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MORTGAGE HAD PRIORITY OVER COUNTY’S CLAIM FOR REIMBURSEMENT OF MEDICAID BENEFITS.

The Third Department determined a mortgage held by Wells Fargo had priority to a claim by the county seeking reimbursement of Medicaid benefits received by the decedent:

 

Petitioner [Saratoga County Department of Social Services] asserts priority pursuant to Social Services Law § 104 (1), which provides, in relevant part, that “[i]n all claims of the public welfare official made under [such] section[,] the public welfare official shall be deemed a preferred creditor” (emphasis added). “Preferred creditor” has been construed to give a social services department priority over a “general creditor, that is, a creditor that, upon giving credit, takes no rights against specific property of a debtor” … . Here, Wells Fargo holds a mortgage lien against the Rotterdam property that was recorded prior to the May 2014 decree of Surrogate's Court validating petitioner's claim. Although Medicaid assistance was provided to decedent before the mortgage was given, petitioner did not have a prior lien against the property (see Social Services Law § 369 [2] [a]). As such, we conclude that Wells Fargo's prior specific lien gives it priority over petitioner's claim with respect to the … property … . Matter of Shambo, 2016 NY Slip Op 02699, 3rd Dept 4-7-16


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NEW YORK CITY HOUSING AUTHORITY ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER SUCCESSION RIGHTS TO HIS MOTHER’S APARTMENT.

The First Department, over a two-justice dissent, determined the New York City Housing Authority (NYCHA) acted arbitrarily and capriciously when it denied petitioner succession rights to his mother's apartment. Petitioner had moved in with his mother to care for her when she became unable to care for herself. The NYCHA knew petitioner had moved in to care for his mother but repeatedly denied petitioner's applications to become an occupant of his mother's apartment on “overcrowding” grounds:

Respondent's determination denying petitioner succession rights to his mother's apartment was arbitrary and capricious. Petitioner's mother submitted multiple applications to add petitioner to the lease as required by 24 CFR 966.4(a)(1)(v). The first application was denied on the ground that adding petitioner to the household “will create overcrowding”; the second, not on that basis but allegedly because petitioner signed the application on his disabled mother's behalf. NYCHA never considered evidence of petitioner's mother's disability in denying the applications.

The ground proffered for the denial, i.e., that adding petitioner to the household would result in overcrowding, creates an unacceptable Catch-22 — a request to add an additional family member will almost always result in overcrowding unless NYCHA fails simultaneously to consider transferring the applicant to a larger apartment. NYCHA guidelines provide that an “overcrowded” apartment should not result in a summary denial of the RFM's (remaining family member's) claims; rather, the housing manager should inform the new tenant that he may submit a request to transfer to a new apartment. Matter of Aponte v Olatoye, 2016 NY Slip Op 02708, 1st Dept 4-7-16


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EXCLUSIONARY LANGUAGE IN HARASSMENT STATUTE NEED NOT BE PLED AND NEGATED IN THE CHARGING DOCUMENT; THE EXCLUSIONS ARE PROVISOS WHICH CAN BE RAISED AS DEFENSES.

The Third Department, in the context of a family offense, determined the portions of the second degree harassment statute which state the subdivision does not apply “to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended” (Penal Law § 240.26…)” were “provisos.” The respondent argued that the labor and railroad provisions in the statute were “exceptions” which must be affirmatively pled and negated in the charging document. The Third Department found the provisions were “provisos” which can be asserted as defenses, but which do not have to be pled:

 

“The general rule regarding statutory crimes is that 'exceptions must be negatived by the prosecution and provisos utilized as a matter of defense'” … . In attempting to distinguish between exceptions and provisos, courts will look to whether the defining statute “contains as part of its enacting clause an exception to the effect that under certain circumstances the offense is not to be considered as having been committed” … , in which case a true exception generally will be found, or whether the exception arises either by way of a statutory amendment or reference to a statute outside of the Penal Law, in which case the exception generally will be regarded as a proviso … .

As originally enacted, Penal Law § 240.26 did not contain the exclusionary language at issue; such language was added when the statute was amended in 1994 (see L 1994, ch 109, § 1) to “clarif[y] that activities protected by certain federal labor statutes are not included within the definition of harassment” (Governor's Approval Mem, Bill Jacket, L 1994, ch 109, at 7). Further, as a review of the statute itself makes clear, application of the exclusionary language requires reference to numerous federal statutes outside of the Penal Law. Under these circumstances, the language excluding certain labor activities or disputes from the definition of harassment in the second degree “is more accurately construed as a proviso, which may be raised as a defense [by the charged party], rather than an exception, which must be [affirmatively] pleaded” and negated by the charging party … . Matter of Rogers v Phillips, 2016 NY Slip Op 02687, 3rd Dept 4-7-16


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CHALLENGE TO THE JURY INSTRUCTION ON CAUSATION OF DEATH IS SUBJECT TO THE PRESERVATION REQUIREMENT; DEFENDANT’S FAILURE TO OBJECT PRECLUDES REVIEW; STRONG DISSENT ARGUED THE JURY INSTRUCTION IS REVIEWABLE BECAUSE IT RELIEVED THE PEOPLE OF THEIR BURDEN OF PROOF.

The First Department, over an extensive dissent, determined defendant's appellate challenge to the jury instruction on causation of death was subject to the preservation requirement. The victim was assaulted by the defendant and died later at the hospital. The defense presented an expert who testified the victim was improving until he fell in the hospital. The cause of death, according to the defense expert, was the hospital's negligence in treating the victim after the fall. The defendant did not object to the causation jury instruction. The dissent would have reversed, either finding the preservation requirement did not apply because the jury instruction relieved the People of their burden of proof, or in the interest of justice:

Defendant failed to raise any challenge to the court's charge regarding causation of death at a time when the court could have easily rephrased the instruction. The issue is therefore unpreserved for appellate review (see CPL 470.05[2]). The claimed error does not fall within the “very narrow exception” discussed in People v Thomas (50 NY2d 467, 471 [1980]), as the dissent suggests. That narrow exception is only applicable “when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute” (id.). Here, as was the case in Thomas, preservation was necessary because defendant essentially claims that “a portion of the charge could, in the particular case, be interpreted as having a contrary effect” to the burden of proof charge that was correctly stated by the court (id. at 472). Nor is the exercise of interest of justice jurisdiction warranted; defendant was not deprived of a fair trial (see CPL 470.15[6] [a]). As an alternative holding, we consider the charge, viewed as a whole, to have properly conveyed the law regarding whether the assault was a sufficiently direct cause of the victim's death … . People v Castillo, 2016 NY Slip Op 02709, 1st Dept 4-7-16


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DISQUALIFICATION OF ATTORNEY APPROPRIATE TO AVOID THE APPEARANCE OF IMPROPRIETY.

In a dispute about easements used by property owners to gain access to their properties, the Third Department determined disqualification of an attorney based upon avoiding the appearance of impropriety was appropriate, even though the mandatory conflict-of-interest disqualification criteria may not have been met:

… [E]ven in instances where … disqualification is not mandatory, disqualification nonetheless may be warranted depending upon the particular facts and circumstances of a given case … . In this regard, “[i]t is well settled that an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” … . To that end, “[a]n attorney may not place himself [or herself] in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” … . “The disqualification of an attorney is a matter that rests within the sound discretion of the court” … , and the case law makes clear that “[a]ny doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety”… . McCutchen v 3 Princesses & AP Trust Dated Feb. 3, 2004, 2016 NY Slip Op 02703, 3rd Dept 4-7-16


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HIGHWAY LAW ALLOWING AN UNUSED PUBLIC EASEMENT TO BE DECLARED ABANDONED DOES NOT APPLY WHERE THE MUNICIPALITY OWNS A FEE INTEREST IN THE ROADBED.

The Second Department determined plaintiff's action to have property used by plaintiff as a parking lot declared an abandoned highway was properly dismissed for failure to state a cause of action. The roadbed had been paved and used as a parking lot by plaintiff. Plaintiff alleged the roadway had not been used for at least 15 years. However, Highway Law 205(1), which allows a public easement to be declared abandoned, does not apply where the municipality owns a fee interest in the road, which was the case here:

In 1942, “all right, title and interest” in Bishop Road was dedicated to the Town “for highway purposes.” … The plaintiff alleged that when it acquired the property abutting Bishop Road in 1998, Bishop Road was “an unpaved dirt pathway” that led to “nowhere,” and that it paved the length of Bishop Road, painted stripes for parking stalls to provide spaces for its customers, and erected a six-foot fence, enclosing the full width of the roadbed. The plaintiff asserted that, with the exception of vehicles that cross over a small portion of Bishop Road to enter a separate lot, there had been no regular vehicular or pedestrian traffic along Bishop Road for at least 15 years. * * *

… Highway Law § 205(1) “sets forth a six-year limitation on the life of an unused public easement” … . It does not apply where a town has acquired a fee to the land in question … . Here, the plaintiff does not dispute that the Town owns a fee interest in Bishop Road. Accordingly, Bishop Road cannot be deemed abandoned under Highway Law § 205, even if it has not “been traveled or used as a highway for six years” (Highway Law § 205[1]…). No-Dent Props., Inc. v Commissioner of Town of Hempstead Dept. of Hwys., 2016 NY Slip Op 02625, 2nd Dept 4-6-16


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DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITIONS JUSTIFIED REVOCATION OF PISTOL PERMIT.

The Second Department determined County Court properly revoked petitioner’s pistol permit based upon evidence of deplorable living conditions, deteriorating mental health, and petitioner’s inability to care for himself:

“The State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument” … . Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be of good moral character with no prior convictions of a felony or serious offense, and a person “concerning whom no good cause exists for the denial of the license” (Penal Law § 400.00[1][n]…). ” Where a licensee challenges a determination, made after a hearing, to revoke his or her pistol license,’ or to deny reinstatement of a permit previously revoked, we review only whether a rational basis exists for the licensing authority’s determination, or whether the determination is arbitrary or capricious'” … .

Here, at the hearing, testimony was elicited regarding the petitioner’s deplorable living conditions, the deteriorating state of his mental health, and his inability to properly care for himself, his environment, or his possessions. Contrary to the petitioner’s contention, this evidence, which was credited by the respondent, was sufficient to provide a rational basis for the determination revoking his pistol license.  Matter of Warmouth v Zuckerman, 2016 NY Slip Op 02659, 2nd Dept 4-6-16

PISTOL PERMITS (DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)/MENTAL HYGIENE LAW (PISTOL PERMITS, DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)

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BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF.

The Second Department determined the city, the property owner, the listing broker, the listing agent and the snow removal contractor owed no duty of care to plaintiff who slipped and fell on a sidewalk the day after snowfall and before anyone shoveled or treated the sidewalk. The city was not notified of the condition and did not create the condition. The property owner was not under a statutory duty to remove the snow. The listing broker, the listing agent and the snow removal contractor did not create the dangerous condition:

The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the snow and ice condition which caused the plaintiff’s accident, as required by section 24-11 of the Charter of the City of Yonkers … . In opposition, the plaintiff failed to raise a triable issue of fact as to any exception to the prior written notice requirement, namely, whether the City affirmatively created the alleged defect, or whether the defect was created by the City’s special use of the property … . The City’s alleged failure to remove the snow and ice from the sidewalk, or to warn of a dangerous condition, were acts of omission, and not affirmative acts of negligence … .  * * *

Absent a statute or ordinance which clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk … . However, the owner of property abutting a public sidewalk will be held liable where it, or someone on its behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous … . Here, although section 103-8 of the City Charter places the duty to keep sidewalks clear from snow and ice on the abutting landowner, the Charter does not expressly make the landowner liable for failure to perform that duty … . * * *

The Court of Appeals has identified three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort, to third persons: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . Any duty [the listing broker, agent and snow removal contractor] had with respect to the plaintiff arose exclusively out of the contracts each of them had with [the property owner]… . [The property owner] owed no statutory or common-law duty to the plaintiff because there was no statute which imposed liability upon it for the negligent failure to remove snow and ice from a public sidewalk, and neither [the property owner], nor anyone else on its behalf, undertook any snow removal efforts that made the conditions on the public sidewalk more hazardous. Rodriguez v County of Westchester, 2016 NY Slip Op 02635, 2nd Dept 4-6-16

NEGLIGENCE (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)/MUNICIPAL LAW (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)/SLIP AND FALL (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)

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FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST.

The Second Department noted that the loss at issue, the collapse of a retaining wall caused by run-off water, was the subject of a policy exclusion, an issue about which there was no dispute. Plaintiff argued the insurer’s disclaimer letter was ineffective because it did not identify the precise ground upon which the disclaimer was ultimately based. The Second Department, applying common law waiver and estoppel principles, rejected the argument because the failure to disclaim based upon an exclusion will not give rise to coverage which does not exist:

… [T]he defendants’ failure to specifically identify the flood and surface water exclusions in its disclaimer letter must be considered under common-law waiver and/or estoppel principles … .

Waiver, which is a voluntary and intentional relinquishment of a known right, does not apply here because “the failure to disclaim based on an exclusion will not give rise to coverage that does not exist” … . Under the principles of estoppel, an insurer, though in fact not obligated to provide coverage, may be precluded from denying coverage upon proof that the insurer “by its conduct, otherwise lulled [the insured] into sleeping on its rights under the insurance contract” … . Estoppel requires proof that the insured has suffered prejudice by virtue of the insurer’s conduct … . Because the plaintiff failed to make the requisite showing of prejudice, there was no basis to estop the defendants from relying on policy exclusions not detailed in their letter disclaiming coverage. Provencal, LLC v Tower Ins. Co. of N.Y., 2016 NY Slip Op 02644, 2nd Dept 4-6-16

INSURANCE LAW (FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)/DISCLAIMER (INSURANCE LAW, FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)EXCLUSIONS FROM INSURANCE COVERAGE (FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)

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THE FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO A MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS.

The Second Department, modifying Supreme Court’s order, determined defendant was not entitled to summary judgment in a foreclosure proceeding. Defendant alleged plaintiff, Aurora Loan Services, did not have standing to bring the action (i.e., did not have possession of the note at the time the action was commenced). Aurora Loan Services was unable to demonstrate standing because the evidence submitted did not meet the requirements of the business records exception to the hearsay rule. Aurora’s summary judgment motion was therefore properly denied. However, the flaws in Aurora’s proof of standing did not entitle defendant to summary judgment on defendant’s cross motion. In the summary judgment context, the court first looks only at the moving party’s papers to determine whether the moving party has made a prima facie showing justifying summary judgment. Here the defendant’s papers did not demonstrate Aurora lacked standing. Therefore the cross motion should have been denied, notwithstanding the flaws in the plaintiff’s opposing papers.

… Supreme Court erred in granting the defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him for lack of standing and to cancel the notice of pendency filed against the subject property. “[T]he burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, the defendant, as the moving party, failed to make a prima facie showing that the plaintiff lacked standing … . Aurora Loan Servs., LLC v Mercius, 2016 NY Slip Op 02599, 2nd Dept 4-6-16

FORECLOSURE FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/EVIDENCE (SUMMARY JUDGMENT MOTIONS, FORECLOSURE, FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/SUMMARY JUDGMENT MOTIONS (SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/CIVIL PROCEDURE (SUMMARY JUDGMENT MOTIONS, FORECLOSURE, FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)

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