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Speedy Trial Clock Starts On the Day the People’s Application for Leave to Appeal to the Court of Appeals Is Denied, Notwithstanding Adjournments Granted in the Lower Court

The Court of Appeals determined that the speedy trial clock started running when the People's application for leave to appeal to the Court of Appeals was denied.  The time attributable to the lower court's adjournment while the application to the Court of Appeals was pending should not have been excluded from the speedy trial calculation:

The parties do not dispute that under CPL 30.30 (5) (a) a new criminal action commenced when a Judge of this Court denied the People leave to appeal from the Appellate Term's order. The People point to the fact that, under the Criminal Procedure Law, “[i]n computing the time within which the people must be ready for trial . . . a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . appeals; . . . and the period during which such matters are under consideration by the court” must be excluded (CPL 30.30 [4] [a] [emphasis added]).

The People contend therefore that the period from May 10, 2010 to August 23, 2010 is excludable, relying on People v Vukel (263 AD2d 416 [1st Dept 1999], lv denied 94 NY2d 830 [1999]), which held that when a trial court orders an adjournment for control purposes because of the pendency of a defendant's application for leave to appeal to this Court, the entire period of the adjournment is excludable under CPL 30.30 (4) (a), as time resulting from the appeal. In Vukel, the Appellate Division rejected the argument that the People have “an obligation to advance the case to an earlier date upon receiving the certificate denying leave” (id. at 417).

The mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30 (4) (a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of our Court has denied leave to appeal, without consequence under CPL 30.30. Such a rule would be inconsistent with “the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” … . To the extent Vukel holds otherwise, it should not be followed. People v Wells, 2014 NY Slip Op 07012, CtApp 10-16-14

 

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People Did Not Meet Their Burden of Demonstrating Developmentally Disabled Respondent, Who Had Been In the Care and Custody of the OPWDD Since His Acquittal of a Criminal Charge By Reason of Mental Disease or Defect, Was “Mentally Ill”—Respondent’s Release Was Appropriate

Respondent is mildly developmentally disabled and was committed to the care and custody of the Office for People with Developmental Disabilities (OPWDD) after acquittal of a criminal charge by reason of mental disease or defect.  The Third Department determined Supreme Court properly ruled respondent could be released to a supervised intermediate care facility subject compliance with a service plan.  The court determined the People did not meet their burden of proving respondent met the relevant statutory definition of “mentally ill,” i.e., the definition which applies to the developmentally disabled:

If the court finds that a person committed pursuant to CPL 330.20 does not have a dangerous mental disorder but is mentally ill, that person must be confined in a nonsecure facility (see CPL 330.20 [12]…). If the court finds that the person is no longer mentally ill, it must release the person with an order of conditions (see CPL 330.20 [12]…). For purposes of CPL 330.20, a person with a developmental disability is considered “mentally ill” if he or she “is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the . . . developmentally disabled under the jurisdiction of [OPWDD]” (CPL 330.20 [1] [d]). The DA had the burden to prove by a preponderance of the evidence that respondent met the statutory definition of a “mentally ill” person (see CPL 330.20 [12]…]). * * *

…[T]he statute provides a different definition of “mentally ill” for individuals who have developmental disabilities in addition to one or more diagnosed mental disorders (see CPL 330.20 [1] [d]). For those individuals with developmental disabilities, the statute does not require that their judgment be so impaired by a mental illness that they are “unable to understand the need for such care and treatment” (CPL 330.20 [1] [d]); this makes sense, as such inability could be related to developmental disabilities as opposed to mental illness. Even if that additional factor applied here, however, respondent acknowledged in his testimony that he needed constant supervision, indicating that he understood the need for care and treatment. While the DA’s expert disagreed that respondent had any such understanding, Supreme Court found respondent credible and did not rely on that expert’s testimony. Thus, even under the definition of mentally ill that applies to individuals without developmental disabilities, the DA did not meet his burden. Matter of Arto ZZ, 2014 NY Slip Op 07053, 3rd Dept 10-16-14

 

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Application of the Emergency Doctrine Presented a Mixed Question of Law and Fact which Could Not Be Reviewed by the Court of Appeals

The Court of Appeals determined that the application of the “emergency doctrine” to justify the warrantless search for and seizure of a weapon was a mixed question of law and fact which was not reviewable by the Court of Appeals.  The police responded to a call indicating the defendant had shot himself in the hand.  After the defendant had been frisked and while he his wound was being treated, police officers searched the backyard and found a weapon. The appellate division held that the search was justified by the officers' concern that the children in the house might come across the weapon.  The dissenting judge granted leave to appeal.  The Court of Appeals explained when a mixed question of law and fact is beyond that court's review:

Application of the “emergency doctrine” involves a mixed question of law and fact that is beyond this Court's review so long as there is record support for the findings of the courts below … . The Appellate Division majority and dissent both applied the test set forth in People v Mitchell (39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and reached conflicting conclusions as to when the emergency ceased. Because there is record support for the majority's conclusion that the search was lawful under the emergency exception, “'any further review is beyond this Court's jurisdiction'” … . People v Rossi, 2014 NY Slip Op 07006, CtApp 10-16-14

 

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Out-of-State Dismissal with Prejudice Barred Similar New York Action Under Doctrine of Res Judicata

The Third Department determined that an Alabama paternity proceeding brought by the mother against the respondent, which was dismissed with prejudice, barred the paternity proceeding brought by the mother in New York under the Full Faith and Credit Clause.  The court explained the “res judicata” principles:

“In New York, res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action [or proceeding], or in privity with a party who was” … .

Here, there is no dispute that the Alabama proceeding involved the same parties and underlying issues, i.e., paternity and child support. Additionally, under both Alabama and New York law, a dismissal “with prejudice” indeed constitutes an adjudication “on the merits”…. . Matter of Starla D v Jeremy E, 2014 NY Slip Op 07033, 3rd Dept 10-16-14

 

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County Can Charge Towns the Amounts Paid by the County On Behalf of Community College Students Residing in the Towns, Even Though the State, by Statute, Undertook the Responsibility to Reimburse the Counties for those Expenses—One Statute Does Not Impliedly Repeal Another Unless It Is Impossible to Give Effect to Both

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the amounts paid by a county for its residents' attendance at an out-of-county community college can be charged to the towns within the county where the students reside. The court further held that the amounts owed by the towns to the county could be taken by the county from a town's share of county sales tax revenue.  The county was authorized to charge the towns, even though the state, by statute, had taken on the responsibility for reimbursing the counties.  The state's obligation in that regard had not been funded for years. The state's failure to fund its obligation, however, did not negate the statute which allowed the county to charge the towns:

According to the financing system established by the Education Law, funding for community colleges is derived from the State, the local sponsor and the individual students (see Education Law §§ 6304 [1][a], [1][c], [1][d]). The local sponsor's portion of the financial burden depends upon where its students reside. For “resident” students — generally those who reside within the particular geographic region served by the local sponsor — the local sponsor is responsible for a portion of the community college's operating and capital costs (see Education Law §§ 6301 [5]; 6304 [1]). For nonresident students — those who live within New York State, but outside of the region where the community college is located — the local sponsor is permitted to charge back a portion of those operating costs to the students' county of residence (see Education Law § 6305 [2]). The county, in turn, is authorized to “charge back such amounts in whole or in part to the cities and towns in the county” where such nonresident students reside (Education Law § 6305 [5]). * * *

It is true that the State's reimbursement obligation is phrased in mandatory terms (see Education Law § 6305 [10]). However, there is nothing in the statute that expressly repeals the County's ability to seek chargebacks from the towns. Nor is there any indication that the legislature intended to impliedly repeal section 6305 (5). “Generally, a statute is deemed impliedly repealed by another statute only if the two are in such conflict that it is impossible to give some effect to both. If a reasonable field of operation can be found for each statute, that construction should be adopted” … . Here, the statutes are not in irreconcilable conflict, but can be harmonized. The community college funding scheme is clearly intended to provide the counties with reimbursement. That goal can either be accomplished using funds from the State (if available) or, in the alternative, from the local municipalities. The effect of the State's failure to fund its reimbursement obligation is not the imposition of an additional expense upon the counties — especially where the statute continues to authorize chargebacks to the towns and cities for all community colleges. In other words, the State's nonperformance does not change the rights and obligations as between the County and the Town. Rather, the State's reimbursement obligation was superseded when the legislature failed, in the course of the budgeting process, to appropriate the required funding … . The County was then free to look to the Town for reimbursement under Education Law § 6305 (5). Matter of Town of N Hempstead v County of Nassau, 2014 NY Slip Op 07009, CtApp 10-16-14

 

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Although Title Had Not Yet Formally Passed to the Driver/Owner, the Vehicle Was Covered as a “Newly Acquired” Vehicle Under the Terms of the Policy

The Third Department reversed Supreme Court and held that the insurer could not disclaim coverage of a 1987 Dodge driven by Porter under the terms of the policy.  Porter was driving the vehicle before receiving the title documents from the seller, Elmore:

We consider first whether coverage extended to the 1987 Dodge under the provision for “[a] private passenger auto newly acquired by you.” [The insurer] contended, and Supreme Court held, that this provision did not apply because Porter had not yet received title or registered the Dodge under the Uniform Vehicle Certificate of Title Act (see Vehicle and Traffic Law art 46). The term “newly acquired” is not defined in the policy and, importantly, it is not limited by the policy to completed transactions that were done in full compliance with the Certificate of Title Act. Ownership of a motor vehicle generally passes “when the parties intend that it pass” … .

Here, it is undisputed that, during the month before the accident, Porter had disposed of his 1994 Chevrolet truck and, shortly thereafter, replaced it by trading his ATV (which he had recently purchased for $1,000) to Elmore for the 1987 Dodge. Although Elmore apparently indicated to Porter after the accident that the Dodge was actually owned by his girlfriend’s father, there was no indication that Elmore did not have authority from the owner to make the transaction. At the time of the transaction, Elmore took possession of the ATV and likewise Porter took absolute possession and control of the Dodge, including all of the keys. According to Porter, the trade was final and permanent. Porter testified that Elmore was about to produce documents so he could register the Dodge, but the accident occurred the day before Elmore was going to give him the documents. Nonetheless, upon taking physical possession of the Dodge, Porter had placed the plates from his junked truck on the Dodge and began using it to drive to work. Under the circumstances and considering the pertinent policy language in light of “the reasonable expectations of the average insured” …, the 1987 Dodge fell within the meaning of replacement auto newly acquired by Porter at the time of the accident and, accordingly, was covered under plaintiff’s policy. Nationwide Ins Co of Am v Porter, 2014 NY Slip Op 07029, 3rd Dept 10-16-14

 

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Evidence Did Not “Utterly Refute” Plaintiff’s Allegation He Had No Notice Individual Defendant Was Acting as an Agent for a Disclosed Corporate Principal—Motion to Dismiss Action Against Individual Defendant Pursuant to CPLR 3211 Should Not Have Been Granted

The Third Department determined Supreme Court should not have granted individual defendant’s (Valentino’s) motion to dismiss pursuant to CPLR 3211 because the evidence did not “utterly refute” plaintiff’s claim he had no notice Valentino was acting as an agent of a disclosed corporate principal when a building contract was executed:

“It is well settled that an individual who signs a contract as an agent for an entity will be held personally liable on the contract if the agency relationship is not disclosed” … . Whether or not a principal is disclosed depends upon whether, at the time of the underlying transaction, the other party to the contract had notice that the agent was acting for a principal and knew of the principal’s identity … .

Here, the contract identified J & J Enterprises as the builder, but there is no reference in the contract or in the accompanying specifications sheet to the status of J & J Enterprises as the trade name of a corporation or to Valentino’s status as an officer or representative of any such corporation.  Winer v Valentino, 2014 NY Slip Op 07050, 3rd Dept 10-16-14

 

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Notice of Increases in Water and Sewer Charges Was Sufficient If Not Ideal/Discrepancies in Water and Sewer Charges Did Not Violate Equal Protection Clause

The Third Department determined that the hearing and notice requirements for increased water and sewer charges had been met by the village, and any discrepancies among the water and sewer charges did not violate the equal protection clause because they were not the result of conscious, intentional discrimination:

… [W]e agree with plaintiff that, inasmuch as Local Law Nos. 4 and 5 (re: modification of water and sewer charges) appear on their face to be self-executing, hearing and notice requirements nonetheless apply. This is so because the local laws at issue neither substantially adhere to state law (see Village Law § 20-2000; General Municipal Law § 452) nor specify an intent to change or supercede the requirements of said laws … . As such, they remain subject to the notice requirements of state law.

…Supreme Court properly determined that adequate notice had been provided. In determining the adequacy of public notice required for the enactment of a local law, a court may look at whether or not such notice is “deceptive, misleading [or] framed to give a false concept of the text or intent of the local law” … . “Although technical compliance with the [notice requirements of Municipal Home Rule Law § 20] is not essential to the validity of a municipal enactment[, where] the noncompliance . . . goes to the substance of those provisions and thwarts their legislative purpose,” the resulting law may be invalid … .

Defendant historically modifies its water and sewer rates as part of its annual budget review process … . In this regard, each spring, defendant publishes a notice in the Gouverneur Tribune stating that a budget hearing will be held … . While the published notice only sets forth the details of the hearing, attendees are given copies of the budget which, if applicable, indicates any increases. Moreover, copies of defendant’s tentative budget are made available for public inspection in advance of the hearing. While the better practice may be for defendant to specifically include proposed water and sewer rate changes in its published notice, under these circumstances, we agree with Supreme Court that the lack of specificity does not render the notice provided insufficient. * * *

When setting sewer or water rates based on a user unit system where a municipality can only approximate customer usage, the municipality is not required to establish “‘exact congruence between the cost of the services provided and the rates charged'” … . Rather, while such rates must be rational, discrepancies and disproportionate costs to certain properties are permitted in the interest of administrative flexibility … . YNGH LLC v Village of Gouverneur, 2014 NY Slip Op 07051, 3rd Dept 10-16-14

 

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Less Stringent “Area Variance” Criteria, Rather than the More Stringent “Use Variance” Criteria, Properly Applied to a Restaurant’s Request for a Variance Re: Off-Street Parking Requirements

The Court of Appeals, in a full-fledged opinion by Judge Read, determined when “area variance,” as opposed to “use variance,” criteria should be applied to off-street parking requirements.  The zoning board had allowed a variance from the off-street parking requirements for a restaurant under the less stringent “area variance” standard.  The petitioner, a neighboring property owner, sought a declaration that the more stringent “use variance” criteria should be applied.  The Court of Appeals disagreed with the petitioner and affirmed:

…[A]s of July 1, 1994, General City Law § 81-b (1) has defined a “use variance” as an authorization for the use of land for a purpose “otherwise not allowed or . . . prohibited” in the zoning district; and an “area variance” as an authorization to use land “in a manner which is not allowed by the dimensional or physical requirements” of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property's area may be developed, akin to minimum lot size or set-back restrictions. Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 267-b at 294-295).

In this case, [the restaurant] applied for an off-street parking variance in connection with a change in the storefront's use from a retail gift shop to a restaurant. Because both uses are permitted in the zoning district, the ZBA properly considered the application as a request for an area variance. Matter of Colin Realty Co LLC v Town of N Hempstead, 2014 NY Slip Op 07008, CtApp 10-16-14

 

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Bank’s Failure to Strictly Comply With the Filing Deadline in RPAPL 1306 Required Dismissal of the Complaint Seeking Foreclosure

In this mortgage foreclosure action, the Third Department determined that the bank’s failure to submit admissible proof of compliance with the service requirements of RPAPL 1304 precluded summary judgment, and the bank’s unexplained failure to comply with the filing deadline in RPAPL 1306 required dismissal of the complaint seeking foreclosure:

Defendant was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to comply with RPAPL 1306. That statute provides that lenders “shall file with the superintendent of financial services (superintendent) within three business days of the mailing of the notice required by [RPAPL 1304]” a form containing certain information regarding the borrower and mortgage (RPAPL 1306 [1]; see RPAPL 1306 [2]). The statute further states that “[a]ny complaint served in [an action] initiated pursuant to [RPAPL article 13] shall contain, as a condition precedent to such [action], an affirmative allegation that at the time the [action] is commenced, the plaintiff has complied with the provisions of this section” (RPAPL 1306 [1]). * * *

RPAPL 1306’s condition precedent to commencing a foreclosure action is strict compliance with the first sentence of the statute. In other words, a lender has only complied with the condition precedent if the lender has filed the appropriate form with the superintendent within three days of mailing the RPAPL 1304 notice to the borrower. TD Bank NA v Leroy, 2014 NY Slip Op 07047, 3rd Dept 10-16-14

 

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