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Proof of the Dog’s Emaciated Condition Supported Defendant’s Conviction of the Violation of Agriculture and Markets Law 353

The Court of Appeals determined the proof of the emaciated condition of defendant’s dog supported the defendant’s conviction for a violation of Agriculture and Markets Law 353 which prohibits depriving an animal of necessary sustenance. On appeal the defendant argued the trial court erred in refusing to instruct the jury that a conviction required proof of a mens rea, i.e., that defendant knowingly deprived or neglected the dog. The Court of Appeals did not address the defendant’s argument, finding that the proof of the dog’s condition alone supported the conviction.  People v Basile, 2015 NY Slip Op 05623, CtApp 7-1-15

 

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In the Absence of Finding of Aggravating Circumstances an Order of Protection Cannot Exceed Two Years

In a family offense proceeding, the Second Department noted that Supreme Court did not make the finding of aggravating circumstances required for an order of protection which exceeds two years:

The Supreme Court … failed to set forth any finding of aggravating circumstances “on the record and upon the order of protection,” as is required to issue an order of protection with a duration exceeding two years (Family Ct Act § 842), and insufficient evidence was presented at the hearing to support any finding of aggravating circumstances (see Family Ct Act § 827[a][vii]…). Therefore, the duration of the order of protection may not exceed two years … . Matter of Masciello v Masciello, 2015 NY Slip Op 05681, 2nd Dept 7-1-15

 

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Defense Counsel’s Failure to Object to the Prosecutor’s Mischaracterization of the Strength and Meaning of DNA Evidence Constituted Ineffective Assistance of Counsel

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, reversed the Appellate Divsion and determined defendant was not afforded effective assistance of counsel. In her summation, the prosecutor mischaracterized the strength and meaning of the DNA evidence. Defense counsel had effectively, through cross-examination, called into question the strength and meaning of the DNA evidence. But defense counsel did not object to the prosecutor’s unsubstantiated claims in her summation. The court concluded the failure to object could not be justified as a viable defense strategy and required reversal:

The People’s case was circumstantial because there were no eyewitnesses to the crime and no forensic evidence that clearly established defendant’s guilt. Other than testimony that placed defendant and others in the victim’s company around the time of her death, and defendant’s statement that he engaged in consensual sex with the victim, the People had no evidence that linked her to defendant. To meet the People’s burden of proof, the prosecutor relied heavily on the results of DNA testing to connect defendant to the murder. However, the DNA analysis was also circumstantial because it did not “match” defendant’s DNA to the DNA collected at the crime scene. Instead, the test only indicated that defendant could not be excluded from the pool of male DNA contributors, and the expert testimony provided no statistical comparison to measure the significance of those results.

Notwithstanding the known limitations of this DNA evidence and the indeterminate conclusions about the test results drawn by the People’s own experts, the prosecutor in summation misrepresented the DNA analysis, including arguing the evidence established that defendant’s DNA was at the crime scene and on a critical piece of evidence linked to the victim’s murder. In light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding the limited probative value of the DNA methodology employed in this case, and the qualified nature of the test results, defense counsel’s failure to object rendered him ineffective. People v Wright, 2015 NY Slip Op 05621, CtApp 7-1-15

 

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Although the Mortgage Note Was Discharged In Bankruptcy, the Bank Holding the Mortgage Note Had Standing to Bring a Foreclosure Action (In Rem) Seeking the Proceeds of the Foreclosure Sale—The Bank Could Not, However, Seek a Deficiency Judgment (In Personam) Against the Borrower

The Second Department, in a full-fledged opinion by Justice Cohen, determined that the assignee of a mortgage note discharged in bankruptcy (Deutsche Bank) has standing to bring a foreclosure action for the sale of the mortgaged property. The borrower, Stephanos, because of the discharge in bankruptcy, could not be held liable on the note in personam (no deficiency judgment was possible).  But the bank could proceed against the property in rem seeking the proceeds of a foreclosure sale:

Under New York law, in order to have standing to commence a foreclosure action, a plaintiff generally must be the holder or assignee of the note which the mortgage secures. On this appeal, we are asked to consider whether a note discharged in bankruptcy can be subsequently assigned, with the mortgage passing incident thereto, so as to convey standing to the assignee. … [W]e answer the question in the affirmative. Although a bankruptcy discharge extinguishes a debtor’s personal liability on a mortgage note, it does not impair a creditor’s right to assign that note, and an assignee who holds the discharged note and mortgage has standing to bring a foreclosure action and seek payment through the sale of the mortgaged property. Accordingly, even if the note at issue in this case was assigned or delivered to the plaintiff after it was discharged in bankruptcy, a fact which is not clear from this record, the defendant homeowners failed to establish their entitlement to dismissal of the complaint on the ground that the plaintiff lacked standing. * * *

A mortgage secures an obligation … . However, it is not necessary that an obligation involve personal liability in order for a mortgage to remain valid after a bankruptcy discharge. Here, Stefanos obtained a personal discharge in bankruptcy; thus, his personal liability for the obligation was released … . This did not affect the mortgage securing the note. Post-bankruptcy, the mortgage still secures an obligation; it is simply no longer personal, but in rem … . A discharge in bankruptcy is a discharge from personal liability only and, without more, does not affect a lien … . Although a bankruptcy discharge extinguishes one mode of enforcing a note—namely, an action against the debtor in personam, it leaves intact another—namely, an action against the debtor in rem … . * * *

… “[A]n assignee of a mortgage takes it subject to the equities attending the original transaction” … . After assignment, a note remains subject to any defense, legal and equitable, that existed between the original parties … . Thus, although Stefanos’s personal bankruptcy did not “extinguish” the note for every purpose, he maintains the right to assert, as a defense, his personal discharge in bankruptcy to the extent the note was to be enforced against him in personam. By amending the complaint to limit the relief sought against Stefanos, Deutsche Bank essentially recognized the defendants’ affirmative defense, such that, upon proof of a valid discharge in bankruptcy, Deutsche Bank would not seek a deficiency judgment against Stefanos. Deutsche Bank Trust Co. Ams. v Vitellas, 2015 NY Slip Op 05634, 2nd Dept 7-1-15

 

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In the Context of a Pre-Answer Motion to Dismiss, the Statute of Frauds Barred Actions Stemming from Advising Defendants in the Actual Negotiation of a Business Opportunity, But Did Not Bar Actions Stemming from Advising Defendants Whether to Negotiate a Business Opportunity

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined, in the context of a pre-answer motion to dismiss, the statute of frauds did not bar the causes of action which stemmed from plaintiff’s advising defendants whether to negotiate a business opportunity, as opposed to the causes of action stemming from plaintiff’s advising defendants in the actual negotiation of a business opportunity (which were barred by the statute of frauds).

Here we are specifically concerned with General Obligations Law § 5-701 (a) (10), which “appl[ies] to a contract implied in fact or in law to pay reasonable compensation” and which provides that “[e]very agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking . . . [i]s a contract to pay compensation for services rendered in . . . negotiating the purchase . . . of any real estate or interest therein, or of a business opportunity, business, its good will, inventory, fixtures or an interest therein . . . .” … . * * *

… [T]he allegations with respect [some of the projects] could be construed as seeking recovery for work performed so as to inform defendants whether to partake in certain business opportunities, that is, whether to negotiate. (emphasis added) To the extent the causes of action are based on such allegations, they are not barred by the statute of frauds.  JF Capital Advisors, LLC v Lightstone Group, LLC, 2015 NY Slip Op 05622, CtApp 7-1-15

 

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Pleading Requirements for Unjust Enrichment and Fraud Not Met

The Second Department determined the complaint against defendant bank alleging unjust enrichment and fraud was properly dismissed for failure to state a cause of action. The action stemmed from a foreclosure sale.  After the property had been sold, the judgment of foreclosure and sale was vacated because the bank did not properly serve process on one of the parties. The full amount paid for the property was refunded to the plaintiff.  The plaintiff then sued for unjust enrichment claiming the bank collected banK fees and interest.  Re: unjust enrichment: the complaint failed to allege the bank had been enriched at plaintiff’s expense. And the plaintiff sued for fraud alleging the bank knew it had failed to properly serve one of the parties at the time it prosecuted the foreclosure action.  Re: fraud: the complaint included only conclusory allegations of fraud without out the requisite supporting factual allegations. The Second Department explained:

The elements of a cause of action to recover for unjust enrichment are “(1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . “The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … .

Here, the plaintiff merely alleged in the amended complaint that U.S. Bank was “unjustly enriched in that it collected bank fees and interest.” Even accepting these allegations in the amended complaint as true, the amended complaint failed, as a matter of law, to sufficiently allege that U.S. Bank was enriched at the plaintiff’s expense … . * * *

“The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” … . All of the elements of a fraud claim “must be supported by factual allegations containing the details constituting the wrong” in order to satisfy the pleading requirements of CPLR 3016(b)… .

Here, the amended complaint consisted of conclusory allegations regarding U.S. Bank’s knowledge that it had commenced and prosecuted the underlying foreclosure action without properly effecting service on all of the necessary parties. Furthermore, the facts alleged in the amended complaint do not give rise to a reasonable inference that U.S. Bank had knowledge of, or participated in, the alleged fraud … . GFRE, Inc. v U.S. Bank, N.A., 2015 NY Slip Op 05640, 2nd Dept 7-1-15

 

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Police Vehicles Are Excluded from the Meaning of “Motor Vehicle” in the Insurance Law—Passenger-Police-Officer Injured In a Police Vehicle by an Uninsured/Underinsured Driver Is Not Covered Under the Uninsured/Underinsured Motorist Provision of the Police-Officer-Driver’s Personal Policy

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined that a police vehicle is not a motor vehicle within the meaning of the Insurance Law. Therefore a police officer, who was injured in a police vehicle driven by another police officer, could not recover under the police-officer-driver’s uninsured/underinsured motorist coverage in the driver’s personal insurance policy:

… Insurance Law §§ 3420 (e) and 3420 (f) (1) do not directly define “motor vehicle” in so many words, but Insurance Law § 3420 (e) does refer to “a motor vehicle or a vehicle as defined in [VTL 388 (2)].” VTL 388 is the sole provision of VTL article 11, which governs civil liability for negligence in the operation of vehicles. VTL 388 (2) states, “As used in this section, ‘vehicle’ means a ‘motor vehicle’, as defined in [VTL 125], except fire and police vehicles,” and certain other vehicles not relevant here (see VTL 388 [2]).  * * *

… [B]ecause the liability insurance provision of Insurance Law § 3420 (e) had traditionally dovetailed with the coverage of VTL 388 and its predecessors, Insurance Law § 3420 (e) employed the phrase “of a motor vehicle or of a vehicle as defined in [VTL 388]” as an imprecise way of incorporating the limitations of VTL 388 into Insurance Law § 3420 (e). In other words, Insurance Law § 3420 (e) used VTL 388 (2) to redefine “motor vehicle” as exempting police vehicles from the automobile insurance sections of Insurance Law § 3420. Given that the uninsured motorist and SUM coverage sections of Insurance Law § 3420 had originated as outgrowths designed to simply fill the uninsured or underinsured motorist “gaps” in the compulsory insurance statute and Insurance Law § 3420 (e), rather than to expand the class of covered vehicles, the Court rightly decided that Insurance Law §§ (f) (1) and (f) (2) logically applied to the limited category of “motor vehicles” referenced in Insurance Law § 3420 (e), thus also excluding police vehicles. Since SUM coverage under Insurance Law § 3420 (f) (2) was just a variant of uninsured coverage under subsection (f) (1) of the same statute, the Court appropriately found that SUM coverage was likewise limited to non-police vehicles. Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald, 2015 NY Slip Op 05626, CtApp 7-1-15

 

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Question of Fact Whether Out-of-Possession Landlord Relinquished Control of the Premises to the Extent that Its Duty to Maintain the Premises in a Reasonably Safe Condition Was Extinguished—Lease Allowed Landlord to Reenter to Inspect and Make Repairs and Improvements

The Second Department determined there were questions of fact whether an out-of-possession landlord (Marphil Realty) was liable for a dangerous condition (resulting in a fire). The lease gave the landlord the right to reenter during usual business hours in order to inspect the premises and to make repairs and improvements. Therefore there was a question of fact whether the landlord had relinquished complete control over the property such that its duty to maintain the property in a reasonably safe condition was extinguished:

“Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . “That duty is premised on the landowner’s exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others'” … . Accordingly, “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . However, an out-of-possession landlord may be liable for injuries occurring on the premises if “it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs” … . Yehia v Marphil Realty Corp., 2015 NY Slip Op 05670, 2nd Dept 7-1-15

 

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Parents of Children in Public Schools Had Standing to Seek Court Review of the SUNY Trustees’ Authorization of Charter Schools—The Authorization Was Not Arbitrary or Capricious or an Abuse of Discretion

The Second Department determined parents of children in public schools had standing to bring an Article 78 petition for a review of the SUNY Trustee’s authorization for charter schools. The court determined the authorization was not arbitrary or capricious or an abuse of discretion, noting that there was no requirement of majority community support:

The petitioners, a group of parents of children in public schools in Community School District 14 and an organization they founded to oppose the subject charter schools, commenced this proceeding pursuant to CPLR article 78 to review the SUNY Trustees’ determination authorizing the charters. The amended petition alleged that the SUNY Trustees authorized the charters in violation of Education Law §§ 2851(2)(q), 2852(9-a)(b)(ii), and 2852(2)(a), in that [the charter school organization] failed to demonstrate adequate community support, outreach, or input, and therefore, the charters should be voided. * * *

In authorizing the issuance of charters to the subject schools, the SUNY Trustees were required to find that the proposed schools met all requirements of the Charter School Act (see Education Law § 2852[2][a]). Given the representations and support therefor contained in [the] applications, the SUNY Trustees’ determination that [the charter school organization] met the statutory requirements with regard to evidence “of adequate community support for and interest in the charter school sufficient to allow the school to reach its anticipated enrollment” (Education Law § 2851[2][q]), and public outreach to solicit community input and address comments received from the impacted community concerning the educational and programmatic needs of students (see Education Law § 2852[9-a][b][ii]…), was, insofar as relevant here, not arbitrary and capricious. As the SUNY Trustees and the charter schools correctly contend, majority community support is not required by the Charter Schools Act (see Education Law § 2851[2][q]). Matter of Williamsburg & Greenpoint Parents: Our Pub. Schools! v Board of Trustees, State Univ. of N.Y., 2015 NY Slip Op 05690, 2nd Dept 7-1-15

 

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Company Which Contracted with County to Maintain Traffic Signals Did Not Owe a Duty to Plaintiff—Plaintiff Alleged a Malfunctioning Traffic Signal Caused an Accident in Which She Was Injured

Plaintiff alleged a traffic accident was the result of a malfunctioning traffic signal.  The defendant county had entered a traffic-signal maintenance contract with defendant Welsbach.  The Second Department determined that the contract between the county and Welsbach did not give rise to tort liability re: defendant Welsbach in favor of the plaintiff because the contract was not such that it displaced the county’s duty to maintain the traffic signal. The court explained the analytical criteria:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . Exceptions to this general rule exist “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] 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” … . Welsbach established, prima facie, that it did not owe the plaintiff a duty of care, since its limited maintenance contract with the County did not displace the County’s duty to maintain the traffic signal at the subject intersection in a reasonably safe condition and it did not launch an instrument of harm … . Watt v County of Nassau, 2015 NY Slip Op 05668, 2nd Dept 7-1-15

 

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