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DEFENDANT ENTITLED TO BE HEARD ON APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT, DENIAL OF APPLICATION ON THE PAPERS REVERSED.

The Third Department determined denial of defendant’s application for resentencing under the Drug Law Reform Act without allowing defendant to be heard was error:

 

The Drug Law Reform Act of 2009 requires that, upon receipt of an application for resentencing, “the court shall offer an opportunity for a hearing and bring the applicant before it” (L 2004, ch 73, § 23; see CPL 440.46 [3]…). Inasmuch as the record does not reflect that defendant was afforded “an opportunity to be heard on the merits of [his] application,” the order appealed from must be reversed and the matter remitted to County Court so that a new determination can be made on defendant’s application after the proper procedure has been followed … . People v Davis, 2016 NY Slip Op 01006, 3rd Dept 2-11-16

 

CRIMINAL LAW (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)/DRUG LAW REFORM ACT (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)/SENTENCING (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)

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OFFICER DID NOT HAVE GROUNDS TO PROCEED TO A LEVEL TWO INQUIRY, ASKING DEFENDANT IF HE HAD ANY WEAPONS OR DRUGS; SEIZURE WHEN DEFENDANT WALKED AWAY WAS ILLEGAL.

The Fourth Department reversed defendant’s conviction because it determined the suppression motion should have been granted. Although the arresting officer validly stopped the car in which defendant was a passenger because of tinted windows, validly asked about defendant’s identity and destination, and validly asked defendant to step out of the car, there was no valid basis for asking defendant if he had any weapons or drugs. The escalation of the officer’s questioning, based only on defendant’s nervousness and not on a grounded suspicion of criminal activity, was not justified. Therefore the officer’s seizure of defendant when defendant walked away and did not obey the officer’s command to stop was illegal. The cocaine, which was disposed of by the defendant during the illegal pursuit, should have been suppressed:

 

The officer testified at the suppression hearing that, when defendant responded to his level one inquiries, defendant appeared fidgety, grabbed at his pants pockets, looked around, and gave illogical and contradictory responses to the officer’s questions, which prompted the officer to ask defendant whether he had any weapons or drugs. With that question, the officer “proceed[ed] to the next level of confrontation, the common-law inquiry,’ which involves invasive questioning’ focusing on the possible criminality’ of the subject” … . That escalation was not supported by the requisite founded suspicion of criminality … . Defendant’s nervousness and the discrepancies in his explanation of where he was going did not give rise to a founded suspicion that criminal activity was afoot … .

Defendant responded to the officer’s level two inquiry by saying, “you’re harassing me,” and then walking away. The encounter escalated further to a level three seizure when the officer commanded him to stop, defendant continued to walk away, and the officer pursued defendant with a taser … . We reject the People’s contention that defendant’s conduct provided the officer with the requisite reasonable suspicion of criminality … . “Flight alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . Finally, we conclude that defendant’s disposal of the bags containing cocaine during the officer’s pursuit was precipitated by the illegality of that pursuit … . Thus, the court erred in refusing to suppress the bags of cocaine. People v Hightower, 2016 NY Slip Op 01083, 4th Dept 2-11-16

 

CRIMINAL LAW (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SENTENCING (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SECOND FELONY DRUG OFFENDER (COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)

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SECOND FELONY DRUG OFFENDER SENTENCE: COURT ABUSED ITS DISCRETION BY PROMISING TO OBTAIN TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE THE PRIOR CONVICTION AND THEN DECIDING NOT TO ORDER THE TRANSCRIPTS.

The Fourth Department determined defendant, who was sentenced as a second felony drug offender, should have been afforded a hearing to substantiate a constitutional challenge to a prior conviction. County Court indicated the transcripts of the prior proceedings would be provided, but ultimately sentenced defendant without providing them:

 

… [T]he court abused its discretion in sentencing him as a second felony drug offender without affording him the opportunity to substantiate his constitutional challenge to the predicate felony conviction with the transcripts of the proceeding underlying that conviction and without holding a hearing for that purpose. Inasmuch as defendant did not controvert the existence of the predicate felony conviction, it was incumbent upon defendant “to allege and prove facts to establish his claim that the conviction was unconstitutionally obtained” … . The record establishes that defendant, who was proceeding pro se, alleged certain constitutional violations in writing, and repeatedly and timely requested the necessary transcripts in order to prepare his constitutional challenge. The court promised to obtain the transcripts for defendant, acknowledged on the scheduled hearing date its oversight in failing to act on that promise and, upon being challenged by defendant at a rescheduled hearing, ultimately admitted that, after months of adjournments, it had decided not to order the transcripts as it had previously promised. Although there is no requirement that a trial court obtain such transcripts on a defendant’s behalf, we conclude that, under the circumstances of this case, the court should not have proceeded to sentencing without at least attempting to obtain the transcripts sought by defendant and providing defendant a hearing on his constitutional challenge to the predicate felony conviction … . People v Farmer, 2016 NY Slip Op 01095, 4th Dept 2-11-16

 

CRIMINAL LAW (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SENTENCING (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SECOND FELONY DRUG OFFENDER (COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)

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BOARD OF RESIDENTIAL COOPERATIVE CORPORATION UNREASONABLY WITHHELD CONSENT TO TRANSFER SHARES AND PROPRIETARY LEASE TO TWO SONS OF THE DECEASED APARTMENT RESIDENTS.

The First Department, over a two-justice dissent, determined the board of defendant residential cooperative corporation unreasonably withheld consent for the shares and proprietary lease to be transferred to the two sons of the deceased holders of the shares and proprietary lease. The case turned on the language of the proprietary lease. The application was made by the two sons, only one of whom was to live in the apartment. The dissent emphasized the term “a family member,” arguing the proprietary lease did not allow a transfer to more than one family member. Estate of Del Terzo v 33 Fifth Ave. Owners Corp., 2016 NY Slip Op 01039. 1st Dept 2-11-16

CORPORATION LAW (RESIDENTIAL COOPERATIVE, BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)/RESIDENTIAL COOPERATIVE (BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)/PROPRIETARY LEASE (RESIDENTIAL COOPERATIVE, BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)

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COURT SHOULD HAVE ALLOWED SUBSTITUTION OF AN AFFIDAVIT OF MERIT PURSUANT TO CPLR 2001; SUA SPONTE DISMISSAL OF COMPLAINT NOT WARRANTED.

The Fourth Department determined Supreme Court should have granted plaintiff’s motion to substitute nunc pro tunc an affidavit of merit and amount due in a foreclosure proceeding. Plaintiff could not confirm the proper execution of the original affidavit (a requirement of an administrative order of the chief administrative judge) and sought to substitute the original with an identical affidavit, the proper execution of which could be confirmed. Supreme Court denied the motion and dismissed the complaint sua sponte. The Fourth Department held that the dismissal was not warranted and CPLR 2001 permitted the substitution:

 

” A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ ” … . Here, we conclude that “[t]he fact that . . . plaintiff’s [new] attorney[s] attempted to comply, in good faith, with an Administrative Order of the Chief Administrative Judge that did not exist at the time that the action was commenced, or at the time [the judgment of foreclosure and sale was granted], does not qualify as such an extraordinary circumstance’ ” that would support a sua sponte dismissal … . Indeed, “[n]othing in the Administrative Order[] requires the dismissal of an action merely because the plaintiff’s attorney[s] discover[] that there was some irregularity or defect in a prior submission” … . Thus, contrary to the court’s determination, we conclude that plaintiff is not “effectively required to commence an entirely new action” … .

We further conclude that the court erred in denying that part of plaintiff’s motion seeking to substitute the affidavit of merit and amount due. “CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . In addition, “[p]ursuant to CPLR 5019 (a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party” … . Here, we conclude that the substitution of the original affidavit of merit and amount due with a new, substantively identical affidavit of merit and amount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a) inasmuch as the change affected only plaintiff’s ability to comply with the Administrative Order, and “[t]he attorney affirmation is not itself substantive evidence” … . We further conclude that “[n]o substantial right of [defendant .. .would] be affected by the court’s substitution” … . Indeed, that defendant did not reside in the subject property when plaintiff commenced the mortgage foreclosure action and the property was vacant at that time, and he never joined this action nor made any effort to contest the foreclosure. Wells Fargo Bank, N.A. v Watanabe, 2016 NY Slip Op 01096, 4th Dept 2-11-16

 

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/FORECLOSURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/AFFIDAVIT OF MERIT AND AMOUNT DUE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)

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ORDER ENTERED ON CONSENT IS NOT APPEALABLE; ONLY REMEDY IS MOTION TO VACATE.

In a Family Court matter, the Fourth Department noted that no appeal lies from an order entered by consent. The correct remedy is a motion to vacate the order:

 

Respondent mother appeals from an order denying her motion to vacate an order of fact-finding and disposition, which was entered on the consent of the parties. We agree with the mother that Family Court erred in denying the motion on the sole ground that a direct appeal from that order was pending. It is well settled that “[n]o appeal lies from an order entered upon the parties’ consent” … and, indeed, we dismissed the mother’s appeal from the consent order for that very reason … . Thus, contrary to the court’s determination, the mother’s sole remedy was ” to move in Family Court to vacate the order, at which time [she] [could] present proof in support of [her] allegations of duress, proof which is completely absent from this record’ ” … . Matter of Annabella B.C. (Sandra L.C.), 2016 NY Slip Op 01064, 4th Dept 2-11-16

 

APPEAL (NO APPEAL LIES FROM A CONSENT ORDER)/CIVIL PROCEDURE (NO APPEAL LIES FROM A CONSENT ORDER, ONLY REMEDY IS MOTION TO VACATE)/FAMILY LAW (NO APPEAL LIES FROM A CONSENT ORDER OF FACT-FINDING AND DISPOSITION, ONLY REMEDY IS MOTION TO VACATE)

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COLLEGE’S DETERMINATION WAS NOT ARBITRARY AND CAPRICIOUS; AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF THE REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY.

The Fourth Department determined Supreme Court should not have anulled the respondent college’s ruling as arbitrary and capricious. The controversy concerned the hiring of a business manager by the student government (Brockport Student Government or BSG). Although BSG had the power to hire a manager at approximately $50,000 a year, the college, which must ultimately approve the hiring, rejected it and engaged a managing service for $20,000 less. Because the college’s ruling had a rational basis, it could not be deemed arbitrary and capricious simply because the reviewing court would have decided differently. The Fourth Department explained what “arbitrary and capricious” means:

 

…[T]the court erred in determining that their denial of BSG’s budget allocation for a business manager was arbitrary and capricious. It is well established that “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts . . . An agency’s determination is entitled to great deference and, [i]f the [reviewing] court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency” … . Here, we conclude that respondents’ discretionary determination to reject BSG’s proposed $49,800 salary for a business manager which was based on a comparison of the “hiring practices and compensation rates of other campus-affiliated organizations”… . Matter of Brockport Student Govt. v State Univ. of N.Y. at Brockport, 2016 NY Slip Op 01099, 4th Dept 2-11-16

 

ADMINISTRATIVE LAW (AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)/EDUCATION-SCHOOL LAW (COLLEGE’S REJECTION OF REQUEST BY STUDENT GOVERNMENT HAD A RATIONAL BASIS AND THEREFORE WAS NOT ARBITRARY AND CAPRICIOUS)/ARBITRARY AND CAPRICIOUS (RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)

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DEVELOPER DID NOT HAVE A VESTED RIGHT IN A CONDITIONAL FINAL SITE APPROVAL IN LIGHT OF A CONFLICTING REZONING LAW IN EFFECT PRIOR TO THE APPROVAL.

The Court of Appeals determined petitioners did not have a vested right in a conditional final site approval because it was not reasonable for petitioners rely on the approval in light of the conflicting local law rezoning the property:

An owner of real property can acquire a common law vested right to develop the property in accordance with prior zoning regulations when, in reliance on a “legally issued permit,” the landowner “effect[s] substantial changes and incur[s] substantial expenses to further the development” and “[t]he landowner’s actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless” (see generally 4 Rathkopf’s The Law of Zoning and Planning § 70:20 [4th ed]). Here, it was not reasonable for petitioners to rely on the December 2007 conditional Final Site Approval of the development, in carrying out any substantial actions furthering the development. In particular, in 2005, the year before the rezoning of petitioners’ property by means of Local Law No. 3 (2006) of Town of Newburgh, the Town Planning Board had repeatedly warned petitioners of the proposed rezoning. The December 2007 Approval itself did not engender expectations to the contrary. It included a statement of the new zoning status of the property. Additionally, while petitioners challenged the rezoning in court, petitioners must have been “cognizant of the potential for an eventual legal ruling that the Local Law was in fact valid” … . Matter of Exeter Bldg. Corp. v Town of Newburgh, 2016 NY Slip Op 00999, CtApp 2-11-16

ZONING (DEVELOPER DID NOT HAVE A VESTED RIGHT IN A CONDITIONAL FINAL SITE APPROVAL)

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PLAINTIFF’S EXPERTS DID NOT DEMONSTRATE THEIR OPINIONS ON THE CAUSE OF PLAINTIFF’S IN UTERO INJURIES WERE ARRIVED AT USING A GENERALLY ACCEPTED METHODOLOGY; PLAINTIFF ALLEGED IN UTERO INJURY FROM GASOLINE FUMES IN CAR MANUFACTURED BY DEFENDANT BMW.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court’s preclusion of plaintiff’s experts’ opinions on causation of plaintiff’s in utero injuries was proper. Plaintiff alleged his severe birth defects were caused by gasoline fumes breathed by his mother when she drove a car manufactured by defendant BMW. Plaintiff’s experts attempted to demonstrate a causal connection between breathing the fumes and the in utero injuries. The Court of Appeals held the experts had not demonstrated their opinions were reached by employing a methodology generally accepted in the scientific community:

 

Not only is it necessary for a causation expert to establish that the plaintiff was exposed to sufficient levels of a toxin to have caused his injuries, but the expert also must do so through methods “found to be generally accepted as reliable in the scientific community” … . This “general acceptance” requirement, also known as the Frye test, governs the admissibility of expert testimony in New York. It asks “whether the expert’s techniques, when properly performed, generate results accepted as reliable within the scientific community generally” … . Although unanimity is not required, the proponent must show “consensus in the scientific community as to the [methodology’s] reliability” … .

Plaintiff and his experts have failed to make that showing in this case. Dr. Frazier and Dr. Kramer concluded that plaintiff was exposed to a sufficient amount of gasoline vapor to have caused his injuries based on the reports by plaintiff’s mother and grandmother that the smell of gasoline occasionally caused them nausea, dizziness, headaches and throat irritation. Plaintiff and his experts have not identified any text, scholarly article or scientific study, however, that approves of or applies this type of methodology, let alone a “consensus” as to its reliability. Therefore, the courts below properly granted defendants’ motion to preclude their testimony at trial. Sean R. v BMW of N. Am., LLC, 2016 NY Slip Op 01000, CtApp 2-11-16

 

TOXIC TORTS (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)/EVIDENCE (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)/EXPERT OPINION EVIDENCE (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)/FRYE TEST (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)

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FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED WAS NOT IN FRONT OF DEFENDANT’S PROPERTY. STANDING ALONE, DOES NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, found that a property owner, West River, which had a statutory duty to maintain an abutting sidewalk, was not entitled to summary judgment based solely on the fact that the defect in the sidewalk over which plaintiff tripped was not in front West River’s property. The expansion joint over which plaintiff tripped was in front of a neighboring property (the Mercado property). However, a nearby portion of the sidewalk which had subsided was in front of West River’s property. Therefore, to be entitled to summary judgment, West River was required to demonstrate it did not breach its duty to maintain the sidewalk, or that any such breach was not the proximate cause of plaintiff’s fall.  Simply demonstrating the expansion joint over which plaintiff tripped was not in front of West River’s property was not enough:

 

Plaintiff tripped on an expansion joint that abutted the Mercados’ property. That does not end the inquiry, nor does the fact that the defect upon which plaintiff tripped was in front of the Mercado property necessarily absolve West River of liability. Although West River did not have a duty to remedy any defects in front of the Mercado property, section 7-210 (a) [of the Administrative Code of the City of New York] imposed a duty on West River to maintain the sidewalk abutting its premises in a reasonably safe condition. Moreover, the plain language of section 7-210 (b) provides that West River may be held liable for injuries where its failure to maintain its sidewalk is a proximate cause of that injury. Here, most of the sunken sidewalk flag that plaintiff traversed abutted West River’s property, and plaintiff claims that West River’s sidewalk flag had sunk lower than the expansion joint upon which plaintiff allegedly tripped. Thus, West River failed to meet its burden of demonstrating entitlement to judgment as a matter of law, leaving factual questions as to whether West River breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach was a proximate cause of plaintiff’s injuries. Under the circumstances of this case, summary judgment should have been denied. Sangaray v West Riv. Assoc., LLC, 2016 NY Slip Op 01002, CtApp 2-11-16

 

NEGLIGENCE (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SLIP AND FALL (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SIDEWALKS (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)

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