfies the lien. [Citations.]’ [Citations.] Proper tender of payment also may extinguish the lien.” (Nguyen v. Calhoun, supra , 105 Cal.App.4th at p. 439.) “‘The trustor-mortgagor or the person who alleges that a debt has been paid has the burden of proving payment.’” (Id. at p. 440, quoting 4 Miller & Starr, Cal. Real Estate, (3d ed. 2000) Deeds of Trust and Mortgages, § 10:71, p. 217, fn. omitted.) “[O]n adequate proof that payment has been properly made or tendered, the debt is satisfied and the lien is extinguished. If the lien has been extinguished, there can be no foreclosure sale. (Lichty v. Whitney (1947) 80 Cal. App. 2d 696 , 702 [valid tender released security; 11 subsequent trustee’s sale was void]; cf. Bisno v. Sax (1959) 175 Cal. App. 2d 714 , 724 [accepting payment of amount in default precluded foreclosure].) On the other hand, if the lien has not been extinguished and the debt is in default, the lender may institute nonjudicial foreclosure proceedings.” (Nguyen v. Calhoun, supra , at p. 440.) “[S]ections 2924 through 2924k provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.” (Moeller v. Lien (1994) 25 Cal. App. 4th 822 , 830; Nguyen v. Calhoun, supra , 105 Cal.App.4th at p. 440.) “A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender.” (Moeller v. Lien, supra , at p. 831; Nguyen v. Calhoun, supra , at p. 440.) “‘If the trustee’s deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser. [Citations.]’ [Citations.] [¶] ‘The conclusive presumption precludes an attack by the trustor on the trustee’s sale to a bona fide purchaser even where the trustee wrongfully rejected a proper tender of reinstatement by the trustor.’ [Citation.] A bona fide purchaser is one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings.” (Nguyen v. Calhoun, supra , 105 Cal.App.4th at pp. 441-442; see Moeller v. Lien, supra , 25 Cal.App.4th at pp. 831-832.) 12  Here, plaintiff’s SAC contains conclusionary allegations that the second loan was paid off. Such conclusionary allegations are insufficient and inadequate here, where the complaint allegations and attached documents show plaintiff defaulted on the second loan for years, payment of the second loan was never made in full, and plaintiff never tendered payment of the amount due on the second loan. Therefore, during the nonjudicial foreclosure proceedings, the trustee, T.D., properly exercised the power of sale provided by the second DOT. (Nguyen v. Calhoun, supra , 105 Cal.App.4th at p. 440.) Plaintiff alleged that she was not required to make payments on the second loan because, in 2009, her attorney and Popular told her that the second loan was paid off when consolidated into the first loan. She therefore believed she did not have to make separate payments on the second loan. Thereafter, she did not make any further payments on the second loan and, for over seven years, defendants did not attempt to collect on the second loan until an attorney contacted her in 2016, and told plaintiff her property was in foreclosure because she was in default on the second loan. These alleged facts and circumstances, as well as the attached loan documents, do not show, up to this point, any wrongdoing on the part of defendants, who were the holder of a beneficiary interest in the second loan and the servicer of the second loan. Once plaintiff was notified she was in default on the second loan, plaintiff contacted the servicer of the first loan, Ocwen, and was allegedly incorrectly told there was no second loan and plaintiff was not in default on the first loan. Instead of contacting defendants and responding to the information provided in the NOD and NOTS 13 under the second DOT, plaintiff continued to contact and rely on misinformation provided by Ocwen, the servicer of the first loan, which was apparently uninformed about the existence of the second loan. Plaintiff alleged the second loan merged with the first loan but the documents attached to the SAC demonstrate that, as a matter of law, this was not the case. “The well pled allegations that we accept as true necessarily include the contents of any exhibits attached to the complaint. Indeed, the contents of an incorporated document (in this case, the agreement) will take precedence over and supersede any inconsistent or contrary allegations set out in the pleading. In the case of such a conflict, we will look solely to the attached exhibit. [Citations.]” (Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal. App. 4th 1400 , 1409; see Moore v. Regents of University of California, supra , 51 Cal.3d at p. 125.) Plaintiff alleged that on September 17, 2017, the day before the trustee’s sale, Hammar, an authorized agent for SRP, orally promised plaintiff that the trustee’s sale was not going to proceed the following day and plaintiff should disregard the notice of trustee’s sale. While what Hammar allegedly told plaintiff was not true, plaintiff failed to allege Hammar had authority to make such a promise on behalf of SRP or that relying on such a promise was reasonable. Furthermore, allegations of plaintiff’s post-trustee-sale discussions with Hammar to rescind the trustee’s sale of the Property also do not show any wrongdoing on the part of defendants. Defendants had a legal right to foreclose on the second loan and did not enter into any enforceable agreement to rescind the trustee’s 14 sale. In addition, there are no allegations plaintiff ever agreed to pay anything toward resolving the matter or that defendants agreed to rescind the sale. Due to no fault of defendants, plaintiff allegedly believed there was no second loan in default, the trustee’s sale was unlawful, and defendants did not have authority to foreclose on the Property. As a consequence, plaintiff filed the instant lawsuit against defendants but has not alleged any facts establishing unlawful acts or omissions committed by defendants, and the documents attached to the SAC confirm that defendants lawfully proceeded with nonjudicial foreclosure on the second loan. Plaintiff’s conclusory allegations of wrongdoing regarding the second loan and foreclosure documents and proceedings are unsupported by any alleged facts or by the documents attached to the SAC. We do not assume the truth of plaintiff’s factually unsupported contentions, deductions, and conclusions. (Moore v. Regents of University of California, supra , 51 Cal.3d at p. 125.) We conclude, as discussed further below, that none of plaintiff’s 13 causes of action state sufficient facts to support liability as a matter of law. A. Claims Founded on Contract Liability Plaintiff’s contract causes of action include causes of action for breach of contract (first cause of action), breach of implied duty of good faith and fair dealing (second cause of action), and promissory estoppel (third cause of action). Plaintiff alleged in the first cause of action for breach of contract that defendants, who either had a beneficiary interest in the second DOT (SRP) or serviced the second loan (Sortis), breached the 15 second DOT agreement by “failing to provide Plaintiff[] with notice of Plaintiff’s right to bring a lawsuit to allege defenses to the acceleration and sale and, instead, executed a fraudulent NOD that falsely asserts that no such options exists.” The SAC’s factual allegations and attached documents, however, do not support the conclusory allegations regarding the NOD or other foreclosure documents. As to the allegation the NOD did not mention plaintiff had a right to bring a lawsuit asserting defenses to the trustee’s sale, this was not a material breach of the second DOT supporting liability against defendants. “A bedrock principle of California contract law is that ‘he who seeks to enforce a contract must show that he has complied with the conditions and agreements of the contract on his part to be performed.’ Pry Corp. of America v. Leach [(1960)] 177 Cal. App. 2d 632 , [639] [citation]. See also Loral Corp. v. Moyes [(1985)] 174 Cal. App. 3d 268 , 219 (‘The requirement of performance may be excused by the other party’s breach.’). This is a contract rule of general application and is thus available . . . as a defense.” (Brown v. Dillard’s, Inc. (9th Cir. 2005) 430 F.3d 1004 , 1010; see also De La Falaise v. Gaumont-British Picture Corp. (1940) 39 Cal. App. 2d 461 , 468-469 [“It is well recognized that a failure to comply with conditions precedent not only will prevent an action by the defaulting party to enforce the contract, but also will sustain an action by the other party for a breach thereof.”].) 16  The SAC’s allegations and attached loan and foreclosure documents establish that, as a matter of law, plaintiff did not comply with the conditions of the second loan and second DOT. Plaintiff breached the second DOT by not making the required monthly payments on the second loan since 2009, years before defendants proceeded with foreclosing on the second loan in 2016. Regardless of whether defendant included in the NOD that plaintiff had the right to litigate rather than pay the outstanding debt, any such deficiency in the NOD was insufficient to support liability against defendants where plaintiff defaulted on the second DOT and failed to allege any damages caused by the alleged breach. Likewise, plaintiff’s cause of action for breach of the covenant of good faith and fair dealing lacks merit. (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal. App. 4th 1306 , 1344 [“Breach of the covenant of good faith and fair dealing is nothing more than a cause of action for breach of contract.”].) Plaintiff alleged in the second cause of action for breach of the covenant of good faith and fair dealing, that defendants breached the covenant of good faith and fair dealing by failing to provide valid foreclosure documents, such as the NOD; wrongfully proceeding with the trustee’s sale when the second loan was paid in full; not having authority to collect on the second loan; fraudulently advising plaintiff that the trustee’s sale would not occur; and, after the trustee’s sale, attempting to fraudulently secure $20,000 from plaintiff without any intention of rescinding the trustee’s sale. 17  “The covenant of good faith and fair dealing is imposed upon each party to a contract. [Citation.] This fundamental covenant prevents the contracting parties from taking actions that will deprive another party of the benefits of the agreement. [Citation.] The covenant also requires each party to do everything the contract presupposes the party will do to accomplish the agreement’s purposes.” (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal. App. 4th 497 , 524.) “‘[T]he scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract.’ . . . Thus, it is well settled the implied covenant does not extend so far as to impose enforceable duties that are beyond the scope of the contract, nor does the covenant prohibit actions that are expressly authorized by the contract’s terms.” (Id. at pp. 524-525; see Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal. 4th 342 , 373-374.) While defendants were required to comply with statutory foreclosure requirements when proceeding with nonjudicial foreclosure, defendants were not subject to liability for breach of the good faith covenant based on the DOT terms after plaintiff breached the second DOT by defaulting on the second loan. Plaintiff’s conclusory allegations to the contrary are unsupported by any facts. Furthermore, SAC factual allegations and documents attached to the SAC establish plaintiff defaulted on the second loan, and defendants properly and legally proceeded with the trustee’s sale, an action expressly authorized by the terms of the second DOT. 18  The allegation that, after the foreclosure sale, plaintiff and defendants attempted to negotiate a rescission of the trustee’s sale by defendants attempting to secure $20,000 from plaintiff concerns a matter beyond the scope of the terms of the second DOT. Such conduct thus was not subject to the good faith covenant founded on the second DOT agreement and therefore does not support plaintiff’s cause of action for breach of the good faith covenant. Plaintiff failed to allege a valid cause of action for promissory estoppel. “‘Conceptually, promissory estoppel is distinct from contract in that the promisee’s justifiable and detrimental reliance on the promise is regarded as a substitute for consideration required as an element of an enforceable contract.’” (Toscano v. Greene Music (2004) 124 Cal. App. 4th 685 , 692-693, quoting Signal Hill Aviation Company, Inc. v. Bill Stroppe (1979) 96 Cal. App. 3d 627 , 640, italics added.) “The elements of promissory estoppel are (1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages ‘measured by the extent of the obligation assumed and not performed.’” (Toscano v. Greene Music, supra , at p. 692.) Plaintiff alleged in the promissory estoppel cause of action that on September 17, 2017, Hammar, an authorized agent for defendants, orally promised plaintiff that the trustee’s sale would not go forward on September 18, 2017, as noticed, and plaintiff should disregard the NOTS. However, the next day, defendants proceeded with the trustee’s sale, as noticed. Plaintiff further alleged she relied on Hammar’s promise by not 19 taking any action to prevent the sale from proceeding. Plaintiff alleged she suffered detriment by being forced into foreclosure. Plaintiff failed to allege breach of a promise by defendants or that plaintiff justifiably relied on such a promise to her detriment. Hammar’s alleged inaccurate statements the trustee’s sale would not go forward as noticed did not constitute a clear promise by defendants but merely an incorrect representation by Hammar regarding the status of the trustee’s sale. In addition, there was no detrimental reliance. Plaintiff alleged the detriment she suffered was being forced into foreclosure. However, plaintiff was not “forced” into foreclosure. She was responsible for the foreclosure proceedings because for years she had defaulted on the second DOT. Plaintiff further failed to allege she would have done anything differently had Hammar not told her the trustee’s sale would not go forward. B. Fraud Claims Plaintiff’s fraud-related causes of action include fraudulent misrepresentation (fourth cause of action), negligent misrepresentation (fifth cause of action), and fraudulent promise without intention to perform (sixth cause of action). 1. Law Applicable to Plaintiff’s Fraud-Related Claims “‘Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.’” (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59 , 73, quoting Roberts v. Ball, Hunt, Hart, Brown & 20 Baerwitz (1976) 57 Cal. App. 3d 104 , 109; Lazar v. Superior Court (1996) 12 Cal. 4th 631 , 645 [“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.”) This specificity requirement applies to any action sounding in fraud, including negligent misrepresentation claims. (City of Pomona v. Superior Court (2001) 89 Cal. App. 4th 793 , 803; Small v. Fritz Co.’s, Inc. (2003) 30 Cal. 4th 167 , 184; Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197 , 215-216.) Thus, “‘“the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.”’ [Citation.] [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey, supra , 220 Cal.App.3d at p. 73; see Lazar v. Superior Court, supra , 12 Cal.4th at p. 645.) A fraud action against a corporate employer requires that “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (§ 3294, subd. (b).) Thus, “[a] plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” (Lazar v. Superior Court, supra , 12 Cal.4th at p. 645, quoting Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal. App. 4th 153 , 157.) 21  The elements of a fraud include: “a representation, usually of fact, which is false, knowledge of its falsity, intent to defraud, justifiable reliance upon the misrepresentation, and damage resulting from that justifiable reliance.” (Stansfield v. Starkey, supra , 220 Cal.App.3d at pp. 72-73; see §§ 1709, 1710.) The elements of negligent misrepresentation are: “‘[M]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.’” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal. App. 4th 967 , 983.) The elements of promissory fraud are: “(1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.” (Beckwith v. Dahl (2012) 205 Cal. App. 4th 1039 , 1060) “To sufficiently plead the first requirement, that the defendant made a promise, the complaint must state ‘“ facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” [Citation.]’ [Citation.] As for the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance. [Citation.]” (Ibid.) 22  2. Plaintiff’s Fraud-Related Allegations Plaintiff alleged in her fraud cause of action (fourth cause of action) that the NOD on the second loan was fraudulent because defendants falsely represented they had authority to proceed with foreclosure on the Property; defendants lacked authority to foreclose because the second loan had been paid in full in 2009; defendants falsely represented that a second DOT existed, which could be foreclosed upon; and the NOD failed to comport with the second DOT notice requirements by not providing notice that plaintiff had the right to stop the Property sale by bringing a court action to challenge the default. Plaintiff also alleged defendants’ representative, Hammar, falsely told plaintiff the foreclosure sale date and notices could be disregarded because defendants were not proceeding with the sale. Plaintiff further alleged that, after the trustee’s sale, defendants falsely told her they would prevent an unlawful detainer action from proceeding if she paid $20,000, when, in fact, they had no intention of rescinding the trustee’s sale. In the negligent misrepresentation cause of action (fifth cause of action), plaintiff alleged the same misrepresentations alleged in the fraud cause of action (fourth cause of action). Plaintiff further alleged defendants made the following misrepresentations: SRP owned a beneficial interest in the second loan and had a right to foreclose; the second loan was not paid in full in 2009; and defendants lawfully foreclosed using a valid NOD and NOTS, which were actually invalid and fraudulent, because the second loan was paid in full in 2009. 23  In the sixth cause of action for promise without intention to perform, plaintiff incorporated the allegations in the fraud and negligent misrepresentation causes of action. Plaintiff further alleged that on September 17, 2017, defendants’ authorized agent, Hammar, telephonically promised plaintiff that the trustee’s sale would not go forward and plaintiff should disregard any notice of sale. Contrary to this promise, the trustee’s sale took place on September 18, 2017. Defendants allegedly knew that when Hammar made the false promise, the promise was false, defendants had no intention of keeping it, and defendants made the promise to induce plaintiff’s reliance on it. 3. Analysis Plaintiff’s fraud-related causes of actions are primarily founded on allegations that the NOD on the second loan was fraudulent and deficient, that defendant did not have authority to proceed with foreclosure, that the second loan was paid in full in 2009; and that a second DOT no longer existed and therefore could not be foreclosed upon. These allegations were insufficient to support plaintiff’s fraud-related claims because the allegations were conclusory and unsupported by specific facts. In addition, the second loan and foreclosure documents attached to the SAC established as a matter of law that the material allegations were untrue. The documents showed that at the time of the trustee’s sale there existed a valid second DOT, plaintiff was in default on the second loan, and defendants properly and lawfully noticed the foreclosure proceedings, including the trustee’s sale. Furthermore, the SAC’s allegations established that plaintiff failed to tender payment of the amount in default. 24  Plaintiff also failed to allege that any of defendants’ officers, directors, or managing agents, identified by name, made or had advance knowledge of the alleged misrepresentations and consciously disregarded, authorized, ratified, or acted with oppression, fraud, or malice. (Lazar v. Superior Court, supra , 12 Cal.4th at p. 645; Tarmann v. State Farm Mutual Auto. Ins. Co., supra , 2 Cal.App.4th at p. 157.) The only individual plaintiff named in the fraud-related causes of action, who allegedly acted on behalf of defendants, was Hammar, who, as an alleged “authorized agent for” defendants, misrepresented that the trustee’s sale would not go forward on September 18, 2017, as noticed. Hammar was not an alleged officer, director, or managing agent of defendants. Even if he qualified as such, plaintiff failed to allege facts showing reasonable detrimental reliance on Hammar’s telephone statement the day before the notice sale. “‘“[A] party plaintiff’s misguided belief or guileless action in relying on a statement on which no reasonable person would rely is not justifiable reliance. . . . ‘If the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable, . . . he will be denied a recovery.”’ [Citation.] A mere “hopeful expectation[ ] cannot be equated with the necessary justifiable reliance.”’ [Citation.]” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal. App. 4th 411 , 418.) Furthermore, plaintiff’s allegations in the SAC show that she did not detrimentally rely on Hammar’s alleged misrepresentation that the trustee’s sale would not go forward or Hammar’s alleged oral proposal to rescind the sale for $20,000. Plaintiff alleged she believed, at the time of the trustee’s sale, that she was not in default on the second loan 25 and defendants did not have authority to foreclose. She further alleged that she believed the trustee’s sale was conducted unlawfully, that reinstating the second loan was not the only way to avoid foreclosure, and that, even if she paid $20,000, defendants would not rescind the sale. Therefore, regardless of Hammar’s false representation that the trustee’s sale would not go forward as noticed and Hammar’s representation that defendants would rescind the trustee’s sale for $20,000 may have been false, the SAC’s allegations demonstrate that her conduct would have been the same. The trustee’s sale would have gone forward without plaintiff taking any effective action to postpone or rescind the trustee’s sale. Plaintiff fails to allege any facts showing that Hammar’s statements induced her to act or refrain from acting, or that she sustained damages from reliance on Hammar’s statements. The fourth, fifth, and sixth causes of action of the SAC for fraud, negligent misrepresentation, and promissory fraud therefore do not contain sufficient facts to support plaintiff’s fraud-related claims. C. Cause of Action Based on Sections 2924, et seq. Plaintiff alleged in her seventh cause of action for damages that defendants violated the Homeowner’s Bill of Rights (HBOR; 2924, et seq.) by improperly and wrongfully proceeding with foreclosure. “The Homeowner Bill of Rights (Civ. Code, §§ 2920.5, 2923.4-2923.7, 2924, 2924.9-2924.12, 2924.15, 2924.17-2924.20) (HBOR), effective January 1, 2013, was enacted ‘to ensure that, as part of the nonjudicial foreclosure process, borrowers are considered for, and have a meaningful opportunity to 26 obtain, available loss mitigation options, if any, offered by or through the borrower’s mortgage servicer, such as loan modifications or other alternatives to foreclosure.’ (§ 2923.4.)” (Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal. App. 4th 1267 , 1272.) Plaintiff alleged in the seventh cause of action that there was no justification for defendants filing a wrongful NOD because plaintiff was not in default on the second loan, which was paid off in 2009; defendants executed and recorded an invalid NOD, in violation of sections 2924 and 2924b, because plaintiff was not in default; defendants failed to properly serve the NOD and NOTS; and defendants did not remedy their violations under section 2924.19, by rescinding the unlawful trustee’s sale, contacting credit agencies to restore plaintiff’s credit score, and crediting plaintiff’s account for unnecessary and unlawful fees, interest and costs arising from the wrongful foreclosure. As noted above, such conclusory allegations, without alleging underlying facts, are insufficient to support a cause of action, particularly when the attached documents establish that the foreclosure proceedings were not improper or unlawful, and defendants complied with statutory foreclosure requirements. Furthermore, there is no legal authority to bring plaintiff’s private claim for the alleged violations of sections 2924, 2924b, and 2924.19. Under section 2924.12, subdivision (b) of the HBOR, the Legislature only authorized a private right of action for damages under the following limited seven statutory violations: “After a trustee’s deed upon sale has been recorded, a mortgage 27 servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to [s]ection 3281, resulting from a material violation of [s]ection 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale.” (§ 2924.12, subd. (b).) Plaintiff has not alleged violations of any of these statutes or any related damages. Section 2924.19, subdivision (b) of the HBOR provides for a private right of action for damages, but only in the following limited circumstances: “After a trustee’s deed upon sale has been recorded, a mortgage servicer, mortgagee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to [s]ection 3281, resulting from a material violation of [s]ection 2923.5, 2924.17, or 2924.18 by that mortgage servicer, mortgagee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale.” Plaintiff has not alleged violations of any of these statutes or any related damages, and the Legislature has not provided private rights of action for plaintiff’s alleged violations of sections 2924 or 2924b. These statutes are not listed in sections 2924.12(b) and 2924.19(b). Under the HBOR, a private action for damages may be brought based on “a material violation of the statutory provisions that the Legislature has chosen to list, but not due to a violation of unlisted provisions. ‘Generally, the expression of some things in 28 a statute implies the exclusion of others not expressed.’ [Citations.]” (Lucioni v. Bank of America, N.A. (2016) 3 Cal. App. 5th 150 , 159.) As the Legislature chose to provide for damages for some HBOR violations, but not for those not specified, plaintiff cannot bring a private action for violations of sections 2924 or 2924b, because those sections are excluded from the list of HBOR statutes supporting a private action. (Lucioni v. Bank of America, N.A., supra , at p. 159; Cornejo v. Ocwen Loan Serv’g (E.D. Cal. 2015) 151 4 F. Supp. 3d 1102 , 1117-1118.) We therefore conclude plaintiff has not alleged an independent private right of action for violations under the HBOR. D. Wrongful Foreclosure and Related Quiet Tittle and Cancellation Claims Plaintiff has also failed to allege a wrongful foreclosure cause of action (13th cause of action) and related causes of action for quiet title (eighth cause of action) and cancellation of instruments (ninth cause of action). Plaintiff alleged in her quiet title cause of action (eighth cause of action) that there is a dispute over whether the second loan was paid off in full in 2009, and that defendants did not have authority or the right to foreclose on the Property securing the loan because the loan was paid in full and she was not in default on the second loan. These same allegations form the basis of plaintiff’s ninth cause of action for cancellation of instruments under section 3412. Plaintiff 4 We note that under section 2924.15, HBOR sections 2924, subdivision (a)(5), 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 “shall apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units.” (§ 2924.15, italics added.) Violations of these enumerated HBOR provisions therefore do not support liability against defendants here because the instant case concerns a second DOT. 29 requests a judicial determination as to whether defendants have any interest in the Property under the second loan and second DOT. Plaintiff further alleged in the ninth cause of action that she was not required to tender payment of the outstanding debt because the loan was already paid off and the foreclosure proceedings were unlawful and fraudulent. As to plaintiff’s 13th cause of action for wrongful foreclosure, she alleged defendants failed to comply with the statutory provisions regulating non-judicial foreclosures, including section 2924. Plaintiff alleged SRP fraudulently claimed a beneficial interest in the second loan; fraudulently claimed the second loan was not paid off in 2009; did not have authority to foreclose on the Property; did not provide a valid NOD or NOTS; provided false and misleading representations through Hammar that the trustee’s sale would not go forward as noticed; falsely represented there was a second DOT in existence; and fraudulently attempted to convince plaintiff to pay $20,000 to prevent an unlawful detainer action and her eviction from the Property. The elements of a wrongful foreclosure cause of action, which is a common law tort claim, are: “‘“(1) [T]he trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.”’” 30 (Turner v. Seterus, Inc. (2018) 27 Cal. App. 5th 516 , 525, quoting Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal. App. 4th 552 , 561-562.) Plaintiff fails to allege wrongful foreclosure as a matter of law because, as already discussed, plaintiff’s allegations and attached documents establish that the foreclosure proceedings and trustee’s sale were not illegal, fraudulent, or willfully oppressive. We conclude plaintiff’s conclusory allegations were insufficient to allege a wrongful foreclosure claim, where the facts stated in the documents attached to the SAC supersede plaintiff’s allegations in the 13th cause of action. The documents attached to the SAC demonstrate the foreclosure proceedings were proper and lawful. Plaintiff’s eighth and ninth causes of action for quiet title and cancellation of instruments, which are contingent upon plaintiff’s wrongful foreclosure claim, therefore also do not survive defendants’ demurrer. Furthermore, plaintiff has not satisfactorily alleged tender of the amount of the secured indebtedness or a valid exception to the tender requirement. (Lona v. Citibank, N.A., (2011) 202 Cal. App. 4th 89 , 112-113.) Under the tender rule, “as a condition precedent to an action by the borrower to set aside the trustee’s sale on the ground that the sale is voidable because of irregularities in the sale notice or procedure, the borrower must offer to pay the full amount of the debt for which the property was security. (Abdallah v. United Savings Bank (1996) 43 Cal. App. 4th 1101 , 1109; Onofrio [v. Rice (1997) 55 Cal. App. 4th 413 ], at p. 424 [the borrower must pay, or offer to pay, the secured debt, or at least all of the delinquencies and costs due for redemption, before 31 commencing the action].) ‘The rationale behind the rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the [borrower].’ [Citation.]” (Lona v. Citibank, N.A., supra , at p. 112.) Because plaintiff failed to allege wrongful foreclosure and compliance with the tender rule, the trial court properly sustained defendants’ demurrer to the eighth, ninth, and 13th causes of action for wrongful foreclosure, quiet title, and cancellation of instruments. E. Cause of Action for Violating the Commercial Code Plaintiff alleged in her 10th cause of action that defendants violated Commercial Code section 3118 by failing to foreclose on the second loan within six years after the amount of the unpaid balance on the second loan became due. This claim fails as a matter of law because Commercial Code section 3118 is merely a statute of limitations provision, which is a defense, not a cause of action. Furthermore, Commercial Code section 3118 does not concern the limitation period for enforcement of a deed of trust by nonjudicial foreclosure. F. Negligence Cause of Action Plaintiff’s 11th cause of action for negligence is based on conclusory allegations that defendants negligently proceeded with the wrongful foreclosure of the Property without any legal authority to do so. The second loan was allegedly paid off in 2009, and therefore defendants refrained from initiating foreclosure proceedings on the second loan 32 until years later. Plaintiff further alleged the NOD and NOTS were fraudulent and invalid, and the trustee’s sale was void. Defendants allegedly owed plaintiff a contractual duty and duty under Commercial Code sections 2924, et seq., which defendants breached by proceeding with the allegedly unlawful, fraudulent trustee’s sale of the Property, even though the second loan was paid in full in 2009. As a matter of law, under the facts alleged in the SAC and attached documents, defendants did not owe plaintiff a duty or negligently breach such a duty not to foreclose on the second loan, because defendants had a legal right to proceed with foreclosure under the second DOT. G. Unfair Competition Cause of Action Plaintiff’s 12th cause of action, alleging unfair competition in violation of Business and Profession Code (BPC) section 17204 (UCL action), failed to state a valid claim. Plaintiff alleged in the 12th cause of action that defendants committed and would continue to commit fraudulent and deceptive acts and practices likely to deceive California consumers, including plaintiff. Such unlawful, unfair and fraudulent acts and practices allegedly consisted of defendants foreclosing on properties, including plaintiff’s property, without having any interest in the properties, by misrepresenting that they owned a beneficial interest in a loan or deed of trust and could foreclose, and did so by improperly and fraudulently recording fraudulent documents and then proceeding with unlawful nonjudicial foreclosure proceedings. Plaintiff further alleged such acts caused plaintiff, as well as other California consumers, to lose property through foreclosure, and 33 incur unfair and unwarranted fees, charges, negative credit scores, and attorney fees. Therefore, under BPC sections 17200, 17203, and 17204, plaintiff allegedly was entitled to injunctive relief, attorney fees, and damages. Unfair competition is defined in BPC section 17200 as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with [s]ection 17500) of Part 3 of Division 7 of the Business and Professions Code.” BPC section 17203 states in relevant part: “Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. . . . Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of [s]ection 17204 and complies with [s]ection 382 of the Code of Civil Procedure . . . .” BPC section 17204 provides in relevant part that “[a]ctions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or a district attorney or by a county counsel . . . or by a city attorney . . . or by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. A plaintiff meets the private standing requirements of BPC section 17204, to bring a private UCL action if the plaintiff “(1) establish[es] a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show[s] that the economic injury was the result of, i.e., caused by, the unfair business practice or false 34 advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310 , 322.) Plaintiff has failed to allege a valid claim under BPC section 17204 because she has not alleged the second element, economic loss caused by an unfair business practice. Plaintiff has not alleged a causal link between her economic injury, that is, the nonjudicial foreclosure of her home, and unfair and unlawful business practices allegedly committed by defendants. (Kwikset Corp. v. Superior Court, supra , 51 Cal.4th at p. 326.) Plaintiff alleged she stopped making payments on the second loan in 2009. Although she allegedly believed she was not required to make any further payments, the SAC and attached documents establish that she defaulted on her second loan through no fault of defendants. This default triggered defendants’ lawful enforcement of the power of sale clause in the second DOT, which subjected plaintiff’s home to nonjudicial foreclosure. Because the foreclosure was triggered by plaintiff defaulting, plaintiff has failed to allege the foreclosure was caused by defendants’ wrongful actions in violation of BPC 17204. Therefore the trial court properly sustained defendants’ demurrer to plaintiff’s UCL cause of action. H. Amending the SAC Plaintiff urges this court to grant her leave to amend the SAC. Plaintiff asserts that her complaint “can be amended to address clarity and identify facts as set forth in the transcript on the last hearing.” It is unclear which hearing she is referring to. Plaintiff did not state any facts demonstrating the ability to successfully amend the SAC during 35 the hearing on defendants’ demurrer to the SAC or in opposition to the demurrer. Plaintiff did not file written opposition to defendants’ demurrer. However, during the hearing on defendants’ demurrer, she requested a continuance to amend the SAC in response to defendants’ demurrer. The court denied plaintiff’s request to continue the hearing, as well as her request to file a third amended complaint. When the court asked plaintiff if she wanted to add anything, she indicated she had new evidence and documents, but did not reveal what they were. The matter was then taken under submission and, thereafter, the court sustained defendants’ demurrer without leave to amend. Generally, leave to amend is proper when “there is a reasonable possibility the plaintiff could cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074 , 1081.) On appeal, “the burden is on the plaintiff to show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (McMartin v. Children’s Institute International (1989) 212 Cal. App. 3d 1393 , 1408.) Here, plaintiff did not state in the trial court new facts demonstrating she could successfully amend the SAC, and a potentially effective amendment is not apparent on appeal. Plaintiff failed to file any written opposition to defendants’ demurrer, although the trial court permitted her to orally oppose the demurrer during the hearing on defendants’ demurrer. Plaintiff did not state during her oral opposition any new facts or law that would cure the defects in her SAC. Plaintiff also has not stated on appeal how she can successfully amend her complaint to overcome the defects in her complaint. 36 Because she has not demonstrated a reasonable possibility that an amendment can cure the defects in the SAC, we conclude the trial court did not abuse its discretion in denying plaintiff leave to amend her complaint, and this court also denies plaintiff leave to amend. V. DISPOSITION The judgment is affirmed. Defendants are awarded their costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur: RAMIREZ P. J. RAPHAEL J. 37

2020-09-04 20:03:14.231035+00

https://www.courts.ca.gov/opinions/nonpub/C091370.PDF

Filed 9/4/20 In re E.B. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- In re E.B. et al., Persons Coming Under the Juvenile C091370 Court Law. EL DORADO COUNTY HEALTH AND HUMAN (Super. Ct. Nos. SERVICES AGENCY, SDP20180019 & SDP20180020) Plaintiff and Respondent, v. A.H., Defendant and Appellant. A.H., mother of the minors (mother), appeals from the juvenile court’s orders terminating her parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)1 We will affirm the juvenile court’s orders. 1 Undesignated statutory references are to the Welfare and Institutions Code. 1  FACTUAL AND PROCEDURAL BACKGROUND In April 2018, mother admitted to long-term use of methamphetamine, as did her boyfriend in whose care she left the minors. Pursuant to a voluntary service plan between mother and the El Dorado County Health and Human Services Agency (Agency), mother entered into Progress House to address her extensive substance abuse problem. The Agency initially allowed the minors, E.B. (then age 6) and M.B. (then age 7), to accompany mother at Progress House. However, on June 15, 2018, mother signed a voluntary placement agreement to temporarily place the minors in foster care because she “could not cope any longer.” Just four days later, mother informed the Agency she was leaving the program. When the social worker encouraged mother to seek individual counseling and offered to assist mother in self-referring to behavioral health, mother refused. On June 21, 2018, mother left Progress House and the drug treatment program against staff advice. On June 21, 2018, the Agency filed dependency petitions on behalf of the minors pursuant to section 300, subdivision (b). The petitions were amended twice, eventually alleging failure to protect pursuant to subdivision (b) and no provision of support pursuant to subdivision (g). In part, the amended petitions alleged mother had an extensive substance abuse problem from which she failed or refused to rehabilitate, and she left the agreed-upon drug treatment facility in violation of her agreement. The Agency reported it was unable to find an appropriate placement for both minors in the same home but was able to place them in separate homes that were close together and afforded them daily interactions with each other. Mother met with the social worker on June 28, 2018, and reported she was 82 days clean and sober. When asked to submit to a drug test, mother eventually agreed but admitted she would test positive for marijuana. The social worker referred mother for an alcohol and other drug (AOD) assessment, individual counseling, and drug testing. The social worker expressed concern that mother continued her relationship with her boyfriend who was known to the 2 Agency as a long-term drug user with a significant child protective services history. Mother countered that she and her boyfriend were “strong together” and “strong in their recovery.” After leaving Progress House, mother made minimal progress in attempting to establish ongoing services. She also tested positive for marijuana. Communication with the Agency was infrequent and difficult due to mother’s lack of a telephone or a known address. Mother’s behavior and her continued involvement with her boyfriend inhibited her ability to safely care for and protect the minors. The juvenile court found true the allegations in the amended petitions, striking the allegation that mother’s whereabouts were unknown. The court continued the minors in out-of-home placement and ordered twice-weekly supervised visits and weekly telephone calls. According to the disposition reports filed July 30, 2018, and August 1, 2018, mother had not engaged in services to address her substance abuse issues, had not yet scheduled an AOD assessment, was still testing positive for marijuana, was not keeping scheduled therapy appointments, and was living in an unhealthy and unsafe environment. She attended only two of the four scheduled visits with the minors and had only one telephone call. Mother was referred for an AOD assessment but arrived late. She was scheduled for an intake session for counseling services and provided a bus pass but failed to attend. At the August 1, 2018, disposition hearing, the court ordered continued out-of- home placement of the minors and continued reunification services to mother. At the September 26, 2018, case compliance hearing, pursuant to a request from minors’ counsel, the juvenile court ordered mother to have a psychological evaluation. Mother completed the evaluation with Dr. Eugene Roeder on October 22, 2018. Dr. Roeder found mother was experiencing a moderately severe mental disorder and required professional, clinical care. He noted her test results were most consistent with 3 generalized anxiety disorder and bipolar disorder in addition to psychoactive substance abuse. Dr. Roeder concluded that in order for mother to successfully reunify with the minors, her underlying psychological problems needed to be adequately addressed, as well as her substance abuse disorder and her interpersonal challenges. On November 16, 2018, the Agency requested that the court change its visitation order to once per week due to mother’s cancellation of numerous visits with the minors. Based on the agreement of the parties, the court changed mother’s visitation schedule accordingly. According to a status review report filed January 30, 2019, E.B.’s foster parent reported an incident between E.B. and the foster parent’s five-year-old daughter during which E.B. pulled down the young girl’s pants and tickled her private parts. E.B. asked her to touch his private parts, but she said no. E.B. then put his hand over her mouth, grabbed her hand, and put it down his pants. When E.B. was questioned about the incident, he immediately started screaming, “ ‘no,’ ” but later admitted it. The foster parent gave a seven-day notice to remove E.B. from the home. This was reportedly the second time E.B. had been caught sexually acting out. Mother reportedly tested positive for alcohol and continued to use marijuana for “ ‘emotional balance.’ ” She made some progress in her case plan objectives but struggled to follow through with substance abuse services. The Agency assessed a substantial risk of returning the minors to mother who had engaged in some services but had not yet fully addressed all of the issues and lacked the insight to acknowledge her shortcomings. On February 20, 2019, the juvenile court continued mother’s reunification services for an additional six months. The Agency reported on March 29, 2019, that mother engaged in a number of group and individual alcohol and drug treatment sessions but was later discharged due to her failures to attend. Mother missed several drug tests and tested positive for alcohol 4 and marijuana as recently as January and March 2019. The Agency recommended mother make an appointment for a mental health assessment and medication evaluation, but she failed to do so. She was attending individual counseling but had a number of unexcused absences from her parenting education class. She had difficulty abiding by the decreased visitation order of once per week, and on several occasions refused to attend visits after they were scheduled. The Agency became concerned due to mother’s desire to end visits earlier than scheduled, and the topics about which mother spoke with the minors, including child predators on the Internet. On one occasion, the visit had to be terminated because mother was yelling at and threatening the social service aide. The Agency noted that M.B. described visits with mother as “ ‘happiness.’ ” On April 24, 2019, the Agency filed a section 388 petition requesting a decrease in mother’s visitation with the minors from four to two hours weekly due to cancellation or early termination of visits by mother and cancellation of visits due to mother’s inappropriate behavior. The petition argued mother’s cancellation of visits resulted in behavioral issues with the minors, including crying spells, angry outbursts, and bedwetting. On May 3, 2019, minors’ counsel filed a section 388 petition requesting the court terminate mother’s reunification services and set the matter for a section 366.26 hearing. The petition argued mother failed to visit with the minors and “minimally engaged in her case plan.” The petition further argued the minors were “being negatively affected by mother’s failure to visit with them,” mother was unable or unwilling to care for the minors before their removal, and the minors needed “a stable and permanent home.” In a memorandum filed May 21, 2019, the Agency reported that mother had an AOD reassessment which recommended that she engage in residential drug treatment for 30 days and then transition to intensive outpatient services by spending 90 days in transitional living. Mother was provided with the information and a spot became available for her at Community Recovery Resources, but mother refused to enter 5 treatment. Mother participated in parenting classes through March 2019. Although the social worker informed mother she could participate in free parenting classes, mother stated she would resume classes when she was financially able to enroll online. Mother also participated in individual counseling and was reportedly improving in her ability to regulate her emotions and reduce her emotional reactivity. Mother submitted to random drug testing on numerous occasions, each time producing positive results for marijuana. Regarding court-ordered supervised weekly visits with the minors, mother cancelled two visits, ended one visit 20 minutes early, and did not confirm two visits within the required time period. Otherwise, visits were reported to be appropriate. The hearing on the two pending section 388 petitions commenced on May 29, 2019. With regard to the minors’ petition to terminate mother’s reunification services, mother’s individual therapist, Marcella Araiza, testified mother participated in weekly counseling for nearly eight months and was learning to regulate her emotions. However, Araiza acknowledged mother did not want to attend visits because the “adoption” sign on the front of the building upset her, and that not calling or showing up for visits because mother was upset at the prospect of adoption was not proper regulation of mother’s emotions. She also acknowledged that mother was not demonstrating she understood the impact of substance abuse on the minors when she twice opted not to go into drug rehabilitation despite being told to do so. Araiza opined that mother would need at least six more months to manage her mental health symptoms to enable her to care for the minors. Araiza testified she believed mother had not used methamphetamine for over one year, but acknowledged mother continued to use marijuana for sleep. At the conclusion of the hearing, the parties agreed and the juvenile court ordered that mother would participate in residential drug treatment and ongoing outpatient treatment, the social worker would have the discretion to increase or decrease the frequency and duration of visits, and mother’s reunification services would continue until the next review hearing scheduled for July 31, 2019. 6  The July 2019 status review report stated the minors continued to be placed in separate foster homes within close proximity to one another, had frequent sibling visitation, were doing well in their respective placements, and had developed close and loving relationships with their respective foster parents. However, the respective foster parents raised concerns about sexualized behaviors between the two minors, including showing each other their private parts. In addition, both minors suffered with emotional and mental health concerns. M.B. suffered from enuresis, encopresis, crying spells, anxiety, and emotional dysregulation, some of which tended to increase during times of inconsistent visitation with mother. E.B. suffered from nightmares and angry outbursts which tended to increase when mother’s visitation is inconsistent. The minors expressed their strong desire to be adopted by their foster parents in the event there was no reunification with mother. Mother continued to live with her boyfriend, was unemployed, and was not in compliance with her case plan. She continued to test positive for marijuana and, although she was prescribed medication to treat her anxiety and depression, it was unclear whether she was taking the medication or experiencing any benefits from it. During the reporting period, mother missed over 20 random drug tests. Since her last parenting class in March 2019, mother did not participate in any additional in-person or online parenting classes. Mother regularly participated in individual counseling but had not made any progress in her treatment goal to stay sober and live free from drug dependency due to her marijuana use. Following the court’s May 29, 2019, order for mother to enter residential drug treatment followed by intensive outpatient services, mother ignored the social worker’s inquiries about whether she planned on entering residential treatment. As of the date of the report, mother had yet to do so. While mother’s visits with the minors were reportedly appropriate and the minors looked forward to visits, mother’s visitation was inconsistent which tended to negatively 7 impact the minors. The minors displayed “a great sense of sadness and disappointment” when mother cancelled visits. The March 19, 2019, visit had to be terminated early due to mother’s failure to follow visitation rules, her verbal threats, and other actions making the visitation supervisor feel unsafe. Based on mother’s lack of progress in the issues that led to removal of the minors, and mother’s inconsistency in visitation, the Agency recommended that the court terminate mother’s reunification services and proceed with a permanent plan of adoption. 12-month Contested Review Hearing At the 12-month review hearing on August 14, 2019, therapist Araiza testified she had worked with mother in individual counseling every week for over a year. Araiza testified mother was able to utilize the tools she learned to regulate her emotions. She felt mother made substantial progress because mother was able to regulate her emotions, she was sober from methamphetamine, she never talked about drinking alcohol, she was able to manage her anxiety, and she was less emotionally reactive. Araiza admitted she based her opinions of mother’s sobriety on mother’s self-reporting and without the benefit of any outside information. Araiza opined that, with an additional three to five months of time, mother could complete all of her goals. On cross-examination, Araiza testified that the only reason mother gave for why the minors were taken away from her was the fact that she was using methamphetamine. When asked if mother understood the impact substance abuse had on the minors, Araiza stated mother knew it upset the minors, but she also felt she was doing a good job taking care of the minors even though she was high. Araiza testified she could not say mother had made enough progress to alleviate the risk of relapsing if the minors were returned to her care. Araiza testified mother explained she cancelled visits because M.B. saw the adoption sign on the visitation building and “really got upset” and mother did not want to have visits in that building. Araiza admitted it was not good parenting for mother to stop 8 seeing the minors because she was upset about the adoption sign, to not show up for visits after the minors were told they would see mother and were pulled out of school and brought to the visitation facility, or to routinely cut visits short. The juvenile court found that, while mother had done “a lot of hard work and made some changes,” her progress was nonetheless “minimal” and return of the minors to her care would create a substantial risk of detriment. Thus, the court terminated mother’s reunification services, set the matter for a section 366.26 hearing, and made visitation orders. Section 366.26 Report The section 366.26 report filed November 26, 2019, stated the minors remained in their respective foster homes, where they had been since February 2019. Mother was reportedly inconsistent in her visitation throughout the case. At times she prioritized the minors and attended visits as scheduled; at other times, she did not take advantage of the orders allowing her to spend time with the minors. When she did attend visits, she was generally appropriate during part or all of the visits. She demonstrated having a positive connection to the minors during visits but on occasion struggled to maintain appropriate, positive emotions and terminated the visit early. It was noted that, over the recent several months, mother had difficulty managing emotions sufficiently to maintain a positive presence during visits. The minors reportedly maintained a connection to mother and a desire to maintain contact. However, having been unable to rely on mother to provide them a stable relationship, as evidenced by frequently missed visits, the minors established new and healthy attachments to their respective foster parents, who had maintained consistency and provided the minors with a stable living environment. There had been a consistent pattern of loving interactions between M.B. and her foster parents, as well as consistent communication that everyone wanted to “finish the adoption process and be a family all together.” The report noted M.B. was happy and connected to her foster parents and 9 wanted to be adopted. The same was true for E.B., who reportedly formed and continued to develop a healthy connection to his foster parents. The report set out each minor’s statement concerning placement and potential adoption. M.B. indicated she desired to be adopted by her foster parents and she “nodded her head vigorously and appeared very excited with a huge smile on her face when she was asked if she wanted to be adopted.” When asked what she understood adoption to mean, M.B. stated it meant she would become the foster parents’ child forever. M.B. noted “it would be difficult not to see her mother anymore and she would be sad but that it would be ‘okay’ because she would have the foster-adoptive mother forever.” The foster parents noted M.B. had taken to spontaneously saying, “ ‘after I’m adopted’ ” and then filling in something she would like to do such as travel out of the country to see her adoptive cousins who live outside the United States. M.B. consistently expressed a positive desire and intention to be adopted and seemed to look forward to it. E.B. immediately gave the “thumbs up” and exclaimed, “ ‘yea’ ” when asked if he wanted to be adopted. It was explained that being adopted would likely mean he would not see his mother again for a long time and potentially never see her again. E.B. said, “ ‘that’s okay because I still have this one,’ ” indicating his foster mother. E.B. explained that adoption meant he would be “ ‘living with other parents’ and it would be forever.” He seemed to understand that his foster parents would become his family and it was his desire to move forward with the adoption. When mother reportedly asked E.B. during a visit how he felt about adoption, E.B. sidestepped the question by saying he was “ ‘sappy’ ” about it (meaning “ ‘sad and happy’ ”) and changed the subject. Like his sister, E.B. began making statements such as “ ‘when I am adopted’ ” and finishing with a statement of something he would like to do such as travel out of the state to watch his foster father play championship games. E.B. consistently made positive statements about being adopted and that he looked forward to the day it was final. 10  Concluding it would be more detrimental to maintain mother’s parental rights and continue without the permanence of adoption, the Agency recommended termination of parental rights with a permanent plan of adoption by the current foster parents. Section 366.26 Hearing At the section 366.26 hearing on January 29, 2020, mother testified that she did not want her parental rights terminated. She testified her relationship with M.B. was “[d]eep” and described her relationship with E.B. as “[f]un and silly.” When asked how a continuing role in E.B.’s life would benefit him, mother answered, “Just being a positive support” and being there in the event of a medical issue requiring a blood transfusion. The Agency argued, and minors’ counsel agreed, that the minors were adoptable, both generally and specifically, and that mother did not meet her burden to demonstrate the beneficial parental relationship exception applied. Mother’s counsel argued the exception applied and objected to termination of mother’s parental rights. The juvenile court adopted the Agency’s recommended findings and orders, found the minors adoptable, terminated parental rights, and identified adoption as the appropriate permanent plan. DISCUSSION Mother raises a myriad of claims asserting failures by the juvenile court and the Agency, several of which challenge the court’s adoptability finding and the subsequent order terminating parental rights. Several claims assert the applicability of various statutory exceptions to adoption as the permanent plan. The final claim asserts any failure by mother to raise these issues in the juvenile court was the result of prejudicial ineffective assistance of counsel. The Agency argues mother forfeited all or portions of her claims and, in any event, the claims lack merit. The Agency further argues mother was afforded effective assistance of counsel. 11  As we will explain, some of mother’s claims have been forfeited, the claims which have not been forfeited lack merit, and mother received effective assistance of counsel. I Consideration of the Minors’ Wishes Mother contends there is insufficient evidence the juvenile court considered the wishes of the minors. In particular, she claims there was insufficient evidence the social worker determined whether the minors understood the benefits and detriments of adoption versus guardianship, that termination of parental rights would be final and irrevocable, and that there was no guarantee they would be adopted by their current caregivers. Mother also contends the juvenile court was required to ascertain the minors’ respective preferences between adoption and guardianship and failed to do so. To terminate parental rights, “the [juvenile] court must find by clear and convincing evidence that it is likely that the child will be adopted.” (In re Asia L. (2003) 107 Cal. App. 4th 498 , 509; see also § 366.26, subd. (c)(1).) There must be “convincing evidence of the likelihood that adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal. App. 4th 616 , 624.) “Although a finding of adoptability must be supported by clear and convincing evidence, it [(i.e., the determination that it is likely the child will be adopted within a reasonable time)] is nevertheless a low threshold.” (In re K.B. (2009) 173 Cal. App. 4th 1275 , 1292.) In reviewing the juvenile court’s finding for substantial evidence, we give it the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re I.I. (2008) 168 Cal. App. 4th 857 , 869.) That is, we must determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that each child was likely to be adopted within a reasonable time. (In re B.D. (2008) 159 Cal. App. 4th 1218 , 1232.) If so, “[i]t is irrelevant that there may be evidence which would support a contrary conclusion.” (In re K. B., supra , 173 Cal.App.4th at p. 1292.) 12  Here, the juvenile court found the minors adoptable and terminated parental rights, identifying adoption as the appropriate permanent plan. Mother claims the court failed to consider the minors’ wishes as required by section 366.26, subdivision (h), which provides that, in all section 366.26 proceedings, “the court shall consider the wishes of the child and shall act in the best interests of the child.” (§ 366.26, subd. (h)(1).) We disagree. Section 366.26, subdivision (h) requires that the court “ ‘consider the child’s wishes to the extent ascertainable’ ” prior to terminating parental rights. (In re Leo M. (1993) 19 Cal. App. 4th 1583 , 1591 (Leo M.).) “But the evidence need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing.” (In re Amanda D. (1997) 55 Cal. App. 4th 813 , 820.) What the court must strive to do is “to explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. . . . [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor’s feelings from which it can then infer his/her wishes regarding the issue confronting the court.” (Leo M., supra , 19 Cal.App.4th at p. 1592.) Here, the juvenile court confirmed it read and considered the social worker’s report and recommendations and took judicial notice of all prior findings, orders, and judgments in the case. There was sufficient evidence in the section 366.26 report upon which the court relied to ascertain the minors’ wishes. Both minors were happy and connected to their respective foster parents and wanted to be adopted. When asked whether she wanted to be adopted by her foster parents, M.B. “nodded her head vigorously and appeared very excited with a huge smile on her face.” M.B. was able to explain that adoption meant she would become the foster parents’ child forever. She acknowledged it would be difficult not to see her mother anymore and she would be sad “but that it would be ‘okay’ because she would have the foster-adoptive mother forever.” 13 She often talked about what she would like to do “ ‘after I’m adopted,’ ” and consistently expressed her desire to be adopted. Similarly, E.B. gave the “thumbs up” and exclaimed, “ ‘yea’ ” when asked if he wanted to be adopted. He was able to explain that adoption meant he would be living with other parents and would likely not see his mother again for a long time if ever, but said, “ ‘that’s okay because I still have this one,’ ” indicating his foster mother. Like his sister, E.B. understood his foster parents would become his family and it was his desire to move forward with the adoption, and he often talked about what he would like to do “ ‘when I am adopted.’ ” Mother claims the social worker failed to determine whether the minors understood adoption versus guardianship, the finality and irrevocability associated with termination of parental rights, and that there was no guarantee they would be adopted by their current caregivers. To the extent mother challenges the adequacy of the section 366.26 assessment report, her failure to object on that basis in the juvenile court has forfeited her claim on appeal. “ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.” [Citation.]’ [Citation.]” (In re G.C. (2013) 216 Cal. App. 4th 1391 , 1398.) “This is the general rule, because any other rule would allow a party to deliberately stand by in silence and permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citations.] The forfeiture doctrine has been applied in dependency proceedings in a wide variety of contexts, including cases involving failures to obtain various statutorily required reports [citation].” (Ibid.) As relevant here, “failure to object to the admission of improper or inadequate evidence waives the right to raise the issue on appeal. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 307, p. 317.)” (In re Crystal J. (1993) 12 Cal. App. 4th 407 , 411; accord In re Aaron B. (1996) 46 Cal. App. 4th 843 , 846; In re Urayna L. (1999) 75 Cal. App. 4th 883 , 886.) 14  Mother argues, without citation to authority, that the juvenile court was required to obtain the minors’ respective preferences between adoption and guardianship. Claims made without citation to authority must be deemed forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in appellate brief must be supported by argument and, if possible, by citation of authority]; Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635 , 647 [lack of authority or analysis constitutes forfeiture].) In any event, section 366.26, subdivision (h) neither expressly requires, nor does it contain language compelling that it be inferred, that a court must ascertain whether a child prefers adoption over guardianship, or vice versa. What the court must strive to do is “to explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements.” (Leo M., supra , 19 Cal.App.4th at p. 1592.) There is sufficient evidence the juvenile court did so here. II Sibling Relationship Exception to Adoption Mother contends that, in assessing the minors’ bests interests and whether termination of parental rights would be detrimental to them, the Agency and the juvenile court improperly relied on “the illusory promise and premise of ongoing sibling visitation,” requiring reversal and remand for the court to reconsider whether termination of parental rights was appropriate. The Agency argues mother’s claim is a veiled attempt to raise the applicability of the sibling relationship exception to adoption, a claim mother forfeited for not raising it below and, in any event, the claim lacks merit. We agree with the Agency. Taking issue once again with the content of the Agency’s assessment report, mother argues the report improperly relied on the promise or expectation of continuing posttermination visitation between the siblings by including statements regarding the close friendship and connection between the minors’ respective foster families and that it was “anticipated this connection will continue so the children have the opportunity to 15 maintain their familial connection in spite of living in separate homes.” Again, to the extent mother challenges the adequacy of the section 366.26 assessment report, her failure to object on that basis in the juvenile court has forfeited her claim on appeal. (In re Crystal J., supra , 12 Cal.App.4th at p. 411; In re Aaron B., supra , 46 Cal.App.4th at p. 846; In re Urayna L., supra , 75 Cal.App.4th at p. 886.) To the extent mother is claiming the applicability of the sibling relationship exception to adoption, she has forfeited that claim as well by failing to assert it in the juvenile court. (In re Daisy D. (2006) 144 Cal. App. 4th 287 , 291-292; In re Erik P. (2002) 104 Cal. App. 4th 395 , 403; In re Christopher B. (1996) 43 Cal. App. 4th 551 , 558; In re Dakota S. (2000) 85 Cal. App. 4th 494 , 501-502.) III Forfeiture Acknowledging her counsel did not raise the issue of the sibling relationship exception to adoption in the juvenile court, mother makes four claims as to why we should nonetheless reach the issue. None have merit. First, mother claims, without citation to specific authority, that the Agency put the matter at issue based on its inclusion of information in its report about the sibling relationship and the connection between the two respective foster families. Claims made without citation to authority must be deemed forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Atchley v. City of Fresno, supra , 151 Cal.App.3d at p. 647.) In any event, the fact that the Agency’s report included information regarding the bond between the minors does not excuse mother’s forfeiture of her claim. It was mother’s burden to prove one of the exceptions to adoption applied. (In re Isaiah S. (2016) 5 Cal. App. 5th 428 , 437-438; In re Zachary G. (1999) 77 Cal. App. 4th 799 , 809.) Mother put on no evidence to show the sibling relationship exception to adoption applied. By not raising the exception, the Agency and the minors were prevented from having a full and fair opportunity to present evidence on the issue at the hearing. We will not review the 16 evidentiary support for the findings when the Agency and the minors were not provided a fair opportunity to present an adequate record in response. (See People v. Adam (1969) 1 Cal. App. 3d 486 , 489.) Second, mother asserts the oft-cited rule that forfeiture can be excused when there is an important legal issue, the resolution of which would further the minors’ interests. She argues the important legal issue is whether the Agency’s “reliance on the unenforceable promise and expectation of continuing sibling visitation by foster parents is proper.” Mother’s argument is not well taken. The section 366.26 report, a 25-page document, includes several references to the relationship between the respective foster families and their commitment to continued visitation and contact between the two minors after termination of parental rights. It was mother’s burden to affirmatively demonstrate substantial interference with the sibling relationship. The evidence that the current foster families intended to maintain the sibling relationship to the extent possible was unrefuted by mother with any contrary evidence. In addition to the section 366.26 report, the juvenile court considered mother’s testimony and the court’s previous findings and orders in the case. There is no indication in the record that the court gave any particular weight to the foster families’ statements of commitment to continued sibling visitation. Again, if mother took exception to all or any portion of the report, it was incumbent upon her to lodge an objection and attempt to correct the record as she saw fit. She did not do so. Third, mother restates her earlier claim that the Agency improperly relied on the expectation of continuing visitation and contact between the two minors’ respective foster families. As previously discussed, the claim lacks merit. Fourth, mother asserts that any failure to raise the issue in the juvenile court was the result of ineffective assistance of counsel. The burden is on mother to establish both that counsel’s representation fell below prevailing professional norms and that, in the absence of counsel’s failings, a more favorable result was reasonably probable. (People 17 v. Ledesma (1987) 43 Cal. 3d 171 , 215-218; Strickland v. Washington (1984) 466 U.S. 668 , 694 [ 80 L. Ed. 2d 674 , 698]; In re Kristen B. (2008) 163 Cal. App. 4th 1535 , 1540.) We must affirm the judgment unless the record “affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission . . . .” (Kristen B., at p. 1541.) In addition, we may reject mother’s claim if she cannot show it is reasonably probable the result would have been more favorable to her but for trial counsel’s alleged failings. (In re N.M. (2008) 161 Cal. App. 4th 253 , 270.) Here, mother cannot establish either prong. Mother argues there could be no tactical reason for counsel not to raise the issue of the sibling relationship exception. We disagree. The sibling relationship exception applies only when adoption would result in “substantial interference with a child’s sibling relationship.” (§ 366.26, subd. (c)(1)(B)(v).) It is undisputed that the minors had a close bond with one another. As demonstrated by the record, the minors were initially placed together but were then separated in February 2019 and placed with separate foster families due to more than one incident of sexualized behavior between them. Thereafter, despite being placed in separate homes, the minors were able to see each other frequently, visit at each other’s houses, and engage in numerous activities while under the supervision of their respective foster parents. It was anticipated that the minors would be adopted by their respective foster parents who intended to maintain contact and visitation between the two minors, a fact that was not refuted by mother. While mother spends a great deal of time discussing authority regarding the juvenile court’s lack of jurisdiction to order continuing visitation after termination of parental rights and that continued visitation and contact between siblings is not guaranteed, there was no evidence before the court that adoption would interfere with the minors’ relationship. Consequently, trial counsel had a rational tactical reason not to assert the exception and it is not reasonably probable the result would have been more favorable to mother had her counsel done so. Mother has not met her burden to establish ineffective assistance of counsel. 18  Lastly, we reject mother’s assertion, made under the section heading arguing against forfeiture of the sibling relationship exception, that the Agency should have recommended a plan of legal guardianship rather than adoption. Aside from violating the rule of appellate procedure that each point must be stated under a separate heading (Cal. Rules of Court, rule 8.204(a)(1)(B)), mother ignores the rule that where, as here, the juvenile court finds the minors adoptable and no exceptions apply, “it is presumed, even in the absence of a specific finding by the court, that adoption is the choice that is in the child’s best interests,” and “ ‘the less desirable and less permanent alternatives of guardianship and long-term foster care need not be pursued.’ [Citation.]” (In re Jose V. (1996) 50 Cal. App. 4th 1792 , 1799.) For all of these reasons, mother has forfeited her claim on appeal and, in any event, the claim lacks merit. IV Visitation Orders Prior to Section 366.26 Hearing Mother contends she was deprived of her right to due process and an ability to establish the beneficial parental relationship exception to adoption due to the juvenile court’s “elimination of meaningful visitation” pending the section 366.26 hearing. The Agency argues mother is precluded from raising her contention because she did not first raise it in a writ petition as required by section 366.26, subdivision (l). We conclude mother is precluded from raising this contention because she did not raise it in a petition for an extraordinary writ following the juvenile court’s order setting the section 366.26 hearing at which the contested order was made. “Section 366.26, subdivision (l) bars review of a [setting] order unless the parent has sought timely review by extraordinary writ.” (In re Rashad B. (1999) 76 Cal. App. 4th 442 , 447, fn. omitted.) The bar applies to all orders issued at a “hearing at which a setting order is entered.” (In re Anthony B. (1999) 72 Cal. App. 4th 1017 , 1023.) 19  An order setting a permanency planning hearing date cannot be appealed at any time unless the appellant previously filed a petition for extraordinary writ review raising the same issue. (§ 366.26, subd. (l)(1)(A)-(B); Cal. Rules of Court, rules 8.450 & 8.452.) The failure to file a timely petition for writ review precludes any subsequent review of the findings and orders made pursuant to section 366.26, even if the contention relates only to contemporaneous orders that would otherwise be appealable. (See § 366.26, subd. (l)(2); In re Rashad B., supra , 76 Cal.App.4th at pp. 447-448; Karl S. v. Superior Court (1995) 34 Cal. App. 4th 1397 , 1403-1404 [time requirements are mandatory].) At the 12-month review hearing on August 14, 2019, the juvenile court terminated mother’s reunification services, set the matter for a section 366.26 hearing, and made visitation orders decreasing the frequency of mother’s visits with the minors over a period of months. Mother was present with counsel, who objected to the visitation order. Mother was orally advised of the requirements for challenging the court’s order by way of writ petition, along with the time frame for so doing, and was served in person at the hearing with the appropriate writ notices and forms. Mother, however, did not file a petition for extraordinary writ. By not seeking review of the visitation order in a timely manner by extraordinary writ, she is barred from challenging the order entered at that hearing in this appeal. Mother acknowledges these rules but argues her challenge should nonetheless be decided because (1) the controversy was not ripe by the time the writ petition was due, (2) failure to pursue an extraordinary writ is excusable for good cause, especially where the validity and sufficiency of the writ advisement is in question, and (3) the failure to file a writ petition resulted from ineffective assistance of counsel. None of these arguments are persuasive. As for the first assertion, mother argues the controversy was not ripe because, at the time of the August 2019 hearing, it was unknown whether, among other things, visitation would be increased or decreased, whether mother would have suffered 20 prejudice from reduction of visitation, or whether the reduction in visitation would in fact have resulted in a deprivation of mother’s constitutional rights. However, these arguments could be made in every case involving a visitation order made when the section 366.26 hearing is set. And mother cites no authority for the proposition that this exception to the general forfeiture rule of ripeness circumvents the specific statutory mandate of section 366.26, subdivision (l). In any event, the fact that mother objected to the visitation order strongly suggests that mother had enough information to know a challenge needed to be made within the requisite time constraints. As to the second assertion, mother argues there is good cause to allow the challenge because the writ advisement was made as to the termination of services and setting the section 366.26 order but before the visitation order was made, thus creating uncertainty as to whether the visitation order was encompassed in the setting order. The claim is specious. At the contested August 14, 2019, hearing, the Agency’s recommendations regarding, among other things, termination of reunification services and decreasing visitation were at issue. The issue of visitation was discussed at length during the hearing and by mother’s counsel during closing arguments. Mother’s counsel raised an objection to the proposed language in the visitation order immediately after the court issued the writ advisement, requiring a brief discussion amongst the parties and the court about the details of the visitation order. In response to the parties’ agreement, the court referred to the portion of the Agency’s proposed order and modified that proposed order. The court’s written order includes the visitation order with those interlineated modifications. We conclude there is no good cause to excuse mother’s failure to pursue an extraordinary writ. Regarding mother’s third assertion of ineffective assistance of counsel, mother refers us to the arguments in section IV of her opening brief, but this section contains no assertion of ineffective assistance of counsel. Mother has not met her burden to establish ineffective assistance of counsel. 21  V Ineffective Assistance of Counsel Finally, mother contends that, in the event we deem any of her previous claims to be forfeited due to the inaction of her counsel, we should reach the merits of those claims due to ineffective assistance of counsel. As already explained in this opinion, we conclude some of mother’s claims have been forfeited, the claims that have not been forfeited lack merit, and mother received effective assistance of counsel. DISPOSITION The juvenile court’s orders are affirmed. /s/ HOCH, J. We concur: /s/ BLEASE, Acting P. J. /s/ MAURO, J. 22

2020-01-17 22:01:55.600048+00

Littleton

*812OPINION. Littleton The issues raised by the pleadings will be considered in the order set out in our preliminary statement above. With respect to issue (1) respondent confessed error at the hearing, and conceded that real estate, of the value of $12,000, owned by the decedent and his wife as tenants by the entirety is not subject to tax. *813Since this amount has been included by the respondent in the gross estate, it should be deducted therefrom in redetermining the net estate subject to tax. Issue (2) was settled by written stipulation, in which it was agreed by the parties that the petitioners are entitled to a deduction from the gross estate in the amount of $28,900 on account of the notes of the King Manufacturing Co. which were endorsed by the decedent during his lifetime and which at his death constituted a liability of the estate. Accordingly, the value of the gross estate should be reduced by said amount in redetermining the taxable net estate. Issues (3) and (4) were submitted upon the record, without argument. Issue (3) pertains to a deduction from the gross estate claimed by the petitioners on account of executors’ commissions. The amount claimed in the petition was $14,899.98, all of which was disallowed by the respondent. The petitioners allege and the respondent admits that under the laws of Missouri, where the estate of the decedent is being administered, executors are entitled to a commission equal to 5 per cent of the value of the personal property administered upon. The evidence shows that the estate of the decedent being administered upon includes personal property of the appraised value of $247,018.70. Therefore, the petitioners are entitled to a deduction from the gross estate of $12,350.93 on this account in redetermining the net estate. It is immaterial that the amount of the commission has not been allowed by order of the probate court or paid. Stern et al., Executors, 2 B. T. A. 102. Issue (4) relates to the deduction of attorneys’ fees. On November 30, 1925, the probate court passed an order allowing one Joseph Morton the sum of $5,000 for legal services rendered. This amount was allowed by the respondent as a deduction from the gross estate, but the petitioners also claimed an additional deduction of $5,000 on the theory that such amount would subsequently be allowed by the probate court. This amount so claimed by the j>etitioners was disallowed by the respondent. On July 30, 1928, after the commencement of this proceeding, the probate court passed an order allowing the firm of Morton & Morton an additional sum of $3,500 for legal services. It follows that the petitioners are entitled to an additional deduction from the gross estate of said sum of $3,500. Thus, issue (5) presents substantially the sole material question in controversy here, namely, whether real estate owned by the decedent at the time of his death and situated in the State of Missouri constitutes a part of the gross estate for Federal-tax purposes, under the Revenue Act of 1921, which provides as follows: Seo. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated— *814(a) To the extent of the interest therein of the decedent at the time of his death which after his death is subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution as part of his estate; * * *. The parties are agreed that the land in question is property in which the decedent had an interest at the time of his death, and no objection is made to the inclusion of the land in the gross estate on (.he ground that it was not subject to distribution as a part of decedent’s estate. They are also in agreement that.under the laws of Missouri, land is subject to the payment of charges against the decedent’s estate, but they do not agree that land in Missouri is subject to the payment of administration expenses. The contention of the petitioner is that, since under the laws of Missouri land may not be sold for the payment of administration expenses, the lands in question are not subject to the payment of administration expenses and that, accordingly, a necessary requirement to the inclusion of (.his property for Federal-estate-tax purposes has not been satisfied. While the Commissioner seems to agree that lands in Missouri may not be sold for the payment of administration expenses, he contends that this is not decisive of the issue before us and that, regardless of this fact, when proper construction is given to the statute in question, in the light of interpretations given to the Missouri statutes, the land in controversy satisfies all conditions necessary for compliance with section 402 (a). The section in question is identical with the corresponding provision in the Kevenue Act of 1916, under which the case of United States v. Field, 255 U. S. 257, arose. That case involved the question whether the Act taxed a certain interest-in personal property that passed under testamentary execution of a general power of appointment created prior, but executed subsequent, to its passage. Mr. Justice Pitney, in holding that the property in question was not taxable, for the reason that it did not satisfy the final condition set forth in the section, said: Tlie conditions expressed in clause (a) are to the effect that the taxable estate must be (1) an interest of the decedent at the time of his death, (2) which after his death is subject to the payment of the charges against his estate and the expenses of its administration, and (3) is subject to distribution as part of his estate. These conditions are expressed conjunctively; and it would be inadmissible, in construing a taxing act, to read them as if prescribed disjunctively. Hence, unless the appointed interest fulfilled all three conditions, it was not taxable under this clause. While the foregoing case dealt with the satisfaction of an entirely different condition from that before us and concerned personal property rather than real, and therefore could not be controlling as to the issue before us, the decision is important as reflecting the attitude of the Supreme Court toward the conditions necessary to be satisfied *815m order to make property of the class there being considered taxable for Federal-estate-tax purposes. Conceding for the purpose of the first part of this discussion that land, in the case before us, must likewise meet the same requirements, let us see whether the conditions set forth have been met. As heretofore stated, there is no controversy as to conditions (1) and (3), but only as to the second condition. At the outset, in considering whether the second condition has been complied with, it should be observed that it is compound in its nature, the entire condition reading, “ which after his death is subject to the payment of the charges against his estate and the expenses of its administration.” Much of the argument presented by the petitioner, in effect, would seem to say that there are four conditions to be satisfied, namely, one and three as set out by the Supreme Court, and that the property must be subject to the payment of charges against the estate and also subject to the payment of administration expenses. That is, as we understand the petitioner’s contention, it is that one of the conditions laid down by the Supreme Court is that the property must be subject to the payment of administration expenses, whereas this requirement is only a part of one condition. In view of the extent to which administration expenses are interwoven and connected with the payment of charges against an estate, we consider this joinder significant. Further, when the condition is considered in its entirety, it will be found that both parties are in agreement that the first part has been satisfied, namely, that the land sought to be included is subject to the payment of charges against the estate. This brings us to an inquiry as to the status of administration expenses with respect to real estate under the Missouri statutes. In the first place, we do not think it is open to question that in Missouri real estate may not be sold for the sole purpose of paying administration expenses. Farrar v. Dean, 24 Mo. 16; Presbyterian Church v. McElhinney, 61 Mo. 540; Ritchey v. Withers, 72 Mo. 556; and Elstroth v. Young, 94 Mo. App. 351. It is, however, expressly provided by statute (section 141 of the Eevised Statutes of Missouri (1919)) that land may be sold for the payment of debts due by the decedent at the time of his death, and legacies, provided his personal estate shall be insufficient to pay such debts and legacies. But unless there are debts due by the decedent at the time of his death or legacies to be paid, no authority exists in the administrator to create debts in the administration of the estate and then procure an order of the court for the sale of land in payment of charges thus created. As expressed in Farrar v. Dean, supra: * * * No one ever imagined that the legislature designed to place the power in the hands of the administrator to create the debt, and then to sell the real estate of the decedent to pay for it. When there are no debts, there is *816no law to sell the real estate. The administrator can not procure, in such a case, an order for its sale without a violation of law. But does the fact that land may not be sold merely for the purpose of paying administration expenses mean that land is in no sense subject to the payment of such expenses? We think not. In the administration of an estate, among the expenses to be met before the payment of debts or legacies are administration expenses, and where there are debts or legacies to be satisfied, these administration charges will be paid out of the personal property before payment of debts or legacies from the real estate. But whether there will be considered sufficient personal property to satisfy the debts and legacies will be determined by taking into consideration the total liabilities for debts and legacies, together with the amount due for administration expenses. And if there be not sufficient personalty to take care of all of these demands, but more than sufficient to take care of the administration expenses, resort will then be had to the realty to make up the deficiency. It may be said that under such circumstances administration expenses are being met out of the personal property and that the deficiency which is being met out of the realty relates only to debts and legacies, but it is undeniably true that the deficiency to be met out of the sale of realty is greater because the administration expenses have consumed a part of the personalty. By way of illustration, a man leaves only $10,000 worth of personalty, but also leaves $5,000 in real estate. His debts are $9,000, and the expenses of administration amount to $2,000. It is not believed that any one would seriously question that under such circumstances real estate to the extent of $1,000 may and must be sold. Without the administration expenses no realty would be required to be sold. Whether we say that the administration expenses are paid out o,f personalty and the debts out of personalty and realty, or vice versa, would seem to be a mere choice of words and not material. The land can be sold only because the debt exists, but the sale is made on account of administration expenses in the same sense as it is of debts. Further, while land is admittedly subject to the payment of charges against the estate, the primary liability for the payment of such charges rests upon the personalty, and, therefore, it may be said that there is a difference of degree only as to the liability relationship between charges and administration expenses and land. It also appears that where the funds coming into the hands of the administrator from all sources are insufficient to pay both debts and administration expenses, the former will be paid first and the balance apportioned among the creditors, section 224, Revised Statutes of Missouri, 1919, reading as follows: *817Payment of Claims — How Oedebed upon' Settlement. — At every settlement, or at any time thereafter, when the best interests of the estate require it, the court shall ascertain the amount of money of the estate which has come to the hands of such executor or administrator from all sources, and the amount of debts allowed against such estate; and if there be not sufficient to pay the whole of the debts and expenses of administration, the money remaining after paying the expenses of administration shall he apportioned among the creditors according to the provisions of this chapter; and the court shall order that such executor or administrator pay the claims allowed by the court according to such apportionment, reserving apportionments made on claims which remain undecided until decision be had thereon. (R. S. 1909, § 233.) (Italics supplied.) When the prior status of administration expenses is considered, this would seem to follow logically and not be inconsistent with section 149, Kevised Statutes of Missouri, 1919, which provides: The Peoceeds of Sale, How Applied — Pbiobitt of Liens. The proceeds of the sale of such real estate shall be first applied to the payment of such judgments and attachments, according to their priority of lien, and the residue of such proceeds, if any, shall become assets in the hands of the executor or administrator, to be administered according to law. (R. S. 1909, § 158.) It may well be that deficiencies in administration expenses, not connected with expenses incident to the sale of real estate, may not be made up out of funds from the sale of real estate, yet it is certainly true that expenses connected with the sale of real estate may be paid out of the funds received from the sale of such real estate. Elstroth v. Young, supra. The aforementioned case did not, however, involve a deficiency in administration expenses outside of expenses incident to the sale of land by the administrator, but it did involve commissions deducted by the administrator on account of the distribution of the proceeds of a sale of real estate, and the court expressly held that such expenses were a proper charge against the funds received from such sale. Certainly, such expenses are administrative in character and the proceeds from the sale of the land are subject to the payment thereof. As the court said in Steedman v. United States, 63 Ct. Cls. 226: Tbe expression “expenses of administration” covers tbe whole field of administrative charges. It is difficult to see how real estate could be sold and the proceeds not be held liable for the expenses incident to the sale, which, in the case of a sale by an administrator under order of court, are part of the expenses of administration. In any event, land which is subject to the payment of charges against his (the decedent’s) estate is subject to the payment of expenses of its disposition and of the administration and distribution of the funds realized or derived from the sale. When we consider that the phrase “ subject to the payment of the charges against his estate ” is joined with the phrase “ and the expenses of its administration ” in one condition, we fail to see why land in Missouri does not fully comply with this condition. The *818two are so closely related that we can not have the former without the latter, and when the former does exist the land is certainly subject to the payment of administration expenses. The position of the petitioner would require not only that the two parts of the condition be treated as separate and distinct conditions, but also that the words “ subject to ” be construed to mean “ liable to be sold for.” But as we read the statute, we do not understand that it means more than that the property must be of such a nature and have such a relation to the decedent’s estate that the burden of administering the estate is incident and subject thereto. In Steedman v. United States, supra, the court in construing the same provision which we have before us said: Section 402, supra, does not use the word “ liable; ” it uses the words “ subject to.” “ Subject to ” does not necessarily mean “ liable for.” It may be said that where land is liable for sale for the payment of debts, it is subject lo the payment of debts, but the converse is not necessarily true. Real estate may be under certain conditions “ subject to ” the payment of expenses of administration and yet not liable to sale therefor; that is, it may be under the contingency of or exposed to payment of administrative expenses and thus “ subject to ” the payment. When considered in this manner, we do not find it necessary to decide whether the word “ and ” which joins the two parts of the compound condition is to be interpreted as meaning “ and ” or “ or ”; under either interpretation we think that land under the laws of Missouri sufficiently satisfies this requirement of the statute to make it includable in the gross estate of the decedent for estate-tax purposes. The further consideration exists that if we were to carry petitioner’s argument to its logical conclusion, not only would all land in Missouri be exempt from Federal estate taxes, but in other States as well. This would follow from a strict interpretation of the third condition set out in the statute, namely, “ and is subject to distribution as part of his estate.” In law the term “ distribution ” is accurately and technically applicable only to personal property, whereas the corresponding term applicable to real estate is “ descent.” In other words, in the ordinary accepted meaning of the terms, personal property is distributed to the persons beneficially interested therein, whereas real property descends to the heirs. But we can not think that Congress intended by the opening clause of section 402 that all real property should be included in a decedent’s gross estate and then imposed limitations which would make of the statute a nullity in so far as real property is concerned. Either the limitations are applicable only to personal property, or a liberal construction must be given thereto, and under either interpretation we are of the opinion that land in Missouri satisfies its provisions. This, *819interpretation seems all the more reasonable when it is borne in mind that the statute is very broad, expressly including “ all property, real or personal, tangible or intangible, wherever situated,” subject only to the limitations here in controversy. Since the decedent .owned this real property and since his interest therein ceased at his death, it would seem clear that if such property is not to be included in his gross estate for estate-tax purposes, the statute has (to use the language of Mr. Justice Holmes in Irwin v. Gavit, 268 U. S. 161), “missed so much of the general purpose.” Nor do we think it conclusive that the corresponding provision in the Revenue Act of 1926 eliminated the limitations which we are here considering. The explanation of the change was given by the Ways and Means Committee of the House in its report as follows: * * * In the interest of certainty it is recommended that the limiting language above referred to shall be eliminated in the proposed bill, so that the gross estate shall include the entire interest of the decedent at the time of his death in all the property. (Italics supplied.) The specific question before us has been before the Federal Courts on two occasions—first, in Steedman v. United States, supra, (certiorari denied, 275 U. S. 528) wherein the Court of Claims held that land in Missouri satisfies the requirements of section 402 (a), supra, with respect to the payment of administration expenses, and second, in Harrelson v. Crooks, 28 Fed. (2d) 510; aff'd. 35 Fed. (2d) 116, where an opposite holding was had. For reasons heretofore stated we agree with the conclusion reached in the Steedman case. Reviewed by the Board. Judgment will he entered for the respondent, Murdock concurs in the result.

2020-01-17 22:01:55.613092+00

Trammell

Trammell, dissenting: Issue (5) presents the sole material question in controversy here, namely, whether real estate owned by the decedent at the time of his death and situated in the State of Missouri, constitutes a part of the gross estate for Federal-tax purposes, under the Revenue Act of 1921, which provides as follows: Sec. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated— (a) To the extent of the interest therein of the decedent at the time of his death which after his death is subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution as part of his estate; * * * Unless the Missouri real estate owned by the decedent at the time of his death comes within the above quoted statutory provision, it *820should not be included in the gross estate of the decedent. The first question to be determined is whether the statute means that all of the conditions are required to be met, or whether any one or more of the stated conditions need not be met. In other words, whether the word “ and ” which connects the separate phrases is to be considered as meaning “ or ” in one or more places. It is fully recognized that these words may sometimes be used interchangeably. The courts have no hesitation in holding that “ and ” really means “ or ” or vice versa when such meaning is required in order to give the statutory provision involved the meaning clearly intended. But the general rule is that “and” really means “and”; that is, the phrases connected therewith are in the conjunctive unless the clear or manifest purpose of the statute will be ignored unless it be considered as meaning “ or.” The general rule is that Congress intended to use the exact language which it used and when that language is clear and unambiguous, resort can not be had to rules which are applicable to the construction of doubtful or ambiguous statutes. The language used must be given its ordinary meaning. Aside from the statutory rules of construction, the United States Supreme Court in the case of United States v. Field, 255 U. S. 257, has considered and construed the language in the Eevenue Act of 1916, which, in so far as it is pertinent, is identical with the language used in this statute. The Field case, supra, was an appeal from a judgment of the Court of Claims sustaining a claim for refund of an estate tax exacted under Title II of the Eevenue Act of 1916, as amended. It presented the question whether the Act taxed a certain interest that passed under testamentary execution of a general power of appointment created prior but executed subsequent to its passage. The Government sought, inter alia, to sustain the tax under section 202 (a) of the 1916 Act, which contains the same provisions as section 402 (a) of the 1921 Act. After referring to the accepted .rule that the provisions of law imposing taxes are not to be extended by implication, the court, in its opinion, said: The conditions expressed in clause (a) are to the effect that the taxable estate must be (1) an interest of the decedent at the time of his death, (2) which after his death is subject to the payment of the charges against his estate and the expenses of its administration, and (3) is subject to distribution as part of his estate. These conditions are expressed conjunctively; and it would be inadmissible, in construing a taxing act, to read them as if prescribed disjunctively. Hence, unless the appointed interest fulfilled all three conditions, it was not taxable under this clause. The court found that the property in question did not fulfill one of the conditions prescribed by the statute, namely, that it was not *821subject to distribution as a part of the decedent’s estate, and held that it was therefore not ‘taxable under clause (a) of section 202 of the 1916 Act. It is true that the Supreme Court joined the two expressions “ which after his death are subject to the payment of charges against the estate ” and “ the expenses of administration ” and treated the two clauses as being a single condition which was to be met. It clearly does not follow that the court intended by this grouping of the two clauses to infer that the “ and ” which joined them was to be given the meaning of “ or ” and that the “ and ” which connected the other conditions was not to be so understood. To so hold would amount to imputing to the Supreme Court an inconsistency which its language does not warrant. Certainly the court did not hold that any of the clauses or phrases set out as conditions or limitations cn the taxation of property of estates of decedents were in the subjective or alternative. We are not left to the assumption that the court did not intend to depart from the principles of statutory construction applicable to revenue laws long established and many times affirmed by it, because the court referred to and reaffirmed those principles in the Field case. Considering the two clauses joined together by the court as condition number two as one condition, it clearly contains two requirements. The clauses so joined together are connected by “ and ” and not “ or.” The court did not hold that they were in the alternative. To so hold would extend the statute by implication to subject to tax property clearly not expressly subject thereto. The two conditions are required to be met in condition two as classified by the court. Either one standing alone manifestly does not meet it. In other words, as interpreted by the court, there are three conditions to be met before property can be subjected to the estate tax, but one of those is a compound condition or a condition made up of two provisions, both of which must be met. To my mind this is a fair and reasonable interpretation of the Field case and this view would be consistent with the principles set out by the court in its previous’ decisions relating to the principles, of construction of revenue laws, which were referred to in that case, the court saying: “Applying the accepted canon that the provisions of such acts [revenue acts] are not to be extended by implication [citing authority] we are constrained to the view [expressed].” In interpreting the language of the statute we must keep in mind that it is a revenue law that we are construing and that by interpreting the word “ and ” as meaning “ or ” or construing the provisions in the alternative has the effect of taxing property when the precise language used does not. One of the rules long recognized is that, *822in statutes levying taxes, the literal meaning of words employed is most important, for such statutes are not to be extended by implication- beyond the clear import of the language used. If the words are doubtful the doubt must be resolved in favor of the taxpayer. Gould v. Gould, 245 U. S. 151; United States v. Merriam, 263 U. S. 179. Certainly, if we look to the literal meaning of the words used, the conditions under which property is to be subjected to the estate tax are in the conjunctive and each condition must be met. The purpose of the statute is perfectly clear when the words are given their literal meaning. On the other hand, to give the word “ and ” the meaning of “ or ” here would have the effect of extending the statute by implication to include as property subject to tax what is not included by the express or literal language used. It is not necessary here to construe one word to mean something wholly different in order to give effect to the statutory provision, conceding that under proper circumstances such might be done. It is not so manifest here that Congress has not expressed its meaning as to make applicable such rule of construction. In any event, it is only in cases when “ and ” manifestly and clearly is intended to mean “ or,” in order to give effect to the spirit and purpose of a statute, that such a construction is ever resorted to. But in a taxing statute such a rule should be even more sparingly and cautiously applied, especially when by so doing the taxing act is extended by such construction. In this connection it is to be observed that while the United States District Court for the Western District of Missouri, in Harrelson v. Crooks, 28 Fed. (2d) 510, and the United States Court of Claims, in the case of Steedman v. United States, 63 Ct. Cls. 226, reached different conclusions as to the question of whether real estate in Missouri was subject to the estate tax, both accepted the proposition that the provisions of the taxing statute here involved set out con-junctively the conditions under which property was to be taxed, and that all of the conditions are required to be met. The Treasury Department does not appear to have contended otherwise in the Field case, supra, in either of the abovq cited cases, or in this case. Both parties to the controversy in this case have relied principally upon the interpretation of the Missouri law as determining the controversy involved, except that the Commissioner contended that the expression “subject” to the payment of administration expenses did not mean “ liable ” therefor. On the other hand, the Commissioner, in his regulations under the Revenue Act of 1921, interpreted the provisions of the statute as being in the alternative and that all of the conditions were required to be met. Article 10 .of Regulations 68, in so far as it is material, is as follows: *823Tile test which determines whether the value of a given interest is to be so included (in gross estate) pursuant to the foregoing provision of the statute is that stated therein which requires that the property, after death shall be subject to (1) payment of charges against the estate; (2) payment of administration expenses; and (3) distribution as a part of the estate. This article was carried forward into the 1924 regulations and the regulations under the 1926 Act draw a clear distinction as to the difference in the language of the Acts, the 1926 Act omitting the conditions. The Bevenue Act of 1924 was passed in the light of the Department’s uniform interpretation of the previous Act, and the 1926 Act specifically made a change therein. All of the foregoing considerations lead very strongly to the conclusion that the prevailing opinion is incorrect, that it is not supported by authority, or the statutory rules of construction. But the ]ioint is made that the provision relating to charges against the estate was broad enough to include “ expenses of administration.” This would, of course, amount to saying that Congress used the phrase “ and expenses of administration ” without any meaning or effect whatever. This conclusion I can not draw. Such a construction violates long established rules of statutory construction. On the other hand, it seems to me to be clear that the two expressions “ charges against his estate ” and “ expenses of administration” are not one and the same thing. In section 403 we find provision made for deductions from the value of the gross estate to determine the net estate. It provides for deductions of “such amounts for funeral, administration expenses, claims against the estate,” etc. Administration expenses are again recognized as a separate item which is deductible. It is well established in law that “ charges against the estate ” and “ administration expenses ” are entirely separate and different things, and Congress in this statute clearly recognized such difference and treated administration expenses as a separate item. “ Administaration expenses ” are those expenses incurred in settling the estate, collecting or preserving the assets, or in connection with the duties of the administrator, while charges against the estate are the debts of the decedent or charges which, while not technically debts created by the decedent, are by statute made charges against the estate, such as funeral expenses. The question as to whether “ administration expenses ” are to be included in “ charges against the estate ” seems to me, however, to be of no more than academic interest. Considering that they are to be so included, the effect then would be, if we reach the conclusion that real estate in Missouri is not subject to the payment of administration expenses, that real estate in that State would not be subject to the payment of all the “charges against the estate.” The effect would be that real estate would be subject to only a part of the *824charges against the estate. It seems to me to be immaterial whether we say that real estate is not subject to the payment of “administration expenses ” or not subject to the charges against the estate, and that nothing is gained by classifying the expenses of administration under the head of “ charges against the estate ” if under any rule of statutory construction such an interpretation could be adopted, or such a conclusion reached. In my opinion, if the real estate involved here fails to meet any one of the conditions specified in the statute, it must be excluded from the gross estate in determining the net estate subject to tax. And whether Missouri real estate fulfills those conditions must be ascertained from an examination of the laws of the State of Missouri. Clarke v. Clarke, 178 U. S. 186; United States v. Field, supra; Lederer v. Pierce (3 C. C. A.), 266 Fed. 497; Wardell v. Blum (9 C. C. A.), 276 Fed. 226. It is conceded by the parties that the real estate, situated in Missouri and owned by the decedent at the time of his death, was, under the laws of Missouri, (1) subject to the payment of the charges against his estate, and (2) was also subject to distribution as a part of his estate. Thus, the property meets two of the three conditions prescribed in section 402 (a) of the Revenue Act of 1921, and the issue narrows to the question whether it was subject to the payment of the expenses of administration. The Revised Statutes of Missouri, in effect in 1921, provided for the sale of lands to pay debts and legacies as follows: Sec. 141. Sale of Lands to Pay Debts. — If any person die and his personal estate shall be insufficient to pay his debts and legacies, his executor or administrator shall present a petition to the proper court stating the facts; and praying for the sale of the real estate, or so much thereof as will pay the debts and legacies of such deceased person. I have not been able to find any provision of the Missouri statutes specifically authorizing the sale of land to pay administration expenses of an estate. However, the question whether land in Missouri may lawfully be sold for such purpose has been before the courts of that State a number of times. In Farrar v. Dean, 24 Mo. 16, the Supreme Court of Missouri held that a sale of real estate belonging to an intestate’s estate, for the purpose merely of paying the costs of administration, no debts appearing ever to have been due from the intestate, was invalid, though approved by the probate court. This was the first case to come before the Supreme Court of Missouri where real estate had been sold for the costs of administration and there were no debts outstanding against the estate, and the administration was taken out for the purpose of reaching and selling *825such real estate. The case was decided, by the Supreme Court at its October term, 1856. In the course of its opinion, the court said: The administrator has no power over the real estate, except so far as to hold it for the payment of the debts of the deceased; and where there are no debts, the land descends to the heirs, or escheats to the state; and it is not in the power of the administrator to hinder this legally; nor can the Probate Court direct or order a sale of real estate for costs accrued after the administration begins, and only because it did begin. Such costs are not debts due by the deceased, nor debts at the time of the death of the intestate. * * * After quoting from the Revised Codes of Missouri of 1825, 1835, and 1845, the court continued: Now no person can read these provisions of our administration law without being satisfied with the object of our legislation upon this subject. It was to prevent persons from placing their real estate out of the reach of creditors by will, and to save it also for the heirs when not necessary for the creditors. It might be sold under certain proceedings when necessary to pay the debts of the deceased- — when a person shall die and not leave personal estate sufficient to pay his debts. It is, beyond doubt, that the debts, to be paid by a sale of the real estate of a deceased person, were debts and liabilities of that person only— debts due and to become due by him. No one ever imagined that the legislature designed to place the power in the hands of the administrator to create the debt, and then to sell the real estate of the decedent to pay for' it When there are no debts, there is no law to sell the real estate. The administrator cannot procure, in such a case, an order for its sale without a violation of law. The doctrine announced by the Supreme Court of Missouri in Farrar v. Dean, supra, has, been reaffirmed and consistently followed in subsequent decisions. See Presbyterian Church v. McElhinney, 61 Mo. 540; Teverbaugh v. Hawkins, 82 Mo. 180; Howell v. Jump, 140 Mo. 441; 41 S. W. 976; Garnett v. Carson, 11 Mo. App. 290, and cases cited. It seems to be established beyond controversy that, under the decisions of the highest courts of the State of Missouri, land in that State can not lawfully be sold to pay administration expenses. It appears also to be well established by the decisions of the same courts that when land in Missouri -is sold to pay debts, as may be done under the statute when the personal estate is insufficient for that purpose, no part of the proceeds from the s^le of the realty may lawfully be used for any other purpose, and specifically may not be used for the payment of administration expenses. In Ritchey v. Withers, 72 Mo. 556, the Supreme Court of Missouri said: The county court bad no power to order tbe sale of real estate except for the payment of debts, and when it was sold for that purpose, the proceeds arising from the sale could not be diverted from it and applied to another and different purpose. The county court could not have ordered a sale of the land for the purpose of paying the administrators for expenses incurred in making improvements thereon, nor for the purpose of raising money to appropriate *826to the widow for her support for twelve months, and it was equally powerless to appropriate to either of said purposes any part of the proceeds derived from a sale of land made to raise money to pay debts. Presbyterian Church v. McElhinney, 61 Mo. 540; Chambers v. Wright, 40 Mo. 482. In the case of In re Motier's Estate, 7 Mo. App. 514, the St. Louis Court of Appeals said: The land belongs to the heirs. It can not be. touched for any of the purposes of the administration, except in the specific mode and for the specific objects elsewhere indicated by the statute (payment of debts and legacies). When real estate is converted into money, whatever surplus remains after a proper application of-the objects of the conversion still represents the realty for the benefit of the heirs, and cannot be merged in the personalty for purposes which pertain only to that classification. Again, the St. Louis Court of Appeals, in Elstroth v. Young, 94 Mo. App. 351, said: The proceeds of the sale of lands made by an order of the probate court in pursuance of the provisions of chapter I, article 8, Revised Statutes 1899, can not be used for the purpose of making good deficiencies in the expenses of administration Ritchey v. Withers, 72 Mo. 556. This same court, in the case of State, etc. v. Doud, 269 S. W. 923, decided March 3, 1925, said: It is well settled law that, when a person dies the owner of real estate, the title to such real estate passes to and vests in the heir or devisee eo instante, subject to the right of the administrator or executor to sell the same for the payment of the debts of the decedent. If the real estate is sold by order of the probate court for the payment of the debts of the decedent, any surplus of the proceeds of the sale remaining after payment of the debts goes to the heir or devisee, and if the heir or devisee has conveyed the real estate the surplus belongs to her grantee. In other words, when real estate is converted into money for the payment of the debts of the decedent, the surplus of the proceeds of the sale remaining, after payment of the debts, retains the character of real estate for the purpose of succession or distribution, and goes to the person in whom the title to the real estate was vested when it was converted. The precise question here involved has twice been the subject of decisions by Federal courts. In Harrelson v. Crooks, 28 Fed. (2d) 510, the United States District Court for the Western District of Missouri, Northern Division, on September 13, 1928, held that, since Missouri real estate was not subjected the expenses of administration under the decisions of the Missouri courts, such property was not taxable under section 402 (a) of the Revenue Act of 1918 (which contains the same provisions as the corresponding section of the Revenue Act of 1921). In Steedman v. United States, 63 Ct. Cls. 226, decided February 28, 1927, the Court of Claims held that the value of the gross estate of a decedent in the State of Missouri, subject to the provisions of section 402 (a) of the Revenue Act of 1921, includes the real estate *827owned by such decedent at the time of his death. The opinion of the court in this case has been carefully considered, and I find myself unable to concur in the conclusions reached. In the Steedman case, supra, the court concludes that: Section 402, supra, does not use tlie word “liable”; it uses the words “ subject to”. “Subject to” does not necessarily mean “liable for”. It may be said that where land is liable for sale for the payment of debts, it is subject to the payment of debts, but the converse is not necessarily true. Real estate may be under certain conditions “subject to” the payment of expenses of administration and yet not liable to sale therefor; that is, it may be under the contingency of or exposed to payment of administrative expenses and thus “subject to” the payment. Real estate may be sold under the Missouri statute for the payment of debts, and, having been sold, because the personal estate was not sufficient to pay the debts and the administration expenses, the latter could be paid, under the decision of the court of Missouri, out of the fund realized from the sale. ífoireZI v. Jump, 140 Mo. 441. If the proceeds from the sale of real estate for payment of debts may be used under certain contingencies for the payment of administration expenses, it is in such a case “subject to” the payment of the expenses of administration. I have examined the decision of the Supreme Court of Missouri in Howell v. Jump, cited by the Court of Claims, supra. In my opinion, however, the court in that case did not hold that funds derived from land sold to pay debts could lawfully be used to pay administration expenses. On the contrary, as I read the opinion, the court specifically adhered to the doctrine announced in its former decisions that in Missouri a sale of land by an administrator could only be made for the purpose of paying debts of the decedent, and further that if land was sold for the purpose of paying debts, the use of the proceeds to pay costs of administration would be an improper application thereof. In the case of Howell v. Jump, supra, the plaintiff purchased, at an administrator’s sale, a certain tract of land situated in Missouri, and later, on learning that he had thereby acquired only an equitable title, he brought a suit in equity against the heirs of the decedent io quiet his title in the land. It appears that the land in question was sold by the administrator for the particular purpose of paying unsatisfied debts of the decedent. The land was sold for $26.50, and a subsequent settlement disclosed that the amount realized on the sale was only sufficient to pay the costs of administration and sale. The question before the court was whether the purchaser acquired a valid title. In its opinion, the court said: The fact that the land only sold at the administrator’s sale for enough to pay the costs of administration, does not defeat this sale. It is true, a sale of land by an administrator can only be made for the payment of the debts of *828the deceased. A sale made merely for the purpose of paying the costs of administration has been held to be invalid. Farrar v. Demi, 24 Mo. 16. But in this sale there were debts remaining unpaid, and the sale was made for the purpose of paying them. The court therefore had jurisdiction to order the sale, and the purchaser was not bound to bid an amount which would pay the debts, or to see that the money paid loas properly applied. (Italics supplied.) In other words, the fact that the proceeds of the sale of the land may have been improperly applied to the payment of administration expenses did not invalidate the sale made for a purpose authorized by statute, that is, to pay debts. It seems to me that the court clearly did not go any farther than that. In his brief, the respondent lays emphasis on the distinction between the words “subject to” and “liable for.” He says: “The adjective ‘subject’ means ‘being under the contingency of; dependent upon or exposed to (some contingent action)’”; and in referring to that part of the opinion of the court in the Steedmam, case, above quoted, further says: Tbe Court pointed out tbe distinction between the word “ liable ” and the words “ subject to ” and held that since real estate may be sold under the Missouri statute for the payment of debts the proceeds under certain contingencies may also be used for the payment of administration expenses and that real estate is therefore “ subject to ” the payment of such expenses although not “ liable ” to sale therefor. But if Missouri real estate, under the decisions of the courts of that state, can not be sold by an administrator to pay expenses of administration, and if when sold to pay debts, no part of the proceeds can lawfully be used to pay expenses of administration, how then can it be said that such real estate is in any sense either “ liable for ” or “subject to ” the payment of administration expenses? The only decision of the Missouri courts relied on in the majority opinion as authority that administration expenses or any part thereof might be paid out of proceeds from the sale of real estate is the case of Elstroth v. Young. The Elstroth case was before the appellate court three times. On the last appeal, the judgment of the circuit court was affirmed. This case involved the disposition of a portion of the proceeds from the sale of 120 acres of land, which constituted the homestead of the deceased and upon which he resided at the time of his death. The land was encumbered by a deed of trust for $2,800, and was sold by the trustee to satisfy the debt secured thereby. The land brought, over and above the secured debt, the amount of $1,767.36, which surplus was paid over to the public administrator, who was in charge of the estate of the decedent, and who was also guardian of the decedent’s minor children. The creditors of the estate sought to have this fund distributed to them as an asset of the estate, whereas the admin*829istrator contended that it belonged to the heirs, representing their homestead interest in the land. The court finally determined that $816.16 rightfully belonged to the heirs, and that the balance should be distributed among the creditors, after deducting certain items of cost, including taxes, probate fees, fee of the administrator ad litem, cost of advertising the land for sale, printing briefs, 5 per cent commission of the administrator, and costs of the proceedings in the circuit court and probate court. The court in its opinion said: The contention is over the taxation of the costs which accrued in the proceedings of the creditors (appellants) against Young, administrator * * *. There was no dispute as to the amount of the fund in Young’s hands, nor the source from which it was derived. ' The contention was as to which it belonged— the estate or the minor heirs. The creditors, in claiming the whole of the fund, denied the right of the heirs to any portion of it,- — denied their homestead right. The contest was therefore in respect to the existence of this right, and the losing party in this contest, as in any other, should be taxed with the costs of the proceedings. Thus, the court taxed the 5 per cent commission of the public administrator as a part of the costs of the proceedings in the same manner as the fees of other officers of the court, which costs it required the losing litigants, namely, the creditors, to pay out of the amount of their judgment obtained in a prior suit. The effect of the court’s judgment was to direct the payment to the creditors of the decedent of the entire amount of the proceeds derived from the sale of the real estate after the payment of the secured claim and after setting apart the heirs’ homestead interest, and then to require the creditors to pay the costs of the proceedings, including the public administrator’s fee of 5 per cent. In other words, the administrator’s commissions were paid by the creditors. Hence, it can not be said that any part of the proceeds from the sale of the decedent’s real estate was in fact used to pay the expenses of administration. Such amount did not reduce the amount that the heirs were entitled to receive. The effect would have been the same if the creditors had paid the costs including the administrator’s commissioners out of their own funds. A portion of the fund from the sale of realty was paid to creditors but they were required to pay the administration expenses involved. It follows that the decision in this case does not in any respect modify the former decisions of the Missouri courts to the effect that proceeds from the sale of land in that State can not lawfully be used to pay administration, expenses, and plainly the court of appeals did not intend that its opinion should be otherwise construed on this point, for in its opinion it said: The proceeds of the sale of lands, made by an order of the probate court * ⅜ * can not be used for the purpose of making good deficiencies in the expenses of administration. Ritchey v. Withers, 72 Mo, 656. *830The Revenue Acts of 1916, as amended, 1918, 1921, and 1924, provide that for estate-tax purposes, the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, wherever situated “(a) to the extent of the interest therein of the decedent at the time of his death which after his death is subject to the 'payment of the changes against his estate and the expenses of its administration and is subject to distribution as part of his estate.’’’1 (Italics supplied.) The Revenue Act of 1926 provides that the gross estate of the decedent shall be determined by including the value at the time of his death.of all property, wherever situated, “(a) to the extent of the interest therein of the decedent at the time of his death.” The Ways and Means Committee of the House, in its report on the 1926 Revenue Bill, said: Under existing law the gross estate is determined by including the interest of the decedent at the time of his death in all classes of property which after his death is subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution as part of his estate. In the interest of certainty it is recommended that the limiting language above referred to shall be eliminated in the proposed bill, so that the gross estate shall include the entire interest of the decedent at the time of his death in all the property. It is clear, I think, that the Revenue Act of 1921 imposes the estate tax upon the transfer of the net estate only to the extent indicated in section 402 (a) and the change in the Revenue Act of 1926, eliminating the three conditions contained in the prior acts, expressed a new intention of Congress to tax all property, wherever situated, to the extent of the interest therein of the decedent at the time of his death. This change can not be regarded as an elucidation of the provisions of the prior acts, but is an addition to them, and constitutes the declaration of a new purpose, not the explanation of an old one. Shwab v. Doyle, 258 U. S. 529. See also United States v. Field, supra. A careful consideration of the decisions of the courts of Missouri hereinabove referred to leads me to the conclusion, (1) that lands situated in that State can not lawfully be sold by an administrator to pay expenses of administration, and (2) that proceeds from land sold to pay debts can not lawfully be used to pay expenses of administration. It is my opinion, therefore, that the real estate situated in Missouri owned by the decedent at the time of his death was not “ subject to the payment of * * * the expenses of * * * administration,” and the value thereof may not be included in the gross estate of the decedent in determining the net estate subject to tax, Maequette and SiefkiN agree with this dissent.

2020-11-20 19:24:06.226545+00

Estate of Guy B. Panero, Deceased, Anna McCormick Panero and Guy Arthur Panero, Executors, and Anna McCormick Panero, Surviving Spouse, Petitioners v. Commissioner of Internal Revenue, Respondent Panero v. Commissioner Docket No. 1442-65 United States Tax Court May 9, 1967, Filed *109 Decision will be entered for the respondent. A limited partnership of professional engineers, having one general partner, continued to operate after his death. His estate contends that such continuing operations were unlawful under New York law and that therefore the partnership terminated and its year closed with his death so that his estate could claim a net operating loss for decedent's last (short) taxable year under sec. 706(a), I.R.C. 1954. Held, petitioners' position is not well taken because: 1. The limited partners who continued the conduct of partnership's affairs were licensed professional engineers and consequently their acts were lawful under New York law; 2. Their acts were approved or at least condoned by decedent's legal representatives so that a de facto appointment under partnership's articles was made and termination prevented; and 3. Partnership's affairs could have been wound up by laymen after decedent's death in a lawful manner. Both Federal and New York law negative termination of a partnership until the winding up of its affairs is completed and this did not occur until long after decedent's death. Joseph Lapatin, for the petitioners. Agatha Vorsanger and Robert D. Whoriskey, for the respondent. Forrester, Judge. FORRESTER *148 By his statutory deficiency notice the Commissioner determined a deficiency for the taxable year ended December 31, 1958, in the amount of $ 29,738.44. This asserted deficiency resulted from the disallowance of a claimed carryback loss from the period commencing January 1, 1961, and ending May 14, 1961, as to Guy B. Panero, deceased, and ending December 31, 1961, as to Anna McCormick Panero. 1 *112 The only issue before us is whether a partnership, of which Guy B. Panero was a member, had a taxable year which ended or closed with or within the last taxable year of Guy B. Panero, deceased, so that his share of the partnership loss might be claimed on petitioners' 1961 income tax return described above, thus creating a net operating loss carryback to 1958. FINDINGS OF FACT This case is fully stipulated and such facts are so found. Those facts necessary to an understanding of the question which is presented are included herein. Guy B. Panero, hereinafter called Guy, and Anna McCormick Panero, resided in New York City at all relevant times. Their joint income tax returns described above were filed at the office of the district director, New York City, N.Y. Anna McCormick Panero is a party only because of the joint filing, and the Estate of Guy B. Panero, deceased, will be referred to as petitioner. Guy was the only general partner of the limited partnership, Guy B. Panero Engineers, which was organized under the laws of the State of New York on February 10, 1955, for the purpose of engaging in the practice of professional engineering. Relevant portions of the articles of such*113 limited partnership are as follows: Whereas, GUY B. PANERO is a licensed professional engineer and has been such since 1924, and is one of the leading experts in the field of mechanical engineering, and * * * * Whereas, ALBERT M. LAUKAITIS, FRITZ KINDLER and ARTHUR W. B. REINHARD are licensed professional engineers and have for many years been employees of GUY B. PANERO and have competently performed their duties as such, and * * * * Whereas, GUY B. PANERO is desirous of providing for the uninterrupted succession to his interest in [this] partnership by his sons, GUY ARTHUR PANERO and ROBERT PANERO, * * * * * * * Now, Therefore, * * * the said parties do hereby mutually covenant and agree, each with the other, as follows: *149 First: The parties agree to form and do hereby form a limited partnership pursuant to the provisions of Article 8 of the Partnership Law for the purpose of conducting the business and engaging in the practice of professional engineering in the City of New York. Second: The said GUY B. PANERO shall be the general partner and the said ALBERT M. LAUKAITIS, FRITZ KINDLER and ARTHUR W. B. REINHARD shall be the limited partners in the partnership. * * * * Fourth: *114 The partnership shall commence as of the 1st day of January, in the year one thousand nine hundred and fifty-five and shall continue until the 31st day of December, in the year one thousand nine hundred and sixty-one. * * * * Tenth: Upon the termination or dissolution of the partnership, a full account of the assets and liabilities of the partnership shall be taken, the assets shall be liquidated and the proceeds applied as follows: A. To the payment of the debts and liabilities of the limited partnership and the expenses of liquidation. * * * * Fifteenth: In the event of the death of GUY B. PANERO during the time fixed for the continuance of the partnership, the said partnership shall not thereby be dissolved, but, on the contrary, the partnership shall be continued as follows: A. GUY B. PANERO's interest in the partnership shall be held in trust by a licensed professional engineer theretofore designated by him in writing duly subscribed and acknowledged by him, whether in his will or otherwise, or designated by said Trustee or other legal representative of his estate, and said licensed professional engineer shall hold said interest in trust for the estate and shall succeed to the*115 interest of GUY B. PANERO in said partnership without interruption as if said GUY B. PANERO had survived and shall in all manner and respect be deemed the general partner hereunder and the limited partners do hereby accept said Trustee or designee as general partner in this limited partnership * * * D. * * * (3) As soon as either one of the said sons of GUY B. PANERO shall become a general partner, as aforesaid, the person acting as Trustee and any designee, if one had been named, shall be discharged and the said son, having become a general partner, shall also act in said Trustee's or designee's place with the same rights and obligations of the trust herein set forth. * * * * Eighteenth: In the event that this partnership is not extended upon the termination of the time fixed for the continuance of said partnership or in the event of a dissolution of said partnership hereunder, a notice of dissolution, as required by statute in such case made and provided, shall be filed and published. Twentieth: The limited partners in the partnership hereby warrant and represent that each of them is a professional engineer licensed to practice professional engineering under the laws of the State*116 of New York * * * * * * * In Witness Whereof, the parties have hereunto set their hands and seals the day and year first above written. In the presence of: (S) Guy B. Panero [unreadable](S) Albert M. Laukaitis (S) Fritz Kindler (S) Arthur W. B. Reinhard *150 Guy B. Panero Engineers filed its partnership returns on a calendar year basis. Guy died on May 14, 1961. The 1961 joint income tax return which covered Anna McCormick Panero's calendar year 1961 and Guy's short year ending on May 14, 1961, reflected a loss of $ 61,454.68 as Guy's distributive share of the loss of Guy B. Panero Engineers, and petitioners timely filed an application for tentative carryback adjustment to the year 1958. Refund pursuant to said application was paid and thereafter, on examination, such carryback loss was disallowed. On January 1, 1962, Guy B. Panero Engineers entered into an agreement with Guy B. Panero, Inc., a New York corporation. Such agreement is reproduced in its entirety in the footnote. 2 *117 *151 The parties have stipulated that if the partnership terminated on May 14, 1961, or if the partnership's taxable year closed on such date, the net operating loss carryback should be allowed to petitioners; *152 but if neither the partnership terminated nor its taxable year closed on May 14, 1961, that the petitioners' tax liability as determined in the notice of deficiency is correct. OPINION The respondent's position in disallowing the claimed carryback loss is that the partnership year did not terminate until after May 14, 1961, and therefore did not terminate with or within Guy's taxable year. The petitioners' position is that on Guy's death the limited partnership ceased to have a licensed professional engineer as a general partner and could therefore no longer operate as a partnership under New York law, and that such fact caused the partnership to terminate and its taxable year to close on May 14, 1961. Sections 701 and 702, I.R.C. 1954, 3 provide 4 that persons carrying on business as partners, rather than the partnership as such, are liable for the income tax in their individual capacities according to their respective distributive shares (both as to gains *118 and as to losses) and section 706(a) provides that such distributive shares shall be included (income or loss) for any taxable year of the partnership ending within or with the taxable year of the partner. Section 706(c) provides 4 that except in the case of a termination of a partnership its taxable year shall not close as the result of the death of a partner; and section 708 provides that an existing partnership shall be considered as continuing if it is not terminated and that it shall be considered as terminated only if "no part of any business, financial operation, or venture of the partnership continues to be carried on by any of its partners in a partnership." Section 1.706-1(c)(1), Income Tax Regs., provides 4 that the closing*119 of a partnership taxable year or a termination of a partnership for Federal income tax purposes is not necessarily governed by the "dissolution," "liquidation," etc., of a partnership under State or local law and section 1.706-1(c)(3)(i), Income Tax Regs., provides that the death of a partner shall not close the partnership year but that *153 its taxable year shall continue both for the remaining partners and the decedent partner. Petitioners' position is narrow. Petitioner specifically and affirmatively agrees that dissolution because of death does not close the partnership's taxable year for Federal income tax purposes but argues that it was the general rule under the 1939 Code as enunciated in Guaranty Trust Co. v. Commissioner, 303 U.S. 493">303 U.S. 493, that the dissolution of a partnership did close its taxable year and that section 706 (c)(1), supra, changed this rule only as respects the four specifications therein, to-wit: (1) The death of a partner, (2) *120 the entry of a new partner, (3) the liquidation of a partner's interest in the partnership, and (4) the sale or exchange of a partner's interest in the partnership. Petitioner argues therefore, that although Guy B. Panero Engineers was not terminated or dissolved by Guy's death as such, that it was terminated and dissolved under section 62-3 of the New York Partnership Law which provides -- Dissolution is caused: * * * * 3. By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership; and that Guy's death left the partnership without a licensed engineer to act for it so that any subsequent partnership act was unlawful under the New York Education Law which prohibits all but duly licensed professional engineers from practicing or offering to practice professional engineering in that State. We find petitioners' argument interesting but without substance. The New York Education Law has nothing to do with partnerships. By its very terms, it seeks only to safeguard the life, health, and property of New York citizens by prohibiting the practice of professional engineering or land surveying by laymen. The *121 three limited partners of Guy B. Panero Engineers, who obviously carried on the partnership business in a large way (judging from the many "jobs in process" which were transferred to Guy B. Panero, Inc., on Jan. 1, 1962) were all "professional [engineers] licensed to practice professional engineering under the laws of the State of New York." Under section 96 of the New York Partnership Law the protection of a limited partner is that he "shall not become liable as a general partner unless, * * * he takes part in the control of the business." The meaning of this section is interpreted for us in Executive Hotel Associates v. Elm Hotel Corp., 41 Misc. 2d 354">41 Misc. 2d 354, 245 N.Y.S.2d 929">245 N.Y.S.2d 929, 932-933 (N.Y.C. Civ. Ct. 1964): Glatstian now challenges the right of the limited partnership to bring on this summary proceeding for non-payment of rent, initially claiming that the Committee *154 Chairman is not a proper party to sign a petition on behalf of the partnership. The development of statutory law pertaining to limited partnerships began in this country in 1822 with the passage of Chap. 244 of Laws of New York. Our legislature was the first to recognize*122 the use by the business and commercial world of this form of organization and thereafter many of our sister states patterned their acts after ours. (Partners and Limited Partners under the Uniform Acts. 36 Harvard Law Rev. 1016.) The true character of the role of the limited partner was plainly set out in an early case: "The limited partner is a partner as much as a general partner and there is nothing to prevent him even during the continuance of the partnership from taking an active part in its concerns, if he chooses to bring on himself, the statutory consequences of a liability as a general partner. The statute is for his protection if he will conform to it; it is not any part of its policy to prevent him from acting as a general partner if he is willing to assume the liabilities that follow; and if he is willing his partners have no ground of complaint nor the creditors of the firm, if he leave their rights unimpaired." Hogg v. Ellis, 8 How. Prac. 473, 474. This same principle still remains in our present statute as set out in Sec. 96 of the Partnership Law. "A limited partner shall not become liable as a general partner*123 unless, in addition to the exercise of his rights and powers as a limited partner, he takes part in the control of the business." (See also Continental National Bank v. Strauss, 137 N.Y. 148">137 N.Y. 148, 32 N.E. 1066">32 N.E. 1066.) In the face of the sudden flood of real estate syndications to the extent where the legislature found it necessary to pass regulating statutes, are the Courts to remain sterile and unavailing to provide relief in the face of manifest wrong? The law should and does possess the power of growth, and when required by circumstances challenging its forms, must tailor its procedures to meet developments in the business world outside. [1] But here we find support for the action of the Committee Chairman. If he chose to act as a general partner, and does so, he must accept the consequences. Having done so, the Court will not turn aside his effort and give countenance to blatant wrongdoing. The burdens of his choice are for him to bear. [Emphasis added.] See also Riviera Congress Associates v. Yassky, 268 N.Y.S.2d 854">268 N.Y.S.2d 854; Canandaigua First Nat. Bank v. Whitney, 4 Lans. 34">4 Lans. 34, affd. *124 53 N.Y. 627">53 N.Y. 627; and Madison County Bank v. Gould, 5 Hill 309">5 Hill 309. In carrying on the business of Guy B. Panero Engineers after Guy's death the limited partners were not doing anything unlawful or illegal or against the peace and dignity of the State of New York. The engineering jobs which they were continuing were being continued by professional engineers licensed under the laws of the State of New York. They had probably surrendered whatever protections had been afforded them under New York's limited partnership's act (N.Y. Partnership Law, art. 8) and had become liable as general partners, but this is beside the point; nothing unlawful had been done. Therefore, even if we were to assume that petitioners were correct in their analysis of section 706(c) to the effect that the 1939 *155 Code general rule as to termination remained unchanged except as to the four specifications of the 1954 Code (which assumption we do not make), it still follows that petitioners' ingenious argument must fail. Also, we observe that after Guy's death his personal representatives must have at least tacitly agreed to the carrying on and continuing*125 of the partnership's business and affairs. The record is silent as to any protest having been made and the contract entered into with Guy B. Panero, Inc., on January 1, 1962, indicates conclusively that the business and affairs of the partnership had been carried on in large volume. The parties have stipulated that no trustee or general partner was appointed to act for the partnership after Guy B. Panero's death but the above considerations lead us to the inevitable conclusion that Guy's personal representatives had, by their actions and lack of actions, made such a designation and appointment under paragraph Fifteenth A, of the articles of limited partnership under the phrase, "or designated by said Trustee or other legal representative of his estate." We therefore interpret the parties' stipulation as meaning that no trustee or general partner had been appointed by Guy or appointed formally. It follows that the provision of paragraph Fifteenth that "said partnership shall not thereby [by Guy's death] be dissolved, but, on the contrary, the partnership shall be continued" was operative, and this is another reason why Guy B. Panero Engineers did not terminate with Guy's death. There*126 is yet another reason why Guy B. Panero Engineers did not terminate with Guy's death. Federal and New York law both provide that on dissolution a partnership is not terminated but continues until the winding up of its affairs is completed. Sec. 1.708-1(b)(1)(iii)(a), Income Tax Regs., and N.Y. Partnership Law sec. 61. It is quite obvious that the affairs of Guy B. Panero Engineers were far from wound up on January 1, 1962. This further reason for holding that the partnership did not terminate nor its year close with Guy's death is not a departure from petitioner's narrow reasoning based upon unlawfulness or illegality for, obviously, a winding up of the partnership's affairs could have been conducted and concluded without any practice or offer to practice professional engineering. A winding up, by definition of terms, is the antithesis of a carrying on or a continuing. It does not require the services of a professional, licensed engineer to sell tangibles or intangibles or to distribute them in kind, having first satisfied obligations of creditors and complied with other requirements of the New York law. The evidence shows that this had not been done by January 1, 1962, and*127 indeed indicates that no steps had been taken down that road. *156 Therefore, in accordance with the parties' stipulation, and having decided that the partnership did not terminate nor was its taxable year closed on May 14, 1961, Decision will be entered for the respondent. Footnotes

2020-12-02 21:09:59.289239+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07179.htm

Jane H. Concannon Revocable Trust v Building Dept. of the Town of E. Hampton (2020 NY Slip Op 07179) Jane H. Concannon Revocable Trust v Building Dept. of the Town of E. Hampton 2020 NY Slip Op 07179 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN JEFFREY A. COHEN COLLEEN D. DUFFY, JJ. 2018-04871 (Index No. 4297/16) [*1]Jane H. Concannon Revocable Trust, appellant, v Building Department of the Town of East Hampton, et al., respondents. Sahn Ward Coschignano, PLLC, Uniondale, NY (Christian Browne of counsel), for appellant. Michael Sendlenski, East Hampton, NY (John C. Jilnicki of counsel), for respondent Town of East Hampton Zoning Board of Appeals. Esseks, Hefter, Angel, DiTalia & Pasca, LLP, Riverhead, NY (Anthony C. Pasca and Amanda Star Frazer of counsel), for respondent Breakers Motel, Inc. DECISION & ORDER In a hybrid action for injunctive relief and proceeding pursuant to CPLR article 78, the plaintiff/petitioner appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated February 5, 2018. The order and judgment denied the plaintiff/petitioner's motion for a preliminary injunction and dismissed the complaint/petition. ORDERED that the order and judgment is affirmed, with one bill of costs. The plaintiff/petitioner, Jane H. Concannon Revocable Trust, owns property located on Montauk Highway in Montauk, Town of East Hampton (hereinafter the Town), which is improved with a single-family dwelling. The property is located adjacent to the property owned by the respondent Breakers Motel, Inc. (hereinafter Breakers). Both properties are located within the Resort District ("RS") zoning district. Breakers has operated a motel on the premises since at least the late 1950s. A restaurant located in the eastern wing of the motel building also operated at the premises until about 1970. According to a principal of Breakers, subsequent to 1970, the restaurant remained functional but unused with a vacant dining room, a fully equipped commercial kitchen, and an unused storage area downstairs. In 2005, Breakers applied for a certificate of occupancy for the motel in contemplation of re-opening the restaurant. A certificate of occupancy was issued to Breakers on December 14, 2005 (hereinafter the 2005 CO), which provided for a "Group A-2" restaurant. In 2010, Breakers submitted a site plan application for the property. The public hearing notice, which was sent to the adjoining property owners, described the application as one to construct a "staircase and deck addition to a multi-unit motel building on a lot containing a restaurant, motel and resort uses." The grantor of the plaintiff/petitioner, Jane Concannon, attended the public hearing, at which the public notice was read aloud into the record. On January 19, 2011, the Planning Board approved the site plan application, and the written approval described the property, in part, as "currently [*2]improved with a restaurant." In 2014, Breakers obtained approvals from the Suffolk County Health Department to make improvements to the sanitary system in connection with the restaurant use, and significant work was done on the premises between 2014 and early 2015. In 2015, Breakers applied for a building permit to renovate the existing restaurant and kitchen. On April 27, 2015, the Town issued the building permit. On May 1, 2015, the plaintiff/petitioner filed an application with the Town Zoning Board of Appeals (hereinafter the ZBA) seeking a determination rescinding the inclusion of the restaurant use on the 2005 CO, and revoking the building permit issued April 27, 2015. Following a hearing, the ZBA issued a determination dated April 5, 2016, denying the plaintiff/petitioner's application as untimely. The ZBA determined, inter alia, that the plaintiff/petitioner had constructive notice of the presence of the restaurant use on the Breakers's property at the time of the 2010 site plan application and subsequent hearing. Thereafter, the plaintiff/petitioner commenced this hybrid action for injunctive relief and proceeding pursuant to CPLR article 78 to review the ZBA's determination dated April 5, 2016, alleging, among other things, that the inclusion of the restaurant use on the 2005 CO and the issuance of the building permit were erroneous in the absence of a special permit. The plaintiff/petitioner also moved for a preliminary injunction enjoining Breakers from taking any further action to construct or operate a restaurant on the premises. The Supreme Court, inter alia, denied the plaintiff/petitioner's motion and dismissed the action/proceeding. The plaintiff/petitioner appeals. "The determination of a local zoning board is entitled to great deference, and will be set aside only if it is illegal, arbitrary and capricious, or irrational" (Matter of Waterways Dev. Corp. v Town of Brookhaven Zoning Bd. of Appeals, 126 AD3d 708, 711; see CPLR 7803[3]; Matter of East End Holdings, LLC v Village of Southampton Zoning Bd. of Appeals, 135 AD3d 860, 861). Here, the ZBA's determination that the plaintiff/petitioner had constructive notice of the restaurant use at the premises by 2010, at the time of the site plan application and the hearing on that application, was rational and not arbitrary and capricious. Under the circumstances, the plaintiff/petitioner's challenges to the 2005 CO and the building permit, which was predicated on the 2005 CO, were untimely (see Matter of Palm Mgt. Corp. v Goldstein, 8 NY3d 337, 341; Matter of Peehl v Village of Cold Spring, 129 AD3d 844, 845). Furthermore, in light of the dismissal of the CPLR article 78 causes of action on the ground of untimeliness, the plaintiff/petitioner could not demonstrate a likelihood of success on the merits with respect to its claims that the inclusion of the restaurant use on the 2005 CO and the issuance of the building permit were improper in the absence of a special permit. Therefore, we agree with the Supreme Court's determination denying the plaintiff/petitioner's motion for a preliminary injunction, and dismissing the cause of action for a permanent injunction (see Parolisi v Slavin, 98 AD3d 488; see also Matter of Figueroa v Maguire, 37 AD3d 829, 832). The plaintiff/petitioner's remaining contentions are without merit. CHAMBERS, J.P., ROMAN, COHEN and DUFFY, JJ., concur. 2018-04871 DECISION & ORDER ON MOTION Jane H. Concannon Revocable Trust, appellant, v Building Department of the Town of East Hampton, et al., respondents. (Index No. 4297/16) Cross motion by the respondent Breakers Motel, Inc., inter alia, to dismiss an appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County, dated February 5, 2018, on the ground that the appeal has been rendered academic. By decision and order on motion of this Court dated July 16, 2018, that branch of the cross motion which is to dismiss the appeal was [*3]held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof. Upon the papers filed in support of the cross motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is ORDERED that the branch of the cross motion which is to dismiss the appeal is denied. CHAMBERS, J.P., ROMAN, COHEN and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:59.522047+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07178.htm

James B. Nutter & Co. v McLaughlin (2020 NY Slip Op 07178) James B. Nutter & Co. v McLaughlin 2020 NY Slip Op 07178 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. SHERI S. ROMAN ROBERT J. MILLER PAUL WOOTEN, JJ. 2019-00296 2019-00297 (Index No. 10302/13) [*1]James B. Nutter & Company, appellant, v Catherine McLaughlin, et al., respondents. RAS Boriskin, LLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for appellant. DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered February 6, 2018, and (2) an order of the same court entered May 22, 2018. The order entered February 6, 2018, sua sponte, deemed the action abandoned pursuant to 22 NYCRR 202.48. The order entered May 22, 2018, denied the plaintiff's motion for a judgment of foreclosure and sale and again, sua sponte, deemed the action abandoned pursuant to 22 NYCRR 202.48. ORDERED that the appeal from the order entered February 6, 2018, is dismissed, without costs or disbursements, as that order was superseded by the order entered May 22, 2018; and it is further, ORDERED that on the Court's own motion, the notice of appeal from so much of the order entered May 22, 2018, as, sua sponte, deemed the action abandoned pursuant to 22 NYCRR 202.48 is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order entered May 22, 2018, is reversed, on the law, without costs or disbursements, the plaintiff's motion for a judgment of foreclosure and sale is granted, and the order entered February 6, 2018, is vacated. The plaintiff commenced this action to foreclose a mortgage on real property owned by the defendant Catherine McLaughlin. By an order entered December 12, 2016, the plaintiff's unopposed motion, inter alia, for a judgment of foreclosure and sale was granted, and the plaintiff was directed to "[s]ubmit judgment." After the plaintiff submitted a proposed judgment to the Supreme Court for signature, the court, in an order entered February 6, 2018, sua sponte, deemed the action abandoned, finding that the plaintiff failed to establish good cause for its failure to submit the judgment within 60 days of the order entered December 12, 2016. The plaintiff then made a second motion for a judgment of foreclosure and sale. In an order entered May 22, 2018, the court denied the plaintiff's motion, and again, sua sponte, deemed the action abandoned pursuant to 22 NYCRR 202.48. The plaintiff appeals. Pursuant to 22 NYCRR 202.48, an order or judgment which is directed to be settled [*2]or submitted on notice must be submitted for signature within 60 days after the signing and filing of the decision directing that the order or judgment be settled or submitted. A party who fails to submit the order or judgment within the 60-day time period will be deemed to have abandoned the action or motion, absent good cause shown (see Citibank v Velazquez, 284 AD2d 364). In this case, when the Supreme Court initially granted the plaintiff's motion, inter alia, for a judgment of foreclosure and sale, it did not direct that the proposed judgment had to be settled or submitted on notice. 22 NYCRR 202.48 does not apply where, as here, the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice (see Pol v Ashirov, 131 AD3d 523; Matter of Matthew L., 85 AD3d 917, 918, citing Funk v Barry, 89 NY2d 364, 365). Accordingly, the Supreme Court should not have denied the plaintiff's motion for a judgment of foreclosure and sale for failure to comply with 22 NYCRR 202.48, and should not have deemed the action abandoned. RIVERA, J.P., ROMAN, MILLER and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:59.751322+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07177.htm

Hus v 10 Ave. Realty, LLC (2020 NY Slip Op 07177) Hus v 10 Ave. Realty, LLC 2020 NY Slip Op 07177 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2019-07154 (Index No. 504649/14) [*1]Jan Hus, respondent, v 10 Ave. Realty, LLC, et al., appellants. Ahmuty, Demers & McManus, New York, NY (Glenn A. Kaminska of counsel), for appellants. The Platta Law Firm, PLLC, New York, NY (Laurence D. Rogers and Brian Vannella of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated May 9, 2019. The order denied the defendants' motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. On February 4, 2014, at 7:45 a.m., the plaintiff allegedly slipped and fell on ice on the ground abutting the defendants' building in Brooklyn. The plaintiff commenced this personal injury action against the defendants, and the defendants subsequently moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants' motion. The defendants appeal. The defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the complaint (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). According to the evidence submitted by the defendants in support of their motion, more than six inches of snow fell on February 3, 2014, the night before the accident, and the snowstorm ended in the early evening hours. The plaintiff testified at his deposition that, around the time of the accident, when he stepped out of the main entrance door, he saw that the ground had been shoveled, and that there was some snow on the ground. After he fell, he saw the ice condition that had caused him to fall. It was approximately 1½ feet by 2 feet in size, and its depth was about 1 inch or less. The superintendent of the building, the only person who would have engaged in snow and ice removal work, did not know when it snowed or whether he had engaged in snow and ice removal work prior to the accident. Under the circumstances, assuming without deciding that the accident occurred on a public sidewalk during the grace period provided by section 16-123 of the Administrative Code of the City of New York, the defendants failed to establish, prima facie, that their snow and ice removal did not create or exacerbate the hazardous condition which allegedly caused the plaintiff to fall (see Muhammad v St. Rose of Limas R.C. Church, 163 AD3d 693, 694; Kabir v Budhu, 143 AD3d 772, 773; Martinez v Khaimov, 74 AD3d 1031, 1033). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court's determination to deny their motion without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). SCHEINKMAN, P.J., MALTESE, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:59.981531+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07174.htm

Henik v Darconte (2020 NY Slip Op 07174) Henik v Darconte 2020 NY Slip Op 07174 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. SHERI S. ROMAN BETSY BARROS LINDA CHRISTOPHER, JJ. 2019-05859 (Index No. 101119/14) [*1]George J. Henik, et al., appellants, v Denise Darconte, respondent. Kuhn O'Toole & Maietta, LLP (Gyimesi & Wedinger, P.C., Nyack, NY [Laurel A. Wedinger], of counsel), for appellants. Sipp Law Firm, Staten Island, NY (John Peter Sipp of counsel), for respondent. DECISION & ORDER In an action, inter alia, to recover damages for fraud and conversion, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Judith N. McMahon, J.), dated April 4, 2019. The order granted the defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied. The plaintiff George J. Henik and the defendant, Denise Darconte, are the children of Ann S. Henik (hereinafter the decedent). The decedent died on July 15, 2012, at the age of 90. The plaintiffs thereafter commenced this action against the defendant alleging fraud, conversion, and unjust enrichment, and seeking to impose a constructive trust. The plaintiffs alleged that more than $200,000 held in trust for George by the decedent was withdrawn from the trust accounts and/or transferred so as to benefit the defendant, as a result of the defendant's undue influence. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant's motion. The plaintiffs appeal. The defendant failed to demonstrate her prima facie entitlement to judgment as a matter of law dismissing the complaint. The defendant's submissions in support of her motion failed to eliminate triable issues of fact as to the extent of the defendant's control over the decedent, and the extent of the decedent's dependence on the defendant for her care, given her physical limitations and dementia diagnosis. The burden of establishing undue influence rests with the party asserting its existence (see Hearst v Hearst, 50 AD3d 959). In order to prove undue influence, a party must show "that the influence exerted 'amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained [a person] to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist'" (Matter of Nurse, 160 AD3d 745, 748 quoting Matter of Walther, 6 NY2d 49, 53; see Matter of Albert, 137 AD3d 1266, 1267). Where the existence of a confidential relationship is established, the burden shifts to [*2]the beneficiary of the transaction to prove it was fair and free from undue influence (see Matter of Nurse, 160 AD3d at 748). In order to demonstrate the existence of a confidential relationship, there must be evidence of circumstances demonstrating inequality or a controlling influence (see Lief v Hill, 151 AD3d 1047, 1048). The existence of a confidential relationship is ordinarily a factual determination based on evidence of facts and circumstances showing inequality or a controlling influence (see Matter of Bonczyk v Williams, 119 AD3d 1124). Triable issues of fact exist as to whether a confidential relationship existed at the time of the disputed transactions (see Matter of Greenberg, 34 AD3d 806, 807). The defendant's submissions also failed to eliminate triable issues of fact as to whether the defendant exerted undue influence over the decedent (see Preshaz v Przyziazniuk, 51 AD3d 752, 753). Moreover, although persons suffering from diseases such as dementia or Alzheimer's are not presumed incompetent, the defendant's submissions, which included transcripts of the deposition testimony of George and the defendant regarding the decedent's dementia and/or Alzheimer's diagnosis and her confusion and forgetfulness during the relevant time period, failed to eliminate triable issues of fact as to the decedent's mental capacity (see Matter of Nurse, 160 AD3d at 747; Preshaz v Przyziazniuk, 51 AD3d at 753; Buckley v Ritchie Knop, Inc., 40 AD3d 794, 795-796). Since the defendant failed to satisfy her prima facie burden, we need not address the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint. BALKIN, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:00.432426+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07176.htm

HSBC Bank USA, N.A. v Viverito (2020 NY Slip Op 07176) HSBC Bank USA, N.A. v Viverito 2020 NY Slip Op 07176 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. 2018-13427 (Index No. 611746/17) [*1]HSBC Bank USA, National Association, etc., respondent, v Thomas A. Viverito, appellant, et al., defendants. The Ranalli Law Group, PLLC, Hauppauge, NY (Ernest E. Ranalli of counsel), for appellant. McCalla Raymer Leibert Pierce, LLC, New York, NY (Richard P. Haber of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Thomas A. Viverito appeals from an order of the Supreme Court, Suffolk County (James Hudson, J.), dated October 4, 2018. The order, insofar as appealed from, denied that branch of the cross motion of the defendant Thomas A. Viverito which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him. ORDERED that the order is affirmed insofar as appealed from, with costs. On May 30, 2007, the defendant Thomas A. Viverito (hereinafter the defendant) executed a note in favor of Lehman Brothers Bank, FSB, in the sum of $618,000. The note was secured by a mortgage on real property located in West Islip. In 2009, Mortgage Electronic Registration Systems, Inc., as nominee for Lehman Brothers Bank, FSB, assigned the mortgage to Aurora Loan Services, LLC. In 2012, Aurora Loan Services, LLC, assigned the mortgage to Nationstar Mortgage LLC (hereinafter Nationstar). On February 10, 2017, Nationstar assigned the mortgage to the plaintiff. By summons and complaint dated June 22, 2017, the plaintiff commenced this action against, among others, the defendant to foreclose the mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint. The defendant cross-moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of standing and for failure to comply with RPAPL 1304 and 1306. The plaintiff subsequently withdrew its motion. The Supreme Court, inter alia, denied that branch of the defendant's cross motion which was to dismiss the complaint insofar as asserted against him. The defendant appeals. "A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced" (U.S. Bank Trust, N.A. v O'Driscoll, 168 AD3d 783, 784). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (id. at 784-[*2]785 [internal quotation marks omitted]). Here, we agree with the Supreme Court's determination that the defendant was not entitled to dismissal of the complaint insofar as asserted against him for lack of standing. In support of his cross motion, defendant submitted the affidavit of Daphne Proctor, a document execution specialist at Nationstar. Proctor averred that Nationstar, as the plaintiff's agent, came into possession of the note, which was endorsed in blank, on June 24, 2016, and that Nationstar continued to hold the note on the date of the commencement of this action. Proctor further averred that she had attached a copy of the note to her affidavit. The plaintiff included Proctor's affidavit, with the exhibits attached, in its opposition to the defendant's cross motion. In light of this evidence that the plaintiff possessed the note at the commencement of this action (see U.S. Bank Trust, N.A. v O'Driscoll, 168 AD3d at 784-785; U.S. Bank N.A. v Ehrenfeld, 144 AD3d 893, 894), the defendant failed to establish, prima facie, that the plaintiff lacked standing (see Bank of N.Y. Mellon Trust Co., NA v Obadia, 176 AD3d 1020, 1021). The defendant's remaining contentions, regarding RPAPL 1304 and 1306, are without merit, as he did not "affirmatively demonstrate that the plaintiff failed to strictly comply with" these provisions (HSBC Bank USA, N.A. v Grella, 176 AD3d 924, 926). Accordingly, we agree with the Supreme Court's determination denying that branch of the defendant's cross motion which was to dismiss the complaint insofar as asserted against him. RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:00.652149+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07175.htm

HSBC Bank USA, N.A. v Kone (2020 NY Slip Op 07175) HSBC Bank USA, N.A. v Kone 2020 NY Slip Op 07175 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. SHERI S. ROMAN COLLEEN D. DUFFY BETSY BARROS, JJ. 2017-11946 (Index No. 4937/13) [*1]HSBC Bank USA, National Association, etc., appellant, v Haroun Kone, et al., defendants, 1514 E 45 Street, Inc., respondent. Hogan Lovells US LLP, New York, NY (Allison J. Schoenthal and Leah Edmunds of counsel), for appellant. Avi Rosengarten, Brooklyn, NY, for respondent. DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated September 5, 2017. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant 1514 E 45 Street, Inc., in effect, for summary judgment with respect to the defendant's first counterclaim, and for an order of reference. ORDERED that the order is affirmed insofar as appealed from, with costs. In July 2006, Haroun Kone executed a note in the amount of $618,400 in favor of First United Mortgage Banking Corp., which was secured by a mortgage on certain real property in Brooklyn. Kone defaulted on the loan by failing to make the monthly installment payment due on August 1, 2007, and all payments thereafter. In October 2012, the loan servicer conditionally approved a short sale of the property to 1514 E 45 Street, Inc. (hereinafter the defendant). According to the defendant, the parties closed on the transaction in November 2012, and the record reflects that the defendant wired the funds required to close the transaction to the loan servicer. However, the loan servicer subsequently returned the wired funds on the ground that it had discovered additional liens on the property, which would prevent it from proceeding with the short sale. In March 2013, the plaintiff, as the alleged holder of the note, commenced this action to foreclose the mortgage against, among others, Kone and the defendant. The defendant served an answer asserting various affirmative defenses and counterclaims, including a counterclaim seeking a judgment declaring that it was the rightful owner of the premises without any claims, setoffs, challenges, or disputes (first counterclaim). The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, in effect, for summary judgment with respect to the defendant's first counterclaim, and for an order of reference. In the order appealed from, the Supreme Court, inter alia, denied those branches of the plaintiff's motion, and the plaintiff appeals. Contrary to the plaintiff's contention, it failed to eliminate triable issues of fact, inter alia, as to whether the conditions of the short sale of the property were satisfied, and whether the [*2]plaintiff properly rescinded its approval of the short sale after the closing had taken place (see Beneficial Homeowner Serv. Corp. v Chambers, 145 AD3d 750, 751; cf. One W. Bank FSB v Musumeci, 128 AD3d 1034, 1035). The plaintiff's remaining contentions are either without merit or not properly before this Court. Accordingly, we agree with the Supreme Court's determination denying those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, in effect, for summary judgment with respect to the defendant's first counterclaim, and for an order of reference, without regard to the defendant's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). RIVERA, J.P., ROMAN, DUFFY and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:00.966486+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07171.htm

Gelin v New York City Tr. Auth. (2020 NY Slip Op 07171) Gelin v New York City Tr. Auth. 2020 NY Slip Op 07171 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. ROBERT J. MILLER JOSEPH J. MALTESE PAUL WOOTEN, JJ. 2018-03333 2018-03334 2018-04701 2018-04702 (Index No. 8384/14) [*1]Gina Gelin, respondent, v New York City Transit Authority, appellant, et al, defendant. Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, NY (Vanessa M. Corchia of counsel), for appellant. Elefterakis, Elefterakis & Panek, New York, NY (Oliver R. Tobias of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from (1) an order of the Supreme Court, Kings County (Donald Scott Kurtz, J.), dated November 2, 2017, (2) an order of the same court (Kenneth P. Sherman, J.) dated February 1, 2018, (3) an order of the same court (Donald Scott Kurtz, J.) dated March 8, 2018, and (4) an order of the same court (Donald Scott Kurtz, J.) dated April 12, 2018. The order dated November 2, 2017, insofar as appealed from, upon the stipulation of the plaintiff and the defendant New York City Transit Authority, denied those branches of that defendant's motion which were to vacate the note of issue and compel the plaintiff to provide certain discovery. The order dated February 1, 2018, insofar as appealed from, denied that defendant's motion to the extent that the defendant sought discovery beyond that granted in the order dated November 2, 2017. The order dated March 8, 2018, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3126 to strike the complaint, to compel disclosure regarding the plaintiff's alleged need for further surgery and, upon renewal of that defendant's previous motion, to vacate the note of issue and direct the plaintiff to provide certain discovery and to appear for a supplemental deposition and physical examination. The order dated April 12, 2018, denied that defendant's motion to preclude the plaintiff from providing any evidence on damages or to vacate the note of issue and strike the case from the trial calendar. ORDERED that the appeal from the order dated November 2, 2017, is dismissed, as no appeal lies from an order entered on the consent of the appealing party (see CPLR 5511); and it is further, ORDERED that the order dated February 1, 2018, is affirmed insofar as appealed from; and it is further, ORDERED that the order dated March 8, 2018, is modified, on the law, the facts, and in the exercise of discretion, by (1) deleting the provisions thereof denying those branches of the motion of the defendant New York City Transit Authority which were to direct the plaintiff to [*2]provide authorizations permitting the release of medical records from Stuart B. Kahn, and, upon renewal, to vacate the note of issue and direct the plaintiff to appear for a supplemental deposition concerning only a prior accident in 2004 and a subsequent accident in 2015 and related treatment, and a supplemental physical examination, and substituting therefor a provision granting those branches of that defendant's motion; (2) deleting the provision thereof directing the plaintiff to provide authorizations for records related to a prior accident occurring in 2004, and substituting therefor a provision directing the plaintiff to provide authorizations for all records arising out of a prior accident occurring on September 12, 2004; and (3) deleting the provision thereof denying that branch of that defendant's motion which was pursuant to CPLR 3126 to strike the complaint, and substituting therefor a provision granting that branch of the motion only to the extent of directing the plaintiff personally to pay the sum of $3,000 as a sanction to that defendant; as so modified, the order dated March 8, 2018, is affirmed insofar as appealed from; and it is further, ORDERED that the appeal from so much of the order dated April 12, 2018, as denied those branches of the motion of the defendant New York City Transit Authority which were to vacate the note of issue and strike the case from the trial calendar is dismissed as academic in light of our determination on the appeal from the order dated March 8, 2018; and it is further, ORDERED that the order dated April 12, 2018, is affirmed insofar as reviewed; and it is further, ORDERED that the sanction shall be paid within 60 days after service upon the plaintiff's counsel of a copy of this decision and order; and it is further, ORDERED that one bill of costs is awarded to the defendant. The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on November 19, 2013, in a motor vehicle accident with a bus owned by the defendant New York City Transit Authority (hereinafter the defendant). In her bill of particulars, the plaintiff alleged that she sustained injuries to her neck, back, and right knee. She alleged that, as a result, she underwent two surgeries in 2014. At her examination before trial on May 7, 2015, the plaintiff testified that she had a prior "fender bender" in "about 2002," but had no other prior or subsequent accidents. The defendant thereafter demanded authorizations for records arising from the 2002 accident. The plaintiff failed to respond to the demand, and yet she filed a note of issue certifying that discovery was complete. The defendant thereafter discovered that the plaintiff had been involved in a prior motor vehicle accident on September 12, 2004, as a result of which her vehicle overturned and for which she sought medical treatment for neck and back injuries, and that she was involved in a subsequent motor vehicle accident on July 2, 2015, after which she was transported to the hospital with complaints of neck and back pain. The defendant demanded authorizations for records relating to the 2004 and 2015 accidents, and demanded that the plaintiff appear for a supplemental deposition and supplemental physical examination. The plaintiff objected to the post-note of issue discovery and, in response to the prior demand and a court order, advised the defendant that she did not receive medical treatment following "a 2002 motor vehicle accident." In February 2018, the plaintiff served a supplemental bill of particulars alleging that she would require future revision surgery, discectomy, and fusion, and other treatment as set forth in a plan created by an expert witness, Stuart B. Kahn. Motion practice regarding the requested discovery and the supplemental bill of particulars resulted in four orders, from which the defendant appeals. The appeal from the order dated November 2, 2017, must be dismissed, as that order was issued upon the stipulation of the parties, and no appeal lies from an order entered on the consent of the appealing party (see CPLR 5511; Matter of Shu Jiao Zhao v Wei Rong, 183 AD3d 898, 898; Matter of Hopkins v Hopkins, 178 AD3d 1045, 1045-1046). We agree with the Supreme Court's determination in the order dated February 1, 2018, to deny the defendant's motion to the extent it sought additional discovery beyond what was granted in the order dated November 2, 2017, which was issued by a different judge. To the extent [*3]the defendant sought such additional discovery, the motion was, in effect, for renewal or reargument of the prior motion. Absent exceptions not relevant here, such motions must be made to the judge who signed the initial order (see CPLR 2221[a]; Doscher v Doscher, 54 AD3d 890, 890). In the order dated March 8, 2018, the Supreme Court, among other things, denied those branches of the defendant's motion which were pursuant to CPLR 3126 to strike the complaint, to compel disclosure regarding the plaintiff's alleged need for further surgery and, upon renewal of a previous motion by the defendant, to vacate the note of issue and direct the plaintiff to provide certain discovery and to appear for a supplemental deposition and physical examination. In the order dated April 12, 2018, the court denied the defendant's motion to preclude the plaintiff from providing any evidence on damages or to vacate the note of issue and strike the case from the trial calendar. "Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party 'refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'" (Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019, 1019). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Smookler v Dicerbo, 166 AD3d 838, 839). Nevertheless, public policy strongly favors the resolution of cases on their merits (see Warner v Orange County Regional Med. Ctr., 126 AD3d 887, 887). Therefore, the drastic remedies of striking a pleading or precluding evidence are not appropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious (see CPLR 3126[3]; Gafarova v Yale Realty, LLC, 174 AD3d 862, 863; Strong v Delemos, 172 AD3d 940, 942). In this case, the record does not establish a clear pattern of willfulness and contumacious conduct necessary to justify the sanctions of striking the complaint or precluding the plaintiff from offering evidence of damages. Nevertheless, under the circumstances of this case, in particular the plaintiff's misrepresentations in her deposition testimony regarding the date and severity of her prior accident, we find as a matter of discretion that a monetary sanction in the sum of $3,000, payable by the plaintiff personally to the defendant, constitutes an appropriate sanction (see CPLR 3126; L & L Auto Distribs. & Suppliers Inc. v Auto Collection, Inc., 85 AD3d 734; Dean v Usine Campagna, 44 AD3d 603, 605). Furthermore, in the order dated March 8, 2018, the Supreme Court should have vacated the note of issue on the ground that discovery had not been concluded (see Ruiz v Park Gramercy Owners Corp., 182 AD3d 471, 471; Singh v CBCS Constr. Corp., 137 AD3d 1250, 1250), and directed the plaintiff to provide certain additional discovery. The defendant established that discovery was not complete, and established "good cause" for its late motions to vacate the note of issue (22 NYCRR 202.21[e]). The defendant's discovery, after the filing of the note of issue, that the plaintiff had been involved in prior and subsequent accidents involving the same body parts alleged to have been injured in the subject accident constitutes unusual or unanticipated circumstances warranting further discovery (see Jones v Seta, 143 AD3d 482, 482-483; Lopez v Kelly St. Realty, Inc., 106 AD3d 534, 535; see also Perla v Wilson, 287 AD2d 606, 606), including a supplemental deposition of the plaintiff concerning only the prior and subsequent accidents and related treatment (see Jones v Seta, 143 AD3d at 482; Bravo v Vargas, 113 AD3d 577, 579). The plaintiff's supplemental bill of particulars, in which she alleged that the severity and extent of her existing injuries changed dramatically after the initial physical examination, warrants a supplemental physical examination (see Huggins v New York City Tr. Auth., 225 AD2d 732, 733; see generally Korolyk v Blagman, 89 AD2d 578, 579), as well as authorizations for the release of the plaintiff's medical records from Stuart B. Kahn. We agree with the Supreme Court's determinations declining to compel production of any records which had not been the subject of a discovery demand (see CPLR 3124), and to direct the plaintiff to provide authorizations related to purported accidents in 2001 or 2002, since the record revealed that the plaintiff was not injured in any motor vehicle accidents that occurred in 2001 or 2002. Finally, since the plaintiff provided authorizations for her 2004 accident that were improperly limited to one date of treatment and contained the incorrect accident date, we modify the [*4]March 8, 2018 order to clarify that the plaintiff is directed to provide authorizations for all records arising out of a prior accident occurring on September 12, 2004. MASTRO, J.P., MILLER, MALTESE and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:01.199103+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07170.htm

Garcia v City of New York (2020 NY Slip Op 07170) Garcia v City of New York 2020 NY Slip Op 07170 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. 2018-05845 (Index No. 706515/15) [*1]Brayan Garcia, etc., et al., appellants, v City of New York, et al., respondents. The Yankowitz Law Firm, P.C., Great Neck, NY (Jack A. Yankowitz and Skylar K. Yankowitz of counsel), for appellants. James E. Johnson, Corporation Counsel, New York, NY (Fay Ng and Susan Paulson of counsel), for respondents. DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered April 27, 2018. The order denied the plaintiffs' motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court entered July 19, 2017, granting that branch of the defendants' unopposed motion which was for summary judgment dismissing the complaint. ORDERED that the order entered April 27, 2018, is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 5015(a)(1) to vacate the order entered July 19, 2017, is granted, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of that branch of the defendants' motion which was for summary judgment dismissing the complaint. The infant plaintiff was arrested on April 24, 2014. The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the infant plaintiff as a result of his false arrest and imprisonment. The defendants moved, among other things, for summary judgment dismissing the complaint. Due to the plaintiffs' failure to serve their opposition papers in compliance with the centralized motion part's briefing schedule, the motion was marked "submitted/no opposition," and in an order entered July 19, 2017, the Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint, without opposition. Thereafter, the plaintiffs moved pursuant to CPLR 5015(a)(1) to vacate the order entered July 19, 2017. The court denied the motion. The plaintiffs appeal. A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Wells Fargo Bank, N.A. v Fattizzo, 183 AD3d 851, 851; Turko v Daffy's, Inc., 111 AD3d 615, 616). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Bank of N.Y. Mellon v Faragalla, 174 AD3d 677, 678; Mid-Hudson Properties, Inc. v Klein, 167 AD3d 862, 864). In making such a determination, the court may excuse delay or default resulting from law office failure (see CPLR 2005; Mid-Hudson Props., Inc. v Klein, 167 AD3d 862, 864). Here, considering all of the relevant factors, including the brief six-day delay between the submission deadline set by the centralized motion part and the date the plaintiffs served their opposition papers, the lack of prejudice to the defendants, and the lack of willfulness on the part of plaintiffs' counsel, the Supreme Court improvidently exercised its discretion in not accepting the plaintiffs' excuse of law office failure for their failure to submit opposition papers on the return date set by the centralized motion part (see Narvaez v City of New York, 171 AD3d 764, 765; Young Su Hwangbo v Nastro, 153 AD3d 963, 965). Furthermore, the plaintiffs demonstrated that they had a potentially meritorious opposition to the motion (see 210 East 60 St., LLC v Rahman, 178 AD3d 888, 889; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032). Accordingly, the Supreme Court should have granted the plaintiffs' motion, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of that branch of the defendants' motion which was for summary judgment dismissing the complaint. The plaintiffs' remaining contentions are not properly before this Court. RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2021-01-26 21:12:37.813335+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487543

TREAT v. STITT Skip to Main Content Accessibility Statement OSCN Found Document:TREAT v. STITT Previous Case Top Of Index This Point in Index Citationize Next Case Print Only TREAT v. STITT 2021 OK 3 Case Number: 118913 Decided: 01/26/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 3, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. THE HONORABLE GREG TREAT, SENATE PRESIDENT PRO TEMPORE, in his official capacity, and THE HONORABLE CHARLES MCCALL, SPEAKER OF THE HOUSE, in his official capacity, Petitioners, v. THE HONORABLE J. KEVIN STITT, GOVERNOR OF THE STATE OF OKLAHOMA, in his official capacity, Respondent. ORIGINAL PROCEEDING FOR DECLARATORY RELIEF ¶0 Petitioners brought this action seeking declaratory relief that Respondent lacked authority to enter into two tribal gaming compacts on behalf of the State. The Court assumes original jurisdiction and grants the declaratory relief sought by Petitioners that the two tribal gaming compacts are invalid under Oklahoma law. ORIGINAL JURISDICTION ASSUMED AND DECLARATORY RELIEF GRANTED. V. Glenn Coffee, Cara Rodriguez, Denise Lawson, Glenn Coffee & Associates, PLLC, Oklahoma City, Oklahoma, for Petitioners. Phillip G. Whaley, Daniel G. Webber, Jr., Patrick R. Pearce, Jr., Matthew C. Kane, Ryan Whaley, Oklahoma City, Oklahoma, for Respondent. Mark E. Burget and Jeffrey C. Cartmell, Office of the Governor, Oklahoma City, Oklahoma, for Respondent. Winchester, J. ¶1 Petitioners, the Honorable Greg Treat, Senate President Pro Tempore, and the Honorable Charles McCall, Speaker of the House, request the Court to assume original jurisdiction to declare that the new tribal gaming compacts between the State and the United Keetoowah Band of Cherokee Indians and between the State and the Kialegee Tribal Town are invalid under Oklahoma law. The Court assumes original jurisdiction. Okla. Const. art. VII, § 4. The Court invokes its publici juris doctrine to assume original jurisdiction here as Petitioners have presented this Court with an issue of public interest in urgent need of judicial determination. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 11, 163 P.3d 512, 521. The Court grants the declaratory relief sought by Petitioners, as the Executive branch did not validly enter into the new tribal gaming compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. Ethics Comm'n of State of Okla. v. Cullison, 1993 OK 37, ¶ 4, 850 P.2d 1069, 1072. FACTS AND PROCEDURAL HISTORY ¶2 This Court previously declared that the tribal gaming compacts the Executive branch entered into with the Comanche and Otoe-Missouria Tribes were invalid under Oklahoma law because the gaming compacts authorized certain forms of Class III gaming prohibited by state law. Treat v. Stitt, 2020 OK 64, ¶¶ 6-8, 473 P.3d 43, 45 (Treat I). While Treat I was pending before this Court, the Executive branch entered into two additional compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. The parties to the compacts submitted the tribal gaming compacts to the United States Department of the Interior, and the Department of the Interior deemed them approved by inaction, only to the extent they are consistent with the Indian Gaming Regulatory Act (IGRA). 25 U.S.C. § 2710(d)(8)(C). The Court acknowledges that the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town are not parties in this matter; these Tribes are sovereign nations and have not submitted to the jurisdiction of this Court. ¶3 The question before this Court is whether the Executive branch validly entered into the new tribal gaming compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. We hold it did not. For the new compacts to be valid under Oklahoma law, the Executive branch must have negotiated the new compacts within the statutory bounds of the Model Tribal Gaming Compact (Model Compact)1 or obtained the approval of the Joint Committee on State-Tribal Relations. DISCUSSION ¶4 The issue before this Court, as in Treat I, implicates the separation of powers. To better understand the balance of powers between the Executive branch and the Legislative branch in negotiating and entering into tribal gaming compacts, we must look at the history of tribal gaming in Oklahoma. ¶5 Gambling has long been broadly prohibited by Oklahoma's criminal laws,2 and carving out exceptions to these criminal laws is a question of public policy.3 The Legislature, through a vote of the citizens of Oklahoma, carved out certain exceptions to gambling when it enacted the State-Tribal Gaming Act, 3A O.S.2011, §§ 261-282. State Question No. 712 proposed to the citizens contained the specific language found in the State-Tribal Gaming Act, which sets forth the terms and conditions under which the State's federally recognized Tribes can engage in Class III gaming on tribal land through compacts. The citizens of Oklahoma approved a specific statutory process by which the State enters into Model Compacts with Indian Tribes within Oklahoma. See 3A O.S. Supp. 2018, §§ 280, 280.1; 3A O.S. Supp. 2012, § 281(15)(A) and (16). The Executive branch's role is to administer the State-Tribal Gaming Act by advocating and negotiating compacts within the bounds of the law. Treat I, 2020 OK 64, ¶ 5, 473 P.3d at 44. ¶6 The Executive branch's authority to advocate and negotiate gaming compacts is statutory--not constitutional. Id. ¶ 5, 473 P.3d at 44. And the use of such authority must be in conformity with statute. Oklahoma statutes currently provide the Executive branch two methods by which it can negotiate tribal gaming compacts: (1) via the Model Compact,4 or (2) via the general statutory authority conferred under 74 O.S. Supp. 2012, § 1221(C), which requires the approval of the Joint Committee on State-Tribal Relations (Joint Committee) when a tribal gaming compact contains provisions different from those in the Model Compact. The Executive branch did not follow either of these two methods in entering into the new compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. I. Model Compact Method. ¶7 The first method by which the Executive branch can negotiate tribal gaming compacts is through the Model Compact, approved by the citizens of Oklahoma. But the Model Compact confers little negotiating authority to the Executive branch as the Model Compact is not an ordinary private contract. Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ¶ 7, 230 P.3d 488, 491. It is a voter-approved statute codified in the Oklahoma Statutes. Id. Sections 280.1 and 281 of the State-Tribal Gaming Act set out the provisions of the Model Compact. See 3A O.S. Supp. 2018, § 280.1; 3A O.S. Supp. 2012, § 281. Because the Model Compact is a state statute, the provisions of the gaming compact are fixed and not negotiable except by Legislative amendment. See Cossey v. Cherokee Nation Enter., LLC, 2009 OK 6, ¶ 12, 212 P.3d 447, 464 (Taylor, J., concurring). It is an "all or none" offer to the Tribes, "which if accepted, constitutes the gaming compact between this [S]tate and the accepting [T]ribe for purposes of IGRA without any further action on behalf of the State of Oklahoma." Griffith, 2009 OK 51, ¶ 14, 230 P.3d at 493. As a result, the Executive branch's authority to negotiate the provisions of the Model Compact is limited. ¶8 Per the Model Compact, the Executive branch's authority to amend the terms and conditions of a Model Compact is constrained to advocating for fees and exclusivity.5 Its authority does not extend to modifying other terms or provisions of the Model Compact without approval from the Joint Committee, as discussed below. The Court notes the Executive branch could have sole authority to negotiate additional terms and provisions of the Model Compact. However, the Legislature must amend the State-Tribal Gaming Act to grant the Executive branch that authority. Until that time, the Executive branch's authority to negotiate the Model Compact is constrained by the terms of the State-Tribal Gaming Act--to negotiate fees and exclusivity. 3A O.S. Supp. 2012, § 281(15)(B). II. Joint Committee Method. ¶9 The second method by which the Executive branch can negotiate tribal gaming compacts is by the approval of the Joint Committee. Section 1221(C) of Title 74 grants the Executive branch general authority to negotiate and enter into cooperative agreements with Tribes within the State to address issues of mutual interest.6 This Court has previously recognized the Legislature's creation of the Joint Committee to oversee agreements between the Tribes and the State, which includes tribal gaming compacts. See e.g., Griffith, 2009 OK 51, ¶ 12, 230 P.3d at 492; Cossey, 2009 OK 6, ¶ 7, 212 P.3d at 471 (Kauger, J., concurring in part, dissenting in part). Since a tribal gaming compact involves trust responsibilities, Section 1221(C) requires two separate approvals for a gaming compact to become effective: approval by the Joint Committee and approval by the Department of Interior. Though 74 O.S. § 1221 has undergone several amendments over the years, the Legislature never withdrew the requirement that such agreements require the approval of both the Joint Committee and Department of Interior. See 74 O.S. Supp. 2012, § 1221(C). ¶10 When the Executive branch negotiates terms of a tribal gaming compact that differ from the Model Compact found in the State-Tribal Gaming Act (outside of the provisions regarding fees and exclusivity as discussed previously), the Executive branch is acting under the general authority given to it pursuant to § 1221(C). It is then necessary that the Executive branch and the Tribe obtain the approval from the Joint Committee prior to submitting the compact to the Department of Interior. 74 O.S. Supp. 2012, § 1221(C)(1); see also Griffith, 2009 OK 51, ¶ 12, 230 P.3d at 492.7 This method allows for checks and balances of power between the Legislative branch and the Executive branch. III. Analysis of the compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. ¶11 The Executive branch did not follow either the Model Compact method or the Joint Committee method in negotiating the new compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. The Executive branch's authority to negotiate the provisions of the Model Compact is constrained to advocating for fees and exclusivity, which are not at issue in this case. The new compacts contain terms that are different or outside the Model Compact provisions altogether. Due to the statutory nature of the Model Compact, the new and differing provisions operate as the enactment of new laws and/or amend existing laws, which exceeds the authority of the Executive branch. Even if the Executive branch was attempting to negotiate with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town under the general authority conferred pursuant to 74 O.S. Supp. 2012, § 1221(C)(1), the parties were obligated to seek the approval of the Joint Committee. They did not, and the compacts are therefore invalid under Oklahoma law. CONCLUSION ¶12 The Executive branch's action in entering into the new compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town--containing different terms than the Model Gaming Compact and without approval from the Joint Committee--disrupts the proper balance between the Executive and Legislative branches. Without proper approval by the Joint Committee, the new tribal gaming compacts are invalid under Oklahoma law. ORIGINAL JURISDICTION ASSUMED AND DECLARATORY RELIEF GRANTED. CONCUR: Darby, C.J., Kauger (by separate writing), Winchester, Combs, and Gurich, JJ., and Reif, S.J. CONCUR IN RESULT: Rowe, J. (by separate writing). DISSENT: Kane, V.C.J. Kane, V.C.J., dissenting: "I dissent for the reasons set forth in my dissent to Treat v. Stitt, 2020 OK 64, 473 P.3d 43 (Treat I)." RECUSED: Edmondson and Colbert, JJ. FOOTNOTES 1 See 3A O.S. Supp. 2018, § 280.1; 3A O.S. Supp. 2012, § 281. 2 See generally 21 O.S.2011, §§ 941-988; e.g., 21 O.S.2011, § 941 (prohibiting card and table games); id. at § 942 (subjecting gamblers to prosecution); id. at § 946 (prohibiting gambling houses); id. at § 982(B) (prohibiting commercial gambling). 3 See Whirlpool Corp. v. Henry, 2005 OK CR 7, ¶ 4, 110 P.3d 83, 84 (holding only the Legislature may define what constitutes a crime in Oklahoma); see also D.C. v. John R. Thompson Co., 346 U.S. 100, 114 (1953) (holding "[t]he repeal of laws is as much a legislative function as their enactment"). 4 See 3A O.S. Supp. 2018, §§ 280, 280.1; 3A O.S. Supp. 2012, § 281. 5 Title 3A O.S. Supp. 2012, § 281(15)(B) states: Within one hundred eighty (180) days of the expiration of this Compact or any renewal thereof, either the tribe or the state, acting through its Governor, may request to renegotiate the terms of subsections A and E of Part 11 of this Compact. Part 11(A) relates entirely to fees derived from covered gaming revenue. Id. at § 281(11)(A). Part 11(E) sets for the exclusivity fee schedule. Id. at § 281(11)(E). 6 Title 74 O.S. Supp. 2012, § 1221(C) states: C. 1. The Governor is authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian tribal governments within this state to address issues of mutual interest. The Governor may elect to name a designee who shall have authority to negotiate and enter into cooperative agreements on behalf of the state with federally recognized Indian tribes as provided for in this section. Except as otherwise provided by this subsection, such agreements shall become effective upon approval by the Joint Committee on State-Tribal Relations. 2. If the cooperative agreements specified and authorized by paragraph 1 of this subsection involve trust responsibilities, approval by the Secretary of the Interior or designee shall be required. 3. Any cooperative agreement specified and authorized by paragraph 1 of this subsection involving the surface water and/or groundwater resources of this state or which in whole or in part apportions surface and/or groundwater ownership shall become effective only upon the consent of the Oklahoma Legislature authorizing such cooperative agreement. 7 During oral argument before a Referee in Treat I, Petitioners referenced that only two tribal gaming compacts have differed from the Model Compact, and the Tribes and the Executive branch submitted both of those gaming compacts to the Joint Committee for approval. KAUGER, J., with whom COMBS and GURICH, J.J., join concurring: ¶1 To be clear, the majority's use of the terms "Executive Branch" refers to the respondent, the Governor of the state of Oklahoma. It is the Governor's authority which is in question here. I write separately to explain the historical underpinnings of such authority, or lack thereof. THE OKLAHOMA GOVERNOR HAS LIMITED GENERAL AUTONOMOUS AUTHORITY INDEPENDENT OF WHAT IS GRANTED BY THE LEGISLATURE, NOR DOES THE GOVERNOR HAVE SPECIFIC AUTHORITY TO BIND THE STATE IN TRIBAL COMPACTS. ¶2 The Court in Treat v. Stitt, 2020 OK 64, ¶¶4-5, 473 P.3d 43 explained the separation of powers as follows: . . . The legislative branch sets the public policy of the State by enacting law not in conflict with the Constitution. Okla. Const. art. V, § 1. The Governor has a role in setting that policy through his function in the legislative process, but the Governor's primary role is in the faithful execution of the law. Okla. Const. art. VI, §§ 8 & 11. Oklahoma's separation of powers doctrine is evident in the State's negotiation of tribal gaming compacts with Indian Tribes. ¶5 The Legislature, through the vote of the people, enacted those laws in the State-Tribal Gaming Act. 3A O.S. Supp. 2018, §§ 261-282. The State-Tribal Gaming Act sets forth the terms and conditions under which the State's federally recognized tribes can engage in Class III gaming on tribal land through Model Gaming Compacts. The Governor has the statutory authority to negotiate gaming compacts with Indian tribes to assure the State receives its share of revenue. However, the Governor must negotiate the compacts within the bounds of the laws enacted by the Legislature, including the State-Tribal Gaming Act. See 74 O.S. Supp. 2012, § 1221; Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ¶ 12, 230 P.3d 488, 492. ¶3 Indeed, the Governor argues that the Okla. Const. art. 6, §8 provides him with the general, autonomous, authority to negotiate and to bind the state, executing tribal gaming compacts. The Governor overlooks the fact that there must be a law for him to execute before he can faithfully execute it. Section 8 provides: The Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the State with other states and with the United States, and he shall be a conservator of the peace throughout the State. As far as the Governor's general authority goes, it is recognized that the drafters of the Oklahoma Constitution placed provisions to protect the people of the State of Oklahoma against excessive political and economic power.1 Oklahoma's historical underpinnings were extremely economically conservative.2 Fearing excessive power in the hands of one individual, the framers of the Oklahoma Constitution intentionally created a weak state chief executive.3 The Governor's authority is limited by the Constitution, because the Chief Executive may exercise only the power specifically granted by the Legislature.4 The Governor is without authority to exercise a discretion not validly and specifically granted by the statutory law and not within the power conferred upon the Chief Executive by the Constitution.5 ¶4 In Wentz v. Thomas, 1932 OK 636, 15 P.2d 65, the Court explained how Oklahoma's Chief Executive differed substantially from the United States Chief Executive, the President. The Court said: ¶27 Again, there is a fundamental difference between the executive powers of the President of the United States under the federal Constitution and the executive powers of the Governor of this state under our state Constitution. There is no division of the federal executive department; the President has power and control over all of the executive branches of government--each acts as his agent and performs his discretion. It was largely upon this theory that the Myers Case was decided. This is not the case under our state government. The executive authority, under our government, is vested in a Governor and eleven other heads . . . ¶30 The framers of the Constitution doubtless deemed it wise to reserve a residium of executive power which the Legislature could enact into law and vest in a new officer or department as it might deem expedient from time to time and as occasion might demand. . . ¶5 Accordingly, the personnel of many of the departments of our state government are controlled by the Legislative Branch of Government, rather than the Governor.6 The Oklahoma Legislature has not surrendered much power to the executive branch.7 The executive authority of the state is split among the Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Education, Insurance Commissioner, and Labor Commissioner among many others.8 Other Boards independent of direct control of the Governor, and therefore, essentially equally ranked with the Governor include constitutional boards such as the State Board of Equalization and the Commissioners of the Land Office.9 ¶6 While the Governor may have substantial powers as a titular head of the state and official spokesman for it, his powers for the most part are very fragmentary.10 The power of appointment is an indication of a Governor's overall power and authority.11 We recognized this principle in Keating v. Edmondson, 2001 OK 110, 37 P.3d 882 when we addressed the limitations on the Governor, expressly set forth by the Legislature, for the appointment of the Governor's cabinet. Keating involved a request from the Governor to stay the effectiveness of an Attorney General's opinion which addressed the lack of the Governor's authority to alter the gubernatorial cabinet outside the forty-five day limit allowed for the establishment of a cabinet system under a state statute, as set by the Legislature. ¶7 In Keating, we said: ¶16 The Okla. Const. art. 5, §60 vests the Legislature with the authority to create checks and balances within the executive department.12 The Governor concedes that it is the legislative prerogative to restrict the organization of the executive cabinet. Since statehood, it has been recognized that the Governor has a limited appointment power.13 The power of appointment is not an exclusive function of the executive, legislative or judicial departments. The Governor's appointment powers do not arise from any inherent power vested in the office.14 Although the pursuit of greater appointment powers is nothing new,15 Oklahoma citizens have reiterated the position that the Governor's appointment powers are limited and that governmental power should be widely dispersed.16 (Relevant citations included, but renumbered). We also noted in Keating that the Legislature was:"free to amend the statute" to provide the flexibility that the Governor sought, and it did so in 2003, by changing shall to may. In addition to the Governor's limited power of appointment, most Oklahoma agencies, boards, and commissions are independent of direct control of the Governor.17 In 2019, the Legislature authorized the Governor to choose the directors of five agencies which previously had been selected by the boards of the agencies.18 However it left the operation of other state agencies intact. ¶8 While the Governor's role may be faithful execution of the law, which he exceeded, nowhere in the Oklahoma Constitution is the Governor given the autonomous, broad authority to negotiate, execute, and bind the state to completed gaming compacts which are unauthorized by statute. Rather, art. 6, §8 clearly requires the Governor to act as may be prescribed by law. Any authority the Governor might have concerning gaming compacts, must be expressly prescribed by the Legislature. The Legislature neither expressly nor implicitly granted the Governor the power beyond negotiation. ¶9 The State-Tribal Gaming Act explicitly directs the Governor the authority to request re-negotiation,19 but nowhere, save for the original model compact,20 does the Act grant the Governor the authority to execute the compact and bind the state. The model compact only does so because it was pre-approved by the Legislature. Title 74 O.S. 2011 §1221 expressly grants the Governor the authority to negotiate and to enter into cooperative agreements with tribes. However, it also very, specifically, reserves authority in the Legislature finally to bind the state by requiring compacts be approved by a statutorily created joint committee before they can become effective. It provides in pertinent part: A. The State of Oklahoma acknowledges federal recognition of Indian tribes recognized by the Department of Interior, Bureau of Indian Affairs. B. The State of Oklahoma recognizes the unique status of Indian tribes within the federal government and shall work in a spirit of cooperation with all federally recognized Indian tribes in furtherance of federal policy for the benefit of both the State of Oklahoma and tribal governments. C. 1. The Governor is authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian tribal governments within this state to address issues of mutual interest. The Governor may elect to name a designee who shall have authority to negotiate and enter into cooperative agreements on behalf of the state with federally recognized Indian tribes as provided for in this section. Except as otherwise provided by this subsection, such agreements shall become effective upon approval by the Joint Committee on State-Tribal Relations. 2. If the cooperative agreements specified and authorized by paragraph 1 of this subsection involve trust responsibilities, approval by the Secretary of the Interior or designee shall be required. . . . (Emphasis supplied). ¶10 It is undisputed that the Joint Committee on State-Tribal Relations has not approved the Governor's compacts in this cause. Thus the compacts, in their entirety, are not effective. Whether the joint committee has approved any other agreements or compacts is irrelevant, and not before the Court in this cause. CONCLUSION ¶11 The Legislature has not authorized the Governor to bind the state with regard to tribal compacts. Nor has it been approved by the Joint Committee on State-Tribal relations.21 Rather the compact executed by the Governor contravened state law. The Governor's powers are limited by the Constitution. The Governor may exercise only the specific power granted. The Governor's attempt to exceed this authority results in the actions being rendered wholly ineffectual and invalid.22 FOOTNOTES 1 Strickland, Renard J., and Thomas, James C., Most Sensibly Conservative and Safety Radical: Oklahoma's Constitution Regulation of Economic Power, Land Ownership and Corporate Monopoly, 9 Tulsa L. J. 167 (2013). 2 Renard J. Strickland, and James C. Thomas, Most Sensibly Conservative and Safety Radical: Oklahoma's Constitution Regulation of Economic Power, Land Ownership and Corporate Monopoly, 9 Tulsa L.J. 167 ( 2013) . 3 Jean Shurmway Warner, Oklahoma Governors, The Almanac of Oklahoma Politics, pg. 10 4 Johnson v. Walters, 1991 OK 207, ¶5-7, fn. 10-13, Kauger, J., concurring 819 P.2d 694. 5 See, Compsource Mutual Ins. Co. v. State ex rel. Oklahoma Tax Comm'n, 2018 OK 54, ¶43, 435 P.3d 90; Wells v. Childers, 1945 OK 365, 165 P.2d 371. 6 Organization & Administrating Oklahoma, The Bookings Institute, 1935. 7 Jean Shurmway Warner, Oklahoma Governors, The Almanac of Oklahoma Politics, 10. 8 The Okla. Const. art 6, §1, provides: A. The Executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor and Inspector, Attorney General, State Treasurer, Superintendent of Public Instruction, Commissioner of Labor, Commissioner of Insurance and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law. B. The Secretary of State shall be appointed by the Governor by and with the consent of the Senate for a term of four (4) years to run concurrently with the term of the Governor. See also, Organization & Administrating Oklahoma, The Bookings Institute, 1935. As of 1935 the Governor's appointment powers were very limited. Some names have changed and some boards and commissions no longer exist anymore, the Legislature has done little to expand the Governor's power of appointment. "Powers of Appointment. The Governor's administrative position can best be under-stood by noting the extent of his control, through appointment and removal, over the heads of administrative agencies. In Oklahoma, 16 state officers, in addition to the Governor and Lieutenant Governor, are elected. The constitutional elective officers are the following: Attorney General, Secretary of State, State Auditor, State Treasurer, State Examiner and Inspector, Superintendent of Public Instruction, Insurance Commissioner, the three mem¬ bers of the Corporation Commission, Commissioner of Charities and Corrections, Commissioner of Labor, and Chief Mine Inspector. The statutory elective officers are: President of the State Board of Agriculture and four Assistant Mine Inspectors. Two other boards are elected: The Board of Governors of the State Bar, by the active members of the Bar; and the Board of Directors of the Historical Society, by the members of the Society. In addition, the following live boards and commissions are composed exclusively of elective officials: Board of Pardons; Commissioners of the Land Office (constitutional); the State Depository Board; the State Board of Equal¬ ization (constitutional) ; and the Board of Directors of the State Library. In the following three bodies, a majority of the members are ex-officio and elective, the Governor (when he is a member) and the appointive members being in a minority: Securities Commission, State Commission of Agricultural and Industrial Education; and Code Commission. The agencies headed by the above-mentioned officers and boards are clearly independent of direct control by the Governor. The following 26 officers and boards are appointed by the Governor, but only with the advice and consent of the Senate: Highway Commission, Insurance Board, Fraternal Insurance Board, Banking Board, Building and Loan Board, Board of Public Affairs, Board of Chiropody, Board of Pharmacy, Election Board, Board of Education, Board of Regents of University of Oklahoma, Board of Regents of Oklahoma College for Women, Board of Regents of Northeastern Oklahoma Junior College/ Board of Regents of Colored A. and N. College. Coordinating Board, Budget Officer, State Board of Agriculture, Conservation Commission, Flood Control Board, Game and Fish Com¬ mission, Board of Arbitration and Conciliation, Mining Board, Industrial Commission, Tax Commission, Adjutant General, and Fire Marshal. In the case of some of these latter appointments, there are other limitations on the Governor's freedom of action, the most common one stipulating that the appointee shall be recommended, or selected from a; list submitted by a private association. Such a stipulation applies, for example, to the Banking Board, the Board of Pharmacy, and the Election Board. There are some other appointments, which do not require confirmation by the Senate but which must be made from nominations or lists submitted by private associations. Officers and boards so appointed include the Board of Dental Examiners, the Board of Embalming, the Board of Examiners of Nurses, the Soldiers' Relief Commission. and the Custodians of the three Memorial Halls. In the case of two or three boards, the make-up represents mixed systems of appointment, but so arranged as in effect to neutralize wholly or partly the Governor's control. Examples are Advisory Board of the State Farm and Industrial Council, the Forrest Commission, the Board of Arbitration and Concilation. 9 See discussion note 17, supra. 10 Organization & Administrating Oklahoma, The Bookings Institute, 1935. 11 Thad L. Beyle, The Powers of the Governor in North Carolina: Where the Weak Grow Strong* -- Except for the Governor. pg. 31, The Chief Executive, March 1990. 12 The Okla. Const. art. 5, §60 provides in pertinent part: "The Legislature shall provide by law for the establishment and maintenance of an efficient system of checks and balances between the officers of the Executive Department . . . " 13 Oklahoma's territorial law gave the governor the power to make all appointments. Section 2 of Oklahoma's Organic Act, 26 Stat. 82 (1890) provides: "That the executive power of the Territory of Oklahoma Shall be vested in a governor, who shall hold office for four years and until his successor shall be appointed and qualified, unless sooner removed by the president of the United States. The governor shall reside within said Territory; shall be commander-in-chief of the militia thereof; he may grant pardons for offenses against the laws of said Territory; and reprieves for offenses against the laws of the United States, until the decision of the president can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of said Territory, and shall take care that the laws be faithfully executed." However, when the people of Oklahoma formed a state government and adopted the Oklahoma Constitution, the appointment power created in the Governor was substantially reduced. The Okla. Const. art. 6, §13 provides: "The Governor shall commission all officers not otherwise commissioned by law. All commissions shall run in the name and by the authority of the 'State of Oklahoma,' be signed by the Governor, sealed with the Great Seal of the State of Oklahoma, and attested by the Secretary of State. When any office shall become vacant, he shall, unless otherwise provided by law, appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed, and qualified according to law." See, R. Henry, "Deliberations About Democracy: Revolutions, Republicanism, & Reform," 34 Willamette L.Rev. 533, 561 (1998), for a discussion of the division of powers among the departments of government in Oklahoma. 14 Riley v. State ex rel. McDaniel, 1914 OK 251, 141 P. 264. 15 See, Riley v. State ex rel. McDaniel, note 23, supra. See also, In re Initiative Petition No. 344, 1990 OK 75, ¶3, 797 P.2d 326, which we rejected, in part, because it failed to advise the voters that the Governor would be allowed to appoint a majority of all boards and it removed the power of the Legislature to enact laws determining how vacancies of elected offices of the executive department were filled. 16 In 1988, the electorate in State Question 613 voted to make the Labor Commissioner an elected state official rather than permit the Commissioner to be appointed by the Governor. The people have also had opportunities to allow appointment to boards and commissions by persons other than the Governor. In 1990, pursuant to State Question 627, the people created the Ethics Commission with appointees by the Governor, Chief Justice, President Pro Tempore of the Senate, Speaker of the House and Attorney General. Okla. Const. art. 6, §10. In 1992, the people approved State Question 649, the Oklahoma Building Bonds Commission, which provided that members be appointed by the Governor and leaders of the two houses. Okla. Const. art. 10, §43. 17 Organization & Administrating Oklahoma, The Bookings Institute, 1935. 18 The agencies are the Office of Juvenile Affairs; Oklahoma Department of Corrections; Oklahoma Health Care Authority; Department of Mental Health and Substance Abuse Services; and Oklahoma Department of Transportation. The bills were enacted during the 2019 Legislative session. The bills signed are House Bill 2479; House Bill 2480; House Bill 2483; Senate Bill 456; and Senate Bill 457. 19 Title 3A O.S. O.S. 2012 §281 (The provisions of the Model Compact) provide in pertinent part: B. This Compact shall have a term which will expire on January 1, 2020, and at that time, if organization licensees or others are authorized to conduct electronic gaming in any form other than pari-mutuel wagering on live horse racing pursuant to any governmental action of the state or court order following the effective date of this Compact, the Compact shall automatically renew for successive additional fifteen-year terms; provided that, within one hundred eighty (180) days of the expiration of this Compact or any renewal thereof, either the tribe or the state, acting through its Governor, may request to renegotiate the terms of subsections A and E of Part 11 of this Compact. 20 Title 3A O.S. Supp. 2018 §280 provides in pertinent part: The State of Oklahoma through the concurrence of the Governor after considering the executive prerogatives of that office and the power to negotiate the terms of a compact between the state and a tribe, and by means of the execution of the State-Tribal Gaming Act, and with the concurrence of the State Legislature through the enactment of the State-Tribal Gaming Act, hereby makes the following offer of a model tribal gaming compact regarding gaming to all federally recognized Indian tribes as identified in the Federal Register within this state that own or are the beneficial owners of Indian lands as defined by the Indian Gaming Regulatory Act, 25 U.S.C., Section 2703(4), and over which the tribe has jurisdiction as recognized by the Secretary of the Interior and is a part of the tribe's "Indian reservation" as defined in 25 C.F.R., Part 151.2 or has been acquired pursuant to 25 C.F.R., Part 151, which, if accepted, shall constitute a gaming compact between this state and the accepting tribe for purposes of the Indian Gaming Regulatory Act. Acceptance of the offer contained in this section shall be through the signature of the chief executive officer of the tribal government whose authority to enter into the compact shall be set forth in an accompanying law or ordinance or resolution by the governing body of the tribe, a copy of which shall be provided by the tribe to the Governor. No further action by the Governor or the state is required before the compact can take effect. A tribe accepting this Model Tribal Gaming Compact is responsible for submitting a copy of the Compact executed by the tribe to the Secretary of the Interior for approval and publication in the Federal Register. The tribe shall provide a copy of the executed Compact to the Governor. No tribe shall be required to agree to terms different than the terms set forth in the Model Tribal Gaming Compact, which is set forth in Section 281 of this title. As a precondition to execution of the Model Tribal Gaming Compact by any tribe, the tribe must have paid or entered into a written agreement for payment of any fines assessed prior to the effective date of the State-Tribal Gaming Act by the federal government with respect to the tribe's gaming activities pursuant to the Indian Gaming Regulatory Act. . . . 21 The Oklahoma Constitution prohibits the unlawful delegation of a legislative authority. Okla. Const. art. IV, §1 provides: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. The Okla. Const. art. V, §1 provides: The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. The constitutionality of the Joint Committee of State-Tribal relations as an unlawful delegation of legislative authority has not been challenged in this cause or any other. Because the compacts were not submitted to the committee, if we were to address it sua sponte, it would be merely advisory. We do not issue advisory opinions. Dank v. Benson, 2000 OK 40, ¶ 7, 5 P.3d 1088; Keating v. Johnson, 1996 OK 61, ¶ 0, 918 P.2d 51; Application of Fun Country Development Auth., 1977 OK 138, ¶ 3, 566 P.2d 1167. Furthermore, we are bound by the record presented for review. Heirshberg v. Slater, 1992 OK 84, ¶ 5, 833 P.2d 269; Snyder v. Smith Welding & Fabrication, 1986 OK 35, ¶ 1, 746 P.2d 168 [Supplemental opinion on rehearing]. 22 Johnson v. Walters, 1991 OK 107 at ¶¶ 5--7, fn. 10--13 (concurring opinion), 819 P.2d at 703. ROWE, J., concurring in result: ¶1 I concur with the Court's judgment that the new compacts entered into between the Governor and the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town, respectively, are invalid under Oklahoma law. I cannot accede, however, as to any finding or implication in the Court's opinion that the Joint Committee could validate these compacts. ¶2 While the facts of this case are slightly different from those in Treat I, in that the compacts at issue here do not expand the scope of permissible Class III gaming, they nevertheless conflict with the STGA in important ways.1 Because these compacts stand in conflict with Oklahoma law, they operate not only as agreements between the State and the Tribes but also as amendments to Oklahoma law. The Joint Committee cannot make valid and enforceable an unlawful compact. ¶3 A finding or implication to the contrary would be inconsistent with this Court's jurisprudence on the non-delegation doctrine. Article V, Section 1 of the Oklahoma Constitution vests legislative authority in the Legislature exclusively: The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. The non-delegation doctrine "rests on the premise that the legislature must not abdicate its responsibility to resolve fundamental policy making by [1] delegating that function to others or [2] by failing to provide adequate directions for the implementation of its declared policy." City of Oklahoma City v. State ex rel. Okla. Dept. of Labor, 1995 OK 107, ¶12, 918 P.2d 26, 29 (citing Democratic Party of Oklahoma v. Estep, 1982 OK 106, ¶16 n.23, 652 P.2d 271, 277 n.23). If the Joint Committee could approve compacts that operate as amendments to Oklahoma law, the Joint Committee would possess functional legislative authority.2 Such an arrangement would unquestionably run afoul of the non-delegation doctrine. FOOTNOTES 1 Specifically, the compacts grant the Governor exclusive authority to authorize new forms of gaming beyond those permitted by the STGA and to settle disputes arising between the State and the Tribes under the compacts. The compacts also authorize monetary sanctions on the Tribes for violations of the compacts and appropriates those funds to the Office of Management and Enterprise Services. 2 This does not necessarily render the power of the Joint Committee illusory. The Joint Committee still possesses the power to approve or disapprove compacts that are consistent with Oklahoma law. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Criminal Appeals Cases  CiteNameLevel  2005 OK CR 7, 110 P.3d 83, WHIRLPOOL CORP. v. HENRYDiscussed Oklahoma Supreme Court Cases  CiteNameLevel  1986 OK 35, 746 P.2d 168, 57 OBJ 1480, Snyder v. Smith Welding & FabricationDiscussed  1914 OK 251, 141 P. 264, 43 Okla. 65, RILEY v. STATE ex rel. McDANIEL.Discussed  1990 OK 75, 797 P.2d 326, 61 OBJ 1655, Initiative Petition No. 344, State Question No. 630, In reDiscussed  1991 OK 107, 819 P.2d 694, 62 OBJ 3397, Johnson v. WaltersDiscussed  1992 OK 84, 833 P.2d 269, 63 OBJ 1824, Heirshberg v. SlaterDiscussed  1993 OK 37, 850 P.2d 1069, 64 OBJ 978, Ethics Com'n of State of Okl. v. CullisonDiscussed  2001 OK 110, 37 P.3d 882, 72 OBJ 3672, KEATING v. EDMONDSONDiscussed  1945 OK 365, 165 P.2d 371, 196 Okla. 353, WELLS v. CHILDERSDiscussed  1932 OK 636, 15 P.2d 65, 159 Okla. 124, WENTZ v. THOMAS.Discussed  1995 OK 107, 918 P.2d 26, 66 OBJ 3184, City of Oklahoma City v. State ex rel. Oklahoma Dept. of LaborDiscussed  1996 OK 61, 918 P.2d 51, 67 OBJ 1680, Keating v. JohnsonDiscussed  2007 OK 27, 163 P.3d 512, FENT v. CONTINGENCY REVIEW BOARDDiscussed  2009 OK 6, 212 P.3d 447, COSSEY v. CHEROKEE NATION ENTERPRISES, LLCDiscussed at Length  2009 OK 51, 230 P.3d 488, GRIFFITH v. CHOCTAW CASINO OF POCOLADiscussed at Length  1977 OK 138, 566 P.2d 1167, APPLICATION OF FUN COUNTRY DEVELOP. AUTHORITYDiscussed  2018 OK 54, 435 P.3d 90, COMPSOURCE MUTUAL INSUR. CO. v. STATE ex rel. OKLA. TAX COMM. and OKLA. ASSOC. OF ELECTRIC SELF INSURERS FUND v. STATE OF OKLA. TAX COMM. Discussed  2020 OK 64, 473 P.3d 43, TREAT v. STITTDiscussed at Length  2000 OK 40, 5 P.3d 1088, 71 OBJ 1291, Dank v. BensonDiscussed  1982 OK 106, 652 P.2d 271, Democratic Party of Oklahoma v. EstepDiscussed Title 21. Crimes and Punishments  CiteNameLevel  21 O.S. 941, Gambling - Conducting - Penalty - FelonyCited Title 3A. Amusements and Sports  CiteNameLevel  3A O.S. 280, Offer of Model Tribal Gaming CompactDiscussed at Length  3A O.S. 281, Provisions of the Model Tribal Gaming CompactDiscussed at Length  3A O.S. 280.1, Gaming Compact SupplementsDiscussed Title 74. State Government  CiteNameLevel  74 O.S. 1221, Unique Status of Indian Tribes within Federal GovernmentDiscussed at Length

2020-12-02 21:10:01.44355+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07168.htm

Fernandez v Conklin (2020 NY Slip Op 07168) Fernandez v Conklin 2020 NY Slip Op 07168 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-08245 (Index No. 1634/16) [*1]Daniel N. Fernandez, respondent, v Earl E. Conklin, et al., defendants, Local Media Group, Inc., appellant. Kowalski & DeVito (McGaw, Alventosa & Zajac, Jericho, NY [Ross P. Masler], of counsel), for appellant. Patrick S. Owen, PLLC, Middletown, NY, for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendant Local Media Group, Inc., appeals from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated April 29, 2019. The order, insofar as appealed from, denied the motion of the defendant Local Media Group, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action against Earl E. Conklin, Publishers Circulation Fulfillment, Inc., and Local Media Group, Inc. (hereinafter the defendant), to recover damages for personal injuries. The plaintiff alleged that he was struck and injured by a vehicle operated by Conklin, who had just completed delivering the defendant's newspapers on the morning of October 17, 2013. The plaintiff sought to recover damages from the defendant pursuant to the doctrine of respondeat superior. The defendant moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it on the ground that it was not Conklin's employer. In an order dated April 29, 2019, the Supreme Court, inter alia, denied the motion. The defendant appeals. We affirm. "The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts" (Rivera v Fenix Car Serv. Corp., 81 AD3d 622, 623). "The critical inquiry in determining whether an employment relationship exists 'pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results. Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule'" (Castro-Queseada v Tuapanta, 148 AD3d 978, 979, quoting Barak v Chen, 87 AD3d 955, 957 [internal quotation marks omitted]). "The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive" (Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516, 518). Here, the defendant failed to establish, prima facie, that it had no relationship with Conklin or that Conklin was an [*2]independent contractor (see Galvan v Robinson, 50 AD3d 954, 955; Lane v Lyons, 277 AD2d 428, 428). We therefore agree with the Supreme Court's determination denying the defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:01.664514+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07167.htm

Fernandez v Conklin (2020 NY Slip Op 07167) Fernandez v Conklin 2020 NY Slip Op 07167 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-00770 (Index No. 1634/16) [*1]Daniel N. Fernandez, respondent, v Earl E. Conklin, et al., defendants, Publishers Circulation Fulfillment, Inc., appellant. Thomas K. Moore (Andrea G. Sawyers, Melville, NY [David R. Holland], of counsel), for appellant. Patrick S. Owen, PLLC, Middletown, NY, for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendant Publishers Circulation Fulfillment, Inc., appeals from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated December 5, 2018. The order denied the motion of the defendant Publishers Circulation Fulfillment, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action against Earl E. Conklin, Publishers Circulation Fulfillment, Inc. (hereinafter the defendant), and Local Media Group, Inc., to recover damages for personal injuries. The plaintiff alleged that he was struck and injured by a vehicle operated by Conklin, who, pursuant to an agreement with the defendant, had just completed delivering newspapers on the morning of October 17, 2013. The plaintiff sought to recover damages from the defendant pursuant to the doctrine of respondeat superior. The defendant moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it on the ground that it was not Conklin's employer. In an order dated December 5, 2018, the Supreme Court denied the motion. The defendant appeals. We affirm. "The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts" (Rivera v Fenix Car Serv. Corp., 81 AD3d 622, 623). "The critical inquiry in determining whether an employment relationship exists 'pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results. Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule'" (Castro-Queseada v Tuapanta, 148 AD3d 978, 979, quoting Barak v Chen, 87 AD3d 955, 957 [internal quotation marks omitted]). "The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive" (Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516, 518). Here, the defendant [*2]failed to establish, prima facie, that Conklin was an independent contractor (see Galvan v Robinson, 50 AD3d 954, 955; Lane v Lyons, 277 AD2d 428, 428). We therefore agree with the Supreme Court's determination denying the defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The parties' remaining contentions need not be reached in light of our determination. MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:01.887065+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07166.htm

Federal Natl. Mtge. Assn. v Suarez (2020 NY Slip Op 07166) Federal Natl. Mtge. Assn. v Suarez 2020 NY Slip Op 07166 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. ROBERT J. MILLER JOSEPH J. MALTESE PAUL WOOTEN, JJ. 2017-10419 (Index No. 22799/09) [*1]Federal National Mortgage Association, respondent, v Rodolfo Suarez, appellant, et al., defendants. Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant. RAS Boriskin, LLC, Westbury, NY (Joseph F. Battista of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Rodolfo Suarez appeals from an order of the Supreme Court, Queens County (Bernice D. Siegal, J.), dated June 30, 2017. The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action to foreclose a mortgage given by the defendant Rodolfo Suarez (hereinafter the defendant). The defendant was personally served with the summons and complaint on August 26, 2009, but failed to timely respond thereto. The defendant appeared in this action by notice of appearance dated December 30, 2009. Thereafter, the parties unsuccessfully attempted to reach a settlement, and the matter was then stayed for nearly four years while the defendant sought bankruptcy protection. The defendant's bankruptcy petitions were unsuccessful, and in November 2016, the defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action, contending that the plaintiff had failed to allege that it had complied with a condition precedent, namely, federal Housing and Urban Development (hereinafter HUD) regulations promulgated under 24 CFR § 203.604 that require, among other things, a "face-to-face" meeting between the mortgagee and mortgagor prior to commencing a foreclosure action. The Supreme Court, inter alia, denied that branch of the motion, and the defendant appeals. We agree with the Supreme Court's denial of that branch of the defendant's motion which was to dismiss the complaint insofar as asserted against him for failure to state a cause of action. First, "a facially adequate cause of action to foreclose a mortgage requires allegations regarding the existence of the mortgage, the unpaid note, and the defendant's default thereunder" (US Bank N.A. v Nelson, 169 AD3d 110, 113). Affording, as we must, the pleading a liberal construction, accepting all facts as alleged to be true, and according the plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory (see Arnell Constr. Corp. v New York City Sch. Constr. Auth., 177 AD3d [*2]595, 596; U.S. Bank N.A. v Herman, 174 AD3d 831), we find that the complaint was facially adequate to state a cause of action to foreclose a mortgage. In addition, "[t]he performance or occurrence of a condition precedent in a contract need not be pleaded" (CPLR 3015[a]), and therefore the plaintiff was not required to plead compliance with those provisions of the mortgage document requiring compliance with HUD regulations (see Arnell Constr. Corp. v New York City Sch. Constr. Auth., 177 AD3d at 597; see also US Bank N.A. v Quacoe, 174 AD3d 832, 833; Nationstar Mtge., LLC v Vordermeier, 165 AD3d 822, 823; Green Planet Servicing, LLC v Martin, 141 AD3d 892, 893; cf. First Natl. Bank of Chicago v Silver, 73 AD3d 162, 169). The parties' remaining contentions need not be reached in light of our determination. MASTRO, J.P., MILLER, MALTESE and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:02.196951+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07165.htm

Federal Natl. Mtge. Assn. v Edwards (2020 NY Slip Op 07165) Federal Natl. Mtge. Assn. v Edwards 2020 NY Slip Op 07165 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-03558 (Index No. 452/15) [*1]Federal National Mortgage Association, etc., appellant, v Anthony Edwards, etc., et al., defendants. Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for appellant. DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated November 21, 2018. The order denied the plaintiff's unopposed motion, inter alia, for a declaration that a judgment of foreclosure and sale of the same court (Paul I. Marx, J.), entered September 20, 2016, foreclosed all of a certain parcel of property, including specified lots that were not included in the legal description of the property annexed to the mortgage agreement. ORDERED that the order is affirmed, without costs or disbursements. Between December 29, 1999, and November 29, 2004, the defendants Anthony Edwards and Colleen Edwards (hereinafter together the defendants) acquired parcels of real property with designated tax map numbers 25.70-1-37, 25.70-1-29, 25.70-1-30, and 25.70-1-31, which, respectively, were described as lots A929-A933, lots A950, 1951, and A952, lots A946-A949, and lots A942-A945, as designated and delineated on the map entitled "Map A of Putnam Lake, Putnam County, New York and Fairfield County, Connecticut" and filed in the Putnam County Clerk's Office on March 20, 1931, as Map No. 149-H. On August 4, 2005, Anthony Edwards executed and delivered to Home Loan Center, Inc., a note in the principal sum of $300,000. On the same date, the defendants executed and delivered a mortgage on the premises commonly known as 17 Salisbury Road, Patterson, New York, to secure the note. Schedule A annexed to the mortgage agreement set forth the legal description of the property as "ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Town of Patterson, County of Putnam and State of New York particularly described as Lots numbered A950, 1951 and A952 as designated and delineated on the map entitled 'Map A of Putnam Lake, Putnam County, New York and Fairfield County, Connecticut' and filed in the Putnam County Clerk's Office on the 20th day of March, 1931 as Map No. 149-[H]." As set forth in the mortgage agreement, the description of the property included, inter alia: the property; all buildings and other improvements located on the property; all rights in other property the mortgagors had as owners of the property known as easements and appurtenances attached to the property; all rights that the mortgagors had in the land which lay in the streets or roads in front of, or next to, the property; all fixtures which were then or in the future would be on the property; and all of the rights and property described in the foregoing that the mortgagors acquired in the future. On February 28, 2006, the defendants authorized the Patterson Town Assessor to combine the parcels designated as tax map numbers 25.70-1-29, which had been described as lots A950, 1951, and A952, with the parcels designated as tax map numbers 25.70-1-30, 25.70-1-31, and 25.70-1-37 and to designate the combined parcel as tax map number 25.70-1-29. Thereafter, the note and mortgage were delivered and assigned to the plaintiff. The defendants defaulted in repaying the note, and the plaintiff commenced this action to foreclose the mortgage and filed a notice of pendency. Subsequently, the Supreme Court entered a judgment of foreclosure and sale on September 30, 2016. Pursuant to the judgment of foreclosure and sale, a referee conducted a public auction of the mortgaged premises on January 10, 2017, at which the plaintiff was the successful bidder. On January 30, 2017, the referee executed a referee's deed to the plaintiff. By letter dated January 22, 2018, the Supervisor of the Town of Patterson, New York, informed the plaintiff's attorney that as a result of the plaintiff's actions, there was an illegal subdivision of the property. The plaintiff moved, inter alia, for a declaration that, pursuant to the doctrine of after-acquired property, the judgment of foreclosure and sale foreclosed all of the parcel designated in 2006 as tax map number 25.70-1-29, including lots A929-A933, A942-A945, and A946-A949, which, prior to 2006, had been designated as tax map numbers 25.70-1-37, 25.70-1-31, and 25.70-1-30, respectively. In an order dated November 21, 2018, the Supreme Court denied the motion. The plaintiff appeals. We agree with the Supreme Court's determination to deny the plaintiff's motion. To the extent that the plaintiff contends that the parcels of real property that had been designated as tax map numbers 25.70-1-37, 25.70-1-31, and 25.70-1-30 prior to 2006 were acquired after the defendants entered into the mortgage agreement, that contention is without merit (see Guaranty Trust Co. of N.Y. v New York & Queens County Ry. Co. , 253 NY 190). Furthermore, as the Supreme Court correctly determined, those parcels were not subject to the after-acquired property clause of the mortgage agreement because they were not within the description of the mortgage covenant. The only real property contemplated in the mortgage agreement was that described in Schedule A as annexed to the mortgage agreement, more specifically, "ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Town of Patterson, County of Putnam and State of New York particularly described as Lots numbered A950, 1951 and A952 as designated and delineated on the map entitled 'Map A of Putnam Lake, Putnam County, New York and Fairfield County, Connecticut' and filed in the Putnam County Clerk's Office on the 20th day of March, 1931 as Map No. 149-H." The lots numbered A950, 1951, and A952 refer only to the parcel that had been designated as tax map number 25.70-1-29 before it was combined with other parcels of real property on February 28, 2006. In light of our determination, we need not address the plaintiff's remaining contentions. MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:02.501281+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07164.htm

Dunn v Law Offs. of Evans & Al-Shabazz, LLP (2020 NY Slip Op 07164) Dunn v Law Offs. of Evans & Al-Shabazz, LLP 2020 NY Slip Op 07164 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. ROBERT J. MILLER JOSEPH J. MALTESE PAUL WOOTEN, JJ. 2018-02980 2018-05472 (Index No. 511115/16) [*1]Stephenson Dunn, respondent, v Law Offices of Evans & Al-Shabazz, LLP, defendant, Robert Anthony Evans, Jr., appellant. Bruce A. Young, New York, NY, for appellant. Davis Ndanusa Ikhlas & Saleem, LLP, Brooklyn, NY (Daniel E. Sully and Mustapha Ndanusa of counsel), for respondent. DECISION & ORDER In an action to recover damages for breach of contract, the defendant Robert Anthony Evans, Jr., appeals from (1) an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated January 22, 2018 and (2) an order of the same court dated April 18, 2018. The order dated January 22, 2018, denied that defendant's motion, in effect, pursuant to CPLR 317 and 5015(a) to vacate a judgment dated October 18, 2017, entered upon his failure to appear or answer the complaint. The order dated April 18, 2018, insofar as appealed from, denied that branch of the defendant's motion which was for leave to renew his motion to vacate the judgment and, in effect, upon reargument, adhered to the prior determination in the order dated January 22, 2018. ORDERED that the appeal from the order dated January 22, 2018, is dismissed, as that order was superseded by the order dated April 18, 2018, made upon reargument; and it is further, ORDERED that the order dated April 18, 2018, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. In June 2016, the plaintiff commenced this breach of contract action against the defendant Robert Anthony Evans, Jr. (hereinafter the defendant), and his law firm, alleging their failure to return funds held in escrow. According to the affidavits of service, the defendant was served with the summons and complaint pursuant to CPLR 308(2). The defendant failed to appear or answer the complaint. A judgment dated October 18, 2017, was entered in favor of the plaintiff and against the defendant. In December 2017, the defendant moved, in effect, pursuant to CPLR 317 and 5015(a) to vacate the judgment and lift the restraint on his bank account, on the grounds, inter alia, that he did not receive notice of the matter prior to entry of the judgment and that service was defective. In an order dated January 22, 2018, the Supreme Court denied the defendant's motion. The defendant then moved, inter alia, pursuant to CPLR 2221 for leave to renew and reargue his prior motion, inter alia, to vacate the judgment. In an order dated April 18, 2018, the court denied [*2]that branch of the defendant's motion which was for leave to renew and, in effect, upon reargument, adhered to the prior determination in the order dated January 22, 2018. The defendant appeals. "'Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service'" (Deutsche Bank Natl. Trust Co. v Yurowitz, 181 AD3d 646, 647, quoting U.S. Bank N.A. v Langner, 168 AD3d 1021, 1023). "'Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing'" (Bank of N.Y. Mellon v Lawson, 176 AD3d 1155, 1157; quoting U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155). According to the process server's affidavits of service, the defendant was served pursuant to CPLR 308(2) at two separate locations: (1) at premises on 145th Street in Manhattan, by delivery of the summons and complaint upon "Jane Doe," a person of suitable age and discretion, and by the subsequent mailing of an additional copy of the summons and complaint to the same address, and (2) at the defendant's residence on West 136th Street in Manhattan, by delivery of the summons and complaint to "Shelia Watson, Secretary, a person of suitable age and discretion," and by the subsequent mailing of an additional copy of the summons and complaint to the same address. With respect to the first affidavit of service, the defendant averred that he had vacated the premises on 145th Street and the office had ceased to be his actual place of business more than one year prior to the alleged service. "Where the defendant denies residing at the premises where service allegedly was made, the sworn denial, combined with documentary and other evidence supporting such claim, is sufficient to rebut the plaintiff's prima facie showing of proper service and to necessitate an evidentiary hearing" (U.S. Bank, N.A. v Tauber, 140 AD3d at 1155). Here, however, the defendant's conclusory affidavit was unsubstantiated by other evidence demonstrating that he had vacated the office, and he failed to rebut documentary evidence establishing that he continued to use the premises (see Bank of N.Y. Mellon v Lawson, 176 AD3d at 1157; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 726; Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 820, 821). The defendant's affidavit was also insufficient to rebut the presumption of service raised by the process server's second affidavit of service upon the defendant, which recited that the summons and complaint were delivered to "Shelia Watson, Secretary," at the defendant's residence. In his affidavit, the defendant denied that he "ever employed a person by this name," but he did not aver that he did not employ a secretary who might have been present at his home, or someone of a similar appearance as the woman described in the process server's affidavit (see Electric Ins. Co. v Grajower, 256 AD2d 833, 835). Further, the defendant did not establish a basis for vacatur of the judgment pursuant to CPLR 317 or 5015(a)(1). A party seeking to vacate a default judgment pursuant to CPLR 5015(a)(1) "must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141). "Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" (Dove v 143 Sch. St. Realty Corp., 172 AD3d 1315, 1316 [internal quotation marks omitted]). Here, the defendant's conclusory and unsubstantiated denial of receipt of the summons and complaint was insufficient to establish that the defendant did not have actual notice of the action in time to defend. Similarly, the defendant's affidavit was insufficient to demonstrate a reasonable excuse for his default as required for vacatur pursuant to CPLR 5015(a)(1) (see Bookman v 816 Belmont Realty, LLC, 180 AD3d 986, 987). In light of the foregoing, it is unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 317 or 5015(a)(1) (see Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812, 814). Accordingly, we agree with the Supreme Court's determination, upon reargument, to adhere to its original determination denying the defendant's motion, inter alia, to vacate the default judgment. The Supreme Court also providently exercised its discretion in denying that branch of the defendant's motion which was for leave to renew his prior motion, inter alia, to vacate the default judgment. Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Caronia v Peluso, 170 AD3d 649, 650). Here, the purported new evidence was available to the defendant at the time of his prior motion, and he did not demonstrate a reasonable justification for failing to submit it (see CPLR 2221[e][3]). In any event, such evidence would not have changed the prior determination (see Ascentium Capital, LLC v Empire Med. Servs. of Long Is., P.C., 182 AD3d 563). The defendant's remaining contentions are without merit. MASTRO, J.P., MILLER, MALTESE and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:02.800782+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07162.htm

Deangelis v Franklin Plaza Apts., Inc. (2020 NY Slip Op 07162) Deangelis v Franklin Plaza Apts., Inc. 2020 NY Slip Op 07162 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY, JJ. 2018-09587 (Index No. 2378/12) [*1]Stephen Deangelis, appellant, v Franklin Plaza Apartments, Inc., et al., respondents. William Schwitzer & Associates, P.C., New York, NY (Barry Semel-Weinstein of counsel), for appellant. Martin Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg and Michael A. Sonkin of counsel), for respondents. DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated May 21, 2018. The order granted the defendants' motion for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), and denied the plaintiff's cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Franklin Plaza Apartments, Inc. ORDERED that the order is affirmed, with costs. On May 18, 2011, the plaintiff, an employee of a company contracted by the defendant Franklin Plaza Apartments, Inc., to maintain its boilers, was dispatched to prepare and test the boilers for an upcoming city inspection. During his work, he used an extension ladder to access the top of a boiler. He allegedly was injured when the ladder fell to the ground. The plaintiff commenced this action to recover damages for personal injuries, asserting, inter alia, causes of action alleging violations of Labor Law §§ 240(1) and 241(6). The defendants moved for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), and the plaintiff cross-moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Franklin Plaza Apartments, Inc. The Supreme Court granted the defendants' motion and denied the plaintiff's cross motion. The plaintiff appeals. "'To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish, among other things, that he or she was injured during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" (Dahlia v S & K Distrib., LLC, 171 AD3d 1127, 1128, quoting Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652-653 [internal quotation marks omitted]). "'In determining whether a particular activity constitutes "repairing," courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)'" (Dahlia v S & K Distrib., LLC, 171 AD3d at 1128, quoting Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d at 653). Similarly, "'[r]outine maintenance is not within the ambit of Labor Law § 241(6)'" (Byrnes v Nursing Sisters of the Sick Poor, Inc., 170 AD3d 796, 797, quoting Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687, 688; see Dixson v Waterways at Bay Pointe Home Owners Assn, Inc., 112 AD3d 884, 885). "'Generally, courts have held that [*2]work constitutes routine maintenance where the work involves "replacing components that require replacement in the course of normal wear and tear"'" (Dahlia v S & K Distrib., LLC, 171 AD3d at 1128, quoting Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d at 653, quoting Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528). "'[A]ltering' within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure" (Joblon v Solow, 91 NY2d 457, 465). Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) by establishing that the plaintiff was not performing a repair or alteration when he was injured, and was instead engaged in routine maintenance. The defendants' submissions demonstrated that the plaintiff was dispatched to prepare the boilers for a city inspection that occurred every three years, and that his work consisted of testing the boilers' efficiency, cleaning parts, and replacing worn out parts. The defendants' evidence showed that the plaintiff's work "involved replacing components that require replacement in the course of normal wear and tear" (Esposito v New York City Indus. Dev. Agency, 1 NY3d at 528) and did not constitute "repairing," "altering," or any other enumerated activity (see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 49; Esposito v New York City Indus. Dev. Agency, 1 NY3d at 528; Dahlia v S & K Distrib., LLC, 171 AD3d at 1128). In opposition, the plaintiff failed to raise a triable issue of fact. For similar reasons, we agree with the court's determination denying the plaintiff's cross motion, since, as discussed above, the plaintiff's work was not protected by Labor Law § 240(1) (see Abbatiello v Lancaster Studio Assoc., 3 NY3d at 49; Esposito v New York City Indus. Dev. Agency, 1 NY3d at 528; Dahlia v S & K Distrib., LLC, 171 AD3d at 1128). The parties' remaining contentions are without merit. CHAMBERS, J.P., ROMAN, HINDS-RADIX and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:03.109385+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07163.htm

DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP (2020 NY Slip Op 07163) DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP 2020 NY Slip Op 07163 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D. DUFFY, JJ. 2017-08411 (Index No. 14174/15) [*1]Franco A. DeMartino, appellant, v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, et al., respondents. Gail M. Blasie, P.C., Garden City, NY, for appellant. Law Office of Steven Cohn, P.C., Carle Place, NY (Peter Chatzinoff of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for breach of fiduciary duty and fraud, the plaintiff appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), dated May 31, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. Justice Miller has been substituted for Justice Hinds-Radix (see 22 NYCRR 1250.1[b]). ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for breach of fiduciary duty, fraud/"fraud on the court," violation of Judiciary Law § 487, conversion, aiding and abetting conversion, aiding and abetting fraud, and prima facie tort. The causes of action were based on allegations of various intentional misconduct by the defendants in their legal representation of a certain executor and/or estate in a probate proceeding and a related guardianship proceeding to the plaintiff's detriment as a beneficiary of the subject estate. The defendants made a pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated May 31, 2017, the Supreme Court granted the defendants' motion. The plaintiff appeals. We agree with the plaintiff that he had standing to commence this action, which was not brought on behalf of the subject estate and did not seek the return of property to the estate (cf. e.g. McQuaide v Perot, 223 NY 75, 79; Inman v Inman, 97 AD2d 864, 865), and that the action was not subject to dismissal for failure to join, among others, the subject executor and estate as necessary parties (see CPLR 1001[a], [b]). However, the complaint failed to state a cause of action (see CPLR 3211[a][7]). To state a cause of action to recover damages for breach of fiduciary duty, which must be pleaded with the requisite particularity under CPLR 3016(b), "a plaintiff must allege: (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct" (Parekh v Cain, 96 AD3d 812, 816 [internal quotation marks omitted]). Here, while the defendants, as counsel for the subject executor and estate, could be liable for breach of a fiduciary duty to the plaintiff, as a beneficiary of the estate, if they placed their own [*2]self-interest above that of the beneficiaries (see Chinello v Nixon, Hargrave, Devans & Doyle, LLP, 15 AD3d 894, 895-896), there are no allegations of such self-interest in the complaint. Moreover, the plaintiff failed to allege that he was directly damaged by the defendants' alleged breach of their fiduciary duty. To state a cause of action to recover damages for fraud, which must be pleaded with the requisite particularity under CPLR 3016(b), a plaintiff must allege "a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Deutsche Bank Natl. Trust Co. v Sinclair, 68 AD3d 914, 916). Here, with regard to both his causes of action to recover damages for fraud/"fraud on the court" and aiding and abetting fraud, the plaintiff failed to allege that any misrepresentations or omissions were made for the purpose of inducing him to rely upon them or that he, or a court, relied on those alleged misrepresentations and omissions (see Sammy v Haupel, 170 AD3d 1224, 1227). Pursuant to Judiciary Law § 487, "an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor, and forfeits to the party injured treble damages, to be recovered in a civil action" (Rozen v Russ & Russ, P.C., 76 AD3d 967, 968 [internal quotation marks omitted]). A cause of action to recover damages for violation of Judiciary Law § 487 must be pleaded with specificity (Sammy v Haupel, 170 AD3d at 1225). Here, the plaintiff alleged intent to deceive in a conclusory fashion (see Sammy v Haupel, 170 AD3d at 1226), and failed to allege that either he or a court in fact were deceived by the alleged collusion between the defendants and certain others, or that he suffered damages that were proximately caused by the alleged deceit (see O'Connor v Dime Sav. Bank of N.Y., 265 AD2d 313, 314). To state a cause of action to recover damages for conversion, a plaintiff must allege "legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff's rights" (Barker v Amorini, 121 AD3d 823, 825 [internal quotation marks omitted]). Here, with regard to his causes of action to recover damages for conversion and aiding and abetting conversion, the plaintiff failed to allege legal ownership or an immediate right of possession to the property/funds in question. Finally, to state a cause of action to recover damages for prima facie tort, a plaintiff must allege: "(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful" (Epifani v Johnson, 65 AD3d 224, 232). "To make out a claim sounding in prima facie tort, the plaintiff must allege that disinterested malevolence was the sole motivation for the conduct of which he or she complains" (id. [internal quotation marks omitted]). Here, the plaintiff failed to allege that disinterested malevolence was the sole motivation for the conduct of which he complains, and failed to allege any special damages (id. at 232-233). Based on the foregoing, we agree with the Supreme Court's determination granting the defendants' motion to dismiss the complaint. CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:03.422932+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07161.htm

Crooks v City of New York (2020 NY Slip Op 07161) Crooks v City of New York 2020 NY Slip Op 07161 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-03476 (Index No. 11655/13) [*1]Damien Crooks, appellant, v City of New York, et al., respondents. Sullivan Papain Block McGrath & Cannavo, P.C., New York, NY (Stephen C. Glasser and Christopher J. DelliCarpini of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, NY (Georgia M. Pestana, Claude S. Platton, and Anna B. Wolonciej of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for false arrest, malicious prosecution and civil rights violations pursuant to 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated October 31, 2018. The order, insofar as appealed from, granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action to recover damages for false arrest and malicious prosecution, and so much of the cause of action to recover damages for civil rights violations pursuant to 42 USC § 1983 as related to claims pursuant to Monell v New York City Dept. of Social Servs. (436 US 658). ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for malicious prosecution, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The plaintiff, along with others, was accused by grand jury indictment of having committed sex trafficking, rape in the first degree, and other crimes. Thereafter, the plaintiff was arrested. He was unable to post bail, and remained in custody for approximately 10 months before he was released. Ultimately, the charges against him were dismissed. The plaintiff commenced this action, inter alia, to recover damages for false arrest, malicious prosecution, and civil rights violations pursuant to 42 USC § 1983. The defendants moved, among other things, for summary judgment dismissing the causes of action to recover damages for false arrest and malicious prosecution, and so much of the cause of action to recover damages for civil rights violations pursuant to 42 USC § 1983 as related to claims pursuant to Monell v New York City Dept. of Social Servs. (436 US 658). In an order dated October 31, 2018, the Supreme Court, inter alia, granted those branches of the defendants' motion. The plaintiff appeals. We agree with the Supreme Court's determination to grant that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover [*2]damages for false arrest. To prevail on a cause of action to recover damages for false arrest and false imprisonment, the plaintiff must demonstrate that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement, that the plaintiff did not consent to the confinement, and that the confinement was not privileged (see De Lourdes Torres v Jones, 26 NY3d 742, 759). For purposes of the privilege element of a false arrest and false imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest supported by probable cause (see De Lourdes Torres v Jones, 26 NY3d at 759). Once a suspect has been indicted, the grand jury action creates a presumption of probable cause (see Colon v City of New York, 60 NY2d 78, 82). Here, where the defendant's arrest followed a grand jury indictment pertaining to certain incidents, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for false arrest. The plaintiff failed to raise a triable issue of fact in opposition. Further, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was for summary judgment dismissing so much of the cause of action to recover damages for civil rights violations pursuant to 42 USC § 1983 as related to claims pursuant to Monell v New York City Dept. of Social Servs. Pursuant to 42 USC § 1983, a plaintiff may maintain an action against governmental actors for, inter alia, false arrest and malicious prosecution in violation of the law and Constitution of the United States (see De Lourdes Torres v Jones, 26 NY3d at 762). The elements of false arrest and malicious prosecution under the federal statute are substantially the same as the elements of the comparable state common-law claims (see id.). However, "the government itself cannot be liable for false arrest or malicious prosecution under 42 USC § 1983 unless an official government policy, custom or widespread practice caused the violation of the plaintiff's constitutional rights" (id.; see Monell v New York City Dept. of Social Servs., 436 US 658). Here, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the alleged unconstitutional actions resulted from an official policy, regulation, or custom (see Combs v City of New York, 130 AD3d 862, 865). We disagree, however, with the Supreme Court's determination to grant that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for malicious prosecution. "The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (De Lourdes Torres v Jones, 26 NY3d at 760 [internal quotation marks omitted]). Although a grand jury indictment raises a presumption of probable cause, this presumption may be rebutted (id. at 761-763). "[E]ven if the jury at a trial could, or likely would, decline to draw inferences favorable to the plaintiff on issues of probable cause and malice, the court on a summary judgment motion must indulge all available inferences of the absence of probable cause and the existence of malice" (id. at 763). Here, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised triable issues of fact as to whether the defendants improperly continued the prosecution against him and participated in the prosecution out of malice (id.; see also Kinge v State of New York, 79 AD3d 1473, 1479). We reject the defendants' contention that they are entitled to summary judgment dismissing the cause of action to recover damages for malicious prosecution based on absolute prosecutorial immunity. "[A] prosecutor is entitled to absolute immunity for actions taken within the scope of his or her official duties in initiating and pursuing a criminal prosecution and in presenting the People's case, but a prosecutor is entitled only to qualified immunity when acting in an investigatory capacity" (Blake v City of New York, 148 AD3d 1101, 1104 [internal quotation marks omitted]). In this case, the defendants, as the proponents of this summary judgment motion, have not demonstrated their entitlement to judgment as a matter of law based on absolute immunity (see Chetrick v Cohen, 305 AD2d 359, 361). The parties' remaining contentions are not properly before this Court or are without merit. MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:03.86115+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07160.htm

Commodore Factors Corp. v Deutsche Bank Natl. Trust Co. (2020 NY Slip Op 07160) Commodore Factors Corp. v Deutsche Bank Natl. Trust Co. 2020 NY Slip Op 07160 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN BETSY BARROS, JJ. 2018-03212 (Index No. 2212/15) [*1]Commodore Factors Corp., appellant, v Deutsche Bank National Trust Company, etc., respondent, et al., defendants. Ruskin Moscou Faltischek, P.C., Uniondale, NY (Adam L. Browser and Jeffrey A. Wurst of counsel), for appellant. Reed Smith LLP, New York, NY (Andrew B. Messite and Kerren B. Zinner of counsel), for respondent. DECISION & ORDER In an action, inter alia, pursuant to Real Property Actions and Property Law § 1501(4) to cancel and discharge of record a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered January 12, 2018. The order granted the motion of the defendant Deutsche Bank National Trust Company for summary judgment dismissing the amended complaint insofar as asserted against it and, in effect, declaring that the plaintiff's mortgage did not have priority over the terms of that defendant's lien modification agreement, and denied the plaintiff's cross motion for summary judgment on the amended complaint insofar as asserted against that defendant and, in effect, declaring that its mortgage had priority over the terms of the lien modification agreement. ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff's mortgage did not have priority over the terms of the lien modification agreement. In June 2004, the defendants Alan Dinow and Carol R. Dinow (hereinafter together the borrowers) obtained a loan from Aames Funding Corporation, which was secured by a mortgage on their real property in Woodbury. The mortgage was thereafter assigned to the defendant Deutsche Bank National Trust Company (hereinafter Deutsche Bank). In September 2004, the borrowers obtained a loan from the plaintiff secured by a mortgage on the same property. Following the borrowers' defaults on their payment obligations under both mortgage agreements, the plaintiff commenced an action to foreclose its mortgage in 2007, and Deutsche Bank commenced a foreclosure action in April 2008. In May 2010, the borrowers filed for bankruptcy under chapter 7 of the United States Bankruptcy Code (see 11 USC § 701 et seq.), triggering an automatic stay of the foreclosure actions. In August 2010, the borrowers' Chapter 7 bankruptcy proceedings terminated with a discharge of their debts. Both foreclosure actions were ultimately dismissed for lack of personal jurisdiction. In 2012, the plaintiff commenced another foreclosure action against, among others, the borrowers. In February 2015, the borrowers entered into a lien modification agreement with [*2]Deutsche Bank. Subsequently, the plaintiff commenced this action against, inter alia, Deutsche Bank. The first cause of action in the amended complaint sought to cancel and discharge of record Deutsche Bank's mortgage on the subject property pursuant to RPAPL 1501(4) on the ground that the statute of limitations to foreclose that mortgage had expired. The second cause of action sought a judgment declaring that the plaintiff's mortgage had priority over the terms of the lien modification agreement. Deutsche Bank moved for summary judgment dismissing the amended complaint insofar as asserted against it and, in effect, declaring that the plaintiff's mortgage did not have priority over the terms of the lien modification agreement. In support of its motion, Deutsche Bank argued, among other things, that, pursuant to General Obligations Law § 17-101, the lien modification agreement revived the statute of limitations period to foreclose on its mortgage. In addition, Deutsche Bank argued that there was no merit to the plaintiff's claim that its lien should now have priority over Deutsche Bank's lien, inasmuch as no new funds were extended to the borrowers pursuant to the lien modification agreement, and the agreement permitted substantial amounts of principal to be forgiven as timely payments were made. The plaintiff opposed Deutsche Bank's motion and cross-moved for summary judgment on the amended complaint insofar as asserted against Deutsche Bank and, in effect, declaring that its mortgage had priority over the terms of the lien modification agreement. In an order entered January 12, 2018, the Supreme Court granted Deutsche Bank's motion and denied the plaintiff's cross motion. The plaintiff appeals. An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]; Nationstar Mtge., LLC v Dorsin, 180 AD3d 1054, 1055). Even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt (see Nationstar Mtge., LLC v Dorsin, 180 AD3d at 1055; Bank of N.Y. Mellon v Craig, 169 AD3d 627, 628-629). "General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt" (Lynford v Williams, 34 AD3d 761, 762; see Yadegar v Deutsche Bank Natl. Trust Co., 164 AD3d at 947). To constitute a valid acknowledgment, a "writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it" (Sichol v Crocker, 177 AD2d 842, 843 [internal quotation marks omitted]; see Yadegar v Deutsche Bank Natl. Trust Co., 164 AD3d at 947; Karpa Realty Group, LLC v Deutsche Bank Natl. Trust Co., 164 AD3d 886, 888). Here, Deutsche Bank established its prima facie entitlement to judgment as a matter of law dismissing the first cause of action, which sought to cancel and discharge of record its mortgage on the subject property. Even assuming that the statute of limitations to foreclose on Deutsche Bank's mortgage would have expired sometime in 2014, Deutsche Bank demonstrated that the borrowers subsequently executed the lien modification agreement. That agreement provides, among other things, that "[e]ven though the [borrowers'] personal liability on the note is discharged, the terms of the [original] Lien Documents remain in effect," and the "Lien Holder continues to have an enforceable lien on the Property." In addition, the lien modification agreement provides that "[t]he Lien Documents, as modified by this Agreement, are duly valid, binding agreements, enforceable in accordance with their terms and are hereby reaffirmed." Thus, the borrowers explicitly acknowledged their obligation to pay the existing debt to Deutsche Bank, and the language of the lien modification agreement was sufficient to revive the statute of limitations period (see General Obligations Law § 17-101; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 815; cf. Yadegar v Deutsche Bank Natl. Trust Co., 164 AD3d at 947; Karpa Realty Group, LLC v Deutsche Bank Natl. Trust Co., 164 AD3d at 888). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the lien modification agreement contains nothing inconsistent with the borrowers' intention to make the mortgage payments. Although the lien modification agreement indicates that the borrowers' personal liability for the obligation was released in bankruptcy, "[a] discharge in bankruptcy is a discharge from personal liability only and, without more, does not affect a lien" (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 62). Deutsche Bank also demonstrated its prima facie entitlement to judgment as a matter of law with respect to the second cause of action, which sought a judgment declaring that the plaintiff's mortgage has priority over the terms of the lien modification agreement. In support of its motion, Deutsche Bank established that the lien modification agreement, which did not extend new funds and resulted in a reduced interest rate, did not prejudice the rights of the plaintiff or impair its security interest (see Sperry Assocs. Fed. Credit Union v. U.S. Bank, N.A. [In re White], 514 BR 365, 369 [Bankr ED NY]; cf. Fleet Bank of N.Y. v County of Monroe Indus. Dev. Agency, 224 AD2d 964, 965; Shultis v Woodstock Land Dev. Assoc., 188 AD2d 234, 237). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court's determination granting Deutsche Bank's motion for summary judgment, and denying the plaintiff's cross motion for summary judgment. Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff's mortgage did not have priority over the terms of the lien modification agreement (see Lanza v Wagner, 11 NY2d 317). AUSTIN, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:04.318431+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07159.htm

Citimortgage, Inc. v Nimkoff (2020 NY Slip Op 07159) Citimortgage, Inc. v Nimkoff 2020 NY Slip Op 07159 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2018-09033 2018-09037 (Index No. 8816/12) [*1]Citimortgage, Inc., respondent, v Ronald A. Nimkoff, appellant, et al, defendants. Ronald A. Nimkoff, Syosset, NY, appellant pro se. Akerman LLP, New York, NY (Jordan M. Smith of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Ronald A. Nimkoff appeals from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), both entered April 12, 2018. The first order, insofar as appealed from, granted that branch of the plaintiff's renewed motion which was for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, denied that branch of that defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him, and denied that defendant's separate motion, upon the discharge of his counsel, to adjourn the plaintiff's renewed motion and that defendant's cross motion for summary judgment. The second order, insofar as appealed from, again granted that branch of the plaintiff's renewed motion which was for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, denied that branch of that defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him, and denied that defendant's separate motion, upon the discharge of his counsel, to adjourn the plaintiff's renewed motion and that defendant's cross motion for summary judgment, and referred the matter to a referee to compute the amount due and owing to the plaintiff. ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs. The plaintiff commenced this action against the defendant Ronald A. Nimkoff (hereinafter the defendant) and others seeking to foreclose a mortgage on certain real property. The defendant joined issue by verified answer in which he raised affirmative defenses including failure to comply with the notice requirements of RPAPL 1304. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The defendant cross-moved, inter alia, for a "bad faith" hearing pursuant to CPLR 3408. By order dated October 22, 2015, the Supreme Court denied the plaintiff's motion with leave to renew upon the completion of discovery and denied the defendant's cross motion. The defendant appealed from so much of that order as denied that branch of his motion which was for a "bad faith" hearing. On appeal, this Court, in a decision and order dated March 21, 2018, reversed that order insofar as appealed from, granted that branch of the defendant's cross motion which was for a "bad faith" hearing, and remitted the matter to the Supreme Court for a hearing and determination as to whether the plaintiff met its obligation [*2]to negotiate in good faith pursuant to CPLR 3408(f) (see Citimortgage, Inc. v Nimkoff, 159 AD3d 869). Meanwhile, the plaintiff renewed its motion, inter alia, for summary judgment on the complaint and for an order of reference. The defendant opposed the renewed motion and cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him, or, in the alternative, to compel discovery. The defendant also separately moved pursuant to CPLR 321(c) to relieve his counsel and to adjourn the plaintiff's renewed motion and his cross motion so that his substitute counsel would have time to become familiar with the case. The defendant further asked the Supreme Court to direct counsel to deliver the defendant's case file to the defendant. In the first order appealed from, the Supreme Court granted the plaintiff's renewed motion for summary judgment and for an order of reference, and denied the defendant's cross motion, inter alia, for summary judgment dismissing the complaint and his separate motion to adjourn the renewed motion and cross motion. The court also found that the defendant did not make a showing that he terminated his counsel "for cause," and therefore counsel possessed a statutory charging lien as well as a common-law retaining lien on the defendant's case file. The second order appealed from disposed of the parties' respective motions in the same manner and additionally appointed a referee to compute the amount due and owing to the plaintiff. The defendant appeals. We agree with the Supreme Court's determination granting that branch of the plaintiff's renewed motion which was for summary judgment on the complaint insofar as asserted against the defendant. Contrary to the defendant's contentions, the plaintiff established, prima facie, that it strictly complied with the notice requirements of RPAPL 1303 and 1304 (see U.S. Bank N.A. v Bochicchio, 179 AD3d 1133, 1137; CitiMortgage, Inc. v Goldberg, 179 AD3d 1006, 1008-1009), and the defendant failed to raise a triable issue of fact in opposition. Moreover, the defendant did not provide an evidentiary basis to suggest that further discovery might lead to relevant evidence or that the facts essential to justify opposition to the renewed motion were in the exclusive knowledge and control of the plaintiff (see Wells Fargo Bank, N.A. v Sasson, 167 AD3d 818, 819). Additionally, contrary to the defendant's contention, under the circumstances of this case, this Court's prior decision and order remitting the matter to the Supreme Court for a "bad faith" hearing pursuant to CPLR 3408(f), a directive with which the Supreme Court apparently has yet to comply, did not reopen the settlement conference process such that all motions were automatically held in abeyance under CPLR 3408(n) (cf. Onewest Bank, FSB v Colace, 130 AD3d 994). Rather, following the hearing, if there is a finding that the plaintiff failed to negotiate in good faith, the defendant will be entitled to the imposition of appropriate sanctions against the plaintiff (see U.S. Bank N.A. v Fisher, 169 AD3d 1089, 1092; Aurora Loan Servs., LLC v Diakite, 148 AD3d 662, 664; LaSalle Bank, N.A. v Dono, 135 AD3d 827, 829; see also US Bank N.A. v Sarmiento, 121 AD3d 187, 207; IndyMac Bank, F.S.B. v Yano-Horoski, 78 AD3d 895). We also agree with the Supreme Court's determination denying the defendant's cross motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against him, as he did not establish his prima facie entitlement to that relief (see Deutsche Bank Natl. Trust Co. v Dennis, 181 AD3d 864, 870-871). Similarly, we agree with the court's denial of the defendant's separate motion for an adjournment. The defendant's contention that he was entitled to an adjournment pursuant to CPLR 321(c) is without merit, since the record established that he voluntarily discharged his attorney (see Matter of Cassini, 182 AD3d 13, 49; Matter of Wiley v Musabyemariya, 118 AD3d 898, 900). Furthermore, having found that the defendant did not terminate his former counsel "for cause," the court also properly determined that former counsel possessed a statutory charging lien and a common-law retaining lien on the defendant's case file (see Bing Hui Chen v Speedway Plumbing Corp., 138 AD3d 660, 660). MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:04.553555+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07158.htm

Bulux v Moran (2020 NY Slip Op 07158) Bulux v Moran 2020 NY Slip Op 07158 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. SHERI S. ROMAN BETSY BARROS LINDA CHRISTOPHER, JJ. 2019-01298 (Index No. 563/16) [*1]Santos Bulux, respondent, v Wilfredo Moran, et al., defendants, William Sullivan, appellant. Kelly, Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for appellant. Lipsig Shapey Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Melissa B. Ringel], of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendant William Sullivan appeals from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered December 7, 2018. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him. ORDERED that the order is affirmed, with costs. In September 2015, the plaintiff, a roof mechanic employed by Diplomat Construction Company, was working at premises owned by the defendant William Sullivan (hereinafter the defendant). While using a nail gun to attach plywood to the beams on the roof of the premises, the plaintiff slipped and fell. As the plaintiff fell, he shot himself in the knee with the nail gun. The plaintiff commenced this personal injury action, alleging causes of action to recover damages for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendant moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court denied the motion, and the defendant appeals. "Owners of one- or two-family dwellings are exempt from liability under both Labor Law §§ 240(1) and 241(6) unless they directed or controlled the work being performed" (Salgado v Rubin, 183 AD3d 617, 618; see Szczepanski v Dandrea Constr. Corp., 90 AD3d 642, 643). "The exception was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability" (Acosta v Hadjigavriel, 18 AD3d 406, 406). "The phrase direct or control as used in those statutes is construed strictly and refers to the situation where the owner supervises the method and manner of the work" (Torres v Levy, 32 AD3d 845, 846 [internal quotation marks omitted]; see Salgado v Rubin, 183 AD3d at 618). In support of his motion, the defendant demonstrated, prima facie, that he was entitled to the benefit of the homeowner's exemption by submitting evidence that he was the owner of a one-family dwelling and that he did not direct or control the work being performed (see Salgado v Rubin, 183 AD3d at 618; Ramirez v Begum, 35 AD3d 578). However, in opposition, the plaintiff raised triable issues of fact as to whether the aim of the construction was to further a commercial [*2]enterprise (see Morgan v Rosselli, 9 AD3d 417, 419) and whether the defendant directed or controlled the work (see Rodriguez v Gany, 82 AD3d 863, 864-865). "Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work" (Niewojt v Nikko Constr. Corp., 139 AD3d 1024, 1025). "Where a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability" (Sullivan v New York Athletic Club of City of N.Y., 162 AD3d 955, 958; see Salgado v Rubin, 183 AD3d at 618-619). Here, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against him, the plaintiff raised a triable issue of fact as to whether the defendant had the authority to supervise or control the means and methods in which the plaintiff performed his work (see Rajkumar v Lal, 170 AD3d 761, 762-763). The defendant's remaining contention is without merit. Accordingly, we agree with the Supreme Court's determination denying the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him. BALKIN, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:04.878739+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07156.htm

Broecker v Conklin Prop., LLC (2020 NY Slip Op 07156) Broecker v Conklin Prop., LLC 2020 NY Slip Op 07156 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JEFFREY A. COHEN JOSEPH J. MALTESE PAUL WOOTEN, JJ. 2018-11587 (Index No. 20807/15) [*1]Ariann Broecker, etc., plaintiff, v Conklin Property, LLC, et al., defendant fourth-party plaintiff-respondent, et al., defendants; JJC Contracting Inc., fourth-party defendant, Total Management Corp., et al., fourth-party defendants-appellants (and a third-party action). Kaufman Dolowich & Voluck, LLP, Woodbury, NY (Brett A. Scher and Adam Nicolazzo of counsel), for fourth-party defendants-appellants. Law Offices of Daniel R. Olivieri, P.C., Jericho, NY, for defendant fourth-party plaintiff-respondent. DECISION & ORDER In an action, inter alia, to recover damages for negligence and breach of contract, the fourth-party defendants Total Management Corp. and David Lande appeal from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated August 17, 2018. The order, insofar as appealed from, denied that branch of the motion of the fourth-party defendants Total Management Corp. and David Lande which was pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the fourth-party complaint insofar as asserted against them, and granted the cross motion of the defendant fourth-party plaintiff, Conklin Property, LLC, for leave to amend the fourth-party complaint to add a cause of action alleging breach of fiduciary duty. ORDERED that the order is affirmed insofar as appealed from, with costs. The defendant fourth-party plaintiff, Conklin Property, LLC (hereinafter Conklin), purchased certain real property and entered into a contract with JJC Contracting, Inc. (hereinafter JJC), a fourth-party defendant, for construction and renovation of the property in order to lease it to the defendant Gurwin Home Care Agency, Inc. (hereinafter Gurwin). Conklin retained the fourth-party defendant David Lande and his insurance company, the fourth-party defendant Total Management Corp. (hereinafter TMC), to procure insurance for it, inter alia, for the construction phase of the renovation project. TMC and Lande, its principal (hereinafter together the appellants), negotiated and procured the subject policy for Conklin. During the renovation, an employee of JJC was injured at the property and died. Subsequently, the employee's estate commenced the instant action against Conklin. US Underwriters, the insurer, disclaimed coverage pursuant to an exclusion for bodily injury to contractors and subcontractors and their workers. Thereafter, Conklin commenced the instant fourth-party action against the appellants, alleging that they breached the agreement by failing to procure coverage for injury to contractors, subcontractors, and their workers, and were negligent in failing to exercise due care in procuring coverage that satisfied Conklin's insurance needs. The appellants moved, inter alia, pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the fourth-party complaint insofar as asserted against them, and Conklin cross-moved for [*2]leave to amend the fourth-party complaint to add a cause of action alleging breach of fiduciary duty. The Supreme Court denied that branch of the appellants' motion which was pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the fourth-party complaint insofar as asserted against them, and granted Conklin's cross motion. "An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so. Thus, the duty is defined by the nature of the client's request" (Verbert v Garcia, 63 AD3d 1149, 1149 [citations omitted]; see Murphy v Kuhn, 90 NY2d 266, 270). Here, contrary to the appellants' contention, the fourth-party complaint sufficiently asserted a cause of action alleging negligence. Conklin alleged in the fourth-party complaint that the policy procured, which excluded coverage for bodily injury to contractors, subcontractors, and their workers, did not comport with Conklin's request, and the documentary evidence does not conclusively establish otherwise (see Gibson & Cushman Contr., LLC v Cook Maran & Assoc., Inc., 184 AD3d 755). The elements of a cause of action sounding in negligent misrepresentation are (1) a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information (see Lamberti v Plaza Equities, LLC, 161 AD3d 837, 839-840). Contrary to the appellants' contention, the allegations in the fourth-party complaint concerning their involvement in assessing Conklin's insurance needs based on their review of the construction contract with JJC and the lease agreement with Gurwin, together with allegations regarding Conklin's reliance on the appellants' expertise, were sufficient to plead the existence of a special relationship necessary to sustain a negligent misrepresentation cause of action (see Fresh Direct v Blue Martini Software, 7 AD3d 487). Conklin also sufficiently alleged that the appellants incorrectly represented that the subject policy would meet Conklin's insurance needs and that it reasonably relied upon this representation (see generally Lamberti v Plaza Equities, LLC, 161 AD3d at 839-840). "Under New York law, a party who has engaged a person to act as an insurance broker to procure adequate insurance is entitled to recover damages [for breach of contract] from the broker if the policy obtained does not cover a loss for which the broker contracted to provide insurance, and the insurance company refuses to cover the loss" (Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 AD3d 865, 866 [internal quotation marks omitted]). "An insurance agent or broker can be held liable in negligence if he or she fails to exercise due care in an insurance brokerage transaction. Thus, a plaintiff may seek to hold a defendant broker liable under a theory of either negligence or breach of contract" (id. at 866 [citation omitted]). Here, the fourth-party complaint alleges that the appellants agreed to procure insurance to cover, inter alia, injury to contractors, subcontractors, and their workers, but failed to do so. The fourth-party complaint also alleges, separately and apart from such breach, that the appellants failed to exercise due care by procuring Endorsement 1, which purported to remove an exclusion for bodily injury to contractors, subcontractors, and their workers, but failed to remove all exclusions which would preclude coverage for such injuries, and that the appellants misrepresented that Endorsement 1 would provide the requested coverage (see id. at 866; Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792). Therefore, contrary to the appellants' contention, the cause of action alleging breach of contract was not duplicative of the cause of action alleging negligence. Moreover, Conklin sufficiently alleged in the fourth-party complaint that the appellants breached the contract to procure adequate insurance. Generally, tort claims accrue upon an injury being sustained, not upon the defendant's wrongful act or the plaintiff's discovery of the injury (see City Store Gates Mfg. Corp. v Empire Rolling Steel Gates Corp., 113 AD3d 718; Bonded Waterproofing Servs., Inc. v Anderson-Bernard Agency, Inc., 86 AD3d 527, 530). Here, the causes of action alleging negligence and negligent misrepresentation are governed by a three-year statute of limitations period (see CPLR 214[4]; Chase Scientific Research v NIA Group, 96 NY2d 20, 30-31). Conklin's injury was sustained on the date of the worker's injury, August 29, 2014 (see Chase Scientific Research Inc. v NIA Group Inc., 96 NY2d at 31). Prior to that, Conklin had no cognizable injury and, hence, the negligence and negligent misrepresentation causes of action were not enforceable. Since this action was commenced [*3]on August 9, 2017, it was within the three-year statute of limitations. A fiduciary relationship exists when one party is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relationship (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19). Conklin's allegations that it raised specific questions about the insurance coverage and the exclusions for injury to contractors, subcontractors, and their workers, and that it relied on the appellants' expertise and the inclusion of Endorsement 1, which removed an exclusion for injury to contractors, subcontractors, and their workers, but failed to remove all such exclusions, sufficiently asserted that a special relationship existed between Conklin and the appellants based upon their interactions regarding Conklin's question of coverage for injury to contractors, subcontractors, and their workers, with Conklin relying on the appellants' expertise (see Voss v Netherlands Ins. Co., 22 NY3d 728, 735). Accordingly, we agree with the Supreme Court's determination to grant Conklin's cross motion for leave to amend the fourth-party complaint to add a cause of action alleging breach of fiduciary duty. BALKIN, J.P., COHEN, MALTESE and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:05.185835+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07155.htm

Bennett v State Farm Fire & Cas. Co. (2020 NY Slip Op 07155) Bennett v State Farm Fire & Cas. Co. 2020 NY Slip Op 07155 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. ROBERT J. MILLER JOSEPH J. MALTESE FRANCESCA E. CONNOLLY, JJ. 2019-07857 (Index No. 602582/14) [*1]Richard Bennett, et al., appellants, v State Farm Fire and Casualty Company, et al., respondents (and related actions). Edward J. Boyle, Manhasset, NY, for appellants. Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril S. Biscone of counsel), for respondent State Farm Fire and Casualty Company. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Keith J. Stevens of counsel), for respondent Holzmacher, McLendon and Murrell, P.C. Pillinger Miller Tarallo, Elmsford, NY (Patrice M. Coleman of counsel), for respondent Milro Associates, Inc. DECISION & ORDER In an action, inter alia, to recover damages for negligence and gross negligence, the plaintiffs appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered April 17, 2019. The order denied the plaintiffs' motion pursuant to CPLR 3124 to compel the defendants to respond to certain interrogatories and to produce certain documents. ORDERED that the order is affirmed, with one bill of costs. This action is one of three arising from an oil contamination incident that occurred at the property of the plaintiff Richard Bennett and Mary Wendell Bennett (hereinafter together the Bennetts), in May 2011. This action was commenced against the defendants State Farm Fire and Casualty Company (hereinafter State Farm), Holzmacher, McLendon and Murrell, P.C. (hereinafter H2M), and Milro Associates, Inc. (hereinafter Milro), to recover damages allegedly caused by the oil contamination. At the relevant time, the Bennetts maintained a homeowners' insurance policy with State Farm with respect to the property. That policy contained an exclusion for "first-party" coverage for "contamination." State Farm apparently undertook to provide coverage as to a third-party claim made by the New York State Department of Environmental Conservation. The plaintiffs assert that the Bennetts were not initially made aware of these coverage limitations. The plaintiffs allege, inter alia, that State Farm hired H2M to supervise the remediation work at the property. The Bennetts allowed H2M access to the property for that purpose. The plaintiffs contend that the Bennetts hired Milro, a contractor, upon a recommendation from State Farm and/or H2M. The plaintiffs allege that these defendants failed to properly remediate the oil contamination. They further allege that the conduct of the defendants exacerbated the damage at the property, based on, among other things, certain actions that facilitated the mobilization of the [*2]contamination and damaged the home on the property. The plaintiffs allege that the defendants, acting together, took certain actions that will increase the ultimate cost of remediation and repairs. For instance, the plaintiffs allege that Milro, with the approval of H2M and/or State Farm, temporarily back-filled a large excavated area in the backyard despite the existence of contaminated soil in that area, and that the defendants then improperly abandoned further work at the site. The plaintiffs moved pursuant to CPLR 3124 to compel the defendants to respond to certain interrogatories and a demand for documents dated November 23, 2018. The Supreme Court denied the motion, and the plaintiffs appeal. CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." "The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court's discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised" (Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518, 518; see Encalada v Riverside Retail, LLC, 175 AD3d 467, 469). A motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408, 410; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531). Here, insofar as the plaintiffs sought discovery as to prior business dealings among the defendants, and information as to remediation projects performed by the defendants at sites other than the subject property, the demands sought irrelevant information and were overbroad and/or burdensome in nature (see Knickerbocker Vil., Inc. v Lexington Ins. Co., 178 AD3d 607; see also Gray v Tri-State Consumer Ins. Co., 157 AD3d 938, 940, 941). Where discovery demands are overbroad, "the appropriate remedy is to vacate the entire demand rather than to prune it" (Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 AD3d 752, 753 [internal quotation marks omitted]; see Matter of Greenfield v Board of Assessment Review for Town of Babylon, 106 AD3d 908, 909). Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion pursuant to CPLR 3124 to compel the defendants to respond to certain interrogatories and to produce certain documents. AUSTIN, J.P., MILLER, MALTESE and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:05.446147+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07154.htm

Bennett v State Farm Fire & Cas. Co. (2020 NY Slip Op 07154) Bennett v State Farm Fire & Cas. Co. 2020 NY Slip Op 07154 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. ROBERT J. MILLER JOSEPH J. MALTESE FRANCESCA E. CONNOLLY, JJ. 2019-06857 (Index No. 10385/13) [*1]Richard Bennett, et al., appellants, v State Farm Fire and Casualty Company, et al., defendants, Lewis Oil Company, et al., respondents (and related actions). Edward J. Boyle, Manhasset, NY, for appellants. Cartafalsa, Turpin & Lenoff, New York, NY (Anthony Orcel of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages pursuant to Navigation Law article 12, the plaintiffs appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated April 9, 2019. The order, insofar as appealed from, granted that branch of the motion in limine of the defendants Lewis Oil Company and Champion Energy Corp. which was to preclude the plaintiffs from offering certain evidence at trial as to the medical condition of Mary Wendell Bennett. ORDERED that the appeal is dismissed, without costs or disbursements. The plaintiffs appeal from an order in which the Supreme Court, inter alia, granted that branch of the motion in limine of the defendants Lewis Oil Company and Champion Energy Corp. which was to preclude the plaintiffs from offering certain evidence at trial as to the medical condition of Mary Wendell Bennett. The subject determination is an evidentiary ruling. Such a ruling, even when made "in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" (Cotgreave v Public Adm'r of Imperial County [Cal.], 91 AD2d 600, 601; see Diller v Munzer, 141 AD3d 630, 630-631; Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d 686; Curtis v Fishkill Allsport Fitness & Racquetball Club, 2 AD3d 768). Accordingly, the appeal must be dismissed. AUSTIN, J.P., MILLER, MALTESE and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:05.756066+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07157.htm

BT Holdings, LLC v Village of Chester (2020 NY Slip Op 07157) BT Holdings, LLC v Village of Chester 2020 NY Slip Op 07157 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JEFFREY A. COHEN FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ. 2016-05428 2018-02654 2018-09517 (Index No. 1480/15) [*1]BT Holdings, LLC, respondent-appellant, v Village of Chester, et al., appellants-respondents. Feerick Lynch MacCartney & Nugent, PLLC, South Nyack, NY (Donald J. Feerick, Jr., Mary E. Marzolla, and Patrick A. Knowles of counsel), for appellants-respondents. Jacobowitz & Gubits, LLP, Walden, NY (Kelly A. Pressler and Kara J. Cavallo of counsel), for respondent-appellant. DECISION & ORDER In an action, inter alia, to recover damages for breach of contract and breach of the implied covenant of good faith and fair dealing, the defendants appeal from (1) an order of the Supreme Court, Orange County (Elaine Slobod, J.), dated May 11, 2016, (2) a judgment of the same court (Thomas E. Walsh II, J.) entered January 16, 2018, and (3) an order of the same court (Thomas E. Walsh II, J.) dated May 29, 2018, and the plaintiff cross-appeals from the order dated May 29, 2018. The order dated May 11, 2016, insofar as appealed from, denied those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first through fourth causes of action or, in the alternative, for summary judgment dismissing those causes of action. The judgment, upon a jury verdict on the issue of liability in favor of the plaintiff and against the defendants, and upon a jury verdict on the issue of damages, is in favor of the plaintiff and against the defendants in the principal sum of $2,375,000. The order dated May 29, 2018, insofar as appealed from, denied the defendants' motion pursuant to CPLR 4404(a) to set aside the jury verdicts on the issue of liability and damages and for judgment as a matter of law. The order dated May 29, 2018, insofar as cross-appealed from, denied that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages as contrary to the weight of the evidence and, in effect, for an additur to the award of damages. ORDERED that the appeal from the order dated May 11, 2016, is dismissed; and it is further, ORDERED that the judgment is reversed, on the law, that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the first through fourth causes of action is granted, that branch of the defendants' motion which was for summary judgment dismissing those causes of action is denied as academic, the complaint is dismissed, and the order dated May 11, 2016, is modified accordingly; and it is further, ORDERED that the appeal and the cross appeal from the order dated May 29, 2018, [*2]are dismissed as academic in light of our determination on the appeal from the judgment; and it is further, ORDERED that one bill of costs is awarded to the defendants. The appeal from the order dated May 11, 2016, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). BT Holdings, LLC (hereinafter BT Holdings), is the owner of four tax parcels, including three parcels consisting of approximately 7.8 acres situated in the Village of Chester, and one parcel consisting of approximately 60.6 acres situated in the Town of Chester. In January 2008, BT Holdings petitioned to annex the parcel situated within the Town from the Town into the Village to develop the tax parcels for senior housing and multifamily housing. Frank J. Nussbaum, a member of BT Holdings, had advised the Village that the proposed development project would not comply with existing zoning, and thus, the Village considered the enactment of a new zoning district for the parcels called "Residential Multifamily-Neighborhood" (hereinafter RM-N). In March 2008, the Town of Chester Town Board (hereinafter Town Board) and the Village of Chester Board of Trustees (hereinafter Village Board) conducted a hearing on the annexation petition. The hearing was adjourned and held open pending the completion of the environmental review of the petition under the State Environmental Quality Review Act (ECL 8-0101 et seq.; hereinafter SEQRA). On August 18, 2011, following a multiyear review process, the Village Board, as the Village's lead agency, issued a final environmental impact statement (hereinafter FEIS), which included a determination of the positive benefits to the Village and the Town that would arise from the proposed annexation, the development project, and the proposed RM-N zone. On December 12, 2011, the Village Board issued SEQRA findings regarding the impact of the annexation, zone change, and residential development. The findings set forth, inter alia, that the four parcels comprising the project site were to be zoned RM-N, a new zoning district to be adopted post-annexation. The findings further discussed the benefits and compatibility with existing zoning of the proposed RM-N zone. On April 2, 2012, the Village Board voted to approve the annexation petition, finding that it was "in the overall public interest." However, on May 9, 2012, the Town Board issued its own SEQRA findings and voted to deny the annexation petition based on "alleged identified adverse environmental impacts the Town believed would result from the size and scale of BT Holdings' proposed residential development." On June 15, 2012, the Village Board commenced a special proceeding in this Court pursuant to General Municipal Law § 712 (hereinafter the Appellate Division proceeding) seeking to overturn the Town Board's May 9, 2012 denial of the annexation petition and its finding that annexation is not in the overall public interest. Upon motion to this Court, BT Holdings was granted party status in the special proceeding. On July 9, 2012, BT Holdings and the Village Board commenced a CPLR article 78 proceeding in the Supreme Court (hereinafter the Supreme Court proceeding) to annul the Town Board's SEQRA findings issued on May 9, 2012. In June 2013, the Appellate Division proceeding and the Supreme Court proceeding were settled by stipulations of settlement. Pursuant to the stipulations, BT Holdings agreed to reduce the number of residential units it planned to build, to the extent that it would build no more than 340 residential units, with no fewer than 100 to be age-restricted, and the Town Board agreed that the downsizing of the development removed its environmental impact concerns and agreed to adopt the Village Board's SEQRA findings. Pursuant to the Appellate Division proceeding stipulation, the Town was to file an order approving the annexation petition and the parties agreed to work cooperatively to complete the transfer of the annexed lands. The stipulations set forth that "[c]onstruction shall be undertaken in the manner described and set forth in the [FEIS] and the Village's SEQRA findings." Both stipulations also stated that the project is subject to review and approval by the Village of Chester Planning Board (hereinafter the Planning Board). Thereafter, the Planning Board issued a report opposing the enactment of the RM-N zoning, finding that the development could be built as planned under existing zoning. On November 3, 2014, following the issuance of the Planning Board's report, [*3]the Village Board voted against enacting three different proposed zoning amendments, and declined to apply any zoning classification to the parcels. In March 2015, BT Holdings commenced this action against the Village and the Village Board (hereinafter together the defendants) seeking, inter alia, to recover damages for breach of contract, breach of the implied covenant of good faith and fair dealing, and for a judgment declaring that the defendants' failure to zone the parcels constituted a taking of property without just compensation in violation of the United States and New York Constitutions. BT Holdings alleged, among other things, that the defendants breached their obligation under the stipulations by failing to enact the RM-N zoning, or any zoning, so as to allow construction of the project to proceed in accordance with the FEIS and SEQRA findings as required by the stipulations. The action was removed to the United States District Court of the Southern District of New York, and in an order dated February 23, 2016, the District Court granted that branch of the defendants' motion which was to dismiss the cause of action alleging an unconstitutional taking of property as unripe, and remanded the remaining causes of action to the New York Supreme Court. Thereafter, the defendants moved in the Supreme Court, inter alia, pursuant to CPLR 3211(a) to dismiss the remaining causes of action or, in the alternative, for summary judgment dismissing those causes of action. In an order dated May 11, 2016, the court denied those branches of the defendants' motion. The defendants appeal from that order. Subsequently, after a jury trial on the issue of liability, the jury returned a verdict in favor of the plaintiff, finding, inter alia, that the defendants breached the stipulations by failing to enact the RM-N zoning or any zoning that would allow construction of the project. After a jury trial on the issue of damages, the jury returned a verdict finding that the market value of the subject property as of November 3, 2014, the date of the breach of the stipulations, was the sum of $3,425,000, that the market value of the property as of that date would have been $5,800,000 had the defendants not breached the stipulations, and that BT Holdings therefore sustained damages in the sum of $2,375,000. Thereafter, BT Holdings moved, among other things, pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages as contrary to the weight of the evidence and, in effect, for an additur to the award of damages, and the defendants moved pursuant to CPLR 4404(a) to set aside the verdicts on the issue of liability and damages and for judgment as a matter of law. On January 16, 2018, the Supreme Court entered a judgment in favor of BT Holdings and against the defendants in the principal sum of $2,375,000. In an order dated May 29, 2018, the court denied the motions of BT Holdings and the defendants to set aside the verdicts. The defendants appeal from the judgment and the order dated May 29, 2018, and BT Holdings cross-appeals from that order. Contrary to the defendants' contention, they were not entitled to dismissal of the remaining causes of action as barred by the doctrine of collateral estoppel. The doctrine of collateral estoppel "'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity'" (Douglas Elliman, LLC v Silver, 143 AD3d 752, 754, quoting Ryan v New York Tel. Co., 62 NY2d 494, 500). "The doctrine applies only 'if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action'" (Douglas Elliman, LLC v Silver, 143 AD3d at 754, quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349). Here, the defendants failed to establish that the District Court decided issues identical to those raised by the causes of action under review (see Wax v 716 Realty, LLC, 151 AD3d 902, 904; cf. Milione v City Univ. of N.Y., 153 AD3d 807, 809). The defendants also were not entitled to dismissal of the remaining causes of action for failure to join the Town and the Planning Board as parties in this action, since the defendants failed to establish either that complete relief could not be accorded between the parties without the Town or the Planning Board, or that those entities might be inequitably affected by a judgment in this action (see Signature Bank v Faibish, 142 AD3d 1069, 1070; Spector v Toys "R" Us, Inc., 12 AD3d 358, 359). However, the Supreme Court should have granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the second and fourth causes of action, alleging breach of the implied covenant of good faith and fair dealing. As pleaded, those causes of action were duplicative of the causes of action alleging breach of contract (see Cortazar v Tomasino, 150 AD3d 668, 670; Educational Ctr. for New Ams., Inc. v 66th Ave. Realty Co., 131 AD3d 442, 443). Furthermore, the Supreme Court should have granted those branches of the defendants' motion pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7) which were to dismiss the first and third causes of action, alleging breach of contract. "On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences" (Christ the Rock World Restoration Church Intl., Inc. v Evangelical Christian Credit Union, 153 AD3d 1226, 1229; see Leon v Martinez, 84 NY2d 83, 87). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Christ the Rock World Restoration Church Intl., Inc. v Evangelical Christian Credit Union, 153 AD3d at 1229 [internal quotation marks omitted]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). "A motion to dismiss under CPLR 3211(a)(7) may be granted when exhibits attached to the complaint 'conclusively establish[ ] that a material fact as claimed to by the pleader to be one is not a fact at all and that no significant dispute exists regarding it'" (McMahan v McMahan, 131 AD3d 593, 594, quoting Laxer v Edelman, 75 AD3d 584, 585-586 [internal quotation marks omitted]). "Moreover, a court may grant a motion to dismiss a complaint under CPLR 3211(a)(1) when documentary evidence utterly refutes the plaintiff's allegations, conclusively establishing a defense as a matter of law" (McMahan v McMahan, 131 AD3d at 594; see CPLR 3211[a][1]). "The terms of an unambiguous contract that 'indisputably undermines' the causes of action may constitute such documentary evidence" (McMahan v McMahan, 131 AD3d at 594 quoting Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63). It is undisputed that the stipulations are clear and unambiguous. Here, BT Holdings seeks relief based upon the defendants' alleged breach of the stipulations, in that the defendants failed to enact the RM-N zoning, or any zoning, that would allow construction of the project as described in the FEIS and SEQRA findings. However, the unambiguous terms of the stipulations conclusively establish that they do not contain the terms alleged to have been breached. The stipulations do not set forth any affirmative obligation on the part of the Village Board to enact zoning, and do not make any specific reference to the RM-N zoning or any other zoning. BT Holdings' reliance on the provision of the stipulations that states "[c]onstruction shall be undertaken in the manner described and set forth in the [FEIS] and the Village's SEQRA findings" to support its contention that the defendants are obligated to enact zoning, is misplaced. The FEIS and SEQRA findings discuss the proposed RM-N zoning in connection with the evaluation of the environmental impact of the proposed annexation and project, but do not obligate the Village Board to enact zoning. Moreover, the stipulations were entered into as a means of settling the annexation litigation; specifically, the proceeding commenced by the Village Board pursuant to General Municipal Law § 712 seeking to overturn the Town Board's May 9, 2012 denial of the annexation petition and the CPLR article 78 proceeding commenced by BT Holdings and the Village Board to annul the Town Board's SEQRA findings issued on May 9, 2012. Even were we to find that the stipulations contained a provision that required the Village Board to enact zoning, such a provision is unenforceable, as obligating the Village Board to enact certain zoning requiring a legislative act cannot be agreed to by stipulation. "While a municipality possesses the inherent right to compromise a claim against it, it may not, under the guise of a compromise, impair a public duty owed by it or give validity to a void claim. Municipal corporations have no power to make contracts which will embarrass or control them in the [*4]performance of their legislative powers and duties" (Matter of Andgar Assoc. v Board of Zoning Appeals of Inc. Vil. of Port Washington N., 30 AD2d 672, 674 [internal citation omitted]; see Almor Associates v Town of Skaneateles, 231 AD2d 863). Moreover, "[t]he term limits rule prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so. Elected officials must be free to exercise legislative and governmental powers in accordance with their own discretion and ordinarily may not do so in a manner that limits the same discretionary right of their successors to exercise those powers" (Matter of Karedes v Colella, 100 NY2d 45, 50 [citation omitted]). Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the remaining causes of action. Based on the foregoing, the judgment, upon a jury verdict on the issue of liability and a jury verdict on the issue of damages in favor of the plaintiff and against the defendant must be reversed, and the complaint dismissed. In light of our determination, we need not consider the parties' remaining contentions. DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:06.065573+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07153.htm

Alskom Realty, LLC v Baranik (2020 NY Slip Op 07153) Alskom Realty, LLC v Baranik 2020 NY Slip Op 07153 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX FRANCESCA E. CONNOLLY, JJ. 2017-09892 (Index No. 511287/14) [*1]Alskom Realty, LLC, et al., respondents, v Roman Baranik, et al., appellants. Law Office of Robert B. Marcus, P.C., White Plains, NY, for appellants. Chiesa Shahinian & Giantomasi, P.C., New York, NY (Alexander Komolov pro se of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for accounting malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated July 20, 2017. The order granted the plaintiffs' motion for summary judgment on the issue of liability on the causes of action to recover damages for accounting malpractice and denied other pending motions as academic. ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion for summary judgment on the issue of liability on the causes of action to recover damages for accounting malpractice is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith. The plaintiffs allege accounting malpractice in connection with the defendants' preparation of a federal income tax return for the year 2007. They claim that the tax return included incorrect information relating to the sale of a condominium apartment to nonparty David Segal, on the ground that they never received the balance of the purchase price at the closing. The plaintiffs claimed that they transferred title at the closing because Segal promised that he would immediately resell the apartment to another buyer for a profit and that he would then pay the remainder of the purchase price. Thereafter, Segal claimed he paid the purchase price with pieces of artwork from his company. The question of whether the purchase price was in fact paid became the subject of a separate action in the Supreme Court, New York County (hereinafter the New York County action), which was dismissed based upon the statute of frauds, because the plaintiffs did not produce the contract of sale (see Komolov v Segal, 40 Misc 3d 1228[A] [Sup Ct, New York County], affd 117 AD3d 557). In preparing the 2007 tax return for the plaintiff Alksom Realty, LLC, the defendants listed a sales price of $4,100,000 for the apartment, a cost basis of $3,564,946, and a capital gain of $535,054. The defendants claim that after the individual plaintiff, Alexander Komolov, and Segal informed the defendants of the transaction, Segal provided a handwritten statement, which stated a [*2]purchase price of $4,100,000 and certain costs. In 2013, the accountants filed an amended 2007 federal income tax return, but the amended return was rejected as untimely. On December 1, 2014, the plaintiffs commenced this action, inter alia, to recover damages for accounting malpractice relating to the 2007 tax return, and the filing of the late amended return, alleging that the defendants, among other things, relied upon the handwritten statement sent by Segal, who was not their client. The plaintiffs asserted, as to the injury incurred by them, that Segal used the tax return to prove that the purchase price was paid in the New York County action. On their motion for summary judgment in this action, the plaintiffs submitted an affirmation by their attorney arguing that the defendants departed from accepted standards of accounting practice and violated 31 CFR 10.34(d), which states that a practitioner may rely in good faith without verification upon information furnished by the client. The plaintiffs' attorney argued in his affirmation that, since the information from Segal was not from a client, it required verification. The plaintiffs also submitted a transcript of the deposition testimony of the defendant Roman Baranik, one of the accountants, taken in connection with the New York County action, stating that prior to preparing the return, Komolov and Segal informed him of the transaction, and Segal provided the handwritten statement. Baranik spoke to Segal, telling him that he needed "documents for the sale" such as a closing statement showing the purchase price, the expenses, and the net proceeds, but Segal said he did not have any documents. It was not until 2010 that Baranik learned that the purchase price had not been paid. In opposition, the defendants asserted that they did not know that the information provided by Segal was incorrect when they prepared the return, and that they were not negligent because Komolov failed to provide them with documents relating to the transaction. The order appealed from granted the plaintiffs' motion for summary judgment on the issue of liability on the causes of action to recover damages for accounting malpractice. In order to succeed on a claim for accounting malpractice, a plaintiff must demonstrate a departure from accepted standards of practice and that the departure was a proximate cause of injury (see KBL, LLP v Community Counseling & Mediation Servs., 123 AD3d 488; Kristina Denise Entrs., Inc. v Arnold, 41 AD3d 788; D.D. Hamilton Textiles v Estate of Mate, 269 AD2d 214; Estate of Burke v Repetti & Co., 255 AD2d 483). Injury is an element of the cause of action (see KBL, LLP v Community Counseling & Mediation Servs., 123 AD3d at 488). No injury was established here. The 2007 tax return was not the basis for the dismissal of the New York County action, which sought recovery of the allegedly unpaid purchase price; rather, that action was dismissed for failure to produce the contract of sale. The plaintiffs did not demonstrate on their motion that the purchase price was never in fact paid with artwork. Further, there is no evidence in this record of increased tax liability. The capital gain reported in the 2007 return in the amount of $535,054 indicated that the defendants used a cost basis for the calculation. Komolov informed the defendants of the transaction, and did not indicate that the purchase price had not been paid. The record does not indicate whether Segal provided the information in issue without the plaintiffs' consent. Further, the affirmation of the plaintiffs' attorney did not provide evidence in admissible form of whether the defendants complied with acceptable accounting standards. The attorney did not purport to be an expert in standards of accounting practice. Therefore, the plaintiffs failed to establish their entitlement to judgment as a matter of law on the issue of liability. Accordingly, their motion for summary judgment on the issue of liability on the causes of action to recover damages for accounting malpractice should have been denied. We remit the matter to the Supreme Court, Kings County, for further proceedings on the motions that were denied as academic in light of the court's determination granting the plaintiff's motion for summary judgment. The defendants' remaining contention need not be reached in light of our determination. BALKIN, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:06.439457+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07152.htm

Abraham v American Gardens Co. (2020 NY Slip Op 07152) Abraham v American Gardens Co. 2020 NY Slip Op 07152 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN BETSY BARROS, JJ. 2017-02273 (Index No. 52263/14) [*1]Mathew Abraham, et al., respondents, et al., plaintiffs, v American Gardens Company, et al., defendants, American Gardens Company, LLC, et. al., appellants. Hogan & Cassell, LLP, Jericho, NY (Michael Cassell of counsel), for appellants. Mathew Abraham and Annamma Mathew, Port Chester, NY, respondents pro se. DECISION & ORDER In an action, inter alia, to recover on a promissory note and a personal guarantee, the defendants American Gardens Company, LLC, and Thomas John appeal from a judgment of the Supreme Court, Westchester County (Charles D. Wood, J.), entered January 20, 2017. The judgment, upon an amended decision of the same court dated January 6, 2017, made after a nonjury trial, is in favor of the plaintiffs Mathew Abraham and Annamma Mathew and against the defendants American Gardens Company, LLC, and Thomas John in the principal sum of $300,000, minus a credit to those defendants in the sum of $90,000 for interest payments previously made, and in favor of those plaintiffs and against the defendant Thomas John in the additional principal sum of $75,000. ORDERED that the judgment is modified, on the law and the facts, (1) by deleting the provision thereof in favor of the plaintiffs Mathew Abraham and Annamma Mathew and against the defendant American Gardens Company, LLC, in the principal sum of $300,000, (2) by deleting the provision thereof awarding a credit to the defendants American Gardens Company, LLC, and Thomas John in the sum of $90,000 for interest payments previously made, and (3) by deleting the provision thereof in favor of the plaintiffs Mathew Abraham and Annamma Mathew and against the defendant Thomas John in the additional principal sum of $75,000; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing to determine the amount to be credited to the defendant Thomas John for payments previously made, toward the award in favor of the plaintiffs Mathew Abraham and Annamma Mathew and against him in the principal sum of $300,000, for a recalculation of the award of interest, and thereafter for the entry of an appropriate amended judgment. The defendant American Gardens Company (hereinafter AGC) provided the plaintiffs Mathew Abraham and Annamma Mathew (hereinafter together the plaintiffs) with a promissory note dated November 7, 2006, which stated, in pertinent part, that "[f]or value received, [AGC] . . . promise[s] to pay to the order of [the plaintiffs] . . . the principal sum of THREE HUNDRED THOUSAND ($300,000) dollars" (hereinafter Loan No. 1). The defendant Thomas John signed a personal guarantee for the repayment of Loan No. 1. Thereafter, on May 5, 2007, the plaintiffs loaned $75,000 to John, which was to be [*2]repaid with 15% interest per annum (hereinafter Loan No. 2). Subsequently, on September 24, 2007, the plaintiffs loaned an additional $25,000 to John (hereinafter Loan No. 3), with the agreement that the interest rate for Loan No. 2 would increase from 15% per annum to 20% per annum. After making a number of interest payments on the subject loans, in November 2008, John stopped paying the interest due on Loan No. 2. Moreover, two checks received by the plaintiffs with respect to Loan No. 1 in October 2009 and March 2010 were returned by the bank for insufficient funds. Thereafter, the plaintiffs, and others, commenced this action against, among others, AGC, John, and American Gardens Company, LLC (hereinafter AG LLC). The complaint sought, inter alia, to recover on the promissory note and John's personal guarantee. In their answer, the defendants asserted, among other things, lack of consideration and usury as affirmative defenses. In an order dated March 1, 2016, the Supreme Court, inter alia, (1) granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against AG LLC and all other defendants except AGC and John, and (2) directed dismissal of the action insofar as asserted by the plaintiffs' daughter Susy Mathew. After a nonjury trial, the Supreme Court entered judgment in favor of the plaintiffs and against AG LLC and John with respect to Loan No. 1 in the principal sum of $300,000, minus a credit of $90,000 to AGC LLC and John for interest payments previously made, and in favor of the plaintiffs and against John with respect to Loan No. 2 in the additional principal sum of $75,000. AG LLC and John appeal. On an appeal from a judgment rendered after a nonjury trial, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into consideration in a close case the fact that the trial court had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 4299). "[W]here the court's findings of fact rest in large measure on considerations relating to the credibility of witnesses[,] . . . deference is owed to the trial court's credibility determination" (Melville Capital, LLC v Gugick, 144 AD3d 999, 1000 [internal quotation marks omitted]). Here, contrary to the appellants' contentions, we discern no basis to disturb the Supreme Court's finding and determination made against John with respect to Loan No. 1. The evidence adduced at the trial supported the court's finding that the plaintiffs demonstrated that John unconditionally guaranteed the payment of AGC's obligations, that AGC defaulted on its obligation under the note, and that John defaulted on his obligations under the guarantee (see Ouziel v Baram, 305 AD2d 564, 564; see e.g. Barnaba Realty Group, LLC v Solomon, 121 AD3d 730, 730). The appellants failed to demonstrate that there was lack of consideration for Loan No. 1, given John's testimony as to his receipt of checks from the plaintiffs as well as the plain language of the promissory note, which he signed on behalf of AGC, acknowledging that it was based on consideration. However, the Supreme Court should not have entered judgment with respect to Loan No. 1 against AG LLC. Pursuant to the March 1, 2016 order, dismissal of the complaint was directed insofar as asserted against AG LLC, which had yet to be formed as of the date that the promissory note was executed in the name of AGC. With respect to Loan No. 2, General Obligations Law § 5-501(2) provides that no person or corporation shall, directly or indirectly, charge, take, or receive any money as interest on a loan at a rate exceeding the maximum permissible interest rate (see Roopchand v Mohammed, 154 AD3d 986, 988). The civil usury statute provides that "[t]he maximum interest rate permissible on a loan is 16% per annum, and any interest rate in excess of that amount is usurious" (id. at 988 [internal quotations marks omitted]; see General Obligations Law § 5-501[1]; Banking Law § 14-a[1]). "A usurious contract is void and relieves the borrower of the obligation to repay principal and interest thereon" (Roopchand v Mohammed, 154 AD3d at 988 [internal quotations marks omitted]; see General Obligations Law § 5-511). A person seeking to establish usury in a transaction must prove it by clear and convincing evidence (see Roopchand v Mohammed, 154 AD3d at 988). "'In determining whether a transaction is usurious, the law looks not to its form, but its substance, or real [*3]character'" (Bouffard v Befese, LLC, 111 AD3d 866, 869, quoting O'Donovan v Galinski, 62 AD3d 769, 769). Here, contrary to the allegations in the complaint that the interest rate for Loan No. 2 was 15% per annum, the plaintiff Mathew Abraham repeatedly testified that for three months, before Loan No. 2 was modified by "combining" it with Loan No. 3, John paid interest in monthly interest installments of $1,150. Consequently, the evidence demonstrated that the interest rate for Loan No. 2 exceeded the legal interest rate (see General Obligations Law § 5-501[1]; Banking Law § 14-a[1]). Accordingly, the Supreme Court should not have awarded judgment in favor of the plaintiffs and against John in the additional principal sum of $75,000 with respect to Loan No. 2, since it was void as usurious (see Roopchand v Mohammed, 154 AD3d at 988-989). Because Loan No. 2 was usurious, all payments made toward that loan should have been applied toward Loan No. 1. Thus, we remit the matter to the Supreme Court, Westchester County, for a hearing to determine the total amount to be credited to John for payments previously made, toward the repayment of Loan No. 1. Upon remittitur, the plaintiffs' daughter Susy Mathew, is not to act in place of legal counsel on behalf of her parents. During the trial, the plaintiffs' daughter improperly was allowed to actively participate as de facto counsel for the plaintiffs, even though she is not an attorney. Judiciary Law § 478 provides that it is unlawful for a person to practice or appear as an attorney-at-law for a person other than himself or herself in a court of record or to render legal services, unless that person is licensed and admitted to practice law in the courts of record of this state. A person who is not licensed to practice law in the State of New York may not appear pro se on behalf of a litigant (see Whitehead v Town House Equities, Ltd., 8 AD3d 369, 370), nor may a plaintiff proceeding pro se represent other plaintiffs in the same action (see Schulz v State of N.Y. Exec., 134 AD3d 52, 54 n 1). Here, the plaintiffs' daughter objected to defense counsel's opening statement, made arguments as to why certain documents should or should not be admitted into evidence, moved documents into evidence, called witnesses, asked witnesses questions and clarified her mother's questions, addressed witnesses, attempted to testify herself from counsel's table, objected to defense counsel's questions and interjected during answers, made arguments as to why the plaintiffs' questions were not objectionable, and coached witnesses, all despite the Supreme Court's frequent admonishments. Such behavior is strictly prohibited and is not to be tolerated upon remittitur. The plaintiffs' contention requesting certain affirmative relief is not properly before this Court, since the plaintiffs did not cross-appeal from the judgment (see U.S. Bank N.A. v Dickenson, 176 AD3d 891, 892; Furino v O'Sullivan, 137 AD3d 1208, 1211). The appellants' remaining contention is without merit. AUSTIN, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:06.672074+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07183.htm

A.L. v Able Healthcare Servs., Inc. (2020 NY Slip Op 07183) A.L. v Able Healthcare Servs., Inc. 2020 NY Slip Op 07183 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN BETSY BARROS, JJ. 2017-09183 (Index No. 709232/14) [*1]A. L., et al., appellants, v Able Healthcare Services, Inc., et al., respondents, et al., defendant. Law Offices of Ira M. Perlman, P.C., and Robert D. Rosen, P.C., Great Neck, NY, for appellants. Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Christopher T. Rogers and Ian L. Glick of counsel), for respondent Able Healthcare Services, Inc. Rebar Bernstiel, New York, NY (Frank V. Kelly and Cathleen Kelly Rebar of counsel), for respondent Ajrija Ademaj. DECISION & ORDER In an action, inter alia, to recover damages for assault and battery, the plaintiffs appeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered June 29, 2017. The order, insofar as appealed from, granted the motion of the defendant Able Healthcare Services, Inc., for summary judgment dismissing the complaint insofar as asserted against it and denied that branch of the plaintiffs' cross motion which was for summary judgment on the issue of the liability of the defendant Ajrija Ademaj. ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Able Healthcare Services, Inc., for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs, payable by the defendant Able Healthcare Services, Inc. The plaintiff Alex Lugo (hereinafter the plaintiff) is the father of the infant plaintiff A. L., who is a person with cognitive disabilities. In 2010, a social worker referred the plaintiff to the defendant ANIBIC, Inc. (hereinafter ANIBIC), for consultation, and ANIBIC recommended that the plaintiff utilize a home healthcare attendant to service the infant plaintiff in the after-school hours until the plaintiff returned home from work. To that end, ANIBIC secured the defendant Ajrija Ademaj, who was employed by the defendant Able Healthcare Services, Inc. (hereinafter Able), to work with the infant plaintiff. In December 2013, the infant plaintiff's brother, who at the time was residing in the plaintiff's basement, heard the infant plaintiff scream in distress, so he went upstairs to check on her. The infant plaintiff's brother found the infant plaintiff crying and allegedly witnessed Ademaj scream "shut up" at the infant plaintiff several times, and then allegedly strike the infant plaintiff with her open hand on the child's left arm. The brother called the plaintiff at work, and the plaintiff instructed the brother to send Ademaj home for the day. The plaintiff purchased a recording device and placed it in the medicine cabinet in the bathroom of the family home. After the plaintiff returned from work the next day, he noticed that the infant plaintiff's hairline was red and the infant plaintiff repeatedly told him "pull hair." When the plaintiff listened to the recording he allegedly heard Ademaj yelling "shut the hell up," the infant plaintiff was crying and repeatedly saying "I'm sorry," and "it sounded like she was being hit" because the plaintiff heard the sound of a "smack" on the recording. On the following day, the plaintiff went to a police station and reported what had occurred. The police instructed the plaintiff not to leave the infant plaintiff with Ademaj, so the plaintiff told Ademaj they did not need her that day and sent her home. Subsequently, the police visited the plaintiff's home, he played the recording for the officers, and the officers took a report. The plaintiff contacted Able and notified it that he would no longer need Ademaj's services. Shortly thereafter, the plaintiff was contacted by the District Attorney's office, to whom he gave a statement and turned over the recording. Ademaj was charged with various crimes and pleaded guilty to attempted assault in the third degree. The plaintiffs commenced this action against Able, Ademaj and ANIBIC, alleging causes of action sounding in vicarious liability, negligent hiring and supervision, assault and battery and loss of consortium. Before Able and Ademaj were produced for their court-ordered depositions, Able moved for summary judgment dismissing the complaint insofar as asserted against it. The plaintiffs opposed Able's motion on grounds including that the motion was premature, and cross-moved, inter alia, for summary judgment on the issue of the liability of Ademaj. The Supreme Court granted Able's motion and denied that branch of the plaintiffs' cross motion. The plaintiffs appeal. Contrary to the Supreme Court's determination, the plaintiffs sufficiently demonstrated that Able's motion for summary judgment was premature, since the facts relating to Able's hiring, supervision, and training of Ademaj, which were essential to justify opposition to Able's motion, were exclusively within the knowledge and control of Able and Ademaj, and Able and Ademaj had not yet been produced for their court-ordered depositions (see Antonyshyn v Tishman Const. Corp., 153 AD3d 1308, 1310; Schlichting v Elliquence Realty, LLC, 116 AD3d 689, 690; Weslowski v St. Francis Hosp., 108 AD3d 525, 526). Accordingly, the Supreme Court should have denied Able's motion for summary judgment (see CPLR 3212[f]). We agree with the Supreme Court's determination that the plaintiffs failed to demonstrate their prima facie entitlement to summary judgment on the issue of Ademaj's liability on the causes of action alleging assault and battery. Accordingly, contrary to the plaintiffs' contentions, we agree with the Supreme Court's determination denying that branch of the plaintiffs' cross motion without considering the sufficiency of Ademaj's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In light of our determination, we need not reach the parties' remaining contentions. AUSTIN, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-09-04 20:00:40.200312+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0294p-06.pdf

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0294p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT INTERNATIONAL OUTDOOR, INC., ┐ Plaintiff-Appellant, │ │ > Nos. 19-1151/1399 v. │ │ │ CITY OF TROY, MICHIGAN, │ Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-10335—George Caram Steeh III, District Judge. Argued: October 16, 2019 Decided and Filed: September 4, 2020 Before: BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges. _________________ COUNSEL ARGUED: J. Adam Behrendt, BODMAN PLC, Troy, Michigan, for Appellant. Allan T. Motzny, CITY ATTORNEY’S OFFICE, Troy, Michigan, for Appellee. ON BRIEF: J. Adam Behrendt, Serena G. Rabie, BODMAN PLC, Troy, Michigan, for Appellant. Allan T. Motzny, Lori Grigg Bluhm, CITY ATTORNEY’S OFFICE, Troy, Michigan, for Appellee. BOGGS, J., delivered the opinion of the court in which WHITE, J., joined, and SUHRHEINRICH, J., joined in part. SUHRHEINRICH, J. (pg. 24), delivered a separate opinion concurring in part and dissenting in part.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 2 _________________ OPINION _________________ BOGGS, Circuit Judge. International Outdoor, Inc. (“International Outdoor”) sought to erect billboards in the City of Troy, Michigan. After the City of Troy denied International Outdoor’s application for a permit and then for a variance from the limitations imposed by the City’s sign ordinance, International Outdoor brought suit challenging the constitutionality of the City’s ordinance under 42 U.S.C. § 1983 and alleging that the sign ordinance violated International Outdoor’s First Amendment rights. For the reasons stated below, we affirm the district court’s grant of the City of Troy’s motion for summary judgment on International Outdoor’s claim that the City’s sign ordinance constitutes an unconstitutional prior restraint. However, we vacate the district court’s grant of the City of Troy’s motion to dismiss International Outdoor’s claim that the City’s sign ordinance imposes content-based restrictions without a compelling government interest, and we remand for reconsideration under the Reed standard. We also vacate and remand the district court’s denial of International Outdoor’s motion for attorney’s fees, pending reconsideration of the City of Troy’s motion to dismiss. I International Outdoor is an outdoor advertising company that erects billboards throughout Southeast Michigan on properties it either leases or owns. It earns revenue by charging advertisers for displaying their messages on its billboards. In September 2015, International Outdoor sought to erect two digital billboards in two separate locations within the City of Troy. The billboards came under the definition of a “ground sign” pursuant to Section 85.01.03 of the City of Troy Sign Ordinance. Under Section 85.02.05.C.5 of the Sign Ordinance, each property was allowed one ground sign not exceeding 12 feet in height with a maximum area of 100 square feet, if set back at least 10 feet from the right of way, and one additional ground sign subject to the following requirements:  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 3 1. The sign is set back a minimum of 200 feet from any street right of way. 2. The sign is located at least 1,000 feet from any sign exceeding 100 square feet. 3. The sign does not exceed 300 square feet. 4. The sign does not exceed 25 feet in height. International Outdoor sought to erect in two locations a two-sided billboard that would be 14 feet by 48 feet (672 square feet per side for a total of 1,344 square feet area) and 70 feet in height when mounted. Both locations were less than 200 feet from a right of way and less than 1,000 feet from other signs exceeding 100 square feet. Because the proposed billboards exceeded the Sign Ordinance’s size and height limitations as well as its setback requirements based on the zoning classification of the properties, the City denied International Outdoor’s application for a permit. International Outdoor applied for variances. The variance application was presented to the City’s Building Code Board of Appeals on November 4, 2015 and was considered at a special meeting and public hearing on November 18, 2015. The Board denied the application on November 20, 2015 for failure to meet the criteria set forth in Section 85.01.08.B.1 of the Sign Ordinance, which were a necessary but not a sufficient condition for grant of a variance: a. The variance would not be contrary to the public interest or general purpose and intent of this Chapter; and b. The variance does not adversely affect properties in the immediate vicinity of the proposed sign; and c. The petitioner has a hardship or practical difficulty resulting from the unusual characteristics of the property that precludes reasonable use of the property. International Outdoor filed an appeal of the Board’s decision in the Oakland County Circuit Court, but on July 11, 2016 the appeal was dismissed as abandoned due to appellant’s failure to file a brief. On February 2, 2017 International Outdoor filed a complaint in the Eastern District of Michigan under 42 U.S.C. § 1983, seeking declaratory and injunctive relief as well as damages and alleging that the City of Troy Sign Ordinance violated its First Amendment rights. Count I alleged that the Ordinance constituted an unconstitutional prior restraint because it lacked narrow, objective, and definite standards to guide the decision of the City of Troy’s Building Code Board of Appeals in issuing variances and thus granted the Board unfettered discretion. Count II alleged that the Ordinance contained unconstitutional content-based  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 4 restrictions as it exempted from permit requirements certain categories of signs, such as flags and “temporary signs,” which “include but are not limited to” various real estate signs, “garage, estate or yard sale” signs, “non-commercial signs[,]” “[p]olitical signs[,]” “holiday or other seasonal signs[,]” and “construction[s] signs . . . .” The City of Troy moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court denied the City of Troy’s motion as to Count I, holding that International Outdoor had stated a cognizable claim that the City’s variance process was an unconstitutional prior restraint. The district court also rejected the City’s argument of severability because the Sign Ordinance on the record did not contain a severability clause and the district court found that the variance procedure could not be severed under state law. The district court dismissed Count II because it determined that the speech at issue was commercial speech and therefore its regulation was not subject to strict scrutiny. Applying Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 , 563 (1980), the district court found that the ordinance provisions satisfied an intermediate level of scrutiny. The City of Troy moved for reconsideration of the district court’s order denying its motion to dismiss as to Count I. That motion was denied. At the conclusion of discovery, on September 20, 2018, International Outdoor moved for summary judgment. Four days later, on September 24, 2018, the City of Troy amended its Sign Ordinance (“Amended Ordinance”), with changes effective as of October 4, 2018. The Amended Ordinance rendered the challenges to the variance provisions stated in Count I inapplicable by removing content-based restrictions, clarifying the standards for issuance of a variance, and making issuance of a variance mandatory if specific criteria are met. The Amended Ordinance also prohibited off-premise signs carrying commercial messages, limited ground signs to 100 square feet in size and 20 feet in height, and provided that no variance would be granted for signs exceeding the size and height limitations by more than twenty-five percent. Then, on October 22, 2018, the City of Troy submitted a response to International Outdoor’s motion for summary judgment and, on October 31, 2018, filed a cross-motion for summary judgment, arguing in part that its amendment of the Sign Ordinance rendered  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 5 International Outdoor’s remaining claims moot. The City of Troy alleged that both the Sign Ordinance and the Amended Ordinance contained a severability provision, and that International Outdoor attached to its complaint a version of the Sign Ordinance that was posted on the City’s website, while the official version of the ordinance—the one that contained severability and other unposted provisions—was available from the City of Troy’s Clerk upon request. The City of Troy explained its decision not to post a complete version of the ordinance online as an effort to avoid “confusion and an unwieldly document” with “hundreds of these recitations.” On January 18, 2019, the district court denied International Outdoor’s motion for summary judgment and granted the City of Troy’s cross-motion for summary judgment on the only remaining count, Count I, prior restraint. The district court found that under the Amended Ordinance, International Outdoor’s large off-premises advertising signs would neither qualify for a permit nor for a variance, thus rendering moot its injunctive and declaratory relief claims, but not its damage claim, which apparently would be only for damages until October 4, 2018, the effective date of the amendment. However, the district court found that the severability of the variance provisions precluded Plaintiff’s damage claim for past injury, and it granted summary judgment for the City of Troy. International Outdoor then filed a motion for attorney’s fees as a prevailing party under 42 U.S.C. § 1988, claiming that it had established that the City of Troy’s variance process was an unconstitutional prior restraint. The district court ruled that International Outdoor was not a prevailing party as it had failed to obtain court-ordered relief, and it denied the motion. Subsequently, International Outdoor appealed the dismissal of Count II, the summary judgment as to Count I, and the denial of attorney’s fees. These appeals were consolidated. II International Outdoor now appeals the district court’s grant of the City of Troy’s motion for summary judgment on a claim that the City of Troy’s sign ordinance imposes an unconstitutional prior restraint. The court reviews de novo the district court’s grant of summary judgment, applying the same standards as the district court. F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611 , 629 (6th  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 6 Cir. 2014). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding whether summary judgment is appropriate, the court views the “evidence in the light most favorable to the nonmoving party.” Himmel v. Ford Motor Co., 342 F.3d 593 , 598 (6th Cir. 2003) (internal quotation marks and citations omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 247–48 (1986). The court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52. The First Amendment, applicable to states through the Fourteenth Amendment, protects freedom of speech from laws that would abridge it. “A prior restraint is any law ‘forbidding certain communications when issued in advance of the time that such communications are to occur.’” McGlone v. Bell, 681 F.3d 718 , 733 (6th Cir. 2012) (quoting Alexander v. United States, 509 U.S. 544 , 550 (1993)). “Prior restraints are presumptively invalid because of the risk of censorship associated with the vesting of unbridled discretion in government officials and the risk of indefinitely suppressing permissible speech when a licensing law fails to provide for the prompt issuance of a license.” Bronco’s Ent., Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440 , 444 (6th Cir. 2005) (citation and internal quotation marks omitted). To be constitutional, a prior restraint must be content-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication. Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 , 130 (1992). It must also not delegate overly broad licensing discretion to official decision-makers: “[i]f the permit scheme involves appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted.” Id. at 131 (internal quotation marks and citations omitted). Furthermore, the “decision whether or not to grant” a permit “must be made within a specified, brief period, and the status quo must be preserved pending a final judicial determination on the merits.” Deja Vu  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 7 of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377 , 400 (6th Cir. 2001) (discussing Freedman v. Maryland, 380 U.S. 51 , 57–59 (1965)) (citations and internal quotation marks omitted). The original City of Troy Sign Ordinance imposed a prior restraint because the right to display a sign that did not come within an exception as a flag or as a “temporary sign” depended on obtaining either a permit from the Troy Zoning Administrator or a variance from the Troy Building Code Board of Appeals. The standards for granting a variance contained multiple vague and undefined criteria, such as “public interest,” “general purpose and intent of this Chapter,” “adversely affect[ing],” “hardship,” and “practical difficulty.” Additionally, even meeting these criteria did not guarantee grant of a variance, since the Board retained discretion to deny it. The variance scheme therefore gave unbridled discretion to the Troy Building Code Board of Appeals and did not meet the “narrow, objective, and definite standards” required for constitutionality. See Forsyth Cty., 505 U.S. at 131 . It “g[ave] a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers,” allowing a facial challenge to the permitting scheme. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 , 759 (1988). Therefore, the City of Troy Sign Ordinance as in effect before the 2018 amendment created through its variance scheme an unconstitutional prior restraint on speech. A The City of Troy amended the variance provision to set forth additional standards for granting variances, and it submitted that the amendment rendered the issue of prior restraint moot. International Outdoor conceded that the amended ordinance rendered moot its claims for declaratory and injunctive relief arising from the application of the Sign Ordinance and variance process, but not its claim for damages. This court has stated that, although a change in law renders moot pertinent challenges to the original law, claims for damages are nonetheless preserved. Midwest Media Prop. LLC v. Symmes Twp., 503 F.3d 456 , 460–61 (6th Cir. 2007). Such damages would presumably run from the time the variance was denied, November 20, 2015, until October 4, 2018, when the Amended Ordinance took effect.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 8 A voluntary amendment does not always render First Amendment claims moot. For example, such claims may survive where there is no guarantee that the amendment will remain, or where the change raises suspicion of not being genuine. See Speech First, Inc. v. Schlissel, 939 F.3d 756 , 769–70 (6th Cir. 2019). But in spite of the somewhat suspicious timing of the amendment of the Sign Ordinance within days after International Outdoor filed its motion for summary judgment, there is no indication that the City of Troy intends to repeal the amendment. In Speech First, the change concerned an ad hoc regulatory action and an assurance from a Vice President for Student Affairs who was not shown to have authority over the policies of the University of Michigan. Id. at 769. Here, by contrast, the City of Troy enacted an amendment to its Sign Ordinance that concerned not only the challenged variance provision, but also made extensive changes to other terms. The change of the unconstitutional variance provisions by the City of Troy appears therefore to be genuine and does not shift the burden of showing mootness to the City of Troy. See Speech First, 939 F.3d at 770 . We agree with the district court that the amendment of the Sign Ordinance renders pending challenges to the original law moot, and that the district court properly dismissed on that basis International Outdoor’s claims for declaratory and injunctive relief. But even where the claim for injunctive and declaratory relief is rendered moot, “the existence of a damages claim ensures that this dispute is a live one and one over which Article III gives us continuing authority.” Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 , 387 (6th Cir. 2005). International Outdoor’s damages claim was therefore properly preserved even after the dismissal of its claim for injunctive and declaratory relief. B The City of Troy argues that International Outdoor’s claim for damages on the prior restraint count must be dismissed, because the variance provision was severable from the original Sign Ordinance and International Outdoor would not qualify for a permit without a variance, due to the excessive size, height, and setback of its proposed billboards. International Outdoor does not challenge the permitting scheme of the City of Troy as a whole in Count I, but only its variance provisions. The variance provisions introduce an impermissible prior restraint, see Part II supra, pp. 5–7. If those provisions can be severed, so that no grant of a variance would be  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 9 possible, the remaining permitting scheme would not allow International Outdoor to erect its proposed billboards in any case, because International Outdoor would need a variance from the otherwise generally applicable dimensional and setback limitations. “Severability of a local ordinance is a question of state law.” City of Lakewood, 486 U.S. at 772 . Michigan courts have long recognized that “[i]t is the law of this State that if invalid or unconstitutional language can be deleted from an ordinance and still leave it complete and operative then such remainder of the ordinance be permitted to stand.” In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38 , 806 N.W.2d 683 , 713 (Mich. 2011) (quoting Eastwood Park Amusement Co. v. Stark, 38 N.W.2d 77 , 81 (Mich. 1949)). The Supreme Court of Michigan held in Melconian that where “the provisions of the ordinance are valid and enforceable” except for “[t]he sections or parts of sections which are invalid” and which “are distinctly separable from the remainder,” the provisions “held valid constitute in themselves a complete enactment, and may be enforced.” Melconian v. City of Grand Rapids, 188 N.W. 521 , 527 (Mich. 1922), accord Genesee Land Corp. v. Leon Allen & Assocs., 213 N.W.2d 283 , 285–86 (Mich. Ct. App. 1973). The official and applicable version of the Sign Ordinance contained a severability clause. The challenged variance scheme is a distinct provision of the Sign Ordinance, 85.01.08.B.1, within the Appeals section, 85.01.08. Removal of the variance provision does not invalidate the entire ordinance, and the remaining provisions are not challenged by International Outdoor. Therefore, the variance provision may be severed. But severing the variance provision also means that International Outdoor loses its claim to damages under Midwest Media, 503 F.3d at 464 –65, since it needed the variance precisely because it did not qualify for a permit under the size, height, and setback requirements for signs under the City of Troy Sign Ordinance. *** The amendment of the ordinance rendered International Outdoor’s claim for injunctive and declaratory relief moot, while the severability of the variance did the same to its claim for damages.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 10 We therefore affirm the district court’s grant of the City of Troy’s cross-motion for summary judgment on Count I, prior restraint. III International Outdoor also appeals the district court’s grant of the City of Troy’s motion to dismiss the claim that the City of Troy’s sign ordinance imposes content-based restrictions without a compelling government interest. Before filing its motion for summary judgment on Count II, see Part II supra, pp. 5–10, the City of Troy moved the district court to dismiss Count I, unconstitutional prior restraint, and Count II, content-based restrictions. In its motion to dismiss, the City of Troy cited only Federal Rule of Civil Procedure 12(b)(6) but not Rule 12(b)(1), even though it alleged that International Outdoor both lacked standing and failed to state a claim upon which relief may be granted. The City of Troy argued that International Outdoor did not state a claim upon which relief might be granted when it alleged its unconstitutional-prior-restraint and content-based-restrictions claims. Relying on Midwest Media, 503 F.3d at 460 –62, the City of Troy also argued that International Outdoor lacked standing, because it had not specifically alleged that the section of the ordinance regulating the size, height, and setback of signs was invalid, and that such restrictions would preclude International Outdoor from erecting its billboards regardless of other provisions of the Sign Ordinance. Consequently, the City of Troy argued, International Outdoor could not show redressability of its claimed injuries, which deprived it of standing to challenge the ordinance. The district court stated that the City of Troy had moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6), but that it had also argued that International Outdoor lacked standing. The district court then concluded that the City of Troy had “move[d] under the wrong rule” and that “[the district] [c]ourt, therefore, shall consider the argument under Fed. R. Civ. P. 12(b)(1),” because “the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction.” The district court disagreed, however, with the City of Troy’s argument that Midwest Media was controlling, because it held that International Outdoor challenged the entire ordinance, not just its individual provisions, and that, consequently, International Outdoor could show redressability of its injury. The district court therefore concluded that International  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 11 Outdoor had standing to bring an action against the City of Troy. Having thus clarified its subject-matter jurisdiction, the district court proceeded to a Rule 12(b)(6) analysis of Count I, prior restraint, and of Count II, content-based restriction. It dismissed only Count II after concluding that Central Hudson, rather than Reed, was the controlling precedent in this case, and upon finding that the ordinance provisions satisfied an intermediate level of scrutiny. The district court denied the motion to dismiss as to Count I, thus allowing it to proceed to discovery. We review de novo a district court’s decision to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Cartwright v. Garner, 751 F.3d 752 , 760 (6th Cir. 2014). A district court’s factual findings are reviewed for clear error, and its application of the law to the facts is reviewed de novo. Ibid. We also review de novo a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598 , 605 (6th Cir. 2005). “[W]e accept as true all non-conclusory allegations in the complaint and determine whether they state a plausible claim for relief.” Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003 , 1005 (6th Cir. 2009). A Midwest Media held, following Prime Media, Inc. v. City of Brentwood, 398 F.3d 814 , 824 (6th Cir. 2005), that the plaintiffs there lacked standing to challenge the sign ordinance because they failed to show redressability. Midwest Media, 503 F.3d at 465 . However, both Midwest Media and Prime Media, which presented very similar issues, are distinguishable from our case. In Midwest Media, the plaintiffs filed nine applications for permits to build billboards in Symmes Township. Id. at 458–59. All nine applications were denied based on two grounds: (1) off-site advertising was prohibited, and (2) the proposed billboards exceeded the township’s size and height restrictions. Id. at 459–60. The plaintiffs challenged the off-premises advertising ban as unconstitutional and challenged the permitting process as lacking procedural safeguards. Id. at 450. This court had previously rejected a challenge to size and height restrictions of a sign ordinance in Prime Media, and the plaintiffs in Midwest Media did not challenge those. Ibid.; see Prime Media, 398 F.3d at 818 –21. Plaintiffs sought an injunction, damages, and attorney’s  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 12 fees. Ibid. Symmes Township subsequently amended its ordinance, thus rendering the plaintiffs’ injunctive claim moot. Ibid. Midwest Media held that the mootness of the injunctive claim did not render plaintiffs’ damages claim moot. Id. at 460–61. However, Midwest Media also held that the plaintiffs failed to show standing to bring the action in the first place. Id. at 461. Quoting Lujan v. Defenders of Wildlife, 504 U.S. 555 , 560–61 (1992), and Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 , 41 (1976), the Midwest Media court enumerated the required elements of standing: To meet the “irreducible minimum” requirements of constitutional standing, plaintiffs must demonstrate (1) that they “have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,” (2) that a causal link exists “between the injury and the conduct complained of,”—i.e., that the “injury . . . fairly can be traced to the challenged action of the defendant,” and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Each requirement is “an indispensable part of the plaintiff's case” and “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.” Midwest Media, 503 F.3d at 461 (citations omitted). Following the reasoning in Prime Media, the Midwest Media court found that the plaintiffs failed the redressability test: even if they succeeded at challenging the constitutionality of the original sign ordinance based on its prohibition on off-site advertising, the off-site-advertising-ban provision was nonetheless severable, and plaintiffs would still fail to qualify for a permit based on the size and height restrictions of the ordinance, which provisions they chose not to challenge after Prime Media upheld similar restrictions as constitutional. Id. at 461–62; see Prime Media, 398 F.3d at 824 (“[T]he height and size restrictions directly advance [government’s] interest because billboards that are smaller and shorter are less apt to interfere with aesthetic or traffic safety concerns.” Id. at 822.); see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490 , 507–08 (1981) (“Nor can there be substantial doubt that the twin goals that the ordinance seeks to further—traffic safety and the appearance of the city—are substantial governmental goals.”). Since the plaintiffs failed to show redressability of their claim, Midwest Media held that the plaintiffs lacked Article III standing to bring their claims. Id. at 461, 464.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 13 But as mentioned above, this case is distinguishable from both Midwest Media and Prime Media: the variance provision of the City of Troy Sign Ordinance challenged in Count I is not independent from other provisions of the ordinance, but rather inextricably linked to them by providing a way of relaxing the very restrictions imposed by the Sign Ordinance. It would amount to circular logic to say that International Outdoor lacks standing to challenge the ordinance because it challenges the very provision that gives it standing to challenge the ordinance. Such an approach would render the constitutionality of most variance provisions unreviewable. Contrary to Midwest Media and Prime Media, the facts of this case allow International Outdoor to retain standing and proceed with its remaining claims as to Count II, content-based restrictions, even after its claim for damages under Count I fails.1 Consequently, the size and height restrictions of the ordinance cannot be used to deny International Outdoor standing on its content-based restrictions claim due to lack of redressability, because the variance provision would allow International Outdoor to obtain redress. B Under the First Amendment applicable to the states through the Fourteenth Amendment, a government, such as a municipal government vested with state authority, “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Reed v. Town of Gilbert, 576 U.S. 155 , 163 (2015) (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92 , 95 (1972)). Laws that “target speech based on its communicative content . . . are presumptively unconstitutional and may be justified only if the government proves that they are 1Additionally, the dissent contends that International Outdoor lacks standing to challenge the ordinance’s treatment of certain signs, including temporary signs, because International Outdoor does not seek to erect temporary signs. In the dissent’s view, International Outdoor cannot demonstrate an independent injury in fact arising from application of these provisions. We disagree. International Outdoor alleges that the ordinance regulates signs differently based on the sign’s content. One of the provisions International Outdoor cites in the complaint as an example of such differential treatment is the ordinance’s requirement that an erector obtain a permit in advance of erecting all signs but exempting from this requirement certain signs based on their content, including temporary signs. International Outdoor’s complaint alleges that because its signs are not exempt from the permitting process, it paid for and applied for a permit to erect its billboards. Construing the complaint’s allegations in the light most favorable to it, International Outdoor has sufficiently alleged facts showing, at a minimum, that it incurred costs that other erectors were exempt from because its proposed signs were not afforded the same favored treatment under the ordinance. This is sufficient to confer Article III standing.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 14 narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 163 . Regulation of speech is content-based and therefore subject to strict scrutiny “if a law applies to particular speech because of the topic discussed or the idea or message expressed”; some obvious facial distinctions based on a message include “defining regulated speech by particular subject matter” or “by its function or purpose.” Reed, 576 U.S. at 163 –64. The “crucial first step in the content- neutrality analysis” involves “determining whether the law is content neutral on its face.” Reed, 576 U.S. at 165 . A facially content-based law is “subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” Ibid. (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410 , 429 (1993)). As the Court in Reed explained, “[b]ecause strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny.” Id. at 166. It follows that the intermediate-scrutiny standard applicable to commercial speech under Central Hudson, 447 U.S. at 563 , applies only to a speech regulation that is content-neutral on its face. That is, a regulation of commercial speech that is not content-neutral is still subject to strict scrutiny under Reed. 1 Subsequent to Reed, several circuit courts have held that, notwithstanding Reed, the Central Hudson standard still applies to the regulation of commercial speech. In Aptive Environmental, LLC v. Town of Castle Rock, 959 F.3d 961 (10th Cir. 2020), the Tenth Circuit considered an ordinance imposing curfew and registration requirements on commercial solicitors but exempting non-commercial solicitors from such requirements. Differentiating between commercial and non-commercial speech, Aptive stated: While the Supreme Court has indicated that commercial speech is entitled to “lesser protection” than noncommercial speech, Cent. Hudson, 447 U.S. at 562 – 63, 100 S. Ct. 2343 , this most certainly does not mean that commercial speech is entitled to no protection, see, e.g., Discovery Network, 507 U.S. at 420 –21, 113 S. Ct. 1505 (“Speech likewise is protected . . . even though it may involve a  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 15 solicitation to purchase or otherwise pay or contribute money.” (citations omitted)). 959 F.3d at 981 . Analogizing to Cincinnati v. Discovery Network, Inc., 507 U.S. 410 , 412–13, 428–29 (1993), where the Supreme Court struck down a law that banned commercial but not noncommercial newsracks, the Tenth Circuit recognized that the curfew requirement was content based and rejected arguments that the curfew was either not subject to First Amendment scrutiny at all or that it could be analyzed as a mere content-neutral restriction on time, place, and manner. Aptive, 959 F.3d at 982 –83. However, instead of applying the Reed standard, the court proceeded without much explanation to apply the Central Hudson standard: “Our prior cases and the parties agree that—assuming that the Curfew implicates the First Amendment, as we have just decided—our analysis is governed by Central Hudson Gas & Electric Corporation v. Public Service Commission, supra.” Aptive, 959 F.3d at 986 . Although Aptive held that the ordinance failed to satisfy even that less stringent intermediate standard of review , id. at 999, the court did not state correctly or apply the Reed standard, under which content-based restrictions should be analyzed. Aptive discusses Reed only in a footnote, merely focusing on Reed’s “rel[iance] on Discovery Network to reject the argument that ‘[a] law that is content based on its face’ should be analyzed as a ‘content neutral’ regulation because the distinctions drawn ‘can be justified without reference to the content of the regulated speech.’” Aptive, 959 F.3d at 982 n.6 (quoting Reed, 576 U.S. at 165 –68). But Aptive does not discuss the standard explicitly adopted by Reed, even though it was set forth in the very same passage that Aptive quoted: Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny. Reed, 576 U.S. at 166 . We therefore disagree with Aptive’s reliance on the Central Hudson standard even when analyzing content-based restrictions on speech.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 16 In Greater Philadelphia Chamber of Commerce v. City of Philadelphia, 949 F.3d 116 (3d Cir. 2020), the Third Circuit considered a Philadelphia ordinance that prohibited employers from inquiring into a prospective employee’s wage history in setting or negotiating that employee’s wage. Id. at 121. The Third Circuit reversed the ruling of the district court that the inquiry provision of the ordinance violated the First Amendment. Ibid. It found that the ordinance regulated commercial speech that proposed a commercial transaction and as such satisfied intermediate scrutiny under Central Hudson. Id. at 136–37, 156–57. In its analysis, Greater Philadelphia rejected the application of strict scrutiny to commercial speech, stating that “the Supreme Court has consistently applied intermediate scrutiny to commercial speech restrictions, even those that were content- and speaker-based, particularly when the challenged speech involves an offer of employment.” Id. at 138. To support this statement, Greater Philadelphia cites Supreme Court decisions from the 1990s and does not mention Reed anywhere in its opinion. While Greater Philadelphia concedes that “[w]e realize, of course, that it may be appropriate to apply strict scrutiny to a restriction on commercial speech that is viewpoint-based,” id. at 139, it limits strict scrutiny to cases such as “[i]f the regulation has the practical effect of promoting some messages or some speakers based on the content of the speech or the identity of the speaker, something more than intermediate scrutiny may be necessary to survive a First Amendment inquiry.” Ibid. Greater Philadelphia relies on R.A.V. v. City of St. Paul, 505 U.S. 377 , 387 (1992), in asserting that “the rule that content-based speech restrictions are subject to strict scrutiny is ‘not absolute’ and is inapplicable when the restriction does not ‘raise[ ] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.’” Greater Philadelphia, 949 F.3d at 139 (quoting R.A.V., 505 U.S. at 387 ). But such an approach has been rejected in Reed when speech other than commercial is involved. See 576 U.S. at 166 (“[S]trict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based.”). Because the ordinance in Greater Philadelphia regulated commercial speech only, and the ordinance of the City of Troy regulated also non- commercial speech, Greater Philadelphia is distinguishable from this case.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 17 In Vugo, Inc. v. City of New York, the Second Circuit ruled in favor of the City on a First Amendment challenge to City rules prohibiting video advertising in for-hire vehicles (“FHVs”) such as Uber and Lyft, but not in yellow or green taxicabs. Vugo, Inc. v. City of New York, 931 F.3d 42 , 44–45 (2d Cir. 2019), cert. denied sub nom. Vugo, Inc. v. New York, NY, No. 19-792, 2020 WL 1978946 (U.S. Apr. 27, 2020). The Second Circuit analyzed the restriction under Central Hudson, stating that “[t]he parties agree that the prohibition on advertising in FHVs is a content-based restriction on commercial speech and, as such, is subject to intermediate scrutiny.” Id. at 44. The court then found that the rule satisfied intermediate scrutiny. Vugo discussed Reed in a footnote , id. at 49 n.6, stating that the City does not dispute that the ban, construed as applying only to commercial advertising, is content-based. We see no reason to conclude otherwise. “Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 49 n.6 (quoting Reed, 576 at 163). Vugo distinguished application of the strict-scrutiny standard to some commercial-speech restrictions under Sorrell, stating that “[h]ere, by contrast, the City’s ban covers the full range of commercial advertising. There is no suggestion that the City is trying to ‘quiet[ ]’ truthful speech with a particular viewpoint that it ‘fear[s] . . . might persuade.’” Id. at 50 n.7 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552 , 576 (2011)). Vugo is distinguishable from our case, because the City of New York’s rule regulated commercial speech only, as was stipulated by the parties. See id. at 48 n.5. As the Supreme Court explained in Sorrell, “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrel, 564 U.S. at 567 (2011). But when an enacted law “does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers,” it may run afoul of the First Amendment. Ibid. Vugo considered the City of New York’s restrictions on FHV advertising and concluded that they did not merit strict-scrutiny review. Vugo, 931 F.3d at 50 n.7. Since International Outdoor challenges an ordinance that regulates both commercial and non-commercial speech, the Reed standard applies in this case, and the Vugo reasoning that relies on Central Hudson is not applicable.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 18 In Lone Star Security & Video, Inc. v. City of Los Angeles, 827 F.3d 1192 , 1200 (9th Cir. 2016), the Ninth Circuit considered a First Amendment challenge to five municipal ordinances regulating mobile billboards. Following Reed, Lone Star first considered whether the regulations were content neutral. Concluding that the ordinances regulated advertising, it held that “the mobile billboard bans regulate the manner—not the content—of affected speech,” and are therefore content-neutral restrictions on speech. Id. at 1200 . However, commenting on the plaintiff’s conflating “advertising” speech with “commercial” speech, where the plaintiff sought to display political as well as commercial messages on its mobile billboards, Lone Star added in a footnote: although laws that restrict only commercial speech are content based, see Reed [v. Town of Gilbert], 135 S. Ct. at 2232 , such restrictions need only withstand intermediate scrutiny. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557 , 564, 100 S. Ct. 2343 , 65 L. Ed. 2d 341 (1980) (requiring that laws affecting commercial speech seek to implement a substantial governmental interest, directly advance that interest, and reach no further than necessary to accomplish the given objective). Lone Star, 827 F.3d at 1198 n.3. It then concluded that the mobile-billboard regulations were narrowly tailored as they “promote[d] a substantial government interest that would be achieved less effectively absent the regulation.” Id. at 1200 (quoting Ward v. Rock Against Racism, 491 U.S. 781 , 799 (1989)). It also held that the mobile-billboard ordinances were “a time, place, and manner regulation” that “l[eft] open ample alternative channels for communication,” satisfying the First Amendment. Id. at 1201 (second quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 , 293 (1984)). At the end of last term, the Supreme Court decided Barr v. American Ass’n of Political Consultants, Inc., 140 S. Ct. 2335 , 2346–50, 2356 (2020), holding that a government-debt- collection exception to a prohibition on robocalls to cell phones under the Telephone Consumer Protection Act constituted a content-based restriction that failed strict scrutiny, but that the exception could be severed without invalidating the statute restricting robocalls. American Association of Political Consultants thus repudiated the approach taken earlier by some of the circuit courts discussed above. Pursuant to American Association of Political Consultants, strict scrutiny applies to content-based restrictions.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 19 2 The Supreme Court has flatly confirmed the requirement to apply Reed’s strict-scrutiny standard, after this court had applied intermediate scrutiny by using a less stringent “‘practical’ test for assessing content neutrality” in Wagner v. City of Garfield Heights, 577 F. App’x 488, 494 (6th Cir. 2014), cert. granted, judgment vacated, 135 S. Ct. 2888 (2015). In Wagner, a City of Garfield Heights ordinance treated political and non-political signs differently, including restricting the size of political signs more than the size of certain non-political signs, but subjecting political signs to fewer overall restrictions. 577 F. App’x at 493. Wagner, a resident of Garfield Heights, Ohio, placed on his lawn a political sign that was larger than the City allowed for this type of sign. Id. at 489. The district court found that the ordinance was content based because the City was required to determine whether or not a sign is political before it can determine which provision of the City code applies. Id. at 49 3. The district court further found that the City’s restriction on Wagner’s political speech violated the First Amendment. Id. at 489. This court applied a “‘practical’ test for assessing content neutrality,” concluded that the ordinance imposed only a content-neutral restriction on the time, place, and manner of speech, determined that the City had satisfied the intermediate scrutiny applicable to such regulations, and reversed. Id. at 489, 493–94. The Supreme Court granted a petition for writ of certiorari, vacated our judgment, and remanded the case to us for further consideration in light of Reed. 135 S. Ct. at 2888 . On remand, we applied strict scrutiny to Garfield Heights’s sign restrictions and concluded that the ordinance was not narrowly tailored to further the city’s interest in promoting aesthetic appeal and traffic safety, thus failing strict scrutiny. Wagner v. City of Garfield Heights, 675 F. App’x 599, 607 (6th Cir. 2017) (per curiam). We therefore affirmed the initial decision of the district court to award Wagner an injunction. Id. at 600, 607. Similarly, this court has since applied strict scrutiny to a constitutional challenge to Tennessee’s Billboard Act based on the “on-premises exception” from permitting requirements for signs relating to the use or purpose of the real property on which the sign is physically located, such as signs advertising the activities, products, or services offered on those premises. Thomas v. Bright, 937 F.3d 721 , 724 (6th Cir. 2019). Thomas posted a sign supporting the 2012 U.S. Summer Olympics Team on a billboard he owned on an otherwise vacant lot. Ibid. Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 20 Tennessee had denied Thomas a permit and ordered the sign removed since it did not qualify for the on-premises exception: there were no Olympics-related activities on an empty lot. Ibid. Thomas sued, and the district court found that the Act violated the First Amendment, since “the on-premises exception was content-based and thus subject to strict scrutiny, failed to survive strict scrutiny, and was not severable from the rest of the Act.” Ibid. This court affirmed, recognizing that Reed had overruled Sixth Circuit precedent on this point, Wheeler v. Comm’r of Highways, 822 F.2d 586 (6th Cir. 1987). Thomas, 937 F.3d at 724 . In Wheeler, the appellees were denied a permit to display a political or religious message on a billboard, which was adjacent to an interstate highway and which would not qualify as an on-premise sign. 822 F.2d at 588 . The district court held that the Kentucky Billboard Act and its implementing regulations were “unconstitutional on their face because they discriminated against non-commercial speech in favor of commercial speech.” Id. at 587. This court reversed, finding that “the statute and regulations are content neutral and narrowly tailored to serve substantial state interests” of preserving Kentucky’s aesthetic values and highway safety. Id. at 587, 595. But after Reed, Thomas v. Bright expressly overruled Wheeler. See Thomas, 937 F.3d at 724 . To be sure, both Wagner and Thomas concerned non-commercial speech. But the regulations in both cases were deemed unconstitutional due to their content-based nature: they required an inspection of the message to determine whether it was political, as in Wagner, or related to any on-premises activity, as in Thomas, in order to determine the sign’s permissibility under the regulations. Here, the district court determined that the speech at issue—erecting advertising billboards—was commercial speech and therefore not subject to strict scrutiny. It held that the ordinance provisions satisfied intermediate scrutiny under Central Hudson, 447 U.S. at 563 , and granted the City of Troy’s motion to dismiss Count II. However, in so doing, the district court applied the wrong standard: the Sign Ordinance imposed a content-based restriction by exempting certain types of messages from the permitting requirements, such as flags and “temporary signs” that included on- and off-premises real-estate  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 21 signs, “garage, estate or yard sale” signs, “non-commercial signs[,]” “[p]olitical signs[,]” “holiday or other seasonal signs[,]” and “constructions signs . . . . ” Thus, the ordinance regulated both commercial and non-commercial speech but treated them differently, requiring the City of Troy to consider the content of the message before deciding which treatment it should be afforded. But for content-based restrictions on speech, strict and not intermediate scrutiny applies pursuant to Reed. 135 S. Ct. at 2224 ; see also Am. Ass’n of Political Consultants, Inc., 140 S. Ct. at 2346 –50, 2356; Wagner, 675 F. App’x at 607; Thomas, 937 F.3d at 724 . We therefore vacate the district court’s grant of the City of Troy’s motion to dismiss Count II, content-based restriction, and remand for consideration consistent with the holding in Reed. IV International Outdoor also appeals the denial of an award of its attorney’s fees as a prevailing party under 42 U.S.C. § 1988. A district court’s decision to grant or deny attorney’s fees is reviewed for abuse of discretion. Morrison v. Lipscomb, 877 F.2d 463 , 469 (6th Cir. 1989). “A district court abuses its discretion when it relies upon clearly erroneous findings of fact, applies the law improperly, or uses an erroneous legal standard.” The Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686 , 702 (6th Cir. 2016) (citation omitted). The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 . . . , or title VI of the Civil Rights Act of 1964 . . . , the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988(b). “Congress intended to permit the . . . award of counsel fees only when a party has prevailed on the merits of at least some of his claims.” Hanrahan v. Hampton, 446 U.S. 754 , 758 (1987) (per curiam). “The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 22 or settlement.” Farrar v. Hobby, 506 U.S. 103 , 111 (1992) (internal citations omitted) (citing Hewitt v. Helms, 482 U.S. 755 , 760 (1987) and Maher v. Gagne, 448 U.S. 122 , 129 (1980)). In Hewitt v. Helms, the Court answered in the negative “the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a ‘prevailing party.’” 482 U.S. at 757 . Helms obtained no relief in his § 1983 action for alleged due process violations by state prison officials, and “[t]he most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim.” Id., at 760. More on point, “a judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a prevailing party.” Farrar v. Hobby, 506 U.S. at 112 –13. Standing alone, “the moral satisfaction [that] results from any favorable statement of law” does not establish prevailing party status. Hewitt, 482 U.S. at 762 . The district court ruled that International Outdoor was not a prevailing party because it did not obtain court-ordered relief. International Outdoor alleges that it had established that the City of Troy’s variance process was an unconstitutional prior restraint and that the City amended its ordinance because of the court’s finding to that effect. As the district court stressed in its order denying the motion for attorney’s fees, “it did not declare the City of Troy’s variance procedure to be facially unconstitutional. Rather, the court ruled that Count I did not fail to state a claim.” Such a judicial pronouncement does not bestow prevailing party status on International Outdoor. See Hobby, 506 U.S. at 112 –13. Instead, the district court disposed of the claims of International Outdoor by issuing an order against it on both counts, thus rendering the City of Troy the prevailing party. The City of Troy amended its Sign Ordinance without a judgment, court-ordered consent decree, or even preliminary injunction. But “[a] defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598 , 605 (2001). The voluntary amendment of the ordinance by the City of Troy does not constitute court-ordered relief necessary to  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 23 establish prevailing-party status. International Outdoor is therefore not a prevailing party and is not entitled to attorney’s fees under 42 U.S.C. § 1988. Consequently, the district court did not abuse its discretion by denying International Outdoor’s motion for an award of attorney’s fees based on its rulings on the merits. See Hescott v. City of Saginaw, 757 F.3d 518 , 522 (6th Cir. 2014). However, since we reverse and remand the district court’s ruling granting the City of Troy’s motion to dismiss a claim of unconstitutional content-based restriction, we must also vacate and remand the district court’s denial of International Outdoor’s motion for attorney’s fees pending reconsideration of the motion to dismiss. Any future entitlement to attorney’s fees will await the outcome of further proceedings below. V For the reasons explained above, we AFFIRM the district court’s grant of the City of Troy’s motion for summary judgment on Count I regarding unconstitutional prior restraint, but VACATE the district court’s grant of the City of Troy’s motion to dismiss Count II, content- based restriction, and REMAND for reconsideration under the Reed standard. We also VACATE and REMAND the district court’s denial of International Outdoor’s motion for attorney’s fees pending reconsideration of the City of Troy’s motion to dismiss.  Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 24 _______________________________________________________ CONCURRING IN PART AND DISSENTING IN PART _______________________________________________________ SUHRHEINRICH, J., concurring in part and dissenting in part. I concur in the majority’s resolution of International Outdoor’s prior-restraint claim (Count I), but I dissent from the portion of the opinion directing the district court to apply strict scrutiny to a provision in Troy’s sign ordinance that defines “temporary signs” based on their content (Count II). Because International Outdoor seeks to erect permanent 70-foot billboards, not temporary signs, I would hold that it lacks standing to challenge the temporary-sign provision. The “irreducible constitutional minimum of standing” requires (1) a concrete injury that is (2) “fairly traceable to the defendant’s allegedly unlawful conduct” and is (3) “likely to be redressed by the requested relief.” Lujan, 504 U.S. at 560 . The injury in this case—being denied permission to erect billboards that are vastly larger than permitted by the height and size restrictions of Troy’s sign ordinance—is not traceable to the temporary-sign provision. Thus, International Outdoor does not have standing to contest that provision. See Prime Media, Inc. v. City of Brentwood, 485 F.3d 343 , 348, 353 (6th Cir. 2007) (holding that an outdoor-advertising company seeking to erect an oversized billboard lacked standing to challenge unrelated provisions of a city’s sign ordinance (including sections that gave favorable treatment to flags, holiday signs, and temporary real-estate signs) because “none of th[ose] challenges [were] supported by an independent injury in fact”); id. at 350–51 (determining that “[t]he plaintiff’s standing with regard to the size and height requirements does not magically carry over to allow it to litigate other independent provisions of the ordinance without a separate showing of an actual injury under those provisions”). For these reasons, I dissent from Section III of the majority opinion. Because I would affirm the dismissal of both underlying claims, I also dissent from the majority’s decision to vacate and remand the district court’s denial of International Outdoor’s motion for attorney’s fees, as moot.

2020-12-02 21:10:06.889042+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07172.htm

A.H. v Munson (2020 NY Slip Op 07172) A.H. v Munson 2020 NY Slip Op 07172 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. 2018-11383 (Index No. 602379/14) [*1]A. H., etc., et al., appellants, v Mary E. Munson, respondent. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Christen Giannaros], of counsel), for appellants. Karen Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered July 20, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint on the ground that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. ORDERED that the order is affirmed, with costs. The infant plaintiff, by his mother and natural guardian, and his mother suing derivatively, commenced this action to recover damages for personal injuries that the infant plaintiff allegedly sustained when he was struck by a vehicle operated by the defendant. The defendant moved for summary judgment dismissing the complaint on the ground that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted the motion, and the plaintiffs appeal. The defendant met her prima facie burden of showing that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant demonstrated, prima facie, that the infant plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Romero v Austin, 162 AD3d 920, 921; John v Linden, 124 AD3d 598, 599; Marin v Ieni, 108 AD3d 656, 657; Richards v Tyson, 64 AD3d 760, 761). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint. RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:10:07.195409+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07151.htm

106 N. Broadway, LLC v Lawrence (2020 NY Slip Op 07151) 106 N. Broadway, LLC v Lawrence 2020 NY Slip Op 07151 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. RUTH C. BALKIN JEFFREY A. COHEN HECTOR D. LASALLE, JJ. 2018-04389 (Index No. 57543/17) [*1]106 N. Broadway, LLC, appellant, v Houlihan Lawrence, et al., respondents. Montalbano, Condon & Frank, P.C., New City, NY (John E. Finnegan of counsel), for appellant. Jones, LLP, Scarsdale, NY (Jeffrey Briem, Marcy Blake, and Stephen J. Jones of counsel), for respondents Houlihan Lawrence and Patricia Flood. Clifford L. Davis, White Plains, NY, for respondent Hilary Chenel Levy. DECISION & ORDER In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), entered March 15, 2018. The order, insofar as appealed from, granted those branches of the motion of the defendant Hilary Chenel Levy which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging breach of fiduciary duty and tortious interference with business relations and/or expectancies insofar as asserted against her, and granted those branches of the separate motion of the defendants Patricia Flood and Houlihan Lawrence which were pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against the defendant Houlihan Lawrence and to dismiss the causes of action alleging breach of fiduciary duty and tortious interference with business relations and/or expectancies insofar as asserted against the defendant Patricia Flood. ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Patricia Flood and Houlihan Lawrence which was pursuant to CPLR 3211(a) to dismiss the third cause of action for breach of the implied covenant of good faith and fair dealing insofar as asserted as against the defendant Houlihan Lawrence, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant Hilary Chenel Levy payable by the plaintiff. The plaintiff, as the owner of certain commercial real estate in Irvington, entered into an "Exclusive Right to Sell/Rent Agreement" (hereinafter the sales agreement), dated January 17, 2014, with the defendant Houlihan Lawrence, a commercial real estate broker. On August 26, 2014, the plaintiff entered into a "Land Purchase Agreement" (hereinafter the purchase agreement) with nonparty Shelter Development, LLC (hereinafter Shelter), as purchaser. The purchase agreement provided that Shelter would pay the plaintiff $6,125,000 for the subject property, provided, among other things, that Shelter obtained "final, unappealable zoning approval" for the construction of its intended senior living community at the subject property. Shelter had the right to terminate the [*2]purchase agreement at any time if, despite good faith diligent efforts, it was unable to obtain the development approvals by the closing date or any extension thereof. The purchase agreement further provided that "no agent, broker or finder . . . acted for [the plaintiff] in connection with this Agreement and the sale of the Property except for . . . Elizabeth Hargraves of Houlihan Lawrence." On April 21, 2016, Shelter informed the plaintiff by letter (hereinafter the termination letter) that Shelter concluded that it would be unable to obtain the necessary approval and that it terminated the purchase agreement. In a letter dated January 24, 2017, counsel for the plaintiff sent a demand letter (hereinafter the demand letter) to counsel for Houlihan Lawrence. The demand letter alleged that the defendant Hilary Chenel Levy, a Houlihan Lawrence agent and a member of the Planning Board of the Village of Irvington, informed the plaintiff that Shelter's application for zoning approval would be denied and that the plaintiff should keep the subject property on the market for other prospective buyers. The demand letter further alleged that the plaintiff had previously complained to Houlihan Lawrence about Levy's potential conflict of interest with the zoning approval and sale and that, while Levy's "inappropriate behavior was acknowledged," no other action was taken. According to the demand letter, Levy left Houlihan Lawrence but "continued her efforts to disrupt" the transaction. The demand letter also asserted that the defendant Patricia Flood, another Houlihan Lawrence agent, and other, unnamed Houlihan Lawrence agents also "set out to divert and/or obstruct the sale" after a neighbor of the plaintiff, who had acquired his property in a transaction that Houlihan Lawrence had brokered, was "made aware by Houlihan Lawrence agents that a senior living community would take over the property" and threatened to sue Houlihan Lawrence for misrepresentation. The demand letter further claimed that Flood "used her personal ties in the political arena of Irvington to make significant efforts to prevent th[e zoning] approval . . . . [including] threatening [the plaintiff] to withdraw [sic] the zoning project and encouraging community members to speak out against the incoming senior-living community." On May 15, 2017, the plaintiff commenced the instant action. The amended complaint asserts four causes of action against the defendants: (1) negligence; (2) breach of fiduciary duty; (3) breach of contract; and (4) tortious interference with business relationships and/or expectancies. The plaintiff annexed the sales agreement, purchase agreement, termination letter, and demand letter to the amended complaint. In sum and substance, the amended complaint recites the genesis of the plaintiff's engagement with Houlihan Lawrence, from its inception to Shelter's termination, and memorializes the allegations set forth in the demand letter. Houlihan Lawrence and Flood moved, and Levy separately moved, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against each of them. The Supreme Court granted the motions and directed dismissal of the amended complaint insofar as asserted against all defendants. The plaintiff appeals from so much of the order as directed dismissal of the amended complaint insofar as asserted against Houlihan Lawrence and directed dismissal of the causes of action alleging breach of fiduciary duty and tortious interference insofar as asserted against Flood and Levy. "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true and accord plaintiffs the benefit of every possible favorable inference" (People v Credit Suisse Sec. [USA] LLC, 31 NY3d 622, 642). On a CPLR 3211(a)(7) motion to dismiss, the question is whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 88-89). "A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if . . . the complaint states in some recognizable form any cause of action known to our law" (Teller v Galak, 162 AD3d 959, 960 [internal quotation marks omitted]). "Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the [*3]plaintiff to remedy any defects in the complaint and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Leon v Martinez, 84 NY2d at 88 [citations omitted], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275). However, where the plaintiff elects to stand on its pleading, as is the case here, the plaintiff may not be penalized because it has not made an evidentiary showing in support of the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 636). As to the first cause of action, which alleged negligence, the plaintiff argues that it has a cause of action for negligent supervision against Houlihan Lawrence. "A necessary element of a cause of action to recover damages for negligent hiring, retention, or supervision is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Shu Yuan Huang v St. John's Evangelical Lutheran Church, 129 AD3d 1053, 1054 [internal quotation marks omitted]). Here, the amended complaint fails to sufficiently allege that Houlihan Lawrence knew or should have known of a propensity on the part of either Flood or Levy to commit the alleged wrongful acts (see id. at 1054). Affording the pleading a liberal construction, the amended complaint fails to allege that Houlihan Lawrence had any reason to know, prior to the unspecified time when the plaintiff made a verbal complaint, of any propensity of either Levy or Flood to engage in the alleged conduct. The amended complaint fails to allege that Levy continued to engage, during her remaining tenure with Houlihan Lawrence, in the alleged conduct after the plaintiff complained to Houlihan Lawrence. While the amended complaint does allege that Levy continued her efforts to disrupt the sale, it states that she did so after she left Houlihan Lawrence. As to Flood, the amended complaint does not allege any specific conduct of Flood after the plaintiff complained to Houlihan Lawrence about her conduct. We therefore agree with the Supreme Court's determination directing dismissal of the first cause of action insofar as asserted against Houlihan Lawrence. We also agree with the Supreme Court's determination to grant those branches of the defendants' separate motions which were to dismiss the second cause of action, which alleged breach of fiduciary duty. "The elements of a cause of action to recover damages for breach of fiduciary duty are the existence of a fiduciary relationship, misconduct by the defendant, and damages directly caused by the defendant's misconduct. [A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect[,] barring not only blatant self-dealing, but also requiring avoidance of situations in which a fiduciary's personal interest possibly conflicts with the interest of those owed a fiduciary duty" (Greenberg v Wiesel, 186 AD3d 1336, 1338 [citation and internal quotation marks omitted]). "A cause of action sounding in breach of fiduciary duty must be pleaded with particularity under CPLR 3016(b)" (Litvinoff v Wright, 150 AD3d 714, 715 [internal quotation marks omitted]). The plaintiff alleges that Levy and Flood "established a fiduciary relationship with Plaintiff when they assumed an active role in participating with the transaction of the Subject Premises by making efforts to re-list the Subject Premises and present same to their prospective buyers." This allegation is insufficient to support the claim that a fiduciary relationship existed between Levy and/or Flood and the plaintiff. "A [confidential or] fiduciary relationship exists between two persons [or entities] when one of them is under a duty to act for or to give advice for the benefit of the other upon matters within the scope of the relation" (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 11 NY3d 146, 158 [internal quotation marks omitted]; Gargano v Morey, 165 AD3d 889, 890). While a real estate agent owes a fiduciary duty to its principal (see Dubbs v Stribling & Assoc., 96 NY2d 337, 340), here, there is no allegation that the plaintiff engaged either Levy or Flood, as individuals, to act as its agent. Further, although a fiduciary relationship may be found to exist in all cases in which influence has been acquired and abused, and in which confidence has been reposed and betrayed, here, there is no allegation of special circumstances that would transform any relationship of Flood and Levy to the plaintiff into a fiduciary one (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 21-22). There is no allegation that the plaintiff placed any confidence or trust in either Levy or Flood or that either of them acquired or abused any confidence from the plaintiff. Houlihan Lawrence cannot be held liable for failing to assure that its affiliated licensees forgo making offers to its principal, the plaintiff seller, on behalf of other potential buyers, notwithstanding the pendency of a contingent contract of sale. A broker cannot be expected to decline a prospective purchaser's request to see the property, particularly since imposing such a limitation would frustrate the seller's interest, who would benefit from having at least having a back-up offer to the pending contingent contract (see Rivkin v Century 21 Teran Realty LLC, 10 NY3d 344, 356; Sonnenschein v Douglas Elliman-Gibbons & Ives, 96 NY2d 369, 376). Thus, to the extent that the cause of action for breach of fiduciary duty insofar as asserted against Houlihan Lawrence rests on the allegations that it continued to re-market the property, or failed to prevent its agents from having conflicts of interest, such allegations do not state a cognizable cause of action. The plaintiff's allegation that Houlihan Lawrence breached its fiduciary duty by allowing its agents to obstruct the zoning process and the pending sale, despite having been warned by the plaintiff that conflicts were apparent, fails for the reasons previously stated: (1) as to Levy, there is no allegation that she continued to engage in any wrongful conduct during the time she remained with Houlihan Lawrence after it was warned by the plaintiff; (2) as to Flood, there is no allegation that she engaged in any wrongful conduct after her conduct was complained of by the plaintiff to Houlihan Lawrence. In the third cause of action, alleging breach of contract, the plaintiff alleges that Houlihan Lawrence breached the covenant of good faith and fair dealing to be implied in the sales agreement. "In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153). Implied in each contract is a covenant of good faith and fair dealing, which encompasses any promise that a reasonable promisee would understand to be included (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318). The covenant is breached where one party to a contract seeks to prevent its performance by, or withholds its benefits from, the other (see Rayham v Multiplan, Inc., 153 AD3d 865, 868). Here, the allegations in the amended complaint that Houlihan Lawrence deprived the plaintiff of the benefit of the brokerage agreement by Houlihan Lawrence's pursuit of efforts to interrupt the sale of the property that its own efforts brought about are sufficient to state a cause of action (see Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 770-771). While Houlihan Lawrence does not dispute that it had the continuing duty to refrain from doing anything that would destroy or injure the rights of the plaintiff, it contends, citing cases applying the doctrine of respondeat superior, that Houlihan Lawrence cannot be held liable for the acts of its real estate agents, other than those directly representing the plaintiff, occurring outside the scope of their employment. The Supreme Court agreed with Houlihan Lawrence in this regard. Assuming, without deciding, that the principles of respondeat superior, a tort concept, apply in this context, whether an act of an employee is within the scope of employment is generally a jury question, dependent upon such factors as: the connection between the time, place, and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated (see Riviello v Waldron, 47 NY2d 297, 302-303). On this motion to dismiss, Houlihan Lawrence has not submitted any evidence in support of its assertion that acts of Levy and Flood were outside the scope of their employment and, even if it had, the plaintiff may not be penalized for not submitting evidence in support of its allegations in the context of a motion to dismiss. Accordingly, the Supreme Court should not have directed dismissal of the third cause of action insofar as asserted against Houlihan Lawrence. In the fourth cause of action, the plaintiff alleges both that the defendants tortiously interfered with the plaintiff's contract with Shelter and that the defendants tortiously interfered with its prospective business relations with Shelter. To state a cause of action alleging tortious interference with contract, the plaintiff must allege: the existence of a valid contract between it and a third party, the defendant's knowledge of that contract, the defendant's intentional procurement of the third party's breach of that contract [*4]without justification, and damages (see Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035, 1036). Here, the plaintiff has failed to plead that Shelter breached its contract with the plaintiff. The plaintiff annexed the termination letter from Shelter to the amended complaint and did not allege that the termination was wrongful. Rather, the documents annexed to the amended complaint by the plaintiff reflect that Shelter terminated the contract pursuant to its terms. While a cause of action for interference with prospective contract or business relationship is closely akin to one for tortious interference with contract, the former requires proof of more culpable conduct on the part of defendant (see Carvel Corp. v Noonan, 3 NY3d 182,190; NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 621). "A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a 'more culpable conduct' standard" (Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 131 AD3d 583, 585, quoting NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d at 621). "This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party" (Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 131 AD3d at 585). "'Wrongful means' include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract" (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191). "The implication is that, as a general rule, the defendant's conduct must amount to a crime or an independent tort" (Carvel Corp. v Noonan, 3 NY3d at 190). "[C]onduct constituting tortious interference with business relations is, by definition, conduct directed not at the plaintiff itself, but at the party with which the plaintiff has or seeks to have a relationship" (id. at 192). To prevail on a claim for tortious interference with business relations, a party must prove: (1) that it had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party (see 684 E. 222nd Realty Co., LLC v Sheehan, 185 AD3d 879, 879-880; Amaranth LLC v J.P. Morgan Chase & Co., 71 AD3d 40, 47). Here, none of the wrongful conduct that the plaintiff alleges was directed at Shelter; if anything, the alleged wrongful conduct was directed at neighbors, community members, and village officials. Moreover, the plaintiff does not allege that Shelter would have declined to terminate the contract "but for" the actions of the defendants (see Gettinger Assoc., L.P. v Abraham Kamber Co., 83 AD3d 412, 413; Slatkin v Lancer Litho Packaging Corp., 33 AD3d 421; Ricca v Valenti, 24 AD3d 647). Additionally, the plaintiff has failed to set forth facts sufficient to meet the requirement that it plead that the defendants used wrongful means or committed an independently actionable tort. The plaintiff's remaining contention is without merit. The defendants' remaining contentions either are without merit or need not be reached in view of our determination. SCHEINKMAN, P.J., BALKIN, COHEN and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:39.919996+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07246.htm

Watkins v Brookdale Univ. Hosp. & Med. Ctr. (2020 NY Slip Op 07246) Watkins v Brookdale Univ. Hosp. & Med. Ctr. 2020 NY Slip Op 07246 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL BETSY BARROS PAUL WOOTEN, JJ. 2019-06286 (Index No. 513399/15) [*1]Hakeem Watkins, respondent, v Brookdale University Hospital and Medical Center, appellant. Lewis Johs Avallone Aviles, LLP, Islandia, NY (Robert A. Lifson of counsel), for appellant. Parker Waichman LLP, Port Washington, NY (Jay L. T. Breakstone of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lisa S. Ottley, J.), dated March 28, 2019. The order denied the defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. On July 1, 2013, the plaintiff, an emergency medical technician, allegedly sustained injuries to his neck and back while transporting a patient on a stretcher from the rear of an ambulance to an emergency loading dock at the defendant hospital. The plaintiff commenced this action against the defendant to recover damages for personal injuries, alleging that he was caused to sustain injuries because the emergency loading dock was negligently designed with a "significant height differential between incoming ambulances and the bay area surface." Thereafter, the defendant moved for summary judgment dismissing the complaint. In an order dated March 28, 2019, the Supreme Court denied the motion. The defendant appeals. Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury (see Trincere v County of Suffolk, 90 NY2d 976, 977). In order to succeed on a motion for summary judgment dismissing the complaint in a premises liability case, the defendant property owner generally must establish, prima facie, that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Croshier v New Horizons Resources, Inc., 185 AD3d 780, 781). A defendant in a premises liability case can also establish its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff cannot identify the cause of his or her accident (see Bishop v Pennsylvania Ave. Mgt., LLC, 183 AD3d 685, 686). "However, even in the absence of direct evidence of causation, that the existence of a defective or dangerous condition was the proximate cause of an accident may be logically inferred based on facts and circumstantial evidence" (Rivera v Waterview Towers, Inc., 181 AD3d 844, 846). Here, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party (see Matadin v Bank of Am. Corp., 163 AD3d 799, 800; Stukas v Streiter, 83 AD3d [*2]18, 22), the defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his injuries. The evidence submitted by the defendant, including the transcript of the plaintiff's deposition testimony, raised a triable issue of fact as to whether the plaintiff sustained injuries while lifting the patient's stretcher from the ambulance to the loading dock due to the height differential between the loading dock and the surface where the ambulance was parked (see Croshier v New Horizons Resources, Inc., 185 AD3d at 781; Bishop v Pennsylvania Ave. Mgt., LLC, 183 AD3d at 687). The defendant also failed to establish, prima facie, the absence of a dangerous condition in violation of, inter alia, various provisions of the Industrial Code, or that such condition did not cause the plaintiff's alleged injuries (see Gorokhovskiy v NYU Hosps. Ctr., 150 AD3d 966, 967). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). BALKIN, J.P., LEVENTHAL, BARROS and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:44.095205+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07231.htm

People v Torres (2020 NY Slip Op 07231) People v Torres 2020 NY Slip Op 07231 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. BETSY BARROS FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ. 2014-11608 (Ind. No. 139/13) [*1]The People of the State of New York, respondent, v Rosendo Torres, appellant. Troy A. Smith, White Plains, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Autumn S. Hughes of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Tammy Robbins, J.), rendered December 11, 2014, convicting him of criminal sexual abuse in the first degree (five counts), upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish his guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant contends that the Supreme Court erred in denying, after a hearing, the defendant's motion pursuant to CPL 330.30(2) to set aside the verdict based upon allegations of juror misconduct. "Generally, a jury verdict may not be impeached by proof of the tenor of its deliberations, but it may be upon a showing of improper influence" (People v Brown, 48 NY2d 388, 393; see People v Davis, 86 AD3d 59, 64-65). Improper influence embraces jury conduct which tends to put the jury in possession of evidence not introduced at trial (see People v Brown, 48 NY2d at 393). When determining a motion to set aside a verdict based upon juror misconduct, "the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered" (People v Brown, 48 NY2d 388, 394; see People v Maragh, 94 NY2d 569, 573-574). "Absent a showing of prejudice to a substantial right, proof of juror misconduct does not entitle a defendant to a new trial" (People v Lemay, 69 AD3d 757, 758; see CPL 330.30[2]; People v Davis, 86 AD3d at 64). Moreover, where a trial court's factual finding on a CPL 330.30 motion has support in the record, it should not be disturbed (see People v Ceresoli, 88 NY2d 925, 926). Here, the defendant's contentions do not rise to the level of improper influence, but seek to impeach the verdict by delving into the tenor of the jury's deliberative process (see People v Anderson, 249 AD2d 405, 406). While jurors 3, 9, and 10 made off-hand references to their life experience in examining and weighing the evidence, they did not hold themselves out as experts on those matters (see People v Maragh, 94 NY2d 569, 574). Jurors are not expected to abandon their cognitive functions and to discourage them from "using their wisdom would remove an essential underpinning of the justification for our pride in the jury system" (People v Davis, 86 AD3d at 64). Furthermore, any mention by juror 9 of sentencing was accompanied by her acknowledgment that the jury was not to consider the defendant's potential sentence in arriving at its verdict. To the extent juror 3 did not disclose during voir dire that certain of her relatives had once been subject to a family offense, she testified at the CPL 330.30 hearing that she "didn't really think about it at the time" as she had interpreted the question at voir dire as involving "someone being robbed or mugged" and that the family experience led her to believe, if anything, that the defendant was not guilty rather than guilty (see People v Clark, 81 NY2d 913, 913-914). Any remaining contentions of juror misconduct are without merit. Based on the record and under the circumstances of this case, the defendant failed to demonstrate a likelihood of prejudice to a substantial right so as to warrant setting aside the verdict (see CPL 330.30[2]; 330.40[2][g]; People v Marsden, 130 AD3d 945, 946-947). As the Supreme Court's determination at the CPL 330.30 hearing is supported by the record, it should not be disturbed (see People v Caresoli, 88 NY2d at 926; People v Rivera, 31 AD3d 670, 671). DILLON, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2011-08-23 09:34:07+00

http://bulk.resource.org/courts.gov/c/F2/732/732.F2d.939.82-1541.html

732 F.2d 939 Winter Garden Supply Co. v. New Mexico Capital Corp. 82-1541 United States Court of Appeals, Fifth Circuit. 4/20/84 1 W.D.Tex. AFFIRMED

2020-09-04 21:00:36.440097+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D09-04/C:19-2572:J:PerCuriam:aut:T:npDp:N:2574825:S:0

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted September 2, 2020* Decided September 4, 2020 Before DAVID F. HAMILTON, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 19-2572 TANIESHEIA HARDEN, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 16 C 1931 COMCAST CORPORATION, Matthew F. Kennelly, Defendant-Appellee. Judge. ORDER After Taniesheia Harden was fired from her job in customer service, she sued her former employer, Comcast Corporation, for unlawful discrimination and a violation of the Illinois Personnel Records Review Act. The district court entered summary judgment on Harden’s claim under the Act, and Comcast prevailed at a trial on the discrimination claims. Harden challenges only the entry of summary judgment under * We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C). No. 19-2572 Page 2 the Act. Because in opposing summary judgment Harden failed to point to evidence showing that Comcast violated the Act, and she cannot do so now, we affirm. Harden sought her personnel records after Comcast fired her for performance issues. Her last job, after 15 years with Comcast, was as a supervisor at a call center in Tinley Park, Illinois. After her discharge, Harden filed a discrimination charge with the Equal Employment Opportunity Commission. Then, a couple months later, she emailed Comcast’s human-resources directors, requesting a copy of “all of [her] employee records/files.” Comcast mailed her over 400 pages of her employment records. She responded by telling Comcast that she had not received her entire personnel file because the mailing did not include three specific categories of documents: (1) records of her weekly meetings with a supervisor during the last seven months of work, (2) the forms Harden completed as a call-center supervisor to document the resolution of customer complaints, and (3) email correspondence between her and a former subordinate that had led Comcast to place Harden on administrative leave shortly before she was fired. Comcast did not respond. When Harden did not receive the three groups of further documents that she requested after filing her EEOC charge, Harden, represented by counsel, sued Comcast. Bringing two sets of claims, she alleged that Comcast unlawfully discriminated against her and, by failing to provide the additional documents, violated the Illinois Personnel Records Review Act, 820 ILCS 40/2. Comcast moved for and received summary judgment under the Act. Noting that 820 ILCS 40/2 covers only records about a worker’s “qualifications” for “employment, promotion, transfer, additional compensation, discharge or other disciplinary action,” Comcast filed an affidavit of compliance with the Act. Its human-resources director stated that, upon Harden’s request, Comcast mailed her “all documents in Comcast’s possession used or relied upon by Comcast to determine Harden’s qualifications for employment, promotion, transfer, additional compensation, or other disciplinary action.” Acknowledging that it had not, until discovery in this case, sent her the three categories of further documents that she wanted, Comcast argued that the Act did not require disclosure of those materials. It explained that Harden filed her charge with the EEOC before requesting any records, 820 ILCS 40/10(f) excludes “records relevant to … [a] pending claim between the employer and employee,” and the new request fell within that exception. (Comcast also contended that her claim failed on the ground that she offered no evidence that any nondisclosure harmed her.) In response, Harden did not contest Comcast’s statement that the three categories of documents withheld until No. 19-2572 Page 3 discovery fell within an exception to the Act and that Comcast otherwise produced her personnel records. Based on Harden’s failure to contest Comcast’s position, the district court entered summary judgment for Comcast under the Act. A subsequent trial on the discrimination claims resulted in judgment for Comcast. Harden, proceeding pro se on appeal, argues that even if her opposition to summary judgment was deficient, the district court should have assessed whether a reasonable jury could have concluded that Comcast violated the Act. See Gerhartz v. Richert, 779 F.3d 682 , 686 (7th Cir. 2015) (even if nonmovant does not respond at all, district court still must assess whether the moving party has met its burden). But Harden invokes this principle incorrectly. First, she attempts to assert, for the first time on appeal, that while she was still employed by Comcast and before she filed her EEOC charge, she made two requests for her personnel records that Comcast ignored. But we must reject her “attempts to inject more facts into the case on appeal than she presented to the district court.” Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690 , 695 (7th Cir. 2017). Harden waived reliance on any “specific factual arguments that were absent from her briefing below” because Comcast never had an opportunity to counter them, nor did the district court have a chance to pass on them. Id. Second, and similarly, with respect to the three categories of documents that she requested after she filed her EEOC charge, she cannot now assert that Comcast needed to cite an exception to the Act before she sued. She waived that argument too by failing to raise it in the district court. Waiver to the side, on our de novo review of the record in the district court, we conclude that no evidence suggests that Comcast violated the Act. The Act requires that, upon an employee’s request, the employer must allow the employee to “inspect any personnel documents which are, have been[,] or are intended to be used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action, except as provided in [820 ILCS 40/10].” 820 ILCS 40/2. One such exception is “records relevant to any other pending claim between the employer and employee which may be discovered in a judicial proceeding.” 820 ILCS 40/10(f). The evidence cited by Comcast and materially uncontradicted by Harden in the district court showed that Comcast provided her all required documents related to determining her qualifications for employment. Furthermore, Comcast permissibly excluded the additional documents that she sought after filing her EEOC charge. Those documents, bearing on her performance, were relevant to her pending claim, were discoverable in this proceeding, and were in fact produced. See Landwer v. Scitex Am. Corp., 606 N.E.2d 485 , 489 (Ill. Ct. App. 1992) No. 19-2572 Page 4 (employer did not violate the Act by withholding documents, which otherwise would be subject to disclosure, based on statutory exception). Accordingly, the district court’s ruling on summary judgment was correct. We need not consider Harden’s argument that she was not required to show that she was harmed by a violation of the Act because she did not satisfy the initial hurdle of presenting sufficient evidence of a violation. AFFIRMED

2020-01-17 22:01:56.433637+00

Trammell

*943OPINION. Trammell : The petitioner contends that it met all of the requirements for classification as a personal service corporation, during the taxable year. It also contends that, in event it is held not to be entitled to such classification, it should be allowed a deduction representing $7,500 to each of the four stockholders as salary or compensation for services rendered by them. With respect to the question as to whether the petitioner was a personal service corporation, the respondent concedes in his brief that the stockholders were regularly engaged in the active conduct of the affairs of the corporation, but denies that the income of the petitioner is to be ascribed primarily to the activities of the stockholders or that capital was not a material income-producing factor. The income of the petitioner was derived primarily from the presentation of plays produced by its stockholders. The stockholder producing a play hired and paid the actors, paid the royalties and part of the advertising, furnished the necessary costumes, any extra stage hands that were necessary and any extra electricity that was required. The petitioner furnished, among other things, the house lighted, heated and provided with a certain personnel. From the standpoint of the petitioner, the successful presentation of plays required, among other things, a suitable place for their presentation. No matter how good the plays might be, they could not prove income-producing successes without a proper place to present them. Such a place was just as necessary and essential in the production of the petitioner’s income as were the plays presented. Under such circumstances, a place for presenting the plays is a material income-producing factor, and under the conditions present here, constituted capital. In considering this question in Newam Theatre Corporation, 1 B. T. A. 887, we said: The corporation was enabled to provide the place (the theatre), which, as we have observed, was a material factor in producing its income, by its possession of a leasehold of the theatre premises. Such a leasehold was a capital asset of the corporation and entered into its capital account. This leasehold was especially valuable to the corporation because it made possible the presentation of the plays selected by its stockholders and in that very material manner helped to produce the income of the corporation. The business in which the *944corporation was engaged makes this reasoning particularly applicable and constitutes a cogent factor in our determination. There are businesses which are so conducted that the places in which they are conducted do not matter much or contribute materially to the income, but a theatre for the presentation of plays to large bodies of the discriminating public does not come within such class. The theatre which taxpayer held under leasehold was capital to the corporation and was a material income-producing factor. See also Atlanta Theatre Co., 1 B. T. A. 890; Selwyn Operating Corporation, 5 B. T. A. 723; Cotton Hotel Co. v. Bass, 7 Fed. (2d) 900. We are confirmed in our opinion that capital was a material income-producing factor by the fact that at the beginning of the taxable year petitioner’s capital of $10,000 and surplus of $22,409.61 consisted entirely of cash in bank; that no part of the surplus was distributed during the taxable year, and that no part of this surplus or of the earnings of the year, amounting to $34,135.36, was paid out to the stockholders for the reason that petitioner “was shy of money ” when at that time its capital and surplus were represented by cash in bank amounting to $58,419.97 and prepaid accounts amounting to $8,125. We can only conclude that no distribution was made because the money was needed in the business. Since capital was a material income-producing factor, the petitioner does not meet one of the requirements .prescribed by the statute. The petitioner, therefore, does not come within the meaning of a personal service corporation as defined by statute. Its contention as to personal service classification is accordingly denied. With respect to the second issue, the petitioner contends that it should be allowed a deduction representing salary or compensation of $7,500 to each of its four stockholders. No deduction for stockholders’ salaries was taken on the petitioner’s return nor was any allowed by the respondent. No salaries were paid during the taxable year, nor were any authorized for that year until in December, 1923. While Brady, a witness in behalf of the petitioner, testified that the stockholders before distributing the profits informally agreed among themselves that each stockholder’s distributive share, or one-fourth of the profits, would be considered as compensation for his services, the minutes of the directors’ meeting of December 12, 1923, disclose that the authorized compensation of Isman and Weber for the taxable year was $7,500 each, whereas Brady’s compensation was fixed at $15,000. These amounts are much at variance with each member’s distributive share of $8,533.84. In G. Angelo Co. et al., 12 B. T. A. 460, a question similar to the one here involved was considered. There we said: Petitioner, the G. Angelo Co;, claims the right to the deduction of a reasonable allowance for salaries or other compensation for personal services actually rendered by the stockholders, as provided in section 234 (a) (1) of the Revenue *945Act of 1918. It appears that the stockholders, all of whom were active in the conduct of the affairs of the corporation, believed this close corporation to be a personal service corporation, and they failed to authorize or to pay or accrue, compensation as such for their services. However, dividends were declared and paid, and petitioner proposes that we allocate in each year so much of the dividends as appears reasonable for salaries and permit the deduction of such allowances from income for the purpose of computing net income. Inasmuch as the statutory provision for the deduction of the salaries is coupled with the requirement that they shall have been paid or accrued during the taxable year the proposed allowance is unwarranted. Cf. M. J. McCabe Co., 1 B. T. A. 67; When Clothing Co., 1. B. T. A. 973. We think our decision in the foregoing is applicable and controlling here. Judgment will be entered for the respondent.

2020-01-17 22:01:56.501348+00

Smith

*948OPINION. Smith: Upon the hearing of the above entitled proceeding the petitioner and the respondent were represented by counsel. It was the contention of the petitioner that he was entitled to judgment of no liability upon the ground that the respondent had not sustained the burden of proof imposed upon him by section 602 of the Revenue Act of 1928, which added to Title IX of the Revenue Act of 1926, sections 912 and 913. It was the contention of the petitioner that before liability for the tax of the corporation would attach the respondent— must show wbat assets be [petitioner] received, tbe amount of assets, tbe value of tbe assets and perhaps many other factors which go into a cause of action which could be maintained by the Government had it proceeded in a court of law, or in a court of equity to reach these assets, either under the trust fund doctrine, under an express or implied agreement, ,or otherwise as a transferee might be liable ⅞ ⅜ *. Section 280 of the Revenue Act of 1926, so far as is material, provides: (a) The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this title (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds): *949(X) The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this title or by any prior income, excess-profits, or war-profits tax Act. Section 602 of the Revenue Act of 1928 provides: Title IX of the Revenue Act of 1924, as amended, is further amended by adding at the end thereof two new sections to read as follows: “ TRANSFEREE PROCEEDINGS “ Sec. 912. In proceedings before the Board the burden of proof shall be upon the Commissioner to show that a petitioner is liable as a transferee of property of a taxpayer, but not to show that the taxpayer was liable for the tax. “ Sec. 913. Upon application to the Board, a transferee of property of a tax payer shall be entitled, under rules prescribed by the Board, to a preliminary examination of boohs, papers, documents, correspondence, and other evidence of the taxpayer or a preceding transferee of the taxpayer’s property, if the transferee making the application is a petitioner before the Board for the rede* termination of his liability in respect of the tax (including interest, penalties, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer. Upon such application the Board may require by subpoena, ordered by the Board or any division thereof and signed by a member, the production of all such books, papers, documents, correspondence, and other evidence within the United States the production of which, in the opinion of the Board or division thereof, is necessary to enable the transferee to ascertain the liability of the taxpayer or preceding transferee and will not result in undue hardship to the taxpayer or preceding transferee. Such examination shall be had at such time and place as may be designated in the subpoena.” All that the petitioner has admitted in his petition is that he was the principal stockholder in the corporation, L. Yogelstein & Co., Inc.; that that company was legally dissolved in 1921; and that its assets were distributed in liquidation to the petitioner. We have no knowledge as to whether those assets had any value. If they did not, the petitioner has no liability as a transferee. We think that the proper interpretation of section 912 of the Revenue Act of 1926, added by section 602 of the Revenue Act of 1928, is that the burden of showing the extent of the liability of a transferee of property of a taxpayer is upon the Commissioner and that the Commissioner has not borne that burden by merely showing that the petitioner, by his own admissions, has received in liquidation the assets of a dissolved corporation, which itself may have been liable for a tax, without showing what value, if any, the assets in question had at that time. See Annie Temogan et al., Trustees, 16 B. T. A. 923. Judgment of no liability will be entered for the petitioner.

2020-01-17 22:01:56.611511+00

Sterniiagen

*956OPINION. Sterni-iagen : Petitioner seeks for 1920 and 1921 to bring itself within the class of “ personal service corporations ” defined in section 200, Revenue Acts of 1918 and 1921, which are not subject to tax. Sec. 218 (e). A similar attempt for 1918 and 1919 failed because, in the opinion of the Board, capital was a material income-producing factor. Kossar & Co., 4 B. T. A. 1164. The evidence in this proceeding leads to the same conclusion and we hold that for 1920 and 1921 petitioner is not entitled to be classified as a personal service corporation. Hubbard-Ragsdale Co. v. Dean, 15 Fed. (2d) 410; 15 Fed. (2d) 1013; Denver Live Stock Commission Co. v. Commissioner, 29 Fed. (2d) 543, affirming 7 B. T. A. 985; John Dais Co., 2 B. T. A. *9571167; Prey Bros. Live Stock Commission, 9 B. T. A. 534; C. E. McNeill & Co., 14 B. T. A. 738. We need not consider the fact that until December 19, 1921, 50 shares or one-fourth of the outstanding stock was held by two people who were not “regularly engaged in the active conduct of the affairs of the corporation. See Robischon & Peckham Co., 11 B. T. A. 483. The New York State franchise tax was that imposed by N. Y. L. 1909, ch. 62, art. 9 A. By section 209 a tax was in this instance imposed for the privilege of exercising its franchise in this state ” payable annually in advance for the year beginning November 1, computed upon the net income of the preceding calendar year. The rate was 4½ per cent. To a taxpayer upon a simple and consistent accrual basis, as the parties agree as to this petitioner, this tax of $767.74 for 1920 and $1,403.15 for 1921 accrued in 1920 and in 1921, respectively. Deduction should be made and the deficiency is modified accordingly. Jamestown Worsted Mills, 1 B. T. A. 659; United States Trust Co. of New York, 13 B. T. A. 1074. But the amount of $45.77 paid in March, 1921, as “ penalty and interest ” is not a tax, New York v. Jersawit, 263 U. S. 493, and is not deductible as such. Nor is any part of it to be treated as interest, New York v. Jersawit, supra; United States v. Childs, 266 U. S. 304. Petitioner does not claim the deduction as ordinary and necessary expense, nor has any evidence been offered so to establish it. However doubtful may be the deductibility of a penalty when all the circumstances are in evidence, see Great Northern Ry. Co., 8 B. T. A. 225, it can not be said that the mere payment is per se an ordinary and necessary expense of carrying on a trade or business. The petitioner claims deductions of amounts withdrawn by Kossar and Blumenkranz in excess of their regular salaries. The evidence as to the amounts is not entirely clear, but in any event they are not, in our opinion, salaries or compensation and are not deductible as such. They were treated by those concerned as advances and accounted for as temporary loans. Blumenkranz testified that they expected to pay them back. Their services were apparently fully compensated by the salaries which they agreed upon of $150 per Aveek or $7,800 each in 1920 and $200 per week or $10,400 each in 1921, and we find no justification in the evidence for increasing these amounts by reason of advances to these stockholders of their personal taxes or other withdrawals. The petitioner claims special assessment under section 327, and relies upon the idea that the salaries actually paid were lower than they might have been and that therefore net income was abnormally high. In support thereof petitioner introduced the opinion of Herbert Frankel, the president of a competing corporation, that the services of Kossar and Blumenkranz were each worth $20,000 a year, *958Blumenkranz had reciprocally testified to the same effect for Frankel in an earlier proceeding before the Board, Sol Frankel, Inc., 3 B. T. A. 494. Even if we were to adopt this as a reasonable opinion (which we are unwilling to do), it does not follow that the corporation’s payment of a lower amount is under the circumstances an abnormal condition affecting capital or income calling for the use of special assessment. The standard of salaries is not definitely fixed and there is a wide field within which they may vary without constituting an abnormal condition. We think the opinion of this witness that the salaries might reasonably have been higher is insufficient to prove an abnormal condition. If Kossar and Blumenkranz had taken $20,000 each, the total salaries would have been increased by $34,400 in 1920 and $19,200 in 1921, and these amounts would not have been justified by the earnings. Furthermore, since it is not contended that the statutory invested capital is other than normal, special assessment is precluded by section 327, which provides: * * * This subdivisión shall not apply to any case (1) in which the tax (computed without benefit of this section) is high merely because the corporation earned within the taxable year a high rate of profit upon a normal invested capital * * *. The respondent’s determination should be modified by deductions of the New York State franchise taxes as above decided, and in other respects it is sustained. Reviewed by the Board. Judgment will be entered wnder Rule 50.

2020-11-20 19:34:03.678108+00

Estate of Arthur W. Davis, Marion E. Davis, Executrix v. Commissioner. Estate of Arthur W. Davis, Marion E. Davis, Executrix, and Marion E. Davis, Individually v. Commissioner. Estate of Arthur W. Davis, Davis v. Commissioner Docket Nos. 32286, 36717. United States Tax Court 1952 Tax Ct. Memo LEXIS 124; 11 T.C.M. (CCH) 814; T.C.M. (RIA) 52238; July 31, 1952 *124 Decedent's employer, after dismissing him, agreed to pay decedent, in monthly installments, one year's salary as termination payment, and in the event of his death within the year to pay the balance of the termination payment to his widow or his estate. Decedent died within the year, and his former employer paid the balance of $15,000 to his widow. Respondent included the value of the right to receive the $15,000 in decedent's gross estate, and determined that the $15,000 paid to decedent's widow was taxable income to her. Held, the value of the right to receive the termination payments was properly included in decedent's gross estate; held, further, the $15,000 paid to decedent's widow was taxable income to her and was not a gift. In 1946 decedent purchased a home in which he and his wife resided until his accidental death. The deed to the property was taken in his wife's name, who executed a purchase money mortgage for the balance due. From time to time thereafter decedent paid amounts due under the mortgage. At the time of the transfer decedent enjoyed excellent health, had no medical record, and was in no financial difficulties. Upon decedent's death his widow sold the property*125 for a net value of $12,630.65, which amount respondent included in decedent's gross estate as a transfer in contemplation of death, or a transfer to take effect in possession or enjoyment at or after death. Held, decedent made a completed gift of the property in 1946, retaining no interest whatsoever therein, and the net value of the property is not includible in his gross estate under section 811 (c) of the Internal Revenue Code, as amended. Richard W. Wilson, Esq., 420 Lexington Ave., New York, N. Y., for the petitioners. Charles M. Greenspan, Esq., for the respondent. RICE Memorandum Findings of Fact and Opinion These consolidated cases involve an estate tax deficiency of $196.64 in docket number 32286, and an income tax deficiency of $4,369.20 for the taxable year 1949 in docket number 36717. The issues in the estate tax case are whether decedent's gross estate should include: (a) the sum of $15,000, representing payments by Standard Brands Incorporated, to decedent's wife, individually; and (b) the sum of $12,630.65, representing the net value of the residence in which decedent and his wife resided at the date of his death. The issues in the income tax case are: (a) whether the $15,000 paid to Marion E. Davis, individually, during 1949 constituted taxable income which should have been reported in the joint return filed for 1949; and (b) whether*127 petitioners overpaid 1949 income taxes by the sum of $964.64. Findings of Fact The petitioner, Marion E. Davis, is the duly appointed, qualified, and acting executrix of the Estate of Arthur W. Davis, deceased, and is the widow of the deceased. At the date of decedent's death, he and his wife resided in Yonkers, N. Y. A joint income tax return was filed on behalf of the decedent and Marion E. Davis for 1949 with the collector of internal revenue at Albany, N. Y. The Federal estate tax return for decedent's estate was filed with the same collector. In 1944 the decedent became associated with Standard Brands Incorporated (hereinafter referred to as Standard Brands) in New York, N. Y., as comptroller, with an initial salary of $20,000 per annum, which had been increased by 1948 to $40,000. In October, 1948, decedent's association with Standard Brands was terminated by dismissal, although he was given the privilege of resigning. Decedent was placed on leave with pay until November 15, 1948, after which time, he was informed by the president of Standard Brands, by letter dated October 28, 1948, his status would be as follows: * * * "Beginning November 15th, you are to receive*128 one year's salary as termination payment. This can be spread over a twoyear period if you wish, but will you please indicate your preference in the matter." * * * Under date of November 3, 1948, decedent received the following letter from the vice-president and treasurer of Standard Brands: "Dear Arthur: "This will confirm the arrangements whereby you will receive an amount equal to your salary for one year as termination payment. Beginning November 15, 1948 and subject to normal deductions, this sum will be paid to you in monthly installments until December 31, 1948 and thereafter will be paid in such manner as you direct, provided, however, that the payments shall not be made over a period in excess of two years from November 15, 1948. In the event that you shall die prior to the full payment of said termination payment any balance due shall be paid to your widow or estate as you direct. "Very truly yours," Prior to December 31, 1948, Standard Brands paid $5,000 of such termination payment to the decedent. From January 1, 1949, to July 15, 1949, the date of decedent's death, Standard Brands paid the decedent $20,000 of such termination payment by company checks. Attached*129 to such checks were vouchers or stubs entitled "Employee's Earnings Statement" showing earnings and deductions, with the statement "Detach this stub before presenting check for payment." A typical earnings statement for the "pay period ending June 15, 1949" showed "Earnings" of $3,333.33, and "Deductions" of $466.20 for withholding tax and $17.50 for group insurance. The decedent died instantly as a result of an automobile accident on July 15, 1949. Under date of July 20, 1949, decedent's widow received a letter from the general counsel of Standard Brands which reads in part as follows: "Dear Mrs. Davis: "Enclosed please find check to your order in the amount of $3,333.33 representing amount (without normal deductions) payable July 31, 1949 in accordance with the arrangements made with Mr. Davis in October of last year. Unless you desire immediate payment of the balance due under these arrangements, such balance will be paid to you in monthly installments until November 15, 1949. Please let me know how you wish this to be handled." * * * Between July 15, 1949, and December 31, 1949, Standard Brands paid Marion E. Davis, individually, the remaining $15,000 of the termination*130 payment. The stubs accompanying the checks contained no deductions for withholding tax or otherwise. Decedent and his wife moved to New York in 1944. They rented a house at 61 Beechmont Avenue, Yonkers, N. Y. In July, 1946, decedent purchased this property. The purchase price was $25,000, of which decedent paid $7,000 in cash. Decedent had the seller make the deed directly to his wife, Marion Elizabeth Davis, who executed a mortgage to the seller, dated July 29, 1946, for the unpaid balance of the purchase price. Subsequent to the purchase, and prior to his death, the decedent paid an additional $3,300 on the mortgage. At the time he purchased the residence, decedent was 47 years of age and enjoyed excellent health. He had no prior medical record, and was not in financial difficulties. His reason for giving the residence to his wife was to assure her the security of a home in the event of "the ever present possibility of one kind of an emergency or another." Decedent's salary at that time was about $30,000 per year, and he carried life insurance of between $75,000 and $80,000. Decedent's wife had very little funds of her own. Subsequent to decedent's death, and on or about September 1, 1949, Marion*131 E. Davis sold the property at 61 Beechmont Avenue for a net sum of $12,630.65. In the joint income tax return filed on behalf of the decedent and his widow for 1949, the $20,000 received by decedent from Standard Brands was included as taxable income, but the $15,000 received by Marion E. Davis, individually, was omitted therefrom. In determining the income tax deficiency herein, respondent included the $15,000 received by Marion E. Davis in 1949 taxable income. In the estate tax return for the decedent's estate, the executrix failed to include the value of the residence, $12,630.65, or the $15,000 received by Marion E. Davis, individually, in the decedent's gross estate. In determining the estate tax deficiency, respondent included both of these items in the decedent's gross estate. Opinion RICE, Judge: The first issue in the estate tax case is whether decedent's gross estate should include $15,000, representing the unpaid portion of the termination payment due him under the arrangement made with Standard Brands. The reasons that motivated the parties in reaching their agreement that decedent should receive an amount equal to one-year's salary as a termination payment are, *132 in our opinion, immaterial. The facts show that this was their agreement, and that decedent had received $25,000 there-under prior to his accidental death. An essential part of the agreement was that his widow or his estate would receive any balance due in the event of his death before the agreed sum was paid. The picture on July 15, 1949, is, therefore, perfectly clear. There was owing decedent when his death occurred $15,000 under the "arrangement", and this obligation was immediately recognized by Standard Brands through the letter of its general counsel to decedent's widow, dated July 20, 1949. That letter enclosed a check to her order, and stated that monthly installments would continue under the "arrangements" unless she desired immediate payment of the balance due. There could hardly be a clearer recognition of the transfer from the deed to the living of a right to receive property. Believing, as we do, that the right to receive the $15,000 was property owned by decedent at the date of his death, the value thereof is includible in his gross estate under section 811 (a) of the Internal Revenue Code. There is no dispute with respect to the balance due*133 at July 15, 1949, under the "arrangement" and we are satisfied that the value of the right was the balance due on that date. On this issue we hold for the respondent. The second issue in the estate tax case is whether the value of the residence occupied by decedent and his wife should be included in the decedent's gross estate. The parties are in accord as to the net value of the residence, if any amount is to be included in the gross estate. Petitioners contend that decedent gave the property to his wife in 1946, in order to assure her of a home, when he was 47 years of age, enjoying excellent health, and with no financial worries. Under such circumstances, petitioners deny that the transfer was made in contemplation of death or that the transfer was to take effect in possession or enjoyment at or after death as provided in section 811 (c) of the Code. Petitioners also point out that section 811 (c) of the Code was amended by section 7 of the Technical Changes Act of 1949 (63 Stat. 895), and that, as amended, section 811 (c) does not require inclusion of an interest in property transferred prior to October 7, 1949, and intended to take effect in possession or enjoyment at or after*134 his death, unless decedent retained a reversionary interest in the property arising by the express terms of the instrument of transfer and not by operation of law. On this issue we agree with the petitioners. The circumstances under which decedent transferred the property to his wife negative any conclusion that the transfer was made in contemplation of death. The facts show that the transfer was prior to October 7, 1949, and the deed to the property was in decedent's wife's name alone. We can see no similarity in the facts here to those which obtained in the Estate of John W. Mortimer, 17 T.C. 579">17 T.C. 579 (1951). Mortimer never intended to make a gift of the properties and did not deliver the deeds to the alleged donees. The donee here not only received the deed to the property but was in possession thereof. Decedent resided there and continued to make payments on the mortgage, but it could hardly be questioned that his wife was the legal and equitable owner of the residence. Whatever use, possession, and enjoyment the decedent had of the property was due to his marital status and not because of any interest he owned in the property. Nor can it be said that decedent retained*135 any reversionary interest in the property. The deed was to Marion Elizabeth Davis. The mortgage, according to the documentary evidence of record, was executed by her as the owner of the property on July 29, 1946, and no mention is made in the policy of title insurance that decedent was obligated on the purchase money note or mortgage. There is no documentary evidence in this record to show that decedent had any interest whatsoever in the property, reversionary or otherwise. We hold that decedent's transfer in July, 1946, was not a transfer within the meaning of section 811 (c), as amended, and the net value of the property should not be included in his gross estate. In so holding we have considered Wasserman v. Commissioner, 139 Fed. (2d) 778 (C.A. 1, 1944); Estate of Pamelia D. Holland, 47 B.T.A. 807">47 B.T.A. 807 (1942), modified 1 T.C. 564">1 T.C. 564 (1943); and Helvering v. Hallock, 309 U.S. 106">309 U.S. 106 (1940), cited by the respondent. We cannot agree, however, that these cases are in point, or that they are controlling here. The remaining issue to be decided is whether the payment of $15,000 to Marion E. Davis, individually, during 1949 by Standard Brands*136 was a gift as contended by petitioners or taxable income as determined by the respondent. The circumstances under which the payments were made are fully described in our findings and need not be repeated. It cannot be denied that the monthly payments had their source in decedent's agreement with Standard Brands or that the yardstick used to measure the amount that would be paid was "one year's salary as termination payment." Nor can it be denied that the $20,000 received by decedent in 1949, prior to his death, was reported as taxable income even though petitioner contends now that the $15,000 paid by Standard Brands to the widow was a gratuity and therefore nontaxable under section 22 (b) (3) of the Code. We are unable to agree with petitioner's contention. The situation here is analagous to and our decision is controlled by Bausch's Estate, et al. v. Commissioner, 186 Fed. (2d) 313 (C.A. 2, 1951), affirming 14 T.C. 1433">14 T.C. 1433 (1950); Varnedoe v. Allen, 158 Fed. (2d) 467 (C.A. 5, 1946), cert. den. 330 U.S. 821">330 U.S. 821 (1947); and Flarsheim v. United States, 156 Fed. (2d) 105 (C.A. 8, 1946). Upon the authority of these cases, we*137 hold that the $15,000 paid Marion E. Davis represented payments by way of compensation for services rendered by her deceased husband to the payor, Standard Brands. Furthermore, our decision on this issue is supported by the provisions of section 126 of the Code, 1 and the decisions interpreting and applying that section. It is apparent that Marion E. Davis acquired the right to receive the $15,000 by reason of the death of the decedent, and that this right should be treated in her hands, under subsection 126 (a) (3), as if it had been acquired by her in the transaction by which the decedent acquired such right, and that the amount includible in her gross income, under subsection 126 (a) (1), shall be considered in her hands to have the character which it would have had in the hands of the decedent if the decedent had lived and received such amount. The character of the $15,000 in decedent's hands had he lived to receive it would have been taxable income just as the $20,000 he received under the agreement in 1949 prior to his death. In view of this fact and the other facts of record, we hold that the $15,000 paid to Marion E. Davis, individually, was also taxable income. O'Daniel's Estate, et al. v. Commissioner, 173 Fed. (2d) 966*138 (C.A. 2, 1949); Estate of Fred Basch, 9 T.C. 627">9 T.C. 627 (1947). *139 Our decision on the first three issues indicates that there will be no overpayment of income tax for 1949. In determining the income tax liability in docket number 36717, respondent should make allowance for the deduction for estate tax provided in section 126 (c), if any, as a result of our decision on the contested issues. Decisions will be entered under Rule 50. Footnotes

2021-01-26 22:00:30.53294+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0019p-06.pdf

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0019p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 19- v. │ │ │ , │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:14-cr- —Danny C. Reeves, District Judge. Decided and Filed: January 26, 2021 Before: BATCHELDER, MOORE, and ROGERS, Circuit Judges. _________________ COUNSEL ON BRIEF: William W. Webb, Jr., EDMISTEN & WEBB LAW, Raleigh, North Carolina, for Appellant. John Patrick Grant, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ROGERS, J., delivered the opinion of the court in which MOORE, J., joined. BATCHELDER, J. (pp. 7–8), delivered a separate dissenting opinion. _____________________ REDACTED OPINION _____________________ ROGERS, Circuit Judge. , who is currently serving a federal prison sentence, provided substantial assistance to the Government in a murder investigation regarding a fellow inmate. ’s help allowed the Government to solve the murder case and have a  No. 19- REDACTED OPINION Page 2 United States v. prosecutable case. The Government in turn recommended that the district court reduce ’s sentence by 12 to 18 months. The court decided on the same day that the Government filed its motion for a sentence reduction that a 12-month reduction was appropriate. However, the district court erred by not allowing the opportunity to respond to the Government’s motion. pleaded guilty in the Eastern District of Kentucky in 2014 to possession with intent to distribute Oxycodone in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to 150 months’ imprisonment. While serving his sentence at a federal correctional institution in North Carolina, and a fellow inmate also from Kentucky became confidants of a third inmate, . learned that , who was then serving a sentence for fraud offenses, was suspected of being involved in the murder of his adopted daughter, . In 2015, told and the other prisoner that “if you ever want to get rid of a body, hogs is the way to go” and that “it was easy to kill someone without leaving evidence.” told the FBI and police about ’ comments and informed them that he believed that he and the other inmate could obtain additional information from about what happened to . and the other inmate urged to tell law enforcement the truth about what happened to . In August 2016, confessed to the police that he and his wife, , killed and disposed of her body. told the police that his “Kentucky guys,” referring to and the other inmate, had told that he needed to tell the truth. Subsequently, led the police to where he and his wife had disposed of ’s body. and his wife were then charged with ’s murder. pleaded guilty and was sentenced to life imprisonment. According to the Government’s motion, was scheduled for trial in April 2020 and the state was seeking the death penalty.1 On September 4, 2019, the Government filed a motion to reduce ’s sentence pursuant to Federal Rule of Criminal Procedure 35(b) based on his substantial assistance in 1 Later news reports indicate that pleaded guilty.  No. 19- REDACTED OPINION Page 3 United States v. solving the murder case. The Government stated that ’ “confession on August 11 and 16, 2016, to murdering and concealing the body of his adoptive daughter was the key to solving the crime and having a prosecutable case.” The Government acknowledged that “ was clear that his decision to be truthful with law enforcement was due in part to the encouragement he received from .” Accordingly, the Government asserted that ’s “efforts to encourage to be truthful certainly constitute ‘substantial assistance’ in the investigation of an offense committed by another person.” Thus, the Government recommended that the district court reduce ’s prison sentence by 12 to 18 months. The district court granted the Government’s motion the same day that the motion was filed, September 4, 2019. The court recognized that helped persuade to tell the truth about what happened to , which allowed law enforcement to solve ’s murder and to prosecute for her murder. The court concluded that therefore provided substantial assistance and reduced ’s prison sentence by 12 months. appeals the district court’s order. He argues first that the district court erred in ruling without giving him the opportunity to present evidence and argument, and second that in any event the district court abused its discretion in ordering a reduction of only 12 months. Because a remand is warranted on his first argument, we do not reach his second argument. We have jurisdiction over this appeal under 18 U.S.C. § 1291, because ’s reduced sentence was a final judgment issued by the district court. See United States v. Marshall, 954 F.3d 823 , 827 (6th Cir. 2020). In Marshall, we recognized that before Congress enacted 18 U.S.C. § 3742, federal courts used § 1291 to review criminal appeals. 954 F.3d at 827 (citing Abney v. United States, 431 U.S. 651 , 657 (1977)). As the Supreme Court cautioned in Arbaugh v. Y&H Corp., 546 U.S. 500 , 510-13 (2006), we must exercise care in characterizing federal statutes as limiting federal courts’ subject-matter jurisdiction. To that end, we reasoned in Marshall that “§ 3742(a) imposes a mandatory limit on our power, not a subject-matter  No. 19- REDACTED OPINION Page 4 United States v. jurisdiction limit on our power.” 954 F.3d at 827 . Thus, § 1291 “remains the main source of our subject-matter jurisdiction” in this appeal. Id. at 829. contends that the district court erred as a matter of law in reducing his sentence by only 12 months, without first giving him the chance to present an argument that a greater reduction was warranted. He also argues that the district court erred in applying the relevant factors for determining the extent of the reduction. We reach only the former question on this appeal. It presents the legal issue of whether such a chance to present argument was required by law, and thus fits under § 3742(a)(1), which permits appellate review of a sentence that “was imposed in violation of law.” This conclusion is supported by United States v. Grant, 636 F.3d 803 , 809 (6th Cir. 2011) (en banc), where we held that § 3742(a)(1) permitted our review over Grant’s reduced sentence because he argued that “the methodology the district court used to impose his sentence was in violation of the law.” In that case, Grant argued that the district court “committed an error of law by misapprehending the [18 U.S.C. § 3553(a) sentencing] factors it was allowed to consider in deciding the Rule 35(b) motion.” Id. Because Grant challenged the methodology the district court used to reduce his sentence, not merely the extent of the reduction, we concluded that Grant’s appeal came within the scope of 18 U.S.C. § 3742(a)(1). Id. Other circuits have held that appellate review of a Rule 35(b) determination is within the scope of § 3742(a)(1) to review comparable legal issues. See, e.g., United States v. Davis, 679 F.3d 190 , 194 (4th Cir. 2012) (whether a hearing was required); United States v. Doe, 351 F.3d 929 , 932 (9th Cir. 2003) (whether improper factors were considered); United States v. McDowell, 117 F.3d 974 , 978 (7th Cir. 1997) (same). The district court erred as a matter of law in granting the Government’s Rule 35(b) motion and reducing ’s sentence by only 12 months without giving an opportunity to respond to the Government’s motion. In granting the Government’s motion and deciding on the amount of reduction on the same day that the motion was filed, the court denied an opportunity to provide his own recommendation and present argument and accompanying evidence regarding the sentence reduction that he believed was warranted for his substantial assistance. asserts that he compiled evidence regarding the nature and value  No. 19- REDACTED OPINION Page 5 United States v. of his assistance to law enforcement in the investigation and prosecution of . also states that he obtained letters from correctional institution employees regarding the threat to his safety posed by his having aided law enforcement and about ’s rehabilitation in prison. In addition, states that he has an affidavit from his wife about the hardship his family experienced during the investigation and prosecution of . But never had the opportunity to present this information to the district court. We have implicitly approved of permitting substantial assisters to provide their own recommendation concerning the value of the assistance provided and to dispute the Government’s description of the assistance. Moreover, we have never called into question the ability of substantial assisters to file a response to the Government’s Rule 35(b) motion in district court when considering appeals in which this has occurred. See, e.g., Grant, 636 F.3d at 808 . Also, we alluded in United States v. Maxwell to the fact that a substantial assister may file a response when we concluded that a court does not, merely by agreeing with the Government’s assessment of the value of the assistance provided, thereby disavow its statutory discretion, “particularly when the defendant has not provided his own recommendation concerning the value of that assistance and does not dispute the government’s description of his assistance.” See 501 F. App’x 394, 396 (6th Cir. 2012). Grant and Maxwell support if not compel the legal conclusion that a defendant must have the chance to file a response to a Rule 35(b) motion. Like Grant, collected substantial evidence from the FBI and others demonstrating that the extent of his assistance, coupled with the threat to his personal safety and hardship to his family, warranted a greater reduction in light of the applicable sentencing factors. Maxwell, an unpublished opinion, does not preclude our holding that defendant must have the chance to argue in favor of a greater reduction. In Maxwell we rejected on the merits the assertion that the district court did not appreciate its authority to disagree with the government’s requests. Maxwell, 501 F. App’x at 396. We then rejected Maxwell’s argument that the district court had abused its discretion in its decision not to give a lower sentence. Id. The reasoning is perfectly consistent with requiring at least the chance to advocate a larger reduction. To the extent that Maxwell says anything about when a defendant is  No. 19- REDACTED OPINION Page 6 United States v. not afforded an opportunity to object, the case is entirely distinguishable. The district court in Maxwell ruled on the Government’s Rule 35(b) motion seven weeks after it was filed, during which time Maxwell filed no response. Shortly thereafter, Maxwell moved for reconsideration, which the district court did not rule on until eight weeks later. Thus, there is no indication that the district court simply declined to consider the input of the defendant. The district court provided Maxwell with ample opportunity to respond to the Government’s motion. In contrast, in ’s case the district court issued its decision on the same day the Government filed its Rule 35(b) motion. was entitled to have the opportunity to express his position on the Government’s motion through a response as long as the response was timely. In the Eastern District of Kentucky, the applicable local rules allow a party to file a response within 14 days, unless otherwise ordered by the court. See Joint Ky. Crim. Prac. R. 47.1. The opportunity to present his position by filing a response is especially important because “district courts are not required to hold hearings on Rule 35(b) motions.” United States v. Moran, 325 F.3d 790 , 794 (6th Cir. 2003). Accordingly, the district court erred in not adhering to the regular motions practice timeline and effectively precluding from having the ability to respond to the Government’s motion. has not shown, however, that the case should be reassigned to a different judge on remand. No bias has been shown by the district court’s decision to reduce ’s sentence by only 12 months, or by the district court’s denial of other unrelated motions, or by any comments that undermine the appearance of justice. Reassignment is an extraordinary power that should be rarely invoked. See U.S. ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518 , 533 (6th Cir. 2012). We have full confidence that the district court on remand will give fair consideration to whatever defendant properly submits. Accordingly, we vacate the district court’s order, but deny the request for reassignment. We remand the case to the district court for further proceedings consistent with this opinion.  No. 19- REDACTED OPINION Page 7 United States v. ___________________ REDACTED DISSENT ___________________ BATCHELDER, Circuit Judge, dissenting. Because the majority remanded ’s appeal when it should have instead dismissed it, I respectfully dissent. Under 18 U.S.C. § 3742(a)(1), can appeal his sentence only if his reduced sentence was “imposed in violation of the law.” Absent such a violation, we are barred from granting relief. United States v. Marshall, 954 F.3d 823 , 826 (6th Cir. 2020) (“§ 3742(a) imposes a mandatory limit on our power”). I disagree with the majority that the district court violated the law by granting the government’s Federal Rule of Criminal Procedure 35(b) motion without providing an opportunity to respond. Under Rule 35(b), “upon the government’s motion . . . the court may reduce a [defendant’s] sentence” if that defendant provided substantial assistance in investigating or prosecuting another person. Fed. R. Crim. P. 35(b). The government is under no obligation to file a Rule 35(b) motion, and, if it does, the sentencing court is by no means required to grant that motion. See United States v. Grant, 636 F.3d 803 , 816 (6th Cir. 2011) (en banc). Furthermore, a defendant has no right to move the court for a reduced sentence or to reply to the government’s motion. See id.; United States v. McMahan, 872 F.3d 717 , 718 (5th Cir. 2017) (“On its face, Rule 35(b) contains no right to notice and a hearing.”). It follows that the constrained nature of Rule 35(b) proceedings—and the fact that a defendant faces no new threat of liberty loss—relieves the district court from administering adjudicatory formalities such as notifying the defendant of the government’s motion or permitting the defendant to respond. See Fed. R. Crim. P. 43(b)(3) (“[a] defendant need not be present . . . [where t]he proceeding involves the correction or reduction of sentence under Rule 35”); McMahan, 872 F.3d at 721 . The majority concludes that both the Eastern District of Kentucky’s local rules and our precedents permit substantial assisters to provide their own reduction recommendations and dispute the government’s. But granting permission is a far cry from creating a right.  No. 19- REDACTED OPINION Page 8 United States v. First, the Eastern District of Kentucky’s applicable local criminal rule does not give a defendant a right to file a response motion—it merely outlines a defendant’s time for filing such a motion. See Joint Ky. Crim. Prac. R. 47.1 (“Unless otherwise ordered by the Court, a party opposing a motion must file a response within 14 days of service of the motion.”). What is more, Local Rule 47.1, when “construed to be consistent with the Federal Rules of Criminal Procedure,” seems inapplicable to unilateral motions such as those filed under Rule 35(b). Joint Ky. Crim. Prac. R. 1.1. Second, our precedents do not obligate the district court to permit a Rule 35(b) response. To be sure, I agree with the majority that we have approved of permitting substantial assisters to provide their own recommendation. See Grant, 636 F.3d at 808 . But, by the same token, we have never held that a defendant has an absolute right to respond to the government’s Rule 35(b) motion. In fact, we have affirmed district courts that have ruled without considering a Rule 35(b) response, especially when the defendant neither “dispute[s] the accuracy of the of the government’s description of his post-sentencing assistance nor allege[s] that he provided additional assistance that the district court should consider.” United States v. Maxwell, 501 F. App’x 394, 397 (6th Cir. 2012). Given the highly discretionary nature of Rule 35(b) proceedings and the lack of authority proscribing a district court from ruling without a defendant’s Rule 35(b) response, I cannot agree that the district court violated the law. I would dismiss ’s appeal for want of an appealable issue.

2020-01-17 22:01:56.713146+00

Love

*965OPINION. Love: The petitioner divides his third assignment of error (the only one that we are here considering) into three parts: . 1. That the time within which an assessment of a deficiency could be made against the partnership had expired before the Commissioner mailed the deficiency letter. 2. That the assessment is barred by the acceptance by the Commissioner of an offer in compromise with respect to penalty and interest, constituting part of the tax for 1917. 3. That petitioner is entitled to judgment of no deficiency by reason of respondent’s default in answering the petition. We will dispose of these points in reverse order. In regard to the third point we believe that the petitioner’s contention here is based upon misunderstanding of the facts. The Board’s record shows that the petition was filed June 10,1926, and that the respondent’s answer was filed July 19, 1926, well within the 60 days allowed for that purpose by the rules of the Board; therefore, we find no default and dismiss this contention on the part of the petitioner. The petitioner’s second point is concerned with the alleged acceptance by the Commissioner of an offer in compromise. Inasmuch as *966this hearing in the first instance is confined to the consideration of the question under the statute of limitations, this allegation on the part of the petitioner will not be considered herein. Considering the petitioner’s first point, in regard to all unlimited waivers such as that here first presented and which was unquestionably executed by Chadbourne & Moore on February 24, 1921: The record shows that on April 11, 1923, the Commissioner addressed á letter to collectors of internal revenue, internal revenue agents in charge and others concerned, in which, among other things, he said that “ Inasmuch as there are many waivers on file signed by the taxpayers containing no limitation as to the time in which assessments for 1911 may be made, all such unlimited waivers will be held to expire April 1, 1924.” In Wirt Franklin, 7 B. T. A. 636, and in Henry M. Leland et al., 8 B. T. A. 974, the Board held that, under the authority of that letter, all such unlimited waivers expired with the date set by the Commissioner, unless, of course, they had been lawfully extended. We do not in this case find such a lawful extension. The waiver of February 6, 1923, was executed by Chadbourne & Moore, Inc., by Joseph H. Chadbourne, treasurer, but it was never executed by the Commissioner nor on Ms behalf. Whether it would have been effective had it been so executed, we are not called upon to determine. We attach no weight to the third waiver, executed “ 12/12/24 ” by “ Chadbourne & Moore, Inc.,” by its officers, even though one of them, Joseph H. Chadbourne, the treasurer, was the sole surviving partner of the firm of Chadbourne & Moore. Chadbourne did not sign in his individual capacity as such partner, but as the treasurer of Chadbourne & Moore, Inc. The act was not his but the act of the corporation, which had no binding effect upon its predecessor partnership. The explicit provision of section 278 (c) of the Revenue Act of 1924, which was in effect when this paper was signed, is that the consent in writing must be by both the Commissioner and “ the taxpayer.” Chadbourne & Moore, Inc., was not the taxpayer here and is not a party in these proceedings. We hold that this document was never effective for any purpose. The fourth waiver offered in evidence by the respondent is not dated but is stamped as received December 14, 1925. It purports to be a consent by Chadbourne & Moore, a taxpayer ” and it is executed in the name of “ Chadbourne & Moore, Taxpayer, By Everett B. Moore, Administrator of the Estate of Walter B. Moore, deceased,” and by the Commissioner by “ R.” In regard to these waivers, and particularly in regard to the last one (Respondent’s Exhibit “ D ”) Moore testified that when he executed the foregoing document on or about December 14, 1925, his *967father, Walter B. Moore, had been dead since April 24, 1919, and that the then surviving partner, Joseph H. Chadbourne, died in turn on May 7, 1926. Under rigorous cross-examination he testified that on the date of the signing of the waiver, he knew that it related to the years 1917 and 1918, and he knew that the corporation was not in existence in 1917. He had no conversation or communication through others with Joseph H. Chadbourne in regard to the signing of this waiver (Exhibit “ D ”) and did not take up the matter with him at all. He executed the waiver by “ the authority ” or advice of their accountants, who told him that the waiver had to be signed and that he would have to sign it, and he did so in the only capacity in which he could sign it. At that time he believed that he was executing the waiver on behalf of the partnership of Chadbourne & Moore. Chadbourne had not at any time told him that if anything came up regarding the tax liability of the partnership Moore could take care of it while Chadbourne was sick. Moore was not clear whether he had made any attempt ” to get Chadbourne’s authorization before he (Moore) executed the waiver marked Exhibit “D.” Q. Did you ever tell Mr. Chadbourne you bad signed tbis waiver wbicb bad been marked Exbibit D? A. I would not say about that. Q. Do you know whether he knew you had signed it or not? A. Not through anything I had told him personally, no. It requires no extended reasearch on the part of the Board to determine that a “ waiver ” covering 1917 and 1918, executed in December, 1925, on behalf of a partnership, by the administrator of the estate of one partner who had died more than six and one-half years before that time, and so executed without consultation with or the knowledge of the partner still surviving though ill, and which administrator was in no wise authorized thereto except by “ his accountants,” can have no binding effect upon the partnership, and to determine that it was null and void from the beginning, and we do so find and determine. Nothing that we have said above is to be construed here or later as an expression of opinion whether or not the last two waivers dated respectively “ 12/12/24” and as “received Dec. 14, 1925,” would have been effective to revive the Commissioner’s right to assess upon the partnership the tax for the year 1917, provided that such partnership waivers had been properly executed for that purpose by the surviving partner, Joseph H. Chadbourne, whose death did not occur until May 7, 1926, or by his properly constituted agent duly authorized for that purpose. But under the circumstances of this case as they áre before us, we hold that the Commissioner’s authority for such assessment expired with April 1, 1924, and that it was never revived. Judgment will be entered for the 'petitioner.

2020-01-17 22:01:56.746831+00

Smith

*970OPINION. Smith: The first point made by the petitioner' is that the respondent has erroneously disallowed the deduction of $6,801.27 for the year 1918 and $10,331 for 1919 as compensation of its officers. These amounts represent items shown on the taxpayer’s books of account as dividends to E. M. Wickens and Elizabeth Lewis. The amounts were drawn from a special fund maintained by the petitioner for the purpose of paying this additional compensation. The record indicates that from this special fund additional compensation was paid to some other individuals than the two above mentioned. The evidence also indicates that in some instances dividends were paid upon all the shares of stock outstanding and in other instances on only a portion of the stock outstanding and that other individuals than the stockholders received some of the distributions. ■ The Revenue Acu of 1918 permits a corporation to deduct from gross income, among other items, “ a reasonable allowance for sal*971aries or other compensation for personal services actually rendered.” Section 234 (a) (1). It is immaterial in what form or manner the compensation is paid. The mere fact that it is distributed to officers in accordance with their stockholdings will not render it nondeductible, provided it is paid as compensation and the amount is reasonable. The bookkeeping of the transaction is not controlling. Mitchell Brothers Co. v. Doyle, 247 U. S. 179. In the instant case it is difficult to determine the amount that was actually distributed as additional compensation to E. M. Wickens and Elizabeth Lewis from the amounts paid to them as dividends upon their stock. The respondent has introduced in evidence the individual income-tax returns of E. M. Wickens and Elizabeth Lewis for 1919. The return of the former shows that he received a salary from the petitioner for 1919 of $5,000 and the return of the latter shows that she received a salary of $2,800. E. M. Wickens shows the receipt of $5,000 as dividends although it is not certain that these dividends were upon the stock of the petitioner owned by him. In this state of the record we are of the opinion that reasonable compensation for E. M. Wickens constitutes $5,000 per year for each of the years 1918 and 1919, and that reasonable compensation for Elizabeth Lewis was $2,800 for each of the taxable years and that these amounts were paid by the corporation as compensation. The petitioner is therefore entitled to deduct from gross income in determining tax liability a total of $7,800 for each of the taxable years for compensation of E. M. Wickens and Elizabeth Lewis. The second question presented is the correctness of the disallowance kiJ the respondent of $11,086.28 as a reduction in the inventory at December 31, 1918. Section 203 of the Eevenue Act of 1918 provides: That whenever in the opinion of the Commissioner the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer upon such basis as the Commissioner, with the approval of the Secretary, may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income. The first regulation of the Commissioner, with the approval of the Secretary, authorizing the use of inventories upon other bases than cost appears to have been Treasury Decision 2609, which was promulgated December 19, 1917. This was under the Eevenue Act of 1917. Treasury Decision 2649, promulgated January 30, 1918, and Treasury Decision 2744, promulgated July 3, 1918, likewise authorized the taking of an inventory upon the basis of either (a) cost, or (b) cost or market, whichever is lower. The same regulations were continued in effect under the Eevenue Act of 1918. See *972articles 1582, 1583, and 1584 of Regulations 45 (1920 Edition). In all of these regulations it is provided that corporations filing income-tax returns may elect to take inventories upon either of the above bases, but that after a return has been made upon one basis a change can not be made for subsequent years until “ after permission is secured from the Commissioner.” For the purpose of inventories any income-tax return is to enable the taxpayer correctly to determine his income. The only inventory about which any question is raised in the instant proceeding is that of December 31, 1918. Under the Commissioner’s regulations petitioner was entitled to take this on the basis of cost or market, whichever is lower. The market was lower than cost. We are satisfied from the evidence that the markdown of the inventory made by the petitioner at December 31, 1918, was in an honest effort .to bring the inventory to the basis of cost or market, whichever was lower. It effected that result. We are therefore of the -opinion that it was error of the respondent to disallow the reduction made. The inventory at December 31, 1919, was taken at cost. It is in evidence, however, that the inventory had always been taken on the basis of the market. It is found therefore that the inventory at December 31, 1919, taken on the basis of cost was in effect on the basis of cost or market, whichever is lower, since the cost and the market were the same. We therefore think that the inventories at the close of 1918 and 1919 were consistently on the basis of cost or market, whichever is lower. It is apparent that inasmuch as the respondent has increased inventory at December 31, 1918, and has increased taxable income for 1918 in the amount of the increase, namely, $11,086.28, the inventory at January 1,1919, which formed the basis for the respondent’s computation of deficiency for 1919, was overstated in a like amount, namely, $11,086.28. The deficiencies for 1918 and 1919 should be computed upon the basis that the correct inventory at both December 31, 1918, and January 1, 1919, was $99,776.55. Judgment will be entered under Bule 50.

2020-12-02 21:10:00.202469+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07173.htm

Hargraves v Tyler Towers Owners Corp. (2020 NY Slip Op 07173) Hargraves v Tyler Towers Owners Corp. 2020 NY Slip Op 07173 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. HECTOR D. LASALLE FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ. 2019-08258 (Index No. 705566/19) [*1]William R. Hargraves, etc., appellant, v Tyler Towers Owners Corp., et al., respondents. Wagner, Berkow & Brandt LLP, New York, NY (Ian J. Brandt of counsel), for appellant. Hagan, Coury & Associates, Brooklyn, NY (Paul Golden of counsel), for respondents. DECISION & ORDER In an action, inter alia, for injunctive relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), dated June 3, 2019. The order denied that branch of the plaintiff's motion which was to preliminarily enjoin the defendant Tyler Towers Owners Corp. from foreclosing on, selling, transferring, or assigning the plaintiff's shares of stock in the defendant Tyler Towers Owners Corp. during the pendency of the action. ORDERED that the order is affirmed, with costs. The defendant Tyler Towers Owners Corp. (hereinafter the defendant) is a residential cooperative housing corporation and the owner of a multiple dwelling in Jamaica, Queens. The plaintiff is a shareholder of the defendant and the proprietary lessee of an apartment in the cooperative building, where he resided. In 2016 or 2017, the steam pipes under the apartment's floors and the steam risers behind the apartment's walls and ceiling began to emit steam, which caused damage to the apartment. Pursuant to a New York City Fire Department directive, the defendant undertook immediate repairs to the steam pipes and risers. In November 2017, the plaintiff and the defendant entered into an agreement wherein the plaintiff agreed to vacate his apartment and provide the defendant with unrestricted access to it so that the defendant could repair the damage to the ceiling, walls, and floor. As consideration for the plaintiff's agreement to vacate and provide access to the apartment, the defendant agreed to make certain payments to the plaintiff. According to the plaintiff, the defendant's restoration work in the apartment commenced in November 2017 and continued through July 2018, when water from plumbing from the apartment directly above poured into the plaintiff's apartment and destroyed all the wood flooring that was recently installed by the defendant. The plaintiff alleged that in May 2018, the defendant ceased making payments to him pursuant to their agreement. The defendant alleged that it finished making the requisite repairs to the plaintiff's apartment in May 2018, and that it satisfied its obligations under that agreement. In a notice to cure dated January 3, 2019, the defendant advised the plaintiff that he was in breach of the proprietary lease based on his default in tendering his monthly maintenance payments, and that he was required to cure this default by tendering the maintenance arrears on or [*2]before January 28, 2019. The notice to cure further advised that should the plaintiff fail to cure his default in the time period set forth therein, the proprietary lease for the apartment would be terminated and his shares considered forfeited and sold at a nonjudicial foreclosure auction. The plaintiff did not cure his default. In a notice of termination dated January 30, 2019, the defendant notified the plaintiff that based on his failure to cure his breach of the proprietary lease, the defendant was electing to cancel the plaintiff's shares and terminate his tenancy, requiring him to vacate the apartment by February 19, 2019. The defendant then issued a notice of sale dated February 21, 2019, which advised the plaintiff that based on his default under the proprietary lease, the defendant would be auctioning the plaintiff's shares on April 3, 2019. On March 29, 2019, the plaintiff commenced this action, alleging, inter alia, breach of the warranty of habitability and the proprietary lease, and seeking, among other things, declaratory and injunctive relief. The plaintiff also moved, inter alia, pursuant to CPLR 6301 to preliminarily enjoin the defendant from auctioning his shares. The Supreme Court denied that branch of the plaintiff's motion based on his failure to seek injunctive relief prior to the expiration of the cure period. We agree with the Supreme Court's determination denying that branch of the plaintiff's motion which was for a preliminary injunction based on the plaintiff's failure to move for such relief during the cure period. Motions for preliminary injunctions pursuant to CPLR 6301, like motions for Yellowstone injunctions (First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630), must "be made prior to the expiration of the cure period" (Goldcrest Realty Co. v 61 Bronx Riv. Rd. Owners, Inc., 83 AD3d 129, 135; see Lombard v Station Sq. Inn Apts. Corp., 94 AD3d 717). Here, the plaintiff waited an additional two months after the expiration of the cure period to seek such relief, without tendering any explanation for the delay. In light of the foregoing, we need not reach the plaintiff's remaining contentions. DILLON, J.P., LASALLE, CONNOLLY and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-06-05 14:08:39.100996+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_03129.htm

People v Hussain (2020 NY Slip Op 03129) People v Hussain 2020 NY Slip Op 03129 Decided on June 3, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. JOHN M. LEVENTHAL COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON, JJ. 2014-06888 (Ind. No. 2674/11) [*1]The People of the State of New York, respondent, v Noor Hussain, appellant. Lebedin Kofman LLP, New York, NY (Russ Kofman of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Denise Pavlides of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D'Emic, J.), rendered July 9, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. ORDERED that the judgment is affirmed. The defendant was charged, inter alia, with murdering his wife on April 3, 2011. At a nonjury trial, the defendant's attorney described the defendant as a "classic batterer" who "had hit [his wife] during at least 15 or 16 years." Trial counsel further conceded that "by hitting his wife a number of times in her head and over her body," the defendant had either recklessly caused her death, or had intentionally caused serious physical injury that resulted in her death. On appeal, the defendant contends that his constitutionally protected autonomy right to assert his innocence of the criminal acts charged (see McCoy v Louisiana, 584 US ___, 138 S Ct 1500 [2018]; People v Maynard, 176 AD3d 512, 513) was violated when his trial counsel conceded the defendant's guilt of manslaughter in the second degree or, in the alternative, manslaughter in the first degree. Since the defendant's claim "implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10" (People v Johnson, 51 NY2d 986, 988), we decline to review it on this direct appeal. Similarly, the defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109; see People v Evans, 16 NY3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d 805, 806; People v Maxwell, 89 AD3d at 1109). The defendant's remaining contentions regarding alleged prosecutorial misconduct [*2]are unpreserved for appellate review and, in any event, without merit (see People v Morrow, 143 AD3d 919, 921). CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court