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Lack of Standing Defense Waived By Absence from Answer—Objections to Authority to Sign Lease Waived by Ratification of the Signed Documents

The Third Department, in a dispute over what was due and owing under a lease agreement, determined the “lack of standing” defense had been waived by the failure to raise it in the answer, and allegedly unauthorized execution of relevant documents had been ratified:

Initially, defendant claims that plaintiff lacks standing to enforce any obligations created by the lease or confirmation agreement, as it was not a party to either document. We agree with Supreme Court that this claim was waived by defendant’s failure to assert it in the answer (see CPLR 3211 [a]; [3]; [e]…).. Defendant further argues that the confirmation agreement is not legally valid, as it was not signed by plaintiff and … PDC [the original lessor, Provident Development Corporation] had transferred the building to plaintiff prior to executing the confirmation agreement. However, “[a];n unauthorized execution of an instrument affecting the title to land or an interest therein may be ratified by the owner of the land or interest so as to be binding upon him [or her];” … . Such a ratification may be shown by the owner’s failure to timely repudiate the unauthorized actions, or by conduct consistent with an intent to be bound … . Here, plaintiff has never repudiated PDC’s execution of the confirmation agreement; on the contrary, the record reveals that, beginning on the commencement date established by the agreement and continuing through 2011, plaintiff regularly invoiced defendant for payments due at the intervals and in the amounts specified in that agreement and accepted defendant’s resulting payments — thus ratifying the confirmation agreement by accepting benefits due thereunder … . Provident Bay Rd LLC v NYSARC Inc, 2014 NY Slip Op 03895, 3rd Dept 5-29-14

 

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Warrantless Entry Justified by Exigent Circumstances

The Third Department, over a dissent, affirmed County Court’s finding that the warrantless entry of a building was justified by exigent circumstances:

“Appraising a particular situation to determine whether exigent circumstances justified a warrantless intrusion into a protected area presents difficult problems of evaluation and judgment. This difficulty is highlighted by the fact that Judges, detached from the tension and drama of the moment, must engage in reflection and hindsight in balancing the exigencies of the situation against the rights of the accused” … . Pursuant to the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if three prerequisites are met: “(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … . The requisite reasonable grounds for the belief that an emergency exists must be based upon objective facts, rather than the subjective feelings of the police … . * * *

In our view, the information known to law enforcement rendered it objectively reasonable for the officers to believe that the armed perpetrator could still be inside the building. Although the dissent stresses the fact that the subject building was a multi-family house, thus discounting the officer’s observation of people on the second floor, the evidence adduced at the suppression hearing does not establish that the responding officers had any knowledge of the building’s configuration. To the contrary, both the arresting officer and one of the officers who ultimately entered the apartment testified that, at that point in time, they were unaware of the layout of the building. While further investigation and consideration removed from the exigencies of the situation may have uncovered this fact, “the requirement of reasonable grounds to believe that an emergency existed must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences” … . People v Gibson, 2014 NY Slip Op 03877, 3rd Dept 5-29-14

 

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Violation of Defendant’s Right to Remain Silent Was Harmless Error—Elements of “Extreme Emotional Disturbance” Defense to Murder Explained

The Third Department, over a dissent, determined that the error in eliciting testimony, in violation of defendant’s post-Miranda right to remain silent, about defendant’s failure to apprise law enforcement that he shot the victims while under extreme emotional disturbance, was harmless error.  The decision includes a detailed discussed of the relevant criteria for “extreme emotional disturbance:”

As the Court of Appeals has instructed, the extreme emotional disturbance defense is comprised of both subjective and objective elements. “The subjective element focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” …, i.e., “that the [defendant’s]; claimed explanation as to the cause of his [or her]; action [was]; not contrived or [a]; sham” … . This subjective element is “generally associated with a loss of self-control” … . The objective element, in turn, “requires proof of a reasonable explanation or excuse for the emotional disturbance . . . [, which]; must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the]; emotional disturbance was reasonable” … .

To be sure, the extreme emotional disturbance defense “is significantly broader in scope than the ‘heat of passion’ doctrine [that]; it replaced” … and, for that reason, the “[a];ction[s]; influenced by [such defense]; need not be spontaneous” … . “‘Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore'” … . That said, evidence demonstrating a defendant’s “high degree of self-control” … , as well as any “postcrime conduct . . . suggest[ing]; . . . that [the defendant]; was in full command of his [or her]; faculties and had consciousness of guilt” … , is entirely inconsistent with an extreme emotional disturbance defense.  People v Pavone, 2014 NY Slip Op 03881, 3rd Dept 5-29-14

 

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To Demonstrate “Defamation by Implication” Where the Factual Statements Are Substantially True, It Must Be Shown the Communication as a Whole Imparts a Defamatory Inference and the Author Intended or Endorsed the Defamatory Inference

In a full-fledged opinion by Justice Feinman, the First Department adopted criteria for determining whether a publication is defamatory by implication.  The subject of the case was a published magazine article describing a conspiracy in Russia involving hundreds of millions in illicit funds.  The plaintiffs alleged that the article defamed them by implying involvement in the conspiracy. The First Department affirmed the dismissal of the complaint and adopted a standard which requires the plaintiff to demonstrate the defamatory inference of the substantially true statements, as well as that the author intended or endorsed that inference:

“Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements” … . The implied defamation cause of action was recognized by the Court of Appeals in a 1963 decision determining that, although the publication at issue contained no directly defamatory statements, “a jury should decide whether a libelous intendment would naturally be given to it by the reading public acquainted with the parties and the subject-matter” … . The following year, the U.S. Supreme Court’s landmark decision in New York Times Co. v Sullivan (376 US 254 [1964]) found that the free speech protections guaranteed by the First Amendment to the U.S. Constitution placed substantial limits on the right to recover for defamatory statements … . In a 1977 libel decision, after discussing the impact Sullivan had on defamation jurisprudence, the Court of Appeals addressed an aspect of the plaintiff’s claim that was akin to implied defamation, noting that although an author “could not make up facts out of whole cloth, omission of relatively minor details in an otherwise basically accurate account is not actionable. This is largely a matter of editorial judgment in which the courts, and juries, have no proper function” … . * * *

“[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning” … .

…[T]his inquiry requires “an especially rigorous showing”: the “language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference”… . * * *

… To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. We believe this rule strikes the appropriate balance between a plaintiff’s right to recover in tort for statements that defame by implication and a defendant’s First Amendment protection for publishing substantially truthful statements… . Stepanov v Dow Jones & Co Inc, 2014 NY Slip Op 03940, 1st Dept 5-29-14

 

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Defendant’s Refusing to Be Interviewed by the Probation Department Was a Valid Ground for Sentence Enhancement

The Second Department determined the defendant’s refusing to be interviewed by the probation department was a valid ground for a sentence enhancement:

A defendant’s “failure to abide by a condition of a plea agreement to truthfully answer questions asked by [a]; probation department is an appropriate basis for the enhancement of the defendant’s sentence” … . Here, the plea condition requiring the defendant to cooperate with the Dutchess County Office of Probation and Community Corrections (hereinafter the OPCC) was explicit and objective, and the plea allocution reveals that the defendant acknowledged, understood, and accepted such condition … . Accordingly, the Supreme Court properly imposed an enhanced sentence based upon the defendant’s violation of the condition by refusing to be interviewed by the OPCC. People v Mazyck, 2014 NY Slip Op 03864, 2nd Dept 5-28-14

 

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Quantity and Nature of Child Pornography Warranted an Upward Departure in a SORA Proceeding

The Second Department determined the quantity and nature of the child pornography in defendant’s possession warranted an upward departure in a SORA proceeding:

…[I]n light of the large quantity of child pornography recovered from the defendant’s possession and the nature of that material, which included, among other things, images and videos depicting the torture of children, the County Court properly determined that there were aggravating factors not adequately taken into account by the SORA guidelines … . Upon making such a determination, the court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive sex offender risk level … . People v Rotunno, 2014 NY Slip Op 03817, 2nd Dept 5-28-14

 

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Suicide Notes Not Protected by Marital Privilege—Substance Had Been Revealed to Third Parties

The Second Department determined that suicide notes left by the defendant were not protected by the marital privilege:

“One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)” … .. While a suicide note can be a communication made during marriage for the purpose of the privilege …, the spousal privilege falls “when the substance of a communication . . . is revealed to third parties” … . Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the marital privilege … . People Jacob, 2014 NY Slip Op 03861, 2nd Dept 5-28-14

 

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Probationary Employee Fired in Bad Faith for Union Work—Supreme Court Had the Power to Reinstate Her But Not to Grant Her Tenure

The Second Department determined a probationary teacher demonstrated she was terminated in bad faith.  The court noted that Supreme Court did not have the power to grant the probationary teacher tenure, something only the administrative agency has the power to do:

A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law … . The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose … . Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods. Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith …, in response to the petitioner’s showing, the appellants failed to establish that the discontinuance of the petitioner’s probationary employment was the result of poor performance. The record demonstrates that the petitioner began [*2]to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner’s performance began to precipitously decline. Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits … .

However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009. ” While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance'” … . Matter of Capece v Schultz, 2014 NY Slip Op 03834, 2nd Dept 5-28-14

 

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Domestic Relations Order Must Conform to Stipulation of Settlement

The Second Department noted that a domestic relations order must conform to any relevant stipulation.  If it does not conform, it must be amended to conform:

“Where a [domestic relations order]; is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the [domestic relations order]; to accurately reflect the provisions of the stipulation pertaining to the pension benefits” … . “A proper [domestic relations order]; obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment”… . Mondshein v Mondshein, 2014 NY Slip Op 03806, 2nd Dept 5-28-14

 

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Father’s New York Custody Petition Not Preempted by Dominican Republic Court’s Denial of Father’s Application for Return of the Child

The Second Department determined Family Court should not have dismissed father’s petition for custody, despite a Dominican Republic court-ruling denying father’s application for return of the child. The application for return of the child was made pursuant to the Convention on the Civil Aspects of International Child Abduction (Convention). The father’s petition for custody in New York was deemed proper under the Uniform Child Custody Jurisdiction and Enforcement Act.  The New York custody petition was not preempted by the court ruling in the Dominican Republic:

The Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court’s jurisdiction in international child custody matters (see Domestic Relations Law § 75-d). Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this Sate has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (see Domestic Relations Law § 76[a]). “Home state” is defined [*2]as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (see Domestic Relations Law § 75-a[7]). While “state” is defined as a “state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States” (Domestic Relations Law 75-a[15]), pursuant to Domestic Relations Law § 75-d, a “court of this state shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75-d[1]).

The Convention, “done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights” (42 USC § 11601[a];[4]). “The Convention seeks to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States” … . The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply … . Return is not required, for example, if the abducting parent can establish that there is a grave risk that the child’s return would expose him or her “to physical or psychological harm or otherwise place the child in an intolerable situation” … . A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence … .

Here, it is undisputed that the United States was the child’s country of habitual residence, and that, at the time the petition was filed, New York was the child’s “home state.” Thus, the Family Court had jurisdiction to determine the father’s petition for custody (see Domestic Relations Law § 76[a]). Moreover, the denial, by the court in the Dominican Republic, of the father’s application for a return of the child pursuant to the Convention, did not preempt his custody proceeding … . Accordingly, the Family Court erred in dismissing the father’s petition. Matter of Katz v Katz, 2014 NY Slip Op 03841, 2nd Dept 5-28-14

 

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