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Loan Agreement Constituted a “Building Loan Contract” within Meaning of Lien Law/Only “Construction Funds” Subject to Subordination Penalty

In a full-fledged opinion by Judge Read, with a concurrence/dissent by Judge Graffeo, the Court of Appeals hashed out the priority of liens, including mechanic’s liens, to be satisfied after the foreclosure on a 10 million dollar construction project in Syracuse.  The Court determined that a loan agreement constituted a “building loan contract” within the meaning of Lien Law section 22, and that only the “construction funds,” as opposed to the total mortgage, were subject to the statutory subordination penalty.  Altshuler Shaham Provident Funds, Ltd v GML Tower, LLC, No 115, CtApp, 6-11-13

 

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Petitioner Did Not Demonstrate Diminution in Value Related to Presence of Lead Paint Re: Tax Assessments

In affirming the tax assessment of residential properties in Syracuse, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the petitioner did not make a sufficient showing of the diminution of property values by the presence of lead paint:

In this Real Property Tax Law article 7 proceeding challenging the tax assessments of certain residential properties located in Syracuse, New York, petitioner contends that the trial court erred by failing to consider the impact of contamination — specifically, lead paint — upon the market value of the properties. We hold that petitioner failed to rebut the presumption of validity that attaches to the tax assessments of the properties by the City of Syracuse. That is, petitioner failed to proffer substantial evidence demonstrating a diminution in market value to his properties caused by the mere presence of lead paint. * * *

Where the trial court declined to credit petitioner’s appraisal reports, and the record does not demonstrate a diminution in market value caused by environmental contamination or hazards, petitioner failed to meet his burden and there is no basis to disturb the presumption of validity in the City’s favor. Matter of Roth v City of Syracuse, No 110, CtApp, 6-11-13

 

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Plaintiffs Should Have Been Allowed to File Late Notice of Claim

The First Department determined plaintiff, who was eleven at the time of the accident, should have been allowed to file an amended notice of claim. The original notice described the wrong address.  At the 50-h hearing the plaintiff identified the correct location after seeing photographs of the incorrect location.  The defendant did not meet its burden of demonstrating prejudice.  Gonzalez v NYC Hous Auth, 2013 NY Slip Op 04287, 1st Dept, 6-11-13

 

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National Labor Relations Board Had First Crack at Collective Bargaining Agreement Matter Under Preemption Doctrine

The Fourth Department determined the National Labor Relations Board, under the doctrine of federal preemption of state law, had first crack at determining whether it had jurisdiction over a collective bargaining matter, as opposed to the NYS Public Employment Relations Board (PERB):

We agree with petitioners, however, that Supreme Court erred in determining that PERB properly exercised jurisdiction over those matters.    Inasmuch as the two collective bargaining matters “arguably” fall within the scope of the National Labor Relations Act (NLRA)…, the National Labor Relations Board (NLRB) has primary jurisdiction “to determine in the first instance” whether its jurisdiction preempts PERB’s jurisdiction …..  Under the circumstances of this case, and in the interest of judicial economy, we hold the case pending a determination of the NLRB whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB’s jurisdiction… . Buffalo United Charter School, et al v NYS Public Employment Relations Board, et al, 515, 4th Dept, 6-7-13

 

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People Did Not Meet Burden of Going Forward at Suppression Hearing

The Fourth Department determined the People did not meet their “burden of going forward” at the suppression hearing and suppressed the evidence seized from the defendant.  After an anonymous call describing a person who looked nothing at all like the defendant, the police approached, detained and searched the defendant:

The officer who approached defendant testified at the suppression hearing that he asked defendant to step away from a group of individuals with whom defendant was socializing.  The officer escorted defendant to the curb while physically holding defendant’s waistband, and he instructed defendant to face the street and to place his hands on the roof of a civilian vehicle.  The officer testified that at that time defendant was not free to leave.  Having detained defendant in that manner, the officer then explained to defendant the reason for the police presence.  The officer asked defendant if he had any contraband and if defendant would consent to a search of his person.  Defendant consented to the search, during which the police obtained the physical evidence sought to be suppressed.  In light of the fact that defendant was illegally detained, i.e., without a reasonable suspicion that he was committing or had committed a crime (see CPL 140.50 [1]), his consent to the search immediately thereafter cannot be considered voluntary ….

Although “ ‘a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance’ ” ….  We agree with defendant that the People failed to meet that burden.  People v Noah, 414, 4th Dept, 6-7-13

 

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Conviction Reversed Because Uncharged Theory Considered by Jury

The Fourth Department reversed defendant’s conviction for criminal impersonation because the jury was allowed to consider a theory of prosecution that was not charged:

…[T]he court’s jury instructions with respect to the crime of criminal impersonation in the first degree permitted the jury to convict him upon a theory not charged in the indictment, and thus violated his right to be tried for only those crimes charged in the indictment, as limited by the bill of particulars …. …[W]e address defendant’s contention despite his failure to preserve it for our review … . The fifth count of the indictment alleged that defendant committed the crime of criminal impersonation when he pretended to be a police officer and, “in the course of such pretense, committed or attempted to commit the felony of [r]ape in the first degree.”    The court’s instructions, however, permitted the jury to convict defendant upon finding that he committed any felony in the course of pretending to be a police officer, thus allowing the jury to convict defendant upon a theory not charged in the indictment.  People v Williams, 340, 4th Dept, 6-7-13

 

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Failure to Prove Defendant Did Not Have a Good Faith Belief He Had a Claim of Right to Property Precluded Larceny Conviction

The Fourth Department determined there was insufficient evidence to support a grand larceny charge based upon the defendant’s taking a jeep from his girlfriend’s residence.  Prior to defendant’s taking the jeep, his girlfriend had agreed to transfer it to him—an offer she subsequently told defendant was “off:” The Fourth Department held the People had not proven the defendant did not have a good faith belief that he had a claim of right to the jeep:

It is well established that “a good faith claim of right is properly a defense—not an affirmative defense—and thus, ‘the people have the burden of disproving such defense beyond a reasonable doubt’ ” … .A defendant is not required to “establish that he previously owned or possessed the property at issue in order to assert the claim of right defense” …. The test is whether a defendant had a “subjective[,] good faith” belief that he or she had a claim of right to the relevant property, not whether defendant’s belief was reasonable … . Based on the testimony of defendant’s former girlfriend, which is the only evidence that relates to the claim of right issue, we conclude that it was unreasonable for the jury to conclude that the People established beyond a reasonable doubt that defendant did not have a subjective, good faith basis for believing that the Jeep was his, and thus the verdict with respect to the grand larceny in the fourth degree count is against the weight of the evidence ….  People v Rios, 223, 4th Dept, 6-7-13

 

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Undue Influence Criteria Explained

The Fourth Department affirmed Surrogate’s Court’s determination that the decedent was not subjected to undue influence in making a will.  The Court explained the legal principles at work as follows:

It is well settled that a will contestant seeking to prove undue influence must show the “exercise [of] a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity [that] could not be resisted, constrained the testator to do that which was against [his or] h[er] free will” …. “Undue influence must be proved by evidence of a substantial nature . . . , e.g., by evidence identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” …. “Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact” … .  Matter of Lee, 235, 4th Dept, 6-7-13

 

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Attempt to Deny Visitation to Incarcerated Mother Denied

In affirming Family Court’s denial of grandmother’s (the child’s primary physical custodian’s) petition to suspend the child’s visitation with mother, who is incarcerated, the Fourth Department wrote:

Even assuming, arguendo, that the grandmother established “ ‘a change in circumstances sufficient to warrant an inquiry into whether the best interests of the [child] warranted a change in custody’ ”…, we conclude that, contrary to the grandmother’s contention, visitation with the mother at the correctional facility is in the child’s best interests.

There is a presumption that visitation with the noncustodial parent is in thechild’s best interests…, and a “parent’s incarceration, by itself, does not vitiate” that presumption….“Unless there is a compelling reason or substantial evidence that visitation with an incarcerated parent is detrimental to a child’s welfare, such visitation should not be” suspended ….    We conclude that the grandmother failed to establish by a preponderance of the evidence that visitation with the mother would be detrimental to the child, and thus she did not overcome the presumption that visitation with the mother is in the child’s best interests… .  Matter of Cormier v Clarke…, 409, 4th Dept, 6-7-13

 

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