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Defendant’s Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer’s Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant’s Subsequent Agreement to Speak with the Officer without an Attorney Present

The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer.  The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search.  Subsequently, the defendant told the officer “I am thinking of talking to an attorney,” after which the office stopped questioning him.  Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said “yes.”  The Third Department determined, in part because the officer interpreted defendant’s statement that he was thinking about talking to an attorney as a request for an attorney, the defendant’s subsequent statement should have been suppressed:

Phrases such as “I think” or “maybe” do not necessarily establish that a request for counsel is uncertain or equivocal … . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney … . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant’s request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed … . Here, despite the allegedly sarcastic tone of defendant’s initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel … . Accordingly, defendant’s alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14

 

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Displaying What Appeared to Be a Firearm to Someone Other than the Robbery Victim During Flight from the Robbery Scene Supported Second Degree Robbery Conviction

After noting that merely telling the cashier he had a gun was not enough to meet the criteria for displaying a firearm in the course of a robbery, the Third Department determined that defendant’s “displaying” of what “appeared to be” a firearm to someone other than the victim of the robbery, as he was fleeing from the store he robbed, was sufficient to support his conviction for robbery in the second degree:

To prove the display element, “[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display” … . While the object displayed need not in fact be a firearm …, “it must appear to the victim by sight, touch or sound that he [or she] is threatened by a firearm” …. The display requirement “cannot be read so broadly as to include mere statements that a robber is armed with a gun” … . While such statements can give meaning to a robber’s otherwise ambiguous actions, such as “a hand consciously concealed in clothing” …, “words alone will not constitute a display of what appears to be a firearm” … .

Here, the cashier testified that defendant said the word “gun” when demanding that she turn over the money, but she did not testify to witnessing any action on his part that would constitute a display of a firearm, nor did she testify that she believed he possessed a firearm. Thus, her testimony is insufficient to establish that defendant displayed a firearm during the robbery. But the inquiry does not end there. Although several cases address the issue as whether the victim perceived the gun …, the statute does not mention to whom the apparent weapon must be displayed (see Penal Law § 160.10 [2] [b]; …). The language of the statute — namely, that the display can occur in the course of “immediate flight” from the robbery and not just during the commission thereof — implies that the display may be directed at an individual other than the victim of the robbery, with the implication that the apparent weapon must be displayed for the purpose of allowing the defendant to deter someone from attempting to either recover possession of the stolen property or impede the defendant’s escape (Penal Law § 160.10 [2] [b]). People v Colon, 2014 NY Slip Op 02626, 3rd Dept 4-17-14

 

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Aunt Met Her Burden of Establishing Extraordinary Circumstances Overcoming Mother’s Superior Right to Custody of Children/Appellate Division Has Authority to Make Those Findings Where Family Court Failed to Do So

After noting that Family Court failed to address whether petitioner, a maternal aunt, had established extraordinary circumstances overcoming the mother’s superior right to custody, the Third Department exercised its power to make the finding that petitioner had met her burden:

Notwithstanding Family Court’s failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed … . Based upon that review, we conclude that petitioner met her burden of establishing extraordinary circumstances. Petitioner testified that the older child had lived with her for approximately four years. The younger child had lived with petitioner for about one year, returned to the mother’s home and then resumed living with petitioner. According to petitioner, and as partially corroborated by the mother, the mother’s health issues significantly limited her ability to care for the children. The evidence at trial established that the mother, who has substantial pulmonary issues and requires the aid of oxygen, excessively and inappropriately depended upon the children to assist her with personal and health needs, as well as housekeeping duties. The mother even required the younger child to sleep near her because she was afraid she would stop breathing while sleeping. Additionally, the mother’s health issues hindered her ability to supervise the younger child, who had behavior issues and was getting into trouble at school while she was living with the mother. During various hospitalizations, the mother left the younger child with neighbors and/or relatives, some of whom were of questionable reliability.

It is abundantly clear that the mother was unable to both provide the younger child with a structured environment and to properly care for her; instead, the mother relied upon the child to take care of her. Further, when the younger child was residing with petitioner, the mother consistently pressured her to return to her home — claiming, among other thing, that she needed her home because she was dying — which was upsetting to the child. Multiple witnesses also testified to the unsanitary living conditions in the mother’s trailer, including several occasions when it was flea infested. When the younger child came to live with petitioner, her clothing was ill-fitting and she had significant untreated dental issues. Finally, inasmuch as the older child had been living with petitioner for many years, placing the younger child in petitioner’s care allowed the siblings to reside together. Matter of Roth v Messina, 2014 NY Slip Op 02637, 3rd Dept 4-17-14

 

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No Duty to Defend Where Causes of Action Are Excluded from Coverage Under the Terms of the Policy

The Third Department determined that the terms of two insurance policies prohibited plaintiff’s suit for a declaration the insurance companies had a duty to defend and indemnify plaintiff.  The causes of action brought against plaintiff (tortious interference with contract, unfair and deceptive trade practices and misappropriation of trade secrets) did not constitute a violation of “a person’s right to privacy” within the meaning of the policies. And the causes of action explicitly excluded from coverage, therefore the insurance companies were not obligated to provide a defense:

…[P]laintiff’s actions —–tortious interference with contract and business relations, unfair and deceptive trade practices and misappropriation of trade secrets –do not constitute a violation of “a person’s right of privacy” within the meaning of either Twin City’s or CastlePoint’s policy.

…[I]it is well settled that “[a]n insurer need not provide a defense . . . when it demonstrates that the complaint’s allegations cast that pleading solely and entirely within the policy exclusions, and further, that . . . the allegations, in toto, are subject to no other interpretation” … . Here, Twin City relies upon three exclusions relative to the personal and advertising injury coverage otherwise afforded by its policy — the intentional conduct exclusion, the breach of contract exclusion and the trademark exclusion [FN4]. In the context of an insurance policy, “the phrase ‘arising out of’ is ordinarily understood to mean originating from, incident to, or having connection with . . . [and] requires only that there be some causal relationship between the injury and the risk for which coverage is provided or excluded” … . Without belaboring the point, suffice it to say that our review of the underlying complaint leads us to conclude that all of the allegations contained therein with respect to plaintiff fall within at least one of the cited exclusions. Accordingly, coverage was properly denied for this reason as well. Sportsfield Specialties Inc v Twin City Fire Ins Co, 2014 NY Slip Op 02646, 3rd Dept 4-17-14

 

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Dissolved Corporation Amenable to Suit Under New Jersey Law/Substitute Service Upon Insurer of Dissolved Corporation Proper

In an asbestos case, the First Department determined that, under New Jersey law, a dissolved corporation (Jenkins Bros.) was still amenable to suit for pre-dissolution actions, and service of process upon the insurer was appropriate where service on the dissolved corporation was not possible:

In this action for personal injuries allegedly due to asbestos exposure while plaintiffs were employed by Jenkins Bros., a dissolved New Jersey corporation, appellant insurance company, Jenkins’ liability insurer during the relevant time periods, maintains that Jenkins is not amenable to suit based on its bankruptcy and subsequent dissolution. The plain language of the New Jersey dissolution statute, which governs here, provides for a corporation that has been dissolved to “sue and be sued in its corporation name . . . ” (NJSA § 14A:12-9[2]), and the statute places no restriction on how long a dissolved corporation maintains its capacity to be sued for its tortious conduct committed pre-dissolution … . Thus, contrary to appellant’s argument, Jenkins Bros. is amenable to suit pursuant to the laws of the state of its incorporation … .

The motion court properly directed that substituted service be made on appellant. It is undisputed that service was attempted at multiple corporate addresses, to no avail, and that plaintiffs were only able to locate two former corporate representatives. Accordingly, substituted service on the insurer is proper and does not violate due process …. Appellant accepted premiums from Jenkins and agreed to defend and indemnify Jenkins for tortious conduct committed during the coverage periods. This coverage includes liability for conduct that may have led to injuries such as asbestos disease which carries a long latency period between exposure and manifestation of disease … . Matter of New York City Asbestos Litig, 2014 NY Slip Op 02686, 1st Dept 4-17-14

 

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Proof that a Floor is Inherently Slippery, Standing Alone, Will Not Support a Negligence Cause of Action

The First Department determined summary judgment dismissing the slip and fall complaint was properly granted.  Plaintiff, who suffered from dementia, did not remember the fall and proof the floor was inherently slippery, without more, was insufficient to support the action:

The duty of an owner of property to maintain his or her premises so that they are reasonably safe …extends to any hazardous condition about which the owner has actual or constructive notice. Except where the landowner created the defective condition, thereby affording actual notice …, it is incumbent upon the injured party to establish that the condition was either known to the owner or had existed for a sufficient period of time to have allowed the owner to discover and correct it

Here, plaintiff is alleged to have fallen as a result of a slippery floor. Plaintiff was unable to supply any information about the circumstances of the accident. Plaintiff failed to explain how she took two or three steps from a chair in the procedure room and slipped and fell down the basement stairs that were located in the back of the adjacent waiting room. As pointed out by defendant, “Plaintiff would have had to slipped [sic] all the way across the length of the office (waiting room) and made a 180 degree turn before reaching the top of the stairs.” Moreover, [plaintiff’s daughter] conceded that she did not know what caused her mother to fall and had not noticed that the floor was slippery. Finally, there is no evidence of any prior injury or complaint about the floor to support the conclusion that [defendant] should have known about the allegedly hazardous condition … . Proof that a floor is “inherently slippery,” standing alone, is insufficient to support a cause of action for negligence…, and the complaint was properly dismissed. Caicedo v Sanchez, 2014 NY Slip Op 02663, 1st Dept 4-17-14

 

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Res Ipsa Loquitur Doctrine Raised Question of Fact About Whether Anesthesiologist, Who Was Alone With the Unconscious Decedent at the Time of Death, Was Negligent

The Third Department noted that the doctrine of res ipsa loquitur raised a question of fact about whether an anesthesiologist (Waid) was negligent:

…[P]laintiff submitted a detailed expert affidavit … . The expert opined that Waid, through overinflation or improper insertion of the endotracheal tube, caused the hemorrhage that immediately led to decedent’s death. Although the exact source of bleeding was never identified, the expert explained possible ways that Waid may have caused the hemorrhage and stated that such bleeding does not ordinarily occur in the absence of negligence, Waid had exclusive control over decedent’s body and the medical instrumentalities at the time, and decedent was unconscious so he could not have contributed to the situation. Therefore, questions of fact exist and plaintiff may rely on the doctrine of res ipsa loquitur to attempt to establish Waid’s negligence… .  Cole v Champlain Val Physicians’ Hosp Med Ctr, 2014 NY Slip Op 02654, 3rd Dept 4-17-14

 

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Quantum Meruit and Unjust Enrichment Causes of Action Should Not Have Been Dismissed

The First Department reversed Supreme Court and found plaintiff had sufficiently pled the causes of action for quantum meruit and unjust enrichment.  Plaintiff lived with and took care of an elderly woman for six years, an obligation undertaken by the defendant.  Although plaintiff was given room and board, as well as health insurance, by the defendant, she was never paid for her work.  The suit was based upon plaintiff’s allegation that defendant had promised to compensate her. The Supreme Court found the “compensation-promise” allegation incredible because plaintiff worked for six years without pay. The First Department noted that whether the “compensation-promise” allegation was credible was solely a matter for the jury.  The court explained the elements of quantum meruit and unjust enrichment:

Generally, under the doctrine of quantum meruit, “the performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services” … . To state a cause of action for quantum meruit, plaintiff must allege “(l) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” … .

Allegations that plaintiff provided personal services in good faith … on behalf of defendant … are sufficient. Similarly, plaintiff has sufficiently alleged the element of acceptance via allegations that defendant, inter alia, placed her on … group insurance, filed tax returns on her behalf, and submitted visa applications in which she represented that plaintiff was an employee … . * * *

Similarly, plaintiff has sufficiently alleged, at this juncture, that defendant … was unjustly enriched at her expense. To state a cause of action for unjust enrichment, a plaintiff must demonstrate “that (1) defendant was enriched, (2) at plaintiff’s expense, and (3) that it is against equity and good conscience to permit [] defendant to retain what is sought to be recovered” … . A person may be unjustly enriched not only where she receives money or property, but also where she otherwise receives a benefit … . Such a benefit may be conferred where the person’s debt is satisfied or where she is otherwise saved expense or loss … .

* * * The fact that plaintiff may have been compensated, in part, by room and board and health insurance, is not dispositive on the question of whether she received adequate compensation for her services, and does not bar the claim at the pleading stage … . Farina v Bastianich, 2014 NY Slip Op 02661, 1st Dept 4-17-14

 

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Explicit Terms of the Controlling Statute Required that Petitioner Be a Party to a Written Agreement In Order to Be Eligible for an Empire Zone Tax Credit/Therefore, Even though Petitioner Made the Required “Payment In Lieu of Taxes” Pursuant to a Sublease from a Party to the Agreement, Petitioner Was Not Eligible for the Credit

The Third Department determined the controlling statute required a written agreement between a qualified empire zone enterprise (QEZE) and the Town of Rotterdam Industrial Development Agency (IDA)  in order to be eligible for an empire zone tax credit.  Because the petitioner was not a party to the “payment in lieu of taxes (PILOT)” agreement, the tax credit was not available to it, even though the petitioner made the PILOT payments pursuant to a sublease from a party to the agreement (FM Ventures):

For the tax years in dispute, Tax Law former § 15 (e) set forth three types of payments that constituted eligible real property taxes for purposes of an empire zone credit. Two involved payment of taxes; first, by a QEZE that owned the real property and, second, a QEZE that was a lessee of real property. The third applied to petitioner’s situation since it addressed PILOT payments by a QEZE. It provided in relevant part: “In addition, the term ‘eligible real property taxes’ includes [PILOTs] made by the QEZE to the state, a municipal corporation or a public benefit corporation pursuant to a written agreement entered into between the QEZE and the state, municipal corporation, or public benefit corporation” (Tax Law former § 15 [e] [emphasis added]).

The pertinent language affirmatively requires in clear terms that, to qualify for the credit under such provision, the PILOT payments must be made pursuant to a written agreement between the QEZE and the appropriate entity. Here, FM Ventures had entered into the August 2005 PILOT agreement with the IDA. Petitioner was not a party to that agreement. Although petitioner’s separate agreement with FM Ventures provided that petitioner would make the payments and the various entities may have desired to structure the transactions so that petitioner could receive the empire zone tax credit, unfortunately petitioner’s PILOT payments do not qualify for such credit under the statutory language. It was petitioner’s burden to show that it was clearly entitled to the credit and, in fact, the statute manifestly provides otherwise. We cannot, under long settled principles of statutory interpretation, essentially rewrite an unambiguous provision of a statute by ignoring explicit language, no matter how equitable such a result may appear … . Matter of Golub Corp v New York State Tax Appeals Trib, 2014 NY Slip Op 02638, 3rd Dept 4-17-14

 

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1/2 Inch Variation in Stair-Step Height (In Violation of Fire Safety Code) Established Negligence

The First Department determined plaintiff had established a case of negligence based upon a 1/2 inch height differential among stair steps where plaintiff fell:

Plaintiff’s expert supported her opinion that the stairway was defective “by nonconclusory reference to specific, currently applicable safety standards or practices” … . Section 5-2.2.2.4 of the National Fire Protection Association Life Safety Code [1994] requires that there can be no variation exceeding three sixteenths of an inch “in the depth of adjacent treads or in the height of adjacent risers and the tolerance between the largest and smallest tread cannot exceed ⅜.” Plaintiff’s expert identified the Life Safety Code Handbook as a published authoritative and nationally recognized accepted industry standard for safe staircase construction and maintenance in the field of architecture. When asked if plaintiff’s expert was correct in that regard, defendant’s expert replied “yes.” …  The trial court’s finding that the 1994 Life Safety Code is applicable because the stairs were renovated in 1996, when defendant constructed a new tile floor directly on top of an existing floor on the second floor landing, which created the height differential in the location where plaintiff lost her balance, is supported by a fair interpretation of the evidence. … Thus, plaintiff’s expert testimony that the one half inch differential caused plaintiff’s fall established a case of negligence against defendant. Rondin v Victoria’s Secret Stores LLC, 2014 NY Slip Op 02664, 4-17-15

 

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