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Criteria for Valuation of Vacant Land Explained

The Second Department determined Supreme Court properly valued the condemned vacant land. Supreme Court rejected the village’s contention that Supreme Court had improperly incorporated the enhancement of value resulting from the inclusion of the property in the village’s urban redevelopment plan. The court explained the criteria for determining the value of vacant land:

In a case involving the taking of property, “[t]he measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” … .Where an increment is added to the value of vacant land to reflect its development potential, “the specific increment which is selected and applied must be based on sufficient evidence and be satisfactorily explained” … . Moreover “[i]t is … necessary to show that there is a reasonable possibility that the property’s highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award” … .”[A] condemnee may not receive an enhanced value for its property where the enhancement is due to the property’s inclusion within a redevelopment plan” … . Thus, for example, property zoned for industrial use “should be valued in accordance with the industrial zoning designation which would apply if the redevelopment plan did not exist,” for “[a] condemnee is only entitled to compensation for what it has lost, not for what the condemnor has gained”… . Matter of Village of Haverstraw (AAA Electricians Inc), 2014 NY Slip Op 01332, 2nd Dept 2-26-14

 

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Defendant’s Failure to Comply with Stipulated Custody Arrangement Warranted Awarding Sole Custody to Plaintiff

The Second Department determined Supreme Court had correctly found a change in circumstances justifying a change in the custody arrangement (sole custody awarded to the plaintiff). Despite the stipulation allowing liberal visitation by the plaintiff, the defendant did not comply with the agreement:

“Where parents enter into an agreement concerning custody, it will not be set aside unless there is a sufficient change in circumstances since the time [*2]of the stipulation and unless the modification of the custody agreement is in the best interests of the children'” … . In determining the child’s best interests, the court must look to the totality of the circumstances … . “As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the [c]ourt’s determination should not be disturbed unless it lacks a sound and substantial basis in the record” … .In this case, the critical issue facing the Supreme Court was the parties’ relative abilities to foster a relationship with the noncustodial parent and to cooperate in coordinating long-distance visitation. As we have stated, “one of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination” … . In contrast, “[w]illful interference with a noncustodial parent’s right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent” … . Alvarez v Alcarez, 2014 NY Slip Op 01286, 2nd Dept 2-26-14

 

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Father Demonstrated Child Was Constructively Emancipated/Child Support Obligation Terminated

The Second Department determined Family Court should have terminated father’s child support obligation because the child was “constructively emancipated:

””It is fundamental public policy in New York that parents are responsible for their children’s support until age 21″ … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment”… . ” [W]here it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent’… . Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” … . Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated … . “The burden of proof as to emancipation is on the party asserting it”… . * * *The evidence at the hearing established that the father consistently made a serious effort to maintain a relationship with the subject child during the relevant time period. The testimony adduced at the hearing demonstrated that the father regularly called the subject child at the mother’s home, but his calls would either go unanswered, or, according to the mother, the subject child would refuse to speak with him. The father testified that he left messages indicating his willingness to participate in counseling with the subject child, but these offers were not accepted. On special occasions, the father left gifts and cards for the child that the child did not acknowledge. The father also contacted the child’s therapist and suggested therapeutic visitation with the child. However, the child refused this offer. In addition to demonstrating the father’s serious efforts to maintain a relationship with the child, the evidence demonstrated that, during the relevant period of time, the father’s behavior was not a primary cause of the deterioration in his relationship with the subject child. Based on the evidence presented at the hearing, the father satisfied his burden of demonstrating that the subject child was constructively emancipated, and a finding in the father’s favor in connection with this issue is warranted by the facts. Matter of Jurgielewicz v Johnston, 2014 NY Slip Op 01325, 2nd Dept 2-26-14

 

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Defendant Not Entitled to Dismissal of Complaint On Ground that Condition of the Property Was Open and Obvious

The Second Department determined defendant was not entitled to summary judgment dismissing the complaint on the ground that the condition causing plaintiff’s injury was open and obvious. Plaintiff stepped back when fireworks were being set off in defendant’s yard. Plaintiff tripped on blocks forming a border around a tree and was impaled on a wooden stake within the border. The Second Department also determined the defendant was not entitled to dismissal of the negligent supervision cause of action (re: third persons setting off fireworks):

A property owner is charged with the duty of maintaining its premises in a reasonably safe condition … . A property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . The issue of whether a dangerous condition is open and obvious is also fact-specific, and usually a question of fact for a jury to resolve … . Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances … . A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted …. .The evidence relied upon by the defendant in support of his motion, which included the photographs attached to his affidavit as well as the parties’ deposition testimony, did not establish his prima facie entitlement to judgment as a matter of law by demonstrating that the subject condition was open and obvious under the circumstances of this case… . Pelligrino v Trapasso, 2014 NY Slip Op 01304, 2nd Dept 2-26-14

 

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“Rubbing” Constitutes “Forcible Touching”

In a full-fledged opinion by Judge Read, the Court of Appeals determined that the allegation defendant “rubbed” his exposed penis on a subway passenger’s buttocks was sufficient to meet the pleading requirements for “forcible touching” in violation of Penal Law 130.52:

…[W]e hold that, when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52. The allegation in the information here easily meets this test. People v Guaman, 29, CtApp 2-25-14

 

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No “Exigent Circumstances”/Warrantless Search of Defendant’s Purse Incident to Arrest for Trespassing Not Justified

In a full-fledged opinion by Judge Lippman, over a partial dissent, the Court of Appeals determined the “exigent circumstances” exception to the warrant requirement did not apply and, therefore, the search of defendant’s purse incident to a “trespassing” arrest was not justified. The loaded handgun in the purse should have been suppressed. The court explained the relevant law:

Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is “not significantly divorced in time or location from the arrest” … .The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances … . We have recognized two interests underlying the exigency requirement: “the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” … . Exigency must be affirmatively demonstrated. Accordingly, even a bag “within the immediate control or 'grabbable area' of a suspect at the time of his arrest may not be subjected to a search incident to arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag” … . People v Jimenez, 23, CtApp 2-25-14 

 

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Counsel’s Failure to Object to Prosecutor’s PowerPoint Presentation Did Not Require Reversal for Ineffective Assistance

In a full-fledged opinion by Judge Pigott, over a dissent, the Court of Appeals determined that defense counsel’s failure to object to a PowerPoint presentation used by the prosecutor in summation did not require reversal. During the presentation, the postmortem image of the child, Justice (whom the defendant was accused of suffocating), faded to white at 30-second intervals over six minutes:

Defendant does not dispute that the postmortem photograph itself was properly admitted at trial … . The slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury's emotions. The jury was being asked to decide not only whether defendant killed Justice, but also whether she intended to do so, an issue to which the question of how long she would have had to cover Justice's mouth and nose was certainly relevant. On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30-second intervals over a six-minute period – with each slide fading more and more to white, and the final slide appearing totally white – is difficult to discern. This did not show how Justice's death occurred nor would it have aided the jury in its fact-finding function.If the issue had been preserved for our review by timely objection – and had the trial court ruled against defendant and the issue reached our Court – this Court would have had the opportunity to decide whether the trial court abused its discretion and the error required a reversal of the judgment of conviction. But that did not occur and the objection to the PowerPoint presentation that defendant now raises is not so “clear-cut” or “dispositive” an argument that its omission amounted to ineffective assistance of counsel… . People v Santiago, 22, CtApp 2-25-14

 

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Allegedly Flawed Service Overlooked Under CPLR 5304 Where Defendant Agreed by Contract that English Courts Would Have Jurisdiction Over Disputes and Defendant Had “Fair Notice” of the Lawsuit/Motion for Judgment In Lieu of Complaint Granted

The Court of Appeals determined summary judgment in lieu of complaint should have been granted to the plaintiff. Under the terms of a contract to provide wholesale seafood, the parties agreed the courts of England would have exclusive jurisdiction over disputes. The defendant was served in England and defaulted, but argued in opposition to the summary judgment motion in New York that the person upon whom the documents were served was not authorized to accept service. The Court of Appeals held that service was sufficient under CPLR 5304 because the defendant had agreed by contract that the English courts have jurisdiction and the defendant had “fair notice” of the lawsuit:

Although CPLR article 53 generally provides that a foreign judgment will not be enforced in New York if the foreign court did not have personal jurisdiction over the defendant (CPLR 5304[a][2]), an exception may be made if, “prior to the commencement of the proceedings [defendant] had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved” (CPLR 5305[3]) and was afforded fair notice of the foreign court proceeding that gave rise to the judgment. We applied this principle in Galliano [15 NY3d 75], where we explained that enforcement of a foreign judgment is not repugnant to our notion of fairness if defendant was a party to a contract in which the parties agreed that disputes would be resolved in the courts of a foreign jurisdiction and defendant was aware of the ongoing litigation in that jurisdiction but neglected to appear and defend. We clarified that, so long as the exercise of jurisdiction by the foreign court does not offend due process, the judgment should be enforced without “microscopic analysis” of the underlying proceedings … . Landauer Limited v Monani Fish Co Inc, 27, CtApp 2-25-14

 

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Question of Fact Whether a “Special Relationship” Had Developed Such that the Insurance Broker Might Be Liable for Negligent Advice About Coverage

In a full-fledged opinion by Judge Graffeo, over a dissent, the Court of Appeals determined there was a question of fact whether the relationship between the insurance broker and the plaintiff was a “special relationship” such that the broker might be liable for negligent advice about sufficient coverage. Plaintiff was a business owner who suffered losses for business interruption caused by several roof-failures. The issue was whether the insurance the broker advised plaintiff to purchase was sufficient for plaintiff’s needs. The court explained the general principles involved:

As a general principle, insurance brokers “have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage” … . Hence, in the ordinary broker-client setting, the client may prevail in a negligence action only where it can establish that it made a particular request to the broker and the requested coverage was not procured. * * *Where a special relationship develops between the broker and client, we have also indicated that the broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage … . In Murphy [90 NY2d at 272] , we recognized that “particularized situations may arise in which insurance agents, through their conduct or by express or implied contract with customers and clients, may assume or acquire duties in addition to those fixed at common law” and that the question of whether such additional responsibilities should be “given legal effect is governed by the particular relationship between the parties and is best determined on a case-by-case basis” … . We identified three exceptional situations that may give rise to a special relationship, thereby creating an additional duty of advisement:”(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . Voss v The Netherlands Insurance Company…, 11, CtApp 2-25-14

 

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Defendant Implicitly and Explicitly Waived His Right to Be Present During Side-Bar Conferences

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined defendant had implicitly and explicitly waived his right to be present during side-bar conferences (the “Antommarchi” right). The implicit waiver was the defendant’s inaction after the trial judge informed him he was welcome to attend the side-bar conferences. And the explicit waiver was defense counsel’s statement to the judge, which was made outside the hearing of the defendant, that the defendant has waived his right to attend the conferences:

Defendant waived his Antommarchi right both implicitly and explicitly. He did so implicitly when, after hearing the trial judge say that he was “welcome to attend” the bench conferences, he chose not to do so. And he waived it explicitly by his lawyer’s statement to the court. People v Flinn, 20, CtApp 2-25-14

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