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Parcels of Land Entitled to Tax Exempt Status Despite Alleged Violations of Building and Fire Code

The Third Department determined three parcels of land were entitled to tax exempt status, based upon the use of the land for religious and charitable purposes, despite alleged building and fire code violations:

RPTL 420-a (1) (a) provides, in relevant part, that “[r]eal property owned by a corporation or association organized or conducted exclusively for religious [or] charitable . . . purposes . . . and used exclusively for carrying out thereupon\. . . such purposes . . . shall be exempt from taxation as [therein] provided.” To demonstrate entitlement to this exemption, “(1) the [petitioning] entity must be organized exclusively for purposes enumerated in the statute, (2) the property in question must be used primarily for the furtherance of such purposes, . . . (3) no pecuniary profit, apart from reasonable compensation, may inure to the benefit of any officers, members, or employees, and (4) the [petitioning] entity may not be simply used as a guise for profit-making” … . Notably, “a property owner seeking a real property tax exemption which demonstrates that it is a not-for-profit entity whose tax-exempt status has been recognized by the Internal Revenue Service and whose property is used solely for [charitable] purposes has made a presumptive showing of entitlement to [the] exemption” … . * * *

…[B]ecause the alleged violations do not divest petitioner of its ability to use the affected parcels for religious or charitable purposes, such violations cannot operate to deprive petitioner of a tax exemption to which it otherwise has demonstrated entitlement. To the extent that respondents believe that petitioner is not in compliance with all relevant provisions of the Town’s building and fire code, their remedy is to issue a stop work order or pursue whatever enforcement proceedings may be available. Oorah Inc v Town of Jefferson, 2014 NY Slip Op 05387, 3rd Dept 7-17-14

 

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Anesthesiologist Was Not an Employee

The Third Department determined an anesthesiologist was not an employee of QPMA:

Where, as here, the work of medical professionals is involved, the relevant inquiry is whether the purported employer retained “‘overall control’ . . . ‘over important aspects of the services performed other than results or means'” … .

Here, undisputed evidence was presented that, after QPMA referred claimant to PCSC, claimant set her own work schedule, performed all services at PCSC’s location, used PCSC’s supplies and equipment, and wore surgical scrubs bearing PCSC’s logo. Claimant’s per diem rate of pay of $1,000 per day was agreed to by her and a principal of QPMA, and QPMA paid her twice a month. Notably, however, QPMA did not issue claimant a W2 form, have a written contract with her, verify her credentials, retain any supervisory authority over her, provide her with performance reviews or evaluations, or maintain medical records related to her services. In addition, claimant paid her own malpractice insurance and licensing fees, was not reimbursed for travel expenses and was not restricted from working for others. Significantly, it was PCSC that dealt with any complaints related to claimant’s services. Although QPMA was responsible for referring another anesthesiologist if claimant was unable to perform her duties, the record as a whole does not demonstrate that QPMA retained sufficient overall control over important aspects of claimant’s work to be considered claimant’s employer… . Matter of Jean-Pierre …, 2014 NY Slip Op 05397, 3rd Dept 7-17-14

 

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Fact that a Sidewalk Is Smooth (Inherently Slippery) or Slippery When Wet Is Not an Actionable Defect

The First Department noted that the facts that a sidewalk is inherently slippery because of its smoothness or that it is slippery when wet are not actionable defects:

The mere fact that a sidewalk is “inherently slippery” by reason of its smoothness or becomes more slippery when wet does not constitute an actionable defect … . Plaintiff’s expert’s finding lacked probative force and failed to raise a triable issue of fact as to the existence of a defective or dangerous condition in the absence of any assertion of a violation of a specific, applicable industry standard which contributed to the accident … .

* * *[Plaintiff’s] claim that granite constituted an “unapproved non-concrete material” is unsupported. Bock v Loumarita Realty Corp, 2014 NY Slip Op 04426, 1st Dept 6-17-14

 

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Under Mental Hygiene Law, Claim Made for Payment from Nursing Home Resident’s Guardianship Account During Resident’s Life Had Priority over Claim by Department of Social Services After Resident’s Death

The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined that a nursing home (Eastchester) which had submitted a claim for the resident’s (Shannon’s) care to the resident’s guardianship account during the resident’s life had priority over the Department of Social Services, which submitted a claim for the resident’s care (Medicaid) to the resident’s estate after death:

Eastchester, a skilled nursing facility, admitted Edna Shannon into its care in 2005. In 2008, due to Shannon’s need for assistance, and concerns about the proper handling of her finances by third parties, Eastchester commenced a proceeding pursuant to Mental Hygiene Law article 81 to have a guardian appointed for her person and property. It also filed an application for medical assistance for Shannon’s nursing home costs. In 2009, DSS determined that Shannon was eligible for Medicaid, effective September 1, 2008. By order and judgment entered April 24, 2009, Supreme Court appointed Family Service Society of Yonkers as her guardian. Among other things, the court conferred on Family Service Society the authority to pay Shannon’s nursing home expenses and to pay bills after her death. Shannon died in December 2011 at age 87. * * *

As Eastchester was to be paid out of the guardianship account before any funds passed to the estate, its claim had priority over DSS’s claim.  MHL § 81.44(d) provides that, within 150 days of the death of an incapacitated person, the guardian must serve on the personal representative of the decedent’s estate, or if none, the public administrator or chief fiscal officer, a statement of assets and notice of claim, and “except for property retained to secure any known claim, lien or administrative costs of the guardianship,” deliver all guardianship property to the personal representative, public administrator, or chief fiscal officer (emphasis added). Matter of Shannon, 2014 NY Slip Op 04452, 1st Dept 6-17-14

 

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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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Dissenter Would Have Reduced Defendant’s Sentence Because of His Age (15), the Factual Background of the Offense and Defendant’s “Sad Life”

The First Department affirmed the conviction and sentence of a defendant who was 15 years old at the time he pled guilty.  The court determined the sentencing court properly refused to grant the defendant youthful offender status.  The decision is notable for the extensive dissent of Justice Freedman who would have reduced the defendant’s sentence because of his age, the facts of the offense and the defendant’s background.  From the dissent:

I write separately because I believe the current law that allows 15 year olds to be tried as adult criminals, even though they are sentenced as juvenile offenders, belies everything science has taught us about the functioning of the juvenile brain (People v Rudolph, 21 NY3d 497 [Graffeo, J., concurring at 506] [2013]). For that reason, I would reduce the sentence to 2 to 6 years to be served concurrently with the five-year term of defendant’s Kings County sentence, but would not accord defendant the youthful offender treatment that he seeks. * * *

In the 2010 presentence report in the instant matter, the probation department stated that defendant “would benefit from a mental health evaluation and a residential mental health treatment program.” However, the court sentenced him to three to nine and denied youthful offender treatment. In pronouncing sentence here, the court noted that defendant had “a very sad life,” but since he “violated every condition” a sentence near the maximum without youthful offender treatment was warranted. The differences between juvenile and adult criminals were highlighted by the United State Supreme Court in Graham v Florida (560 US 48, 68 [2010] [“(a)s petitioner(s) point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence” and “(a)s compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility. . . . Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character’ than are the actions of adults,” quoting Roper v Simmons, 543 US 551, 569, 570 (2005); see also People v Rudolph, 21 NY3d 506]).  People v Crawford, 2014 NY Slip Op 05364, 1st Dept 7-17-14

 

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Defamation Action Brought by Judge Against a Reporter Properly Dismissed—Although the Reporter Made Defamatory Statements Which Were Not Privileged, the Judge Failed to Raise a Question of Fact About Malice as a Motivation

In a full-fledged opinion by Justice Saxe, the First Department affirmed the dismissal of a defamation action brought by a judge against a reporter.  The court determined that the reporter had made inaccurate statements which were defamatory and which were not privileged under  the Civil Rights Law.  However, because the judge was a public figure, the New York Times v Sullivan “malice” standard applied and, the court determined, the judge was unable to raise a question of fact about malice as a motivation for the reporting:

Although we agree with Justice Martin that the published columns were susceptible of a defamatory interpretation, were not protected opinion, and were not privileged under Civil Rights Law § 74, that is not the end of the inquiry; Justice Martin had to also clear the demanding hurdle presented by the standard set in New York Times Co. v Sullivan (376 US 254, 279-280 [1964]). Since he is a public figure, he had the burden of showing, with convincing clarity, actual malice — that is, that the author and publisher of the columns acted with reckless disregard for the truth … . “The standard is a subjective one, focusing on the speaker’s state of mind” … . This standard of “convincing clarity” applies even on a motion for summary judgment … .

“[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication” … . “[I]t is essential that the First Amendment protect some erroneous publications as well as true ones” … . Therefore, to prevail, Justice Martin was required to offer a showing tending to establish that Louis ” in fact entertained serious doubts as to the truth of his publication,’ or acted with a high degree of awareness of [its] probable falsity'” … . Martin v Daily News LP, 2014 NY Slip Op 05369, 1st Dept 7-17-14

 

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