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Presumption of Validity of Town’s Property Tax Assessment Not Rebutted by Objective Data

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, reversed the 4th Department’s determination that the Board of Managers of a condominium had rebutted the presumption of validity which attached to the Town’s property tax assessment. The Board’s appraisal was not based upon objective data which substantiated the calculations:

In an RPTL article 7 tax certiorari proceeding, “a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” … . Consequently, a taxpayer challenging the accuracy of an assessment bears the initial burden of coming forward with substantial evidence that the property was overvalued by the assessor. In the context of tax assessment cases, we have explained that the substantial evidence standard requires the taxpayer to “demonstrate the existence of a valid and credible dispute regarding valuation” … . If the taxpayer satisfies this threshold burden, the presumption disappears and the court “must weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . But where a taxpayer fails to rebut the presumption, the municipality’s assessor has no obligation to go “forward with proof of the correctness of [its] valuation,” and the petition is to be dismissed … .

…[T]he appraiser did not provide the sources of the income or expense figures related to each comparable (…[“Data on each property’s sale price, income, expenses, financing terms, and market conditions at the time of sale are needed.”]).

More importantly, the hearing testimony of the Board’s appraiser revealed that he had little to no confirmable data to support the income and expense numbers he employed to derive the capitalization rate. During his direct examination, the appraiser asserted that he relied on “very good” and “very strong” data that came from “certified sources.” On cross-examination, however, he conceded that he had no certified expense or income information and instead had relied on “forecasted economic indicators” with respect to the apartment buildings. In fact, he could identify only two documents in the record that provided any “limited historic operating expenses,” and this information was for only two comparables and did not correlate to the numbers used in the appraisal report. He admitted that he had no documents supporting his analysis as to the other two comparable properties. When pressed, he proffered that the relevant figures were based on his “personal exposure” to the complexes, i.e., his own unverifiable knowledge. But as the Appellate Division dissenters aptly recognized, “[a]n appraiser cannot simply list financial figures of comparable properties in his or her appraisal report that are derived from alleged personal knowledge; he or she must subsequently ‘prove’ those figures to be facts at trial” … . Simply put, the record before us affords no basis to check or test whether the net operating incomes for these four properties — and the capitalization rates adduced from them — were valid, or even in the ballpark. Matter of Board of Mgrs of French Oaks Condominium v Town of Amherst, 2014 NY Slip Op 02971, CtApp 5-1-14

 

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Lump Sum Payments for Pending Workers’ Compensation Claims Made by Municipalities Choosing to Withdraw from a Workers’ Compensation Self-Insurance Fund Must Be Discounted to Present Value

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a partial dissent, determined that the lump sum to be paid by municipalities for pending workers' compensation claims when withdrawing from a workers' compensation self-insurance fund should be discounted to present value.  The court noted that the lump sum was to be used to pay out workers' compensation benefits for years to come:

Generally, discounting future damages to their value at some point in the past is appropriate because it takes into account the time value of money. “[W]hen an amount intended to compensate for a future loss is discounted back to a particular time, the discounted amount represents the sum which, if invested at that time at reasonable rates of return, would theoretically produce the intended amount at the future time when the loss is incurred” .. . We are perhaps most familiar with discounting in wrongful death, personal injury, and medical malpractice actions, where discounting is required by statute (see CPLR 5031; 5041). In those contexts, it is often the future earning power of the injured party, or a similar measure of future damages, that must be reduced to its value on the date of injury. However, there is no material difference between the value of a decedent's future income in a wrongful death case and the value of workers' compensation benefits to be paid out over the life of a disability claim. In both cases, some or all of the losses will be incurred in the future. Here, the injury in question is a breach of contract, and the future losses manifest themselves in the form of contract damages. Village of Ilion v County of Herkimer, 2014 NY Slip Op 02873, CtApp 5-1-14

 

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Substantive Issue Raised by Petitioner Had Not Been Addressed in a Prior Proceeding Which Had Been Dismissed—Current Proceeding Therefore Not Barred by Doctrine of Collateral Estoppel

The Third Department determined a former teacher’s challenge to the recall of another former teacher was not barred by collateral estoppel.  The challenge was based upon the claim that the petitioner had greater seniority than the recalled teacher.  A prior challenge by petitioner to the recall of a different teacher had been dismissed, but the seniority issue had not been addressed in that prior proceeding:

In order for collateral estoppel to apply, there must be an identity of a decisive issue between the present and prior proceedings which was necessarily decided in the prior proceeding, and the party who will be estopped must have been afforded a full and fair opportunity to litigate the issue in the prior proceeding … . “Whether to apply collateral estoppel in a particular case depends on general notions of fairness involving a practical inquiry into the realities of the litigation” … . Here, while petitioner raises an identical issue in this proceeding, namely, whether she is entitled to more seniority credit than the Board gave her, that issue has never been decided. Rather, the earlier proceeding was dismissed as time-barred. Because the issue of whether petitioner is entitled to more seniority has not been decided, it is not barred by collateral estoppel … . Matter of Bubel v Board of Educ of the Saugerties Cent Sch Dist, 2014 NY Slip Op 02999, 3rd Dept 5-1-14

 

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Issuance of a “No Knock” Warrant to Take a DNA Sample Was Not Justified—Sample Should Have Been Suppressed

The Third Department suppressed DNA evidence taken from the defendant pursuant to a “no knock” warrant and reversed defendant’s conviction. No exigent circumstances justified the “no knock” warrant which allowed the police to enter defendant’s home without notice and take the DNA sample:

The search warrant application to obtain DNA from defendant included the unsubstantiated and inaccurate allegations that the “search warrant cannot be executed between the hours of 6:00 A.M. and 9:00 P.M.,” “the property sought will be removed or destroyed if not seized forthwith,” and “[t]he property sought may be easily and quickly destroyed or disposed of.” There were no factual allegations reflecting exigent circumstances justifying the lack of any notice to defendant of the application to obtain a DNA sample from him. He could not destroy or dispose of his own DNA, and the People’s speculation in their brief that he might have fled was not alleged or supported by facts in the application.

The ensuing search warrant inconsistently stated both that it was to be executed between 6:00 a.m. and 9:00 p.m. and that it could be executed at any time day or night; and it further authorized police to enter the premises where defendant resided without giving notice of their authority or purpose. Under the authority of the warrant, police arrived unannounced at the place where defendant lived demanding his DNA. The total absence of notice to defendant of the search warrant application, which had obvious defects regarding the manner purportedly necessary to obtain defendant’s DNA, violated his constitutional rights and the DNA obtained in such search must be suppressed and the judgment reversed… . People v Walker, 2014 NY Slip Op 02975, 3rd Dept 5-1-14

 

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Preservation by Objection Not Required When Defendant First Learns of Post-Release Supervision Moments Before Sentencing

In a full-fledged opinion by Justice Egan, the Third Department vacated defendant's plea to a probation violation because no mention of a period of post-release supervision was made until moments before sentencing.  The court determined there was no need to preserve the error by objection because the defendant had so little time between notification of the post-release supervision and sentencing:

…[W]hether preservation is necessary hinges upon whether the defendant “had ample opportunity to object after the initial [reference to postrelease supervision] was made and before sentence was formally imposed” … . Thus, where “the court first mention[s] postrelease supervision only moments before imposing the sentence,” thereby depriving the defendant of a meaningful opportunity to weigh his or her options at that stage of the proceeding, preservation is not required … .

Although we are mindful that the matter before us concerns a plea of guilty to a violation of probation — as opposed to a plea of guilty to a crime — the analysis employed by the Court of Appeals …is equally applicable here. As noted previously, County Court made no mention of postrelease supervision during the course of defendant's plea colloquy …, nor does the record indicate that defendant otherwise was made aware — prior to entering her plea to the probation violation — that postrelease supervision would be a component of her sentence … . Rather, the need to impose a period of postrelease supervision was first raised at sentencing — quite literally moments before defendant's sentence actually was imposed … . Under these circumstances, preservation was not required, and County Court's failure to apprise defendant that postrelease supervision would be a component of her sentence mandates reversal. People v Bolivar, 2014 NY Slip Op 02980, 3rd Dept 5-1-14

 

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241 (6) Cause of Action Improperly Dismissed—Plaintiff Tripped on Piece of Metal Protruding from Stair

The Third Department determined Supreme Court should not have dismissed plaintiff’s Labor Law 241 (6) claim against the general contractor (Glenman).  Plaintiff tripped and fell down a stairwell when his shoe was punctured by a piece of metal protruding from a stair:

Supreme Court improvidently dismissed plaintiff’s Labor Law § 241 (6) claim against Glenman. Notably, “Labor Law § 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” … . “To establish a claim under Labor Law § 241 (6), [a] plaintiff must allege that [the] defendant[] violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct” … . “[O]nce it has been alleged that a concrete specification of [such a rule or regulation] has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury” … .

Here, plaintiff relies upon 12 NYCRR 23-1.7 (e) (1), which provides:”(e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.” This regulation appropriately “mandat[es] compliance with concrete specifications” as required to state a claim under Labor Law § 241 (6) … .  Marshall v Glenman Indus & Commercial Contr Corp, 20-14 NY Slip Op 02987, 3rd Dept 5-1-14

 

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Question of Fact Whether Defendants Assumed a Duty of Reasonable Care When Escorting Elderly Plaintiff to His Car at Night

The Third Department determined a question of fact had been raised about whether defendants assumed a duty of reasonable care when escorting the elderly plaintiff to his car at night.  Plaintiff tripped and fell while being escorted by a hospital security guard after plaintiff had been treated at the hospital.  Plaintiff asked for the escort:

Plaintiffs did …raise a factual issue as to whether defendants assumed a duty of reasonable care regarding the escort provided. Under the assumed duty theory, “the question is whether defendant[s’] conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant[s] done nothing” … . While there was conflicting proof, on this cross motion by defendants for summary judgment we “must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof” … . Plaintiff characterized the lighting conditions when he was ready to leave the emergency room as “pitch black,” prompting him to ask for assistance. The security guard who was summoned had previously escorted people from the emergency room to off-premises parking and thus was familiar with conditions in the area. Plaintiff kept a hand on his wife’s shoulder as they walked assisting his stability. Although the security guard had a flashlight, he did not turn it on and did not walk next to plaintiffs. Plaintiff recalled that, just before he fell, he stated to the security guard that he could barely see because of the darkness, but the guard made a gesture ostensibly indicating that it was safe to proceed and, as plaintiff did so, he immediately stepped into the crack or depression and fell. Accepting such proof and the reasonable inferences therefrom, a jury could conclude that plaintiff would have proceeded more cautiously had he not relied on an individual familiar with the area who apparently gestured for him to continue despite the poor visibility … . Giglio v Saratoga Care Inc, 2014 NY Slip Op 02994, 3rd Dept 5-1-14

 

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Double Jeopardy Does Not Bar Prosecution of a Lesser Included Offense Never Considered by the Trier of Fact in the First Trial

The Fourth Department noted that an Article 78/prohibition action is a proper vehicle for raising double jeopardy as a bar to a prosecution. Defendant was charged with two counts of Driving While Intoxicated (DWI) and one count of Driving While Ability Impaired (DWAI).  In a bench trial, defendant was acquitted of one count of DWI and the second count of DWI, of which defendant was initially convicted, was subsequently dismissed pursuant to a post-trial motion because of the legal insufficiency of the evidence.  Under these circumstances, because the DWAI count was never considered in the bench trial, a second trial on that charge alone does not violate the double jeopardy prohibition:

“[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his [or her] decision based upon appropriate legal criteria” … . Here, the court, upon acquitting defendant of common-law DWI, would have applied the “acquit-first” rule …, and next considered DWI, per se, before reaching DWAI as a lesser included offense under either count of DWI … . Inasmuch as the court convicted defendant of the count charging DWI, per se, it could not have reached the lesser included offense of DWAI. Consequently, we conclude that “double jeopardy concerns . . . are not present in the case at hand . . . [because] the People here d[o] not seek to retry defendant on the count[, i.e., DWI, per se, or common-law DWI] of which he was acquitted at the first trial. Rather, the only count at issue in the retrial [will be] the lesser [DWAI] charge for which the [court did not] reach a verdict. At no point during the retrial [will] defendant [be] in jeopardy of conviction of the greater offense. Thus, there [i]s no constitutional double jeopardy bar to [a] second trial” on the lesser included offense of DWAI … . Matter of Case v Sedita, 2015 NY Slip Op 03630, 4th Dept 5-1-15

 

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Attorney’s Charging Lien Based Upon a Judgment for Child Support Arrears Was Proper—Relevant Law Explained

The Fourth Department, in the context of plaintiff’s attempt to collect a judgment reflecting child support arrears, determined an attorney’s charging lien was appropriately attached to the proceeds of the sale of defendant’s property.  The court rejected the argument that child support payments are exempt from an attorney’s charging lien, at least under the facts of this case.  Here the children were already emancipated and the nonpayment was not enforced for 16 years.  The Fourth Department explained the law surrounding attorney’s charging liens, and noted the exemptions for proceedings before “a department of labor” and an award of alimony or maintenance:

Under the common law, “the attorney’s lien was a device invented by the courts for the protection of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained’ “… . Judiciary Law § 475 “codifies and extends the common-law charging lien” …, by providing an attorney with “a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come” (§ 475 …). The statute is remedial in nature and therefore must “be construed liberally in aid of the object sought by the [L]egislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action” … . “The lien comes into existence, without notice or filing, upon commencement of the action or proceeding,” and “gives the attorney an equitable ownership interest in the client’s cause of action” … .

The only exception contained in the statute is for proceedings before “a department of labor” (Judiciary Law § 475). In addition to that statutory exception, the Court of Appeals has held that, as a matter of public policy, a charging lien may not attach to an award of alimony or maintenance … . Mura v Mura, 2015 NY Slip Op 03639, 4th Dept 5-1-15

 

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Defendant’s Indelible Right to Counsel Did Not Attach When the Attorney for Defendant’s Husband’s Estate Communicated with the Police—The Attorney Was Unaware that Defendant Was a Suspect In Her Husband’s Death at the Time of the Communication

The Fourth Department determined a communication with the police by the attorney who represented the estate of defendant’s husband did not trigger the attachment of her indelible right to counsel (rendering a subsequent statement inadmissible).  The defendant was convicted of murdering her husband.  At the time the probate attorney communicated with the police, he identified himself as the estate’s attorney and was not aware defendant was a suspect in her husband’s death:

The evidence established that defendant was the personal representative of the estate …, and that the attorney’s representation of her was only with respect to her role as personal representative of the estate. The attorney testified that at no time did he know that defendant was a suspect in decedent’s death, which he believed to have been a suicide; that he identified himself as the attorney for decedent’s estate in his communications with the police; and that he would not have given defendant advice related to a criminal investigation because to do so would be a conflict of interest with his role as the attorney for the estate. It is well established that, although “an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel . . . , a relationship formed in a civil matter is not entitled to the same deference” … . People v Castor, 2015 NY Slip Op 03648, 4th Dept 5-1-15

 

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