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Where There Is a Surviving Partner and No Agreement to the Contrary, the Representative of a Deceased Partner Cannot Participate in the Winding Up of the Partnership and Has No Legal Right to the Partnership’s Assets, Books, Records or Business

The Second Department noted that the power to wind up a partnership (here BDF) is held by the surviving partner (here 6D) and cannot be exercised by the representative of a deceased partner (here Mrs. Benedict):

Under Partnership Law § 68, “[u]nless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided, however, that any partner, his [or her] legal representative, or his [or her] assignee, upon cause shown, may obtain winding up by the court.” Further, on the death of a partner, “his [or her] right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his [or her] right in such property vests in his [or her] legal representative” (Partnership Law § 51[2][d]…). The representative of a deceased partner is not entitled to participate in or interfere with the continuation of or winding up of partnership business by the surviving partner … .

Based on this authority, the Supreme Court correctly determined that, upon Mrs. Benedict's death, 6D was the only entity with a legal right to wind up BDF's business affairs because 6D was the only surviving partner. Moreover, upon Mrs. Benedict's death, the estate had no legal right to BDF's assets, books, records, or business. Rather, all rights to such property vested immediately in 6D, which was the only entity authorized to wind up BDF's business.  Neilson v 6D Farm Corp, 2014 NY Slip Op 08409, 2nd Dept 12-3-14

 

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Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury

The Second Department determined a personal injury action was properly dismissed because the condition which led to plaintiff's injury (a five-foot drop from the top of a retaining wall to the sidewalk) was not the cause of the accident.  Infant plaintiff lost control of her bicycle, left the path, and was injured when she went over the top of the retaining wall and fell to the sidewalk:

Although the issue of proximate cause is generally one for the finder of fact …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … .

Here, the evidence submitted in support of the defendant's motion, which included a transcript of the deposition testimony of the infant plaintiff, demonstrated that the accident was proximately caused by the infant plaintiff's failure to control her bicycle and the failure of the bicycle's brakes … . The retaining wall, which was erected a considerable distance from the portion of the paved pedestrian path from which the infant plaintiff deviated, merely furnished the condition or occasion for the infant plaintiff's accident, and was not one of its causes … . Any alleged negligence in the design, maintenance, or management of the retaining wall did not proximately cause the subject accident … . Rattray v City of New York, 2014 NY Slip Op 08416, 2nd Dept 12-3-14

 

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Succinct Description of Principles of Governmental Function Immunity

The principles of governmental function immunity were succinctly stated by the Second Department:

Under the doctrine of governmental function immunity, ” [g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general'” … .

Here, the defendants Town of Clarkstown Police Department and Town of Clarkstown … established their prima facie entitlement to judgment as a matter of law by demonstrating that the allegedly negligent acts of the police officers were discretionary and not ministerial … . Rodriguez v Town of Clarkston Police Dept, 2014 NY Slip Op 08417, 2nd Dept 12-3-14

 

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The Public Administrators of Two Counties Claimed the Authority and Jurisdiction for Letters of Administration Re: the Estate of an Incapacitated Person—In Resolving the Dispute the Appellate Court Discussed the Authority of a Public Administrator As Well As Surrogate’s Court’s Jurisdiction and the Decedent’s Domicile

The Second Department dealt with many issues which resulted from the public administrators in two counties applying for letters of administration re: the estate of an incapacitated person, a resident of Kings County who had moved from a nursing home in Kings County to a nursing home in Richmond County, where she died.  The administrator to whom the letters were issued first (Stein in Kings County) prevailed.  The court was asked to resolve many questions concerning a public administrator's authority, as well as questions concerning jurisdiction and domicile (not all of which are mentioned here):

Stein has exclusive authority to administer the decedent's estate pursuant to SCPA 704. That section provides, in part, that “[a] person who applies in good faith therefor, and to whom letters are first issued from a court having jurisdiction to issue them, has exclusive authority under the letters until they are revoked” (SCPA 704 [emphasis added]). Here, letters of administration were first issued to Stein by the Surrogate's Court, Kings County, and the record supports Stein's assertion that he had applied in “good faith” for letters of administration, without notice or knowledge of the petition filed in Richmond County (SCPA 704). Further, the Surrogate's Court, Kings County, did not lack jurisdiction to issue letters of administration to Stein. Since the decedent was a domiciliary of New York State at the time of her death, the Surrogate's Court, Kings County, possessed subject-matter jurisdiction over the decedent's estate (see SCPA 205 [1]).

…[T]he Surrogate's Court, Kings County, did not lack personal jurisdiction over certain alleged distributees of the decedent. Pursuant to SCPA 1003(2), “[e]very eligible person who has a right to administration prior or equal to that of the petitioner and who has not renounced must be served with process upon an application for letters of administration” (emphasis added). However, “[w]here the right of the applicant for letters of administration is superior to the right of other persons interested in the estate, process need not issue and letters will be granted upon a proper petition and due qualification” (1-13 NY Practice Guide: Probate & Estate Admin § 13.08; see Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 1003 at 46-47). Further, SCPA 1001 mandates the issuance of letters of administration to the public administrator where the only known distributees of a decedent are “issue of grandparents, other than aunts or uncles, on only one side” (SCPA 1001[1][f][ii]). * * *

…[T]he county in which the decedent was domiciled at the time of her death is not determinative here. Since Stein had “exclusive authority” to administer the decedent's estate under the letters of administration issued by the Surrogate's Court, Kings County, “until they are revoked” (SCPA 704 [emphasis added]), improper venue would not be a valid ground for revocation of those letters of administration. “Since domicile is a waivable and nonjurisdictional concept, if a court mistakenly, without objection, exercises jurisdiction over the estate of a domiciliary of another county, its decree is not vulnerable to direct or collateral attack for lack of subject matter jurisdiction” (…1-2 Warren's Heaton on Surrogate's Court Practice § 2.12).

In any event, the Surrogate's Court, Kings County, correctly determined that the decedent was domiciled in Kings County at the time of her death. The Surrogate's Court Procedure Act defines domicile as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return” (SCPA 103[15]). ” The determination of an individual's domicile is ordinarily based on conduct manifesting an intent to establish a permanent home with permanent associations in a given location'” … . “The law is well settled that an existing domicile continues until a new one is acquired,” and “[i]t is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence” … . “To meet this burden, the movant must establish the decedent's intention to effect a change of domicile from her [or his] acts, statements, and conduct” (id.), and ” [t]he element of intent is essential'” … . Thus, generally, “an incapacitated person's admission into a health-care facility does not cause a change of domicile if the incapacitated person is unable to express an intention to establish a new domicile” … . Here, [the Richmond County public administrator] failed to meet his burden of demonstrating, by clear and convincing evidence, that the decedent changed her domicile from Kings County to Richmond County, inasmuch as the record reveals that the decedent lacked the capacity to express an intention to change her domicile … . Further, the mere fact that [the guardian of decedent's person was] given the authority to choose the decedent's “place of abode,” does not warrant the conclusion that [guardian] had any authority to change the decedent's domicile … . Matter of Bonora, 2014 NY Slip Op 08425, 2nd Dept 12-3-14

 

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Appellant, Who Was Only Mentioned in the Complaint As the Holder of a Second Mortgage, Properly Appeared in the Action by Serving a Notice of Appearance Which Entitled Appellant to Be Kept Informed of the Progress of the Proceeding—There Is No Filing Requirement for a Notice of Appearance

The Second Department explained that appellant properly appeared in the foreclosure action by the service of a notice of appearance because the complaint did not allege anything that appellant, who held a second mortgage, would be required to defend against.  Service of the notice of appearance, which did not need to be filed, entitled appellant to be kept informed of the progress of the action:

…[T]he appellant was not required to serve an answer where the complaint did not set forth any allegations that the appellant was required to defend against (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C320:1 at 130; 2—R320 Weinstein-Korn Miller, N.Y. Civ. Prac. ¶ 320.03). “A defendant who has no defense, and therefore serves no pleading, might nevertheless serve a notice of appearance so as to be kept apprised of the progress of the proceeding” (Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C320:1 at 130). Such was the situation here. The complaint contained no allegations about the appellant, except to state that he had a second mortgage on the property. Thus, the appellant properly proceeded by serving a notice of appearance only and was entitled to be kept apprised of the proceedings.

Contrary to the plaintiffs' further contention, the appellant was not required to file his notice of appearance with the Supreme Court. There is no statutory or other requirement that a notice of appearance, timely served upon a plaintiff, must also be filed with the clerk of the relevant court in order for a defendant to appear in the action … . Tsionis v Eriora Corp, 2014 NY Slip Op 08421, 2nd Dept 12-3-14

 

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Statute of Limitations Defense Waived If Not Raised in a Timely Motion to Dismiss

The Second Department noted that the statute of limitations defense to misdemeanors is waived if not raised in a timely motion to dismiss.  The misdemeanor convictions therefore are valid:

The defendant waived his claim that the two misdemeanor counts of which he was convicted were barred by the statute of limitations by not making a timely motion to dismiss on that ground … . People v Sylvestre, 2014 NY Slip Op 08464, 2nd Dept 12-3-14

 

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Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense (or Any Lesser-Included) Which Was in the Original Felony Complaint

The Second Department determined the superior court information to which defendant pled guilty after waiving indictment was jurisdictionally defective because it did not include at least one offense that was in the original felony complaint (or a lesser-included offense):

The defendant was charged, by felony complaint, with criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), a class B felony. He waived indictment by a grand jury and pleaded guilty under a superior court information to attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1), a class C felony. As the defendant contends and the People correctly concede, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.

The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint … . Attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1) is not a lesser included offense of criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), because the former crime contains the element “with intent to sell” that is not an element of the latter crime (Penal Law § 220.16[1]; see CPL 1.20[37]…). Thus, it is clear that the superior court information upon which the defendant's plea was based did not “include at least one offense that was contained in the felony complaint” or a lesser-included offense of an offense charged in the felony complaint …, and the superior court information was jurisdictionally defective … . This defect survives the defendant's failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal … . People v Nemnon, 2014 NY Slip Op 08460, 2nd Dept 12-3-14

 

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The Arresting Officer’s Stepping in Front of the Appellant As the Appellant Walked Away Was Not a Seizure But Rather Was a Continuation of the Officer’s Common-Law Right to Inquire

The Second Department determined the police officer who followed appellant as appellant walked away from him and then stepped in front of appellant acted properly.  Suppression of the handgun seized from appellant after a pat down search, therefore, was not required. The arresting officer responded to a call describing a disturbance at a restaurant.  The officer saw the appellant leave the restaurant and noticed a bulge in appellant's jacket pocket.  The officer then began following the appellant and eventually caught up to him (and stepped in front of him).  The court found that the officer's stepping in front of the appellant was not a seizure, but rather was a continuation of the officer's common-law right to inquire:

Contrary to the appellant's contention, the totality of the circumstances gave the officers a founded suspicion that criminal activity was afoot, which gave rise to the officers' common-law right to inquire … . While the appellant is correct that, initially, he had a constitutional right ” to be let alone' and to refuse to respond to police inquiry” …, under the circumstances presented here, the arresting officer's conduct in following and stepping in front of the appellant in an attempt to engage him was a continuation of the officer's own common-law right to inquire, not a seizure … . Hence, the conduct of the arresting officer in this regard was not improper.

Moreover, although the appellant continued to walk away from the arresting officer, the arresting officer kept pace with him, and ultimately approached him until they were only an arm's length away from each other. As such, it was proper for the officer to request that the appellant make his hands visible as a reasonable precautionary measure … . Additionally, from this close proximity, the officer observed what appeared to be the outline of a firearm in the appellant's right jacket pocket, which appeared to be pointed at the officer, placing him in fear for his safety. The officer thus properly conducted a limited pat-down search to determine if the bulge was a weapon … . Matter of Shariff H, 2014 NY Slip Op 08435, 2nd Dept 12-3-14

 

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Grand Larceny 4th and Criminal Possession of Stolen Property 4th, as Those Statutes Relate to Credit/Debit Cards, Require the Theft and Possession of the Physical Card Itself, Not Merely the Unauthorized Use of the Credit/Debit Card Number—Other Offenses in the Penal Law Criminalize the Unauthorized Use of Credit/Debit Card Numbers

The Second Department, in a full-fledged opinion by Justice Balkin, determined that the crimes of grand larceny (4th degree) and criminal possession of stolen property (4th degree), as they relate to credit/debit cards, require the theft and possession of the physical card, not simply the use of the card number to make a purchase.  [The 1st Department recently reached the opposite conclusion.]  Here the juvenile (Luis) used his grandfather’s debit card number to purchase sneakers.  The Second Department noted that there are provisions of the penal law which criminalize the unauthorized use of credit/debit card numbers (without physical possession of the card), but those crimes were not charged here:

…[G]iven the text of the provisions at issue, the context of the law and its development over the years, we agree with Luis and the Presentment Agency that “debit card” as used in Penal Law §§ 155.30(4) and 165.45(2) means the physical card, not the intangible account information associated with it. We also agree that, at bottom, this case involves errors made when the petition was drafted. Luis’s acts undoubtedly violated provisions of the Penal Law, but not the provisions charged in the petition.

A person who appropriates account information is not immune from punishment. The legislature has enacted laws to protect account information, in addition to the laws relating to the cards themselves. Specifically, in chapter 619 of the Laws of 2002, the legislature amended or added sections to various statutes in order to address the problem of people who engage in identity theft or use other people’s personal information without authorization. That legislation added the crimes of identity theft in the third, second, and first degrees (Penal Law §§ 190.78, 190.79, and 190.80), as well as unlawful possession of personal identification information in the third, second, and first degrees (Penal Law §§ 190.81, 190.82, and 190.83). Later, the legislature added “aggravated identity theft” (Penal Law § 190.80-a; see L 2008, ch 226, § 2). These provisions, similar to the provisions at issue in this case, make the criminal possession of account information a completed crime; no proof is required that the information was actually used.

One of the crimes added in 2002, unlawful possession of personal identification information in the third degree (Penal Law § 190.81), directly proscribes what Luis did in this case when he used his grandfather’s debit card number, without permission, to buy sneakers * * *:

Thus, just as the legislature added credit cards to the penal provisions of the law when the use of credit cards became widespread, and added debit cards when the use of debit cards became widespread, it also added provisions related to the unauthorized possession of the intangible account information when technology demanded.

We also note that crimes relating to the theft or possession of cards or account information are distinct from the crimes committed when the cards or account information are subsequently misused; the subsequent misuse is an additional crime, distinct from the taking of the card or the obtaining of the numbers … . Matter of Luis C, 2014 NY Slip Op 08428, 2nd Dept 12-3-14

 

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Exclusion from Uninsured Motorist Coverage and Related Coverage Limitations In Policy Issued in Ohio Not Valid in New York

The Second Department, reversing Supreme Court, determined that the provision in a policy issued in Ohio to an Ohio resident which purported to exclude uninsured motorist coverage was invalid and unenforceable in New York:

The respondent, Robert Johnson, was involved in a motor vehicle accident in which the car he was driving collided with another vehicle that failed to stop at a stop sign. The car he was driving was owned by Johnson’s sister, who lived in Ohio and was insured under a personal automobile liability policy issued in that state by the proposed additional respondent, State Farm Mutual Automobile Insurance Company (hereinafter State Farm). The policy contained an endorsement for uninsured motorist coverage, which provided for liability limits of $100,000 per person and $300,000 per accident, but excluded from the definition of an insured any person who is insured for uninsured motor vehicle coverage under another vehicle policy.

When Johnson eventually made a claim for uninsured motorist benefits under the State Farm policy, State Farm disclaimed coverage on the ground that, inasmuch as records showed that Johnson had uninsured motor vehicle coverage available through a policy issued to him by the petitioner Government Employees Insurance Company (hereinafter GEICO), he did not meet the definition of an insured for purposes of uninsured motor vehicle coverage under the State Farm policy. * * *

GEICO’s counsel argued that the exclusion in the State Farm uninsured motorist endorsement is not valid in New York and, therefore, the State Farm policy should be deemed to have the full complement of coverage mandated by New York to make the State Farm coverage primary. …

“[I]nsurance policies, like all contracts, should be enforced according to their terms unless they are prohibited by public policy, statute or rule” … . “If an attempted exclusion is not permitted by law, the insurer’s liability under the policy cannot be limited” … . Here, the exclusion contained in the uninsured motorist coverage endorsement of State Farm’s personal automobile liability policy is not permitted by law. “Insurance Law § 3420(f)(1) requires that every automobile insurance policy contain an uninsured motor vehicle endorsement. Neither that statute nor any regulations applicable to it mentions any exclusions” … . Since the exclusion is “without the approval or protection of the law” …, it should not be given effect … .

Further, where, as here, the policy does not contain a term stating that coverage is limited to the statutory minimum, if such exclusion is found to be invalid, no such limitation will be read into the policy … .  Consequently, State Farm’s policy must be read as affording liability up to its full limits. Matter of Government Employees Ins Co v Johnson, 2014 NY Slip Op 08433, 2nd Dept 12-3-14

 

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