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Children’s Attorney Entitled to Cross-Examine Petitioner’s Witnesses Despite Taking a Position Similar to Petitioner’s

The Third Department determined the children’s attorney was entitled to ask leading questions in the cross-examination of petitioner’s witnesses, even though the the attorney for the children had taken a position similar to petitioner’s.  The similar positions did not convert petitioner’s witnesses to witnesses for the children:

…[W]e reject respondent’s contention that Family Court erred by denying her request to require the attorney for the children to cross-examine petitioner’s witnesses before respondent’s cross-examination, or by permitting the attorney for the children to ask leading questions during cross-examination. Both of these claims are premised on respondent’s incorrect view that petitioner’s witnesses effectively became witnesses for the attorney for the children when she agreed with petitioner’s position. The duty of an attorney for the child is to represent the child and advocate for his or her position (see Family Ct Act § 241…). Contrary to respondent’s claim, the fact that here the exercise of this duty resulted in a position similar to that of petitioner did not effectively convert the two parties into one entity. Accordingly, the attorney for the children was entitled to ask leading questions while cross-examining petitioner’s witnesses (see Jerome Prince, Richardson on Evidence § 6-230 at 376 [Farrell 11th ed 1995]). Matter of Aniya L, 2015 NY Slip Op 00410, 3rd Dept 1-15-15

 

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Waterway Bordered by Private Land Deemed “Navigable-in-Fact”—Owners of the Land Cannot Prohibit Public Use of the Waterway

The Third Department, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that a waterway bordered by private land in the Adirondacks was “navigable-in-fact” and the owners of the land (plaintiffs) bordering the waterway could not prohibit public use of the waterway.  The waterway was deemed “navigable-in-fact” even though a portion of it consisted of rapids which required canoeists to carry their canoes on a privately-owned path along the rapids:

Pursuant to the common law, a waterway on private property that is not navigable-in-fact is owned by the adjacent landowners, but a waterway that is navigable-in-fact “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” … . The State cannot alienate the right of the public to travel on a navigable-in-fact waterway by transferring title in its bed and banks to a private owner … . As riparian owners never obtain ownership interests in the waters of navigable-in-fact waterways, a judicial determination that the public has the right of navigation does not result in a taking for public use without compensation … . Accordingly, the import of a judicial determination that a waterway is navigable-in-fact is that it has always been open to the public in that character, even though the riparian owners may not have believed it to be, and no trespass was committed by a traveler who navigated upon it before a court ruled upon its navigability. * * *

…[W]here, as here, the State has no sovereign or proprietary ownership interest in the land and the waterway in question passes through private property, its navigability-in-fact is determined by a common law examination of “evidence of [the waterway’s] actual practical use or evidence of capacity for practical use” … . Historically, this analysis turned on whether the waterway had the capacity to be used for commercial transportation; the public was deemed to have the right to travel on “every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks” … . More recently, the Court of Appeals clarified that commercial use is not the only relevant factor, and that a waterway’s capacity for recreational use is also significant in determining its navigability. “[W]hile the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel” … . The Court of Appeals stated that this holding neither altered nor enlarged the applicable common-law analysis and was “in line with the traditional test of navigability, that is, whether a river has a practical utility for trade or travel” … .

Accordingly, the Waterway’s navigability-in-fact must be determined based upon its utility for travel or trade as revealed by the testimony, affidavits, maps, photographs, historical records and other evidence in the voluminous record. * * *

The Waterway’s narrow, shallow character does not preclude such a finding, as a stream that can carry only small boats may nevertheless be navigable-in-fact … . Likewise, neither the portage around the relatively short Mud Pond rapids nor the presence in the Waterway of other incidental obstacles such as beaver dams and fallen trees renders the Waterway nonnavigable, as “occasional natural obstructions do not destroy the navigability of a [waterway]” … . On the contrary, the presence of such occasional obstructions in a navigable-in-fact waterway gives rise to a public right to circumvent them by “mak[ing] use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands” … . Friends of Thayer Lake LLC v Brown, 2015 NY Slip Op 00420, 3rd Dept 1-15-15

 

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Claimant’s Imprisonment for a Month After His Release Date Was Not Privileged

The Third Department affirmed the Court of Claims, finding that claimant’s confinement was not privileged.  Claimant had completed his sentence at the time of sentencing but he was held for a month:

…[I]n order to succeed on a claim of false imprisonment or unlawful confinement, claimant was required to show “that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged”… . The first three elements have undoubtedly been satisfied and, accordingly, the question distills to whether claimant’s confinement by DOCCS [Department of Corrections and Community Supervision] was privileged. The facts leading up to his detention are not in dispute and, after reviewing them, we agree with the Court of Claims that the confinement was not privileged.

Claimant was sentenced to a prison term as the result of his conviction and, “where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged” … . That being said, DOCCS was “‘conclusively bound’ by the terms of the sentence and commitment order,” which unambiguously directed that claimant be released after 1½ years of confinement … . DOCCS continued to confine claimant after that period had ended and, given the absence of any order that required it to do so, its actions were not privileged … . Miller v State of New York, 2015 NY Slip Op 00408, 3rd Dept 1-15-15

 

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Where Plaintiff Was “Demoted” In Violation of an Employment Agreement, the Restrictive Covenants in the Agreement Are No Longer Enforceable

The First Department determined the restrictive covenants agreed to by the plaintiff in conjunction with the job he was hired to do did not apply to the job, with diminished responsibility, he was subsequently assigned (in violation of the employment contract):

The significant change in plaintiff’s duties constituted a material breach of his employment agreement … . * * *

The record demonstrates that defendants did not have a legitimate interest in restricting plaintiff from working for a competitor once he was in his demoted position … . Although the employment agreement acknowledged the uniqueness of plaintiff’s services, that acknowledgment was made in connection with plaintiff’s acceptance of a position he no longer held at the time of his resignation. Further, the record is devoid of evidence that plaintiff possessed any trade secrets or confidential customer lists … . Thus, insofar as the restrictive covenants contained in the employment and option agreements prohibited plaintiff from competing …, they are unenforceable. Fewer v GFI Group Inc, 2015 NY Slip Op 00440, 1st Dept, 1-15-15

 

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Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

The Third Department determined the police properly made a warrantless entry of the apartment where defendant [Anderson] was staying based upon the consent of a “lease enforcement officer” who believed the apartment was occupied by “squatters.”  The motion to suppress the weapon found near the defendant was, therefore, properly denied:

…John Downey, a lease enforcement officer, informed a police detective that he believed that Anderson’s apartment was vacant and that tenants frequently abandoned their units in the apartment building without providing notice. Downey further explained that he was authorized to enter apartments in order to ensure that they are secure and not occupied by squatters. Downey averred that he provided law enforcement officers with a key to the apartment because he was concerned that someone other than Anderson may have been staying there. When law enforcement arrived at the apartment and knocked on the door, there was no response and no noise was detected from inside the residence. Although it became obvious to the officers, after having entered the apartment, that it was not vacant, inasmuch as an objective view of the evidence adequately demonstrated that the police reasonably relied in good faith upon Downey’s apparent authority to allow entry into the apartment, County Court properly found that the warrantless entry –and resulting seizure of the gun that was in plain view–was not illegal… . People v Edwards, 2015 NY Slip Op 3rd Dept 1-15-15

 

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Failure to Strictly Comply with the Service Instructions in the Court’s Order to Show Cause (Which Included Service by E-Mail and Text Message) Required Dismissal of the Petitions

The Third Department determined the failure to comply with the service instructions in Family Court’s order to show cause required the dismissal of the petitions:

Strict compliance with court-directed methods of service is necessary in order for the court to obtain personal jurisdiction over a respondent/defendant … . Here, petitioner’s counsel drafted and presented Family Court with a proposed order directing service pursuant to CPLR 308 (5). Specifically, the order required that the amended orders to show cause and petitions be served on two attorneys who had represented respondent in unrelated litigation and, further, that substituted service be completed as follows:

“2. By serving [respondent] at [two known] email addresses [and] by including with such emails copies of the [p]etitions, this [o]rder, and the [o]rders to show cause filed by [p]etitioner in support of the [p]etitions, in PDF format, each of such emails to be sent on or before April 28, 2014; and

3. By sending [respondent] an SMS/text message at [a known] subscriber number . . . advising her of the pendency of the two above-captioned proceedings and advising her to access her email addresses as set forth in paragraph 2 herein, to review this [o]rder and the contents of the attached PDF files and to contact her attorneys . . . for copies of the [o]rders to show cause and [p]etitions upon whom these papers have been served on her behalf, said text to be sent on or before April 28, 2014.”

Despite the fact that petitioner’s counsel created the terms upon which substituted service of process would be deemed sufficient, the record demonstrates that petitioner’s compliance with such terms was lacking. As to the email requirement, petitioner’s affidavit of service states that respondent was served on April 28, 2014 via two separate email addresses, as per Family Court’s order, and that both emails were returned as undeliverable. While neither dictates of due process nor Family Court’s order required proof that respondent actually received notice of the proceedings … , we observe that the affidavit of email service fails to state that the documents were, in fact, delivered to respondent in a PDF format.

Of greater concern, however, is the manner in which petitioner conducted service by text message. As to that particular mode of delivery, petitioner’s process server averred that, on April 28, 2014, he sent respondent a text message stating that “[p]aternity and custody petitions have been filed by [petitioner] regarding [the child]. Your court date in [Family Court] is May 21, 2014 at 9AM. Your failure to appear may result in a custody order and default. Contact [respondent’s attorneys] for copies of these documents.” Having neglected to state in the text message, as expressly required in Family Court’s order, that respondent should access her email accounts to review the documents that had been served in a PDF format by email and that the text message was being sent by virtue of Family Court’s order, we agree with Family Court’s determination that such substituted service was insufficient to confer personal jurisdiction over respondent … . Matter of Keith X v Kristin Y, 2015 NY Slip Op 00429, 3rd Dept 1-15-15

 

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Exceptions to “Exhaustion of Administrative Remedies” Requirement Not Applicable—“Futility” and “Irreparable Harm” Not Demonstrated

The Third Department determined that petitioner (a nursing home) could not, via an Article 78 proceeding, involve the courts to contest the Department of Health’s (DOH’s) calculation of Medicaid reimbursement rates because petitioner did not first exhaust every available administrative remedy.  The exceptions to the exhaustion requirement, futility and irreparable harm, did not apply:

It is well settled that an administrative agency’s determination must be challenged through every available administrative remedy before it can be challenged in the courts … . The narrow exceptions to this requirement include, as relevant here, where an administrative challenge would be futile or the petitioner can demonstrate irreparable harm … . Neither exception has been demonstrated. Matter of Schenectady Nursing & Rehabilitation Ctr LLC, v Shah, 2015 NY Slip Op 00425, 3rd Dept 1-15-15

 

 

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Remainderman Was Entitled to the Tax and Insurance Payments Made on Behalf of the Holder of the Life Estate/Life Estate Should Have Been Extinguished as a Matter of Equity

Plaintiff is the remainderman of defendant’s life estate in real property.  Defendant refused to pay the real estate taxes and insurance for the property.  Plaintiff paid the taxes and insurance and sued for those payments and to have the life estate extinguished. The Second Department determined Supreme Court should have granted summary judgment to the plaintiff:

 

“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” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered … .

The plaintiffs established their prima facie entitlement to judgment as a matter of law on their first cause of action, which alleged unjust enrichment and sought restitution, and their second cause of action, which alleged waste and sought to extinguish the defendant’s life estate. As life tenant, the defendant was obligated to pay the property taxes and hazard insurance on the subject property, and the intentional failure to do so constitutes waste … . It is undisputed that the defendant intentionally failed to pay the property taxes and hazard insurance on the subject property, and he has clearly expressed his intention not to do so in the future. Under these circumstances, the remainder interest in the subject property is in constant danger of forfeiture in a tax lien sale, unless the plaintiffs continue paying the property taxes and hazard insurance premiums the defendant is otherwise obligated to pay. The plaintiffs therefore demonstrated, prima facie, that the defendant was unjustly enriched by the plaintiffs’ payment of these expenses for the defendant, and that equity warrants extinguishing his life estate in the subject property. In opposition, the defendant failed to raise a triable issue of fact … . Main Omni Realty Corp v Matus, 2015 NY Slip OP 00341, 2nd Dept 1-14-15

 

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The Second of Two Ceremonial Marriages Is Presumed Valid/Property Owned by Persons Not Legally Married, But Who Are Described as Married in the Deed, Own the Property as Tenants In Common with Right of Survivorship Pursuant to the Estates, Powers and Trusts Law (EPTL)

The Second Department determined plaintiff’s complaint was properly dismissed.  Decedent was plaintiff’s mother by her mother’s first marriage (in Haiti).  Plaintiff alleged that her mother’s subsequent marriage to defendant (in the US) was void because her mother never divorced plaintiff’s father. On that basis, plaintiff alleged that her mother and defendant owned real property as tenants in common, not tenants by the entirety, and therefore half of the property passed to her upon her mother’s death.  The Second Department held that the second marriage was presumed valid and plaintiff did not rebut the presumption.  The court further noted that, even if decedent and defendant were not legally married, the property would have been owned as a joint tenants with right of survivorship, by virtue of Estates Powers and Trusts Law (EPTL) 6-2.2(d):

Where as here, there are two ceremonial marriages at issue, the second marriage is presumed valid, requiring proof from the challenger that the first marriage was not terminated … .

The existence of a rebuttable presumption in favor of the defendant established his entitlement to judgment as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact.

Further, even if [plaintiff’s mother] were not legally married to the defendant, the deed to the subject property nevertheless created a joint tenancy, with the right of survivorship … . The deed to the subject property was executed in 1980. Accordingly, EPTL 6-2.2(d), as amended in 1975, governs … . Pursuant to EPTL 6-2.2(d) “[a] disposition of real property . . . to persons who are not legally married to one another but who are described in the disposition as husband and wife creates in them a joint tenancy, unless expressly declared to be a tenancy in common.” Joseph v Dieudonne, 2015 NY Slip OP 00338, 2nd Dept 1-14-15

 

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Photographs Demonstrated Defect Was “Trivial” and Not Actionable

In a slip and fall case, the Second Department reversed Supreme Court and dismissed the complaint, finding the defect “trivial:”

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” .. .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the “clump” that allegedly caused her to trip and fall. The evidence, and in particular the photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable … . Adler v QPI-VIII. LLC, 2015 NY Slip OP 00320, 2nd Dept 1-14-15

 

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