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German Museum Proved It Had Superior Title to Ancient Assyrian Gold Tablet in Decedent’s Estate/Doctrine of Laches Did Not Apply

In an estate proceeding, the Court of Appeals determined the doctrine of laches did not apply and the German Museum was entitled to the return of the Assyrian gold tablet, which was in decedent’s estate but had been missing from the museum since World War II:

We agree with the Appellate Division that the Estate failed to establish the affirmative defense of laches, which requires a showing “that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state” …. .  While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent’s death, that he was in possession of the tablet … .  As we observed …in a related discussion of the defense of statute of limitations, “[t]o place a burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would . . . encourage illicit trafficking in stolen art” … .

Additionally, the Estate failed to demonstrate “the essential element of laches, namely prejudice” … .  While the Estate argued that it had suffered prejudice due to the Museum’s inaction, there is evidence that at least one family member (decedent’s son) was aware that the tablet belonged to the Museum.  And, although the decedent’s testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity. Matter of Flamenbaum, 178, CtApp 11-14-13

 

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Causes of Action Stated Against County for Allowing Public Traffic During Paving Operation and Violation of Regulation Requiring Truck-Brake Maintenance

The Third Department determined plaintiff had stated causes of action sounding in negligence and a violation of Labor Law 241(6).  Plaintiff was driving a truck hauling asphalt to a county roadway paving operation (which had been contracted out to a private company–Graymont) when the truck’s brakes failed. Plaintiff was seriously injured when, after avoiding public traffic, he jumped from the truck which continued on over an embankment. The court upheld the negligence claim against the county which was based upon the county’s permitting public traffic on the road during construction.  The court further determined the county was entitled to summary judgment on its indemnification action against the private construction company (Graymont—based upon the county’s contract with the company). And the court upheld the Labor Law 241(6) claim, finding the regulation requiring truck-brake maintenance supported the cause of action:

Plaintiff alleges that the County violated 12 NYCRR 23-9.7 (a),  which provides that “[t]he brakes of every motor truck shall be so maintained that such truck with full load may be securely held on any grade that may be encountered in normal use on the job.”  While the County does not dispute that this provision is sufficiently specific to form the basis for liability under Labor Law § 241 (6), it argues that the regulation is not applicable to the circumstances here.  Mindful that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” …, we cannot agree.  Although the regulation speaks in terms of the ability of the brakes to “h[o]ld” the construction vehicle, the purpose of the regulation is to ensure proper functioning of a truck’s brakes on any terrain or grade normally encountered.  Thus, we find that the language of the regulation addresses not only the ability of a truck’s brakes to hold a stopped truck in place, but also the ability of the brakes to bring a moving vehicle to a stop. Duffina v County of Essex…, 515346, 3rd Dept 11-14-13

 

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Harmless Error Rule Should Not Have Been Applied to Guilty Plea

In a full-fledged opinion by Judge Graffeo, the Court of Appeals, over a dissent, declined to apply the harmless error rule to a guilty plea.  In this driving-while-intoxicated case, the defendant moved to suppress an open bottle of rum and a crack pipe which were found in the car he was driving during an inventory search. The motion was denied. Defendant told the court he wanted to plead guilty because he “was not planning to go to trial if [he] got a negative ruling” on the motion.  On appeal, the inventory search was deemed invalid, but the Appellate Division ruled the error “harmless.”  In reversing, the Court of Appeals wrote:

The harmless error rule was “formulated to review trial verdicts” (People v Grant, 45 NY2d at 378).  It requires an appellate court to assess the quantum and nature of the People’s proof of guilt independent of erroneously admitted evidence and the causal effect, if any, that the introduction of that evidence had on the fact finder’s verdict … .  Harmless error therefore can be “difficult to apply to guilty pleas” — especially in cases involving “an improper denial of a pretrial motion to suppress” — since “a defendant’s decision to plead guilty may be based on any factor inside or outside the record” (People v Grant, 45 NY2d at 378379).  Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review (see id.).

The Grant doctrine is not absolute, however, and we have recognized that a guilty plea entered after an improper court ruling may be upheld if there is no “reasonable possibility that the error contributed to the plea” (id. at 379).  Although a failure to suppress evidence may detrimentally influence a defendant’s plea negotiations, a concession of guilt may be treated as valid if the defendant articulates a reason for it that is independent of the incorrect pre-plea court ruling (see id. at 379-380) or an appellate court is satisfied that the decision to accept responsibility “was not influenced” by the error… . * * *

Certainly, there may be instances where the failure to grant suppression does not affect a defendant’s decision to plead guilty because the challenged proof is cumulative or too trivial.  In this case, however, the denial of the motion to suppress could not be viewed as harmless and the guilty plea must be vacated. People v Wells, 188, CtApp 11-14-13

 

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In Deciding the Sequence of Convictions, the Original Sentence Date Controls, Not the Date of Resentencing to Cure a Post-Release-Supervision Flaw

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that, with respect to New York’s sentence enhancement statutes, “the controlling date of sentence for the defendant’s prior conviction is the original date of sentence for that conviction… [not] the date of a later resentencing which rectifies the flawed imposition of post-release supervision (PRS) in accordance with … People v Sparber (10 NY3d 457 [2008]). … Therefore, at sentencing for a more recent crime, the defendant’s prior conviction qualifies as a predicate felony conviction if the original date of sentence precedes the commission of the present offense.”  People v Boyer…, 205, 206, CtApp 11-14-13

 

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Evidence Not Sufficient to Demonstrate Spanish Document Was an Enforceable Judgment; In Motion for Summary Judgment in Lieu of Complaint (CPLR 3213) There Is No Impediment to Plaintiff’s Supplementing Its Papers After Defendant’s Response

The First Department determined Supreme Court should not have decided, as a matter of law, a Spanish document was a judgment enforceable in New York. Only differing expert affidavits were provided and the operative statutes were not translated and submitted to the court. In addition, the court noted that the plaintiff’s submission of papers after defendant responded to the motion for summary judgment in lieu of complaint was properly allowed. Defendant was able to respond to the additional documents:

CPLR 5302 provides that New York will recognize foreign decrees that are “final, conclusive and enforceable where rendered even though an appeal therefrom is pending.” * * * The motion court was provided with the affidavits of the experts whose opinions differed, but was not provided with translated copies of the [statutes] cited by both experts. Thus, the court was not provided adequate information to determine as a matter of law that the document is a final judgment under Spanish law and ripe for enforcement in New York. * * *

There is no absolute rule that in a CPLR 3213 motion, a plaintiff cannot supplement its papers in response to a defendant’s arguments, so as to establish its entitlement to summary judgment in lieu of complaint. “Nothing that is curable by the mere addition of papers should result in a denial of the motion, unless it is a denial with leave to renew on proper papers” (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:8). “Mere omissions from the affidavits” that can be rectified by filing and serving additional affidavits should be cured by a continuance or adjournment in order for the additional affidavits to be served and filed (id.). * * * Here, defendant had an opportunity to address the merits of the later-submitted documents, in the form of a reply in the cross motion, and therefore plaintiff’s failure initially to include all the documents did not result in prejudice to defendant and require denial of the motion… .  Sea Trade Mar Corp v Coutsodontis, 2013 NY Slip Op 07560, 1st Dept 11-14-13

 

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Revocation of Plumber’s License Too Severe a Penalty

The First Department determined that the NYC Department of Buildings (DOB) imposed too harsh a penalty when it revoked petitioner’s master plumbing license after finding she violated the NYC Building Code:

…[W]e find that the penalty of revocation was excessive upon considering the following factors: the license is petitioner’s sole means of livelihood; this was the only instance of misconduct in an otherwise unblemished history as a licensed master plumber since 2001; there was no resultant harm to the public or the agency; and petitioner seemingly acknowledged the potential for harm when she informed the owner that his worker’s performance was inadequate and proposed that her workers correct the violations … . We note that the record demonstrated that DOB’s precedent indicates that in several other instances where licensees have committed similar acts of misconduct by performing work prohibited by the Code and/or submitting false reports or documents to DOB, which potentially placed the public at greater risk of harm than the misconduct at issue here, the agency imposed far less severe penalties. Matter of Ward v City of New York 2013 NY Slip Op 07569, 1st Dept 11-14-13

 

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Local Law Prohibiting Use of Groundwater Outside Village Preempted by State Law

The Second Department determined a village Local Law which prohibited the removal of groundwater for use outside the village was preempted by state law (Transportation Corporations law, Environmental Conservation Law (ECL)):

As relevant to this case, the Transportation Corporations Law permits water-works corporations to extend their service area to neighboring municipalities by entering “into a contract with the authorities of any city, town or village not mentioned in its certificate of incorporation, but situated in the same county as the city, towns or villages mentioned therein or in an adjoining county” (Transportation Corporations Law § 46). … Notably, the statutory procedure for obtaining a certificate of extension does not require the water-works corporation to obtain the consent or permission of the municipality where it was originally incorporated, an omission which we must conclude the Legislature intended (see McKinney’s Cons Laws of NY, Book 1, Statutes § 240) and which comports with the long-recognized policy in favor of the extension of water resources to less-advantageously situated municipalities… . … Accordingly, we conclude that the Legislature manifested an intent to preempt local laws which have the effect of prohibiting a water-works corporation from transferring water from one municipality to another … .Further, to the extent that the Local Law was enacted, either in purpose or effect, as a measure to regulate withdrawals of groundwater, it is further preempted by article 15 of the ECL. The terms “waters,” as used in ECL article 15, is expansive and includes all surface and underground water within the state’s territorial limits (see ECL 15-0107[4]). ECL article 15 states: “The sovereign power to regulate and control the water resources of this state ever since its establishment has been and now is vested exclusively in the state of New York, except to the extent of any delegation of power to the United States” … . The Legislature declared it to be the public policy of the state that: “The regulation and control of the water resources of the state of New York be exercised only pursuant to the laws of this state” (ECL 15-0105[1] … ), and the Department of Environmental Conservation (hereinafter the DEC) is given jurisdiction “in any matter affecting the construction of improvements to or developments of water resources for the public health, safety or welfare, including but not limited to the supply of potable waters for the various municipalities and inhabitants thereof” (ECL 15-0109). Woodbury Hgts Estates Water Co Inc v Village of Woodbury, 2013 NY Slip Op 07468, 2nd Dept 11-13-13

 

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Surrogate’s Court Could Not Award Attorney’s Fees for Services Provided to Decedent’s Legatee (as Opposed to Services which Benefitted the Estate)

The Second Department upheld Surrogate’s Court’s ruling that it did not have jurisdiction to award attorney’s fees for the attorney’s (Klein’s) handling of Mental Hygiene Law article 81 proceeding to have decedent’s legatee (Theodore) declared an incapacitated person:

“The Surrogate’s Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends” … . Although the Surrogate’s Court Procedure Act authorizes the court to fix and determine attorney’s fees for services rendered to a beneficiary of an estate (see SCPA 2110[1]), “[t]he only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent” … . Contrary to Theodore’s contention, “the Surrogate’s Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate” … . However,”the Surrogate has jurisdiction to determine, and is in the best position to determine, which legal services performed by [an attorney] benefitted the estate, and which benefitted only the individual interests of [a party]” … . Since the record supports the Surrogate’s determination that the services performed by Klein benefitted Theodore personally rather than the decedent’s estate, the court, in effect, upon reargument, properly adhered to its determination that it lacked jurisdiction to set Klein’s fee… . Matter of Tarlow, 2013 NY Slip Op 07491, 2nd Dept 11-13-13

 

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Improper Notice of Benefit Termination; Four-Month S/L Never Triggered; Termination Annulled

The Second Department determined the four-month statute of limitations for Article 78 review was never triggered because the NYC Housing Authority’s (NYCHA’s) failed to provide proper notice of termination of Section 8 housing benefits.  Therefore the termination was properly annulled and the subsidy was properly reinstated:

Pursuant to paragraph 22(f) of the Williams first partial consent judgment, the four-month statute of limitations of CPLR 217 begins to run on the date of receipt of the NYCHA’s notice of default letter … . Paragraph 22(f) cannot be read in a vacuum. Relying on contract principles, as urged by the NYCHA, and reading the Williams first partial consent judgment as a whole, we conclude that the NYCHA has the burden of satisfying the condition precedent of serving all three notices upon the Section 8 participant before its determination to terminate a participant’s subsidy can be considered final and binding upon the participant … . * * *

Here, the NYCHA failed to show that it mailed two of the three required notices. It did not present any proof that it mailed the initial warning letter and it submitted insufficient proof with respect to the mailing of the T-1 letter. As a result of this failure to abide by the notice provisions set forth in the Williams first partial consent judgment, the statute of limitations was not properly triggered and did not begin to run … . Matter of Dial v Rhea, 2013 NY Slip Op 07475, 2nd Dept 11-13-13

 

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Abutting Property Owner Did Not Have a Duty to Maintain Crowd Control Barriers Placed on Sidewalk by City

The Second Department determined abutting property owners had no duty to maintain crowd control barriers erected by the City on sidewalks during the holiday season.  Therefore, plaintiff, who was allegedly injured tripping over a barrier, did not have a cause of action against the abutting property owner:

Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner … . However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk … . “Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . Legislative enactment in derogation of the common law which creates liability where none previously existed must be strictly construed … .

Under the circumstances presented here, the defendant established, prima facie, that the barrier at issue, which was part of a long chain of barriers erected by the NYPD as part of its crowd control measures during the holiday season, was not part of the “sidewalk” for purposes of liability under Administrative Code § 7-210 … . Accordingly, Administrative Code § 7-210 is inapplicable and the defendant had no duty to maintain the barriers. Staruch v 1328 Broadway Owners, LLC, 2013 NY Slip Op 07467, 2nd Dept 11-13-13

 

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