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City Provided Adequate Supervision at Beach—Drowning Action Dismissed

The Second Department determined an action against the city stemming from the drowning of plaintiff’s decedent at a protected beach was properly dismissed.  The court explained the relevant law:

Although the City is not an insurer of the safety of the users of its parks, including its beaches, it has the duty to maintain them in a “reasonably safe condition” … . This duty includes the City’s exercise of ordinary care by providing an “adequate degree of general supervision” … . In support of its motion for summary judgment, the City established its prima facie entitlement to judgment as a matter of law by submitting evidence that it had furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent …, that they were adequately trained and properly certified …, and that they reacted to the situation in accordance with proper procedure … . Johnson v City of New York, 2014 NY Slip Op 07126, 2nd Dept 10-22-14

 

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Defendant Was Apparently Erroneously Sentenced to Five Years When the Correct Sentence Was 15 Years—Pursuant to a Resettlement of the Sentencing Transcript Two Months After Defendant’s Release, He Was Resentenced to 15 Years—Because Defendant Had a Legitimate Expectation of Finality Re: the Five-Year Sentence, the Resentence Violated the Double Jeopardy Clause

The Second Department determined defendant’s resentencing violated the Double Jeopardy clause.  Defendant had been erroneously sentenced to five years for criminal possession of a weapon when the sentence apparently should have been 15 years.  After defendant’s successful habeas corpus action, his assault conviction was vacated and he was released from prison, having served 8 years.  Two months after his release, pursuant to a resettlement proceeding to correct an error in the sentencing transcript, the defendant was resentenced to 15 years and reincarcerated:

Courts possess “the inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth” … . This inherent authority extends to circumstances “where it clearly appears that a mistake or error occurred at the time a sentence was imposed” … . However, as with resentencing, an order correcting an error in a transcript of a sentencing proceeding is subject to a temporal limitation imposed by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution … .

The Double Jeopardy Clause prevents a sentence from being increased once a defendant has a legitimate expectation of finality of the sentence … . “[A] legitimate expectation of finality turns on the completion of a sentence” … . Here, the resettlement of the sentencing transcript almost three years after the sentence was purportedly satisfied, and more than two months after the defendant’s release from prison in purported full satisfaction of that sentence, violated the constitutional prohibition on subjecting a criminal defendant to double jeopardy. For more than seven years after the sentence was imposed, the People represented to the defendant, and to State and federal courts, that the transcript accurately reflected a five-year sentence. Accordingly, upon his release from prison, the defendant had served out his sentence “as reasonably understood by all the parties” … . He thus acquired a legitimate expectation of finality with respect to the sentence, and the later resettlement of the transcript of the sentencing proceeding violated his rights under the Double Jeopardy Clause … . People v Langston, 2014 NY Slip Op 07182, 2nd Dept 10-22-14

 

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Title Insurance Company Insures Only Whether a Property Has Legal Access to a Street, Not Whether Physical Access to the Street Is Possible

The Second Department determined that the action against a title insurance company was properly dismissed.  The insured property abutted a street.  However, a retaining wall on the property blocked access to the street.  When a problem developed with respect to removing the retaining wall, the property owners sued the title insurance company.  The Second Department held that the title insurance company was only obligated to determine whether the property had  “legal access” to a street, not “physical access:”

The title insurance policies … insure against “[l]ack of a right of access to and from the land.” “[S]uch a provision refers to the absence of a legal right to access and does not cover claims concerning lack of an existing means of physical access” … . On its motion for summary judgment, Stewart established that [plaintiffs] have a legal right of access because the subject property abuts a public street … . 43 Park Owners Group LLC v Commonwealth Land Tit Ins Co, 2014 NY Slip Op 07120, 2nd Dept 10-22-14

 

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Denial of Property Tax Refunds by Director of Tax Commission Was Not Final—Article 78 Claims Not Ripe for Judicial Review

The Second Department determined the Article 78 proceedings seeking property tax refunds were not ripe for judicial review because the denial of the refunds by the Director of the county Tax Commission was not final:

…[T]he Supreme Court properly determined that his claims seeking CPLR article 78 relief relating to his tax refund applications were not ripe for judicial review. Administrative determinations may only be challenged via CPLR article 78 review after the determination is final (see CPLR 7801[1]). “For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate” … . Moreover, a matter is not ripe where the claimed harm may be prevented or significantly ameliorated by further administrative action … . Here, the issuance of written recommendations by the Executive Director of the Westchester County Tax Commission was not a final approval or denial of the appellant’s tax refund applications (see RPTL 5565])… . Matter of Greenberg v Assessor of Town of Scarsdale, 2014 NY Slip Op 07160, 2nd Dept 10-22-14

 

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City Estopped from Denying Property Owner the Opportunity to Seek Discretionary Relief Re: the Payment and Acceptance of Tax Arrears—City’s Actions Misled Property Owner

The Second Department determined the equitable estoppel doctrine could properly be applied to a municipality in this case. A city employee had allowed the petitioner (Emporium) to enter an installment agreement to pay back real property taxes at a time when the property had already been foreclosed and transferred.  The Second Department determined Emporium was entitled to a hearing to determine whether the city is equitably estopped from denying Emporium the opportunity to seek discretionary relief re: the payment and acceptance of tax arrears:

With respect to Emporium’s equitable estoppel claim, “[a]lthough estoppel should not be invoked against governmental entities in the absence of exceptional circumstances, we have not hesitated to do so where a municipality’s misleading nonfeasance would otherwise result in a manifest injustice” … . “To establish estoppel, the misconduct of the public agency must have induced justifiable reliance by a party who then changed his position to his detriment” … . * * *

The City respondents’ failure to contact Emporium once it determined that the installment agreements would not be honored constitutes misleading conduct … . Moreover, the City respondents maintained their silence during a period of time when action could have made a difference to Emporium … . Matter of Emporium Mgt Corp v City of New York, 2014 NY Slip Op 07157, 2nd Dept 10-22-14

 

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In the Absence of a Showing of Possible Fraud, Income Tax Returns Not Discoverable

In an action alleging a breach of an insurance policy, defendant sought discovery of plaintiff’s income tax returns.  In affirming Supreme Court’s refusal to compel production of the returns, the Second Department explained:

Tax returns generally are not discoverable in the absence of a strong showing that the information is indispensable to a claim or defense and cannot be obtained from other sources …. Here, the defendants failed to make such a showing. Contrary to their contention, the defendants did not make a sufficiently strong showing to warrant disclosure of the plaintiff’s tax returns, such as indicia of fraud … . Katz v Castlepoint Ins Co, 2014 NY Slip Op 07128, 2nd Dept 10-22-14

 

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Unexcused Failure to Comply with Discovery Orders Warranted Striking of the Pleadings

The Second Department determined plaintiff’s failure to facilitate an independent medical examination was willful and contumacious warranting the striking of the pleadings:

“The determination whether to strike a pleading for failure to comply with [*2]court-ordered disclosure lies within the sound discretion of the trial court” … . “However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time” … . Specifically, contrary to the plaintiff’s contention, dismissal of the complaint is warranted where a party repeatedly fails to appear at scheduled IMEs without adequate excuse …. It is undisputed that the plaintiff not only missed the scheduled IMEs without any excuse, but also missed the rescheduled IMEs without offering any reasonable excuse. In addition, the plaintiff failed to provide documents reflecting her prior accidents, despite being obligated to do so pursuant to a so-ordered stipulation. Mangione v Jacobs, 2014 NY Slip Op 07133, 2nd Dept 10-22-14

 

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Court Should Have Allowed Service of an Order to Show Cause by Means Other than Personal Delivery after Plaintiff Failed to Effect Personal Delivery Despite Due Diligence

The Second Department determined plaintiff’s motion for leave to serve an order to show cause by means other than personal delivery should have been granted.  The plaintiff had been unable to effect personal delivery despite due diligence:

As a general matter, an order to show cause must be served at a time and in the manner specified therein (see CPLR 403[d]; 2214[d]…). However, under the particular circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was, in effect, for leave to serve … by a method of personal service pursuant to CPLR 308 other than personal delivery. The plaintiff demonstrated that personal delivery … pursuant to CPLR 308(1), as required by the order to show cause, could not be effected despite the exercise of due diligence. Moreover, service pursuant to the other means set forth in CPLR 308 constitutes personal service, and is sufficient here for notice of an application to punish for contempt … . Koyachman v Paige Mgt & Consulting LLC, 2014 NY Slip Op -7130, 2nd Dept 10-22-14

 

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Unambiguous Terms of a Release Must Be Enforced—Extrinsic Evidence of Intent Not Permitted

In affirming the dismissal of a complaint which was deemed barred by the terms of a release, the Second Department explained the criteria for the analysis of a release:

Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release … . A release is “governed by principles of contract law” …, and one “that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms” … .

The plain language of a release is controlling, “regardless of one party’s claim that he [or she] intended something else” … . Where the scope of the release is unambiguous, “the court may not look to extrinsic evidence to determine the parties’ intent” … . “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” …. Sicuranza v Philip Howard Apts Tenants Corp, 2014 NY Slip Op 07143, 2nd Dept 10-22-14

 

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Release Given By Injured Party to a Tortfeasor Relieves that Tortfeasor of Any Liability for Contribution

The Second Department noted that a release given in good faith by the injured person to a tortfeasor relieves that tortfeasor from liability for contribution:

“A release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules” (General Obligations Law § 15-108[b]).  United States Fire Ins Co v Raia, 2014 NY Slip Op 07146, 2nd Dept 10-22-14

 

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