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Failure of Sentencing Court to Inform Defendant of Period of Post-Release Supervision Required Release after Sentence Served

The Department of Corrections cannot remedy a court’s failure to impose a period of post-release supervision.  In this case the prisoner’s habeas corpus petition was granted and the prisoner, who had served his sentence, was released.  The Fourth Department determined that the sentencing court’s statement—“the supervisory period under the violent felony offender sentencing statute will be five years, which means when you come out on parole, you will be on five years of parole at the conclusion of the ten-year sentence”—did not pronounce the period of post-release supervision as required by Criminal Procedure Law 380.20.  People ex rel Finch v Brown, 23, KAH 11-00862, 4th Dept. 3-15-13

 

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County Executive Has Authority to Commence Lawsuit Without Resolution from County Legislature

The Fourth Department determined the Erie County Executive had the authority to bring a lawsuit alleging fraud on the part of a County Commissioner which resulted in the payment of more than $4,000,000 for goods and services that had not been provided.  The defendant contended the County could not bring the suit absent a resolution by the County Legislature.  The Fourth Department wrote:

There is no dispute that the County Legislature did not pass a resolution authorizing the commencement of this action. Contrary to defendant’s contention, however, we conclude that, notwithstanding the absence of such a resolution, the County Executive was empowered to commence this action on behalf of the County (see Matter of County of Rockland v Town of Clarkstown, 167 Misc 2d 367, 371). Under the County Charter, the County Executive is the Chief Executive Officer, the administrative head of the County government, and the Chief Budget Officer of the County.The County Charter grants the County Executive “all necessary incidental powers to perform and exercise any of the duties and functions specified . . . or lawfully delegated to him” (Erie County Charter § 302 [former (n)], now [m]).The County Executive is empowered by the County Charter to authorize the County Attorney to commence civil litigation to enforce any of the duties and functions lawfully designated to the County Executive (see § 602; see also § 302 [former (m)], now [l]; [former (n)], now [m]).Inasmuch as this action seeks to recover over $4 million dollars of the County’s funds that were allegedly improperly paid under the M/A-Com contract as a result of defendant’s alleged fraud, we conclude that the County Executive’s duties as Chief Executive Officer and Chief Budget Officer of the County clearly embrace the subject matter of this action and empower him to authorize the County Attorney to commence the litigation (see Rockland County, 167 Misc 2d at 371).  Justices Sconiers and Whalen disagreed in a substantial dissent.  County of Erie v M/A-Com, Inc., et al, 1184, CA 12-00075, 4th Dept. 3-15-13

 

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Performance and Design Specification Contracts Defined

This breach of contract case concerned the installation of “jet grout bottom seal” at a wastewater treatment plant.  In the course of its discussion, the Fourth Department explained the difference between performance and design specification contracts:

We … conclude that there are issues of fact concerning whether the contract was one of performance or design specification, thus precluding summary judgment with respect to the additional expenses that plaintiff allegedly incurred in remediating the jet grout bottom seal. “A performance specification [contract] requires a contractor to produce a specific result without specifying the particular method or means of achieving that result” (Fruin-Colnon Corp. v Niagara Frontier Transp. Auth., 180 AD2d 222, 229).“In other words, the contractual risk of nonperformance is upon the contractor” (id.). In contrast, a design specification contract is one in which “the owner specifies the design, materials and methods and impliedly warrants their feasibility and sufficiency” (id.).     “In that instance, the contractor’s guarantee . . . is limited to the quality of the materials and workmanship employed in following the owner’s design” (id. at 230). The proper characterization of a construction contract as one of either performance or design specification “depends upon the language of the contract as a whole,” and relevant factors in such an inquiry “include the nature and degree of the contractor’s involvement in the specification process, and the degree to which the contractor is allowed to exercise discretion in carrying out its performance” ​(id.).Here, the unresolved issues of fact with respect to those factors, particularly as to plaintiff’s ability to change the design without Falter’s approval, precludes a determination whether as a matter of law the subject contract is one of either performance or design specification, and thus whether plaintiff may recover expenses incurred in remediating the jet grout bottom seal.  Howard Baker, Inc. v C.O. Falter Construction Corp., et al, 1441, CA 12-00398, 4th Dept. 3-15-13

 

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Pre-Closing Inspection Disallowed Because There Was No Mention of a Pre-Closing Inspection in the Purchase Contract

The Fourth Department determined a purchase contract which contained a merger clause prohibiting oral modifications and which did not have a provision allowing a pre-closing inspection did not provide the buyer with the right to inspect the property.  Under the rules for the interpretation of an unambiguous contract, “ ‘courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include’ . ..”.  Thirty One Development, LLC v Jeffery Cohen, et al, 161 CA 11-02577, 4th Dept. 3-15-13

 

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Buyer Not Entitled to “Loss of Bargain” Damages for Breach of Purchase Contract

The contract for the sale of a parcel of real property included the following: “It is the understanding of the parties that at the present time, seller is not in title to the property.  Seller is a first mortgage holder and the mortgage is in default.  In the event that the title holder does not agree to signing over a deed in lieu of foreclosure, the seller will institute foreclosure proceedings with the courts.  Seller shall be able to provide good and clear title in accordance with this contract.” The defendant-seller, however, was outbid at the foreclosure sale and could not provide the buyer with good and clear title.  In the lawsuit brought by the buyer, the buyer sought so-called “loss of bargain” damages.  In affirming the trial court’s denial of buyer’s request for “loss of bargain” damages, the Fourth Department explained:

It is well settled that “[t]he vendee in a contract for the sale of land is not ordinarily entitled, upon breach, on failure to convey, to recover of the vendor damages measured by the goodness of his bargain or the financial benefit which would result from performance, and it is only when the vendor is for some reason chargeable with bad faith in the matter that recovery beyond nominal damages on that account can be had” … .Thus, “[i]f a vendee knows of the inability of his vendor to convey the title he has undertaken to convey, the vendee’s damages are not measurable by the loss of his bargain” … .  Khanjani v Schreiber, 141, CA 12-00494, 4th Dept. 3-15-13

 

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Old Age, Infirmity, Dementia and Medical Opinion Did Not Demonstrate Lack of Testamentary Capacity

In affirming the dismissal of objections to a will, the Fourth Department explained that proof the decedent suffered from old age, infirmity and dementia was not necessarily inconsistent with testamentary capacity, and, where there is direct evidence the decedent had the necessary ability to understand, even medical opinion is of minor importance:

“It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the [Surrogate] must look to the following factors: (1) whether []he understood the nature and consequences of executing a will; (2) whether []he knew the nature and extent of the property []he was disposing of; and (3) whether []he knew those who would be considered the natural objects of h[is] bounty and h[is] relations with them’ ” … .“ ‘Mere proof that the decedent suffered from old age, physical infirmity and . . . dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will w made’ ”… . “Where there is direct evidence that the decedent possessed the understanding to make a testamentary disposition, even ‘medical opinion evidence assumes a relatively minor importance’ ”….  In the Matter of Alibrandi, 136, CA 12-00963, 4th Dept. 3-15-13

 

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Co-Executor Can Object to Final Accounting Solely By Virtue of the Executor’s Fiduciary Duty to the Estate 

In finding that a co-executor (who could no longer be sued by any of the beneficiaries because all had executed releases) had standing to contest a final accounting submitted by the other co-executor, the Fourth Department wrote:

An executor is a fiduciary who owes “a duty of undivided loyalty to the decedent and ha[s] a duty to preserve the assets that [decedent] entrusted to them” …, and “an executor’s duties are derived from the will itself, not from the letters issued by the Surrogate” … .

“Suffice it to say, an executor who knows that his co[-]executor is committing breaches of trust and not only fails to exert efforts directed towards prevention but accedes to them is legally accountable” … .

…[T]the Surrogate concluded that, because there were no remaining creditors of the estate and all of the other beneficiaries had executed releases absolving objectant of liability, objectant no longer had standing as a co-executor to file any objections to petitioner’s final accounting. * * *

Contrary to the Surrogate’s conclusion, the mere fact that the estate has no creditors and objectant can no longer be sued successfully by any of the beneficiaries does not establish that he has fulfilled his fiduciary duty to the decedent and the estate so as to vitiate his standing to raise objections to the accounting filed by the co-executor.

An executor’s duty is not fulfilled merely because he or she has obtained releases from liability.

The standard of care for a fiduciary cannot be set so low; rather, a fiduciary has a “duty of active vigilance in the collection of assets belonging to the estate” …   In the Matter of Schultz, 51, CA 12-01283, 4th Dept. 3-15-13

 

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Punishment Was “Shocking to One’s Sense of Fairness”

In an Article 78 proceeding, the Fourth Department determined the punishment imposed upon an inmate (for an assault on staff) after a Tier III disciplinary hearing, was too severe. The Court determined that “the punishment imposed of four years’ confinement in the Special Housing Unit (SHU) together with four years’ loss of good time and various privileges “ ‘ is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ “ … .  Considering the inmate’s age at the time of the incident (17) and the facts of the incident, the Fourth Department reduced the time in the SHU and the loss of good time and privileges to 18 months.  In the Matter of Cookhorne v Fischer, 162, TP 12-01634, 4th Dept. 3-15-13

 

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Suspended Sentence for Non-Payment of Support Could Not Be Revoked Without Hearing

The Fourth Department ruled that Family Court could not revoke a suspended jail sentence for non-payment of support by the father without giving the father the chance to rebut the allegations against him:

The Support Magistrate previously had issued an order “on consent” in November 2011 (November order), setting forth that the father admitted that he willfully violated the February order and finding him in willful violation of the February order. The Support Magistrate imposed a sentence of four months in jail but suspended the sentence on the condition that the father did not miss two consecutive support payments. *  *  *

Although the court had the discretion to revoke the suspension of the jail sentence, the court erred in doing so without first affording the father “an opportunity to be heard and to present witnesses . . . on the issue whether good cause existed to revoke the suspension of the sentence” (Matter of Thompson v Thompson, 59 AD3d 1104, 1105, quoting Family Ct Act § 433 [a] [internal quotation marks omitted]; see Ontario County Dept. of Social Servs. v Hinckley, 226 AD2d 1126, 1126). “No specific form of a hearing is required, but at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 AD3d at 1105 [internal quotation marks omitted]). “ ‘[I]t is well settled that neither a colloquy between a respondent and Family Court nor between a respondent’s counsel and the court is sufficient to constitute the required hearing’ ” (id.). Here, there was only the admission of nonpayment by the father’s attorney, which was insufficient (see id.), and there was no opportunity for the father to present evidence rebutting the allegations against him.  In the Matter of Davis v Bond, 281, CAF 12-00553, 4th Dept. 3-15-13

 

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Duty to Defend

In finding that an insurance company was required to defend, the Fourth Department explained the relevant criteria in the context of a summary judgment motion:

An insurer’s duty to defend is “ ‘exceedingly broad’ and an insurer will be called upon to provide a defense whenever the allegations of the complaint ‘suggest . . . a reasonable possibility of coverage’ ”.. .“If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” ….Thus, the duty to defend exists “ ‘even though facts outside the four corners of [the] pleadings indicate that the claim may be meritless or not covered’ ” ….

The insured has the initial burden of establishing coverage under an insurance policy while the insurer bears the burden of proving that an exclusion in the policy applies to defeat coverage … .“[E]xclusions are subject to strict construction and must be read narrowly” … .In order to establish that an exclusion defeats coverage, the insurer has the “heavy burden” of establishing that the exclusion is expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable to the facts ….An insurer “will be required to ‘provide a defense unless it can “demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, [in toto], are subject to no other interpretation” ’ ” … .  Georgetown Capital Group, Inc. v Everest National Insurance Company, 82, CA 12-01337, 4th Dept. 3-15-13

 

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