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Power Company Must Pay Town’s Ad Valorem Sewer Taxes Whether Or Not It Owns the Land On Which Its Transmission Facilities Are Located and Whether or Not It Produces Sewage

The Fourth Department determined that as long as the power company owns the land on which its mass properties (transmission facilities) are located, it must pay the “ad valorem” sewer taxes, even if no sewage is generated. The court further determined that even if the power company did not own the land, it would still be liable for the tax because the town’s storm water sewer system protects the facilities from flooding:

If petitioner owns the land, it must pay the sewer taxes regardless of whether the properties currently produce sewage inasmuch as it is theoretically possible that the properties could be ” developed in a manner that will result in the generation of [sewage]’ ” …, and it is immaterial that the Town taxes the land separately from the improvements thereon and that petitioner challenges only the tax on the improvements.

We further conclude that the court properly granted respondents’ application for summary judgment based on the fact that petitioner may still benefit from the sewer district even if it does not own the land on which its mass properties are located. Respondents established that a significant amount of storm water infiltrates the Town’s sewer system and that “the sewer district encompasses storm sewers that actually or might potentially safeguard [petitioner]’s transmission and distribution facilities from flooding” … . Matter of Niagara Mohawk Power Corp v Assessor, Town of Cheektowaga, 2014 NY Slip Op 04627, 4th Dept 6-20-14

 

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Property Should Not Have Been Restored to Petitioner—Time for Redemption Had Passed—Default Judgment in Tax Foreclosure Action Extinguished Petitioner’s Rights in the Property

The Fourth Department determined Supreme Court should not have restored title to property to the petitioner after the a default judgment had been entered in a tax foreclosure action.  The time for redemption had passed and had not been extended:

The Treasurer’s posting of the tax enforcement notification at petitioner’s residence on April 25, 2012 extended the right of redemption until May 25, 2012 (see RPTL 1125 [1] [b] [iii]). Only a local law could extend the cut-off date for redemption (see RPTL 1111 [2]) and, thus, contrary to petitioner’s contention, the published notice of the tax auction could not extend that date of redemption. Where a valid tax lien exists, and the taxing authority followed all proper procedures in foreclosing the lien, the taxpayer’s property interests are “lawfully extinguished as of the expiration of the[ ] right to redemption and the entry of the judgment of foreclosure” … . Thus, all of petitioner’s right, title and interest in the parcels, in her individual and representative capacities, was extinguished when the default judgment was entered in the tax foreclosure action on June 18, 2012 (see RPTL 1123 [8]).  Matter of Johnstone v Treasurer of Wayne County, 2014 NY Slip Op 04590, 4th Dept 6-20-14

 

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Petitioner Did Not Demonstrate Need for Involuntary Assisted Outpatient Treatment/Case Presented an Exception to the Mootness Doctrine

The Second Department determined the petitioner did not demonstrate that Luis G met the criteria for involuntary assisted outpatient treatment (AOP).  By the time of the appeal, the order for involuntary AOP had expired.  The Second Department explained the exception to the mootness doctrine which allowed the court to rule in the matter:

Generally, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . “However, an exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable” … .

* * * There is an issue as to whether the Supreme Court properly determined that the petitioner demonstrated that Luis G. met all the criteria for involuntary assisted outpatient treatment (hereinafter AOT), as set forth in Mental Hygiene Law § 9.60. This issue has a likelihood of recurrence, either between the petitioner and Luis G. due to his chronic mental illness, or between the petitioner and other patients who may be the subject of involuntary AOT proceedings. In addition, this issue would typically evade appellate review, as involuntary AOT orders have a maximum duration of six months unless extended by a subsequent court order (see Mental Hygiene Law § 9.60[j][2]; [k]). Further, the issue raised on appeal has not been the subject of prior appellate review and is substantial and novel … .

The petitioner failed to demonstrate by clear and convincing evidence that Luis G. met the criteria of Mental Hygiene Law § 9.60(c)(4), as no evidence indicated that he was hospitalized twice during the 36 months prior to the filing of the petition for involuntary AOT, as required by statute (see Mental Hygiene Law §§ 9.60[c][4][i], [j][2]). Moreover, the petitioner failed to establish by clear and convincing evidence that, during the 48 months prior to the filing of the petition for involuntary AOT, Luis G. engaged in any act of serious violent behavior toward himself or others, or threatened or attempted to cause serious physical harm to himself or others … . Matter of Walsh-Tozer v Luis G, 2014 NY Slip Op 04500, 2nd Dept 6-18-14

 

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A Slip and Fall Defendant Who Moves for Summary Judgment Must Demonstrate When the Area Where the Fall Occurred Was Last Inspected or Cleaned

The Second Department determined summary judgment should not have been granted to the defendant in a slip and fall case.  The defendant, who moved for summary judgment, failed to demonstrate when the wet area where plaintiff fell was last cleaned or inspected and thereby failed to make a prima facie showing of a lack of constructive notice of the condition:

In a slip-and-fall case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence … . While the defendant met her initial burden of making a prima facie showing that she did not create the condition and lacked actual notice of the wet spot, “[t]o meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, the defendant introduced no evidence as to when she had last cleaned or inspected the staircase relative to the time the plaintiff fell. She did not know when she last inspected the property before the subject accident …  Thus, the defendant did not establish, prima facie, that she lacked constructive notice of the alleged wet condition in the stairway … . Lamour v Decimus, 2014 NY Slip Op 04466, 2nd Dept 6-18-14

 

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No Special Duty Owed by School to School Employee Injured by Students Who Collided with Her

The Second Department determined that a school’s duty to supervise students does not extend to an adult school employee injured when two students collided with her:

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured … . Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a “special duty” to the students themselves … . Accordingly, a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established … . The special duty owed to the students themselves does not, however, extend, as a general matter, to teachers, administrators, and other adults on or off of school premises … .

Here, the defendants established, prima facie, that they did not owe the plaintiff a special duty… . Ferguson v City of New York, 2014 NY Slip Op 04464, 2nd Dept 6-18-14

 

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Defendant Demonstrated It Did Not Have Constructive Notice of Condition Which Caused the Fall—Law of Constructive Notice Explained Re: Recurring Conditions/Latent Defects

The Second Department determined defendant was entitled to summary judgment in a slip and fall case because it demonstrated it did not have constructive notice of the condition which caused the fall.  Plaintiff was walking on a pallet in the stock room while unloading things.  After walking on the pallet three times, one of the boards apparently broke causing injury.  There was testimony that there was no sign the board was going to break prior to the accident.  The court explained the relevant law, including the law concerning recurring conditions and latent defects:

A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … .

When a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he or she can be charged with constructive notice of each specific reoccurrence of that condition … . A general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition causing the fall … . When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed … .

The Supreme Court properly concluded that the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating, through the submission of, inter alia, a transcript of the injured plaintiff’s deposition testimony, that it did not create the condition or have actual or constructive notice thereof. Schubert-Fanning v Stop & Shop Supermarket Co LLP, 2014 NY Slip Op 04474, 2nd Dept 6-18-14

 

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Application to File Late Notice of Claim (30 Days Late) Should Have Been Granted—Respondents Had Notice of the Incident and Short Delay Did Not Affect Ability to Investigate

In concluding the application to file a late notice of claim should have been granted, the First Department explained the relevant analysis.  The court noted the city had timely notice of the incident and the 30 delay in filing the notice did not prejudice the city’s ability to investigate:

General Municipal Law § 50—e(5) confers upon the court “the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters” (Matter of Porcaro v City of New York, 20 AD3d 357, 358 [1st Dept 2005]). The statute provides, in pertinent part, that in determining whether to grant an extension of time to serve a notice of claim, a court shall consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the 90—day period specified in § 50—e(1) “or within a reasonable time thereafter” (§ 50—e[5]). Further, under the statute, the court must take into account all other relevant facts and circumstances, including, among other things, whether the petitioner offered a reasonable excuse for the late notice and whether the delay substantially prejudiced the respondent’s defense on the merits … . The presence or absence of any one factor, however, is not determinative … . Moreover, while the court has discretion in determining motions to file late notices of claim, the statute is remedial in nature, and therefore should be liberally construed … .

…[R]espondents had actual knowledge of the pertinent facts constituting the claim — … .

In addition, petitioner attempted to serve the notice of claim only 30 days after expiration of the statutory 90-day period for filing a notice of claim against a municipality. This short delay does not prejudice respondents’ ability to investigate and defend the claim, as such a short passage of time is unlikely to have affected witnesses’ memories of the relevant events. Matter of Thomas v City of New York, 2014 NY Slip Op 04423, 1st Dept 6-17-14

 

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Confusing Jury Instruction Re: the Justification Defense Required Reversal of Murder Conviction in the Interest of Justice/Defendant’s Attorney Should Have Been Allowed to Testify at the Suppression Hearing—There Was a Question of Fact Whether the Attorney Called and Told the Police He Represented the Defendant and Defendant Should Not Be Questioned

The First Department reversed defendant's murder conviction in the interests of justice because of a confusing jury instruction.  The trial court did not make it clear to the jurors that the use of deadly force can be justified in defense of a robbery.   The First Department also noted that defendant's lawyer should have been allowed to testify at the suppression hearing because it was alleged the lawyer called the police station, informed officer Risorto he was representing defendant, and told officer Risorto the defendant should not be questioned:

In its main charge, the court instructed the jury that “[t]he only difference between the law of self-defense to repel a robbery as opposed to assault [is that] in repelling the robbery, the person has no duty to retreat.” This is an incorrect statement of the law because it ignores an additional critical difference between the two grounds for justification, namely, that deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force (see People v Fuller, 74 AD2d at 879 [“a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim's imminent use of [mere] physical force against himself, in the course of a robbery attempt”]; People v Davis, 74 AD2d 607, 609 [2d Dept 1980] [jury should have been told that the defendant was justified in using deadly physical force if he reasonably believed it necessary to do so to resist the imminent use of physical force against him in the course of a robbery attempt]). The court's error was exacerbated when it repeated this erroneous statement in response to a jury note requesting further instructions on the defense of justification. * * *

The Court of Appeals has held that “an attorney enters a criminal matter and triggers the indelible right to counsel when the attorney . . . notifies the police that the suspect is represented by counsel” … . Once the police have reason to know that the suspect is represented by counsel in the case under investigation, the right to counsel cannot be waived unless the suspect does so in the presence of counsel … . An attorney does not need to enter the case in person, but can communicate his representation to the police by phone, “at which point the police are required to cease all questioning” … .

Here, the court erred in precluding defense counsel from testifying about the critical conversation with Risorto. The police testimony, along with defense counsel's affirmation, raised questions as to what defense counsel actually said to Risorto and, in particular, whether defense counsel told Risorto that he “represented” defendant in the case for which defendant was to be questioned. The court should not have made a factual finding that implicitly accepted Risorto's account, without giving defendant the opportunity to challenge that account. People v McTiernan, 2014 NY Slip Op 05363, 1st Dept 7-17-14

 

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No Standing to Bring an Action Contending Foie Gras Produced by Forced Feeding Is an Adulterated Food

The Third Department determined petitioner [Stahlie] did not have standing to bring an action contending that foie gras produced by force feeding ducks or geese was an adulterated food which causes secondary amyloidosis:

Standing “requir[es] that the litigant have something truly at stake in a genuine controversy” … . Petitioners have “the burden of establishing both an injury in fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated” … . The injury in fact element must be based on more than conjecture or speculation … . * * *

Here, the risk of exposure is minimal and the indication of harm uncertain. Although petitioners included expert opinion indicating a possible risk of secondary amyloidosis from foie gras for some individuals with certain medical conditions, they cite no situation of any person ever suffering secondary amyloidosis that was linked to foie gras. Stahlie does not contend that he has any of the underlying medical conditions that may be related to an increased risk of secondary amyloidosis. His exposure to foie gras is infrequent. There are no studies, statements or warnings by the regulating agency or other pertinent governmental entity regarding a relevant risk related to the occasional consumption of foie gras. Stahlie has, at best, occasional exposure to a product that has not yet been connected by any actual case to the purported risk of harm alleged by petitioners. We agree with Supreme Court that, even affording petitioners the benefit of every favorable inference, their allegations regarding an injury in fact to Stahlie are speculative and rest upon conjecture. Matter of Animal Defense Fund Inc v Aubertine, 2014 NY Slip Op 05395, 3rd Dept 7-17-14

 

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Equitable Estoppel Against NYS Department of Environmental Conservation (DEC) Not Available Under the Facts

The Third Department determined the doctrine of equitable estoppel could not be applied to a statute of limitations defense raised by the Department of Environmental Conservation (DEC).  The petitioner’s president [Sage] alleged he was told by an employee of the DEC [Lynch] that he need not comply with the 30 day time limit for challenging the DEC’s approval of a Freshwater Wetlands permit:

It is axiomatic that the doctrine of equitable estoppel cannot generally be invoked against governmental agencies in the exercise of their governmental function … . However, estoppel may apply in certain “exceptional cases in which there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon” … .

Here, less than 30 days after the permit was issued, Sage spoke with Lynch regarding petitioner’s plans to challenge the permit. According to Sage, Lynch explained that he was not adequately familiar with the permit and needed to review the matter. Sage “believe[d]” that it was during this conversation that Lynch told him that petitioner did not need to commence a CPLR article 78 proceeding within 30 days of the issuance of the permit because petitioner had four months to bring a challenge, which would give Lynch time to review it. Although Lynch acknowledged having spoken to Sage about the permit, he denied telling Sage that the applicable statute of limitations was four months or that the limitations period would be extended. Indeed, Lynch averred that he had no authority to waive or extend the applicable statute of limitations on behalf of DEC, and the statement that petitioner attributes to Lynch was, at best, akin to erroneous advice that does not rise to the level necessary to implicate the exception where estoppel may be invoked against a governmental agency… . Matter of Atlantic States Legal Found Inc v NYS Dept of Envtl Conservation, 2014 NY Slip Op 05384, 3rd Dept 7-17-14

 

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