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PETITIONER, WHO IS MILDLY AUTISTIC, DEMONSTRATED (1) HE IS NOT DISABLED WITHIN THE MEANING OF SURROGATE’S COURT PROCEDURE ACT (SCPA) ARTICLE 17-A AND (2) HE UNDERSTANDS AND IS ABLE TO MANAGE HIS FINANCIAL AFFAIRS; THE PETITION TO DISSOLVE THE GUARDIANSHIP OF HIS PROPERTY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined petitioner, who is mildly autistic, demonstrated he did not have a disability within the meaning of Surrogate’s Court Procedure Act (SCPA) article 17-a and, therefore, his petition to dissolve the guardianship of his property should have been granted. Petitioner held a job was up-to-date on all his bills:

The petitioner established that he did not have a disability as defined in SCPA article 17-A, as his evidence showed that his ability to “understand and appreciate the nature and consequences of decisions” was not impaired (id. § 1750-a[1]). The petitioner presented medical evidence that his autism was mild and that he did not have significant deficits in adaptive functioning. He also showed, through his own testimony, that he understood the consequences of decisions in financial and other areas. * * *

The petitioner understood, for example, how his rent was calculated, the importance of staying up to date with his bills, what expenses were nonessential and could be eliminated when he needed to conserve money, how to open a bank account, how to obtain advice from the bank on improving his financial situation, and that he would not have direct access to his trust funds if the guardianship were dissolved and that those funds were placed into a pooled trust. Matter of Robert C. B., 2022 NY Slip Op 04301, Second Dept 7-6-22

Practice Point: The medical records demonstrated petitioner’s mild autism is not a disability within the meaning of the Surrogate’s Court Procedure Act. Petitioner demonstrated through his own testimony that he understands and is able to manage his financial affairs. The petition to dissolve the guardianship of his property should have been granted.

 

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THE POLICE WERE “ACTING IN THE PUBLIC SERVICE FUNCTION” WHEN THEY SEARCHED THE INJURED DEFENDANT AND FOUND A CARTRIDGE; DEFENDANT WAS DRIFTING IN AND OUT OF CONSCIOUSNESS; THE POLICE PROPERLY SEARCHED HIS POCKETS FOR IDENTIFICATION; SUPPRESSION DENIED (FIRST DEPT).

The First Department determined the search of plaintiff’s clothing by the police did not require suppression of the cartridge found in defendant’s pocket because the police were “acting in the public service function” in aiding the injured defendant:

… [T]he hearing court … denied suppression of a cartridge recovered from defendant’s pants pocket, correctly finding that “the police were acting in their public service function in rendering aid when searching the defendant’s clothing for identification.” When police arrived, defendant was lying on the ground and screaming that he had been shot. He appeared to have been shot in the leg, he was drifting in and out of consciousness, and he could not state his name. At that point, the officers were treating defendant as an injured victim rather than a suspect, and were not performing a law enforcement function … . Under the circumstances, it was reasonable for the officers to believe defendant needed immediate assistance and to search his pants for identification as they waited for him to be transported to the hospital …  In performing this public service function, it was reasonable for the police to ascertain the identity of the person they were aiding and to supply that information to medical personnel, and defendant did not appear capable of communicating his identity. People v Hatchett, 2022 NY Slip Op 04282, First Dept 7-5-22

Practice Point: When the police aid an injured person and search the person’s pockets for identification, they are “acting in the public service function.” Suppression of any contraband found in the search will be denied.

 

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THE ONE COUNT INDICTMENT WAS RENDERED DUPLICITOUS BY THE BILL OF PARTICULARS AND WAS DISMISSED AFTER TRIAL; THE APPELLATE COURT NOTED THAT EVEN IF THE EVIDENCE HAD BEEN NARROWED AT TRIAL, DISMISSAL WOULD STILL BE REQUIRED BECAUSE DEFENDANT DID NOT HAVE PRETRIAL NOTICE OF THE CHARGES (FOURTH DEPT).

The Fourth Department, reversing the conviction and dismissing the indictment, determined the one count indictment was rendered duplicitous by the bill of particulars. The court noted that, even if the scope of the evidence had been narrowed at trial, reversal still would have been necessary because defendant did not have pretrial notice of the charges:

Because the sole count of the indictment charged only one offense, as required by CPL 200.30 (1) … , the indictment on its face was not duplicitous. It is well settled, however, that indictments charging one offense per count can be rendered duplicitous by, among other things, a bill of particulars alleging more than one offense per count … . Here, the bill of particulars alleged that defendant engaged in two separate and distinct acts of nonconsensual sexual intercourse with the victim. The second such act allegedly occurred more than three hours after the first act. Thus, while the indictment charged only one criminal act, the jury heard evidence at trial of two criminal acts, with no specification from the court or the prosecutor as to which act they were to consider when rendering a verdict.

Even if the trial evidence narrowed the scope of defendant’s allegedly illegal conduct, and here it did not, that “is irrelevant. Defendant was entitled to pretrial notice of the charges so that he would be able to adequately prepare a defense” … . People v Baek, 2022 NY Slip Op 04263, Fourth Dept 7-1-22

Practice Point: Here the one count indictment was rendered duplicitous by the bill of particulars which alleged two sexual acts. Even if the evidence had been narrowed at trial, reversal still would have been necessary because defendant did not have pretrial notice of the charges.

 

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DEFENDANT’S COUNSEL WAS INEFFECTIVE IN THAT COUNSEL’S EXPLANATION OF THE IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA WAS WRONG; MATTER REMITTED FOR A HEARING ON WHETHER THERE IS A REASONABLE POSSIBILITIY DEFENDANT WOULD NOT HAVE PLED GUILTY HAD HE BEEN PROPERLY INFORMED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant demonstrated his attorney gave him the wrong advice about the chances he would be deported based on his guilty plea and sent the matter back for hearing on whether the is a reasonable possibility defendant would not have pled guilty if he had been properly informed:

In support of [defendant’s motion to vacate his conviction], defendant’s attorney on the motion averred that defense counsel had given advice that was consistent with an assumption that the crime that defendant was pleading guilty to was a crime of moral turpitude within the meaning of the Immigration and Nationality Act (INA), for which an immigration judge could grant a cancellation of removal, when in actuality defendant was pleading guilty to an aggravated felony under the INA that would almost certainly result in deportation…. . People v Go, 2022 NY Slip Op 04258, Fourth Dept 7-1-22

Practice Point: Defendant moved to vacate his conviction by guilty plea on ineffective assistance grounds. Defendant demonstrated that his attorney’s explanation of the immigration consequences of the plea was wrong. Therefore County Court should have held a hearing on whether there is a reasonable possibility defendant would not have pled guilty had he been correctly informed.

 

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THE AMOUNT OF RESTITUTION WAS NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE; ALTHOUGH UNPRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed the determination of the amount of restitution and remitted for a hearing. The error was not preserved and was considered in the interest of justice. The court further noted that the recipient of the restitution was not put on the record:

… [T]he People failed to establish the victim’s actual out-of-pocket loss by a preponderance of the evidence. The restitution amount ordered by the court deviated from the loss claimed by the restaurant manager in his testimony, and the sole evidence supporting the actual amount of out-of-pocket loss calculated by the court was an undetailed, vague letter ostensibly from the restaurant franchisee’s insurer listing an amount of loss—the calculation and accuracy of which was, by their own representation at the hearing, unknown to the People … . People v Piasta, 2022 NY Slip Op 04243, Fourth Dept 7-1-22

Practice Point: Here the amount of restitution was not proven by a preponderance of the evidence. The recipient of the restitution was not identified on the record. Although the errors were not preserved, they were considered in the interest of  justice. The matter was remitted for a hearing.

 

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THE MAJORITY HELD THAT THE SIX-YEAR DELAY BETWEEN WHEN THE PEOPLE WERE AWARE OF THE DNA EVIDENCE LINKING DEFENDANT TO THE RAPE AND DEFENDANT’S ARREST DID NOT DEPRIVE DEFENDANT OF DUE PROCESS; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined defendant was not entitled to reversal of the rape conviction based on the six-year preindictment delay. The dissenter would have reversed, finding the delay deprived defendant of due process:

In determining whether defendant was deprived of due process, we must consider the factors set forth in People v Taranovich (37 NY2d 442 [1975]), which are: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . * * *

There is no indication that the “delay was caused by any bad faith on the part of the People” … . Instead, the delay was largely caused by the efforts of the People and law enforcement “to acquire substantial corroborating evidence in order to prove defendant’s guilt beyond a reasonable doubt” … . Nevertheless, it is true, as defendant points out, that extensive periods of delay may fairly be attributed to neglect by the People and law enforcement in the investigation. But even assuming, arguendo, that [this] factor weighs in defendant’s favor, three of the five factors favor the People, and we thus conclude that the court did not err in denying that part of defendant’s omnibus motion seeking to dismiss the indictment on due process grounds.

From the dissent:

The People … failed to present a valid reason for the delay … . As of September 2006, when the prosecution was made aware of DNA evidence linking defendant to the crime, the prosecutor possessed all information necessary to charge defendant, and the record reveals no reason, plan, or deliberate decision to delay defendant’s arrest until it was eventually made in January 2013. Instead, the record reflects that the explanation for the over six-year delay was simply inadvertence, which is an insufficient reason as a matter of law … . People v Stefanovich, 2022 NY Slip Op 04241, Fourth Dept 7-1-22

Practice Point: There was a six-year delay between when the People became aware of DNA evidence linking defendant to the crime and defendant’s arrest. The majority held the delay did not deny defendant of due process. The dissenter argued the People demonstrated only that the delay was the result of “inadvertence,” which is an insufficient reason.

 

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IN THIS “CHILD VICTIMS ACT” ACTION ALLEGING SEXUAL ABUSE IN THE 1950’S BY EMPLOYEES OF THE NOW DISSOLVED YMCA NIAGARA FALLS, THERE ARE QUESTIONS OF FACT WHETHER THE DE FACTO MERGER DOCTRINE APPLIES RENDERING YMCA BUFFALO LIABLE FOR THE TORTS OF YMCA NIAGARA FALLS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined this “Child Victims Act” action against YMCA Buffalo, alleging sexual abuse in the 1950’s by employees at the now dissolved YMCA Niagara Falls, should not have been dismissed. The decision is comprehensive and cannot be fairly summarized here. There exist triable issues of fact whether the de facto merger doctrine applies rendering YMCA Buffalo liable for the torts of YMCA Niagara Falls:

… [A]s a general rule, “a corporation which acquires the assets of another is not liable for the torts of its predecessor” ,,, . There are exceptions, however, and thus “[a] corporation may be held liable for the torts of its predecessor if (1) it expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligations” … . Plaintiff relies exclusively on the second exception, which implicates the de facto merger doctrine … . The de facto merger doctrine is “based on the concept that a successor that effectively takes over a [corporation] in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased,” which “is consistent with the desire to ensure that a source remains to pay for the victim’s injuries” … . Dutton v Young Men’s Christian Assn. of Buffalo Niagara, 2022 NY Slip Op 04238, Fourth Dept 7-1-22

Practice Point: In this Child Victims Act action alleging sexual abuse in the 1950’s by employees of the now dissolved YMCA Niagara Falls, there are questions of fact about whether the de facto merger doctrine makes defendant YMCA Buffalo liable for the torts of YMCA Niagara Falls. The decision is comprehensive and discusses every conceivable aspect of the de facto merger doctrine as it applies to not-for-profit corporations.

 

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THERE WAS AN “UNWARNED” THREE-FOOT DROP ON THE OTHER SIDE OF A DOOR IN A REMOTE AREA OF THE HOSPITAL; PLAINTIFF, A HOSPITAL WORKER, WAS INJURED BY THE THREE-FOOT DROP; THE ARCHITECTURAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND NO DUTY WAS OWED TO THE PLAINTIFF; THE CONSTRUCTION COMPANY JUSTIFIABLY RELIED ON THE ARCHITECT’S SPECIFICATIONS AND COULD NOT BE HELD LIABLE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the architectural malpractice cause of action should not have been dismissed. Plaintiff, a hospital maintenance groundskeeper, was injured by a three-foot drop on the other side of a door for which there were no warning signs. Although the door was in a remote area of the hospital, Supreme Court should not have concluded the defendant architectural firm (SBRA) did not owe a duty to the hospital worker who was showing the area to a coworker. The cause of action against the construction company, however, was properly dismissed because the construction company was justified in relying upon SBRA’s specifications:

… SBRA had the initial burden of establishing that it “used the degree of care in design that a reasonably prudent architect would use to avoid an unreasonable risk of harm to anyone likely to be exposed to the danger” … . Initially, we conclude that the court erred in determining that plaintiff was not an intended user of the area where the incident occurred and thus that SBRA had no duty to plaintiff with respect to the design of that area. The evidence established that plaintiff was an employee of the hospital who was using the door in its ordinary manner, i.e., to reach the location on the other side of the door while he was showing that location to a coworker. Moreover, the coworker’s deposition testimony was submitted by SBRA in support of its motion and established that there was a three-foot differential to the floor upon exiting the door and there were no warning signs, no locks on the door, and no railings. Thus, we conclude that SBRA failed to establish as a matter of law that it had no duty to plaintiff … or that it was not negligent in the design of the relevant portion of the building … . Dentico v Turner Constr. Co. & SBRA, Inc., 2022 NY Slip Op 04237, Fourth Dept 7-1-22

Practice Point: There were questions of fact about whether the architectural firm was liable for injuries caused by a three-foot drop on the other side of a door. The causes of action should not have been dismissed on the ground no duty was owed to the plaintiff. Plaintiff was a hospital worker and the door was in a remote area of the hospital. The construction company was not liable because it justifiably relied on the architectural specifications.

 

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IF AN APPELLATE ISSUE IS NOT LISTED IN THE NOTICE OF APPEAL, THE ISSUE IS NOT BEFORE THE APPELLATE COURT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined summary judgment was precluded by questions of fact in this action stemming from defendants’ blocking of a tunnel leading to plaintiffs’ parking garage. Plaintiffs alleged they own the rights to the easement created for the construction of the tunnel. The tunnel goes under the Rath Erie County Office Building and was apparently blocked by county officials for security reasons. The decision addresses declaratory judgment, breach of contract, trespass and appeal issues. Only the appeal issue is summarized here. If an appellate issue is not listed in the notice of appeal, the issue is not before the appellate court:

… [P]laintiffs’ contention on the cross appeal that the court erred in denying that part of the motion seeking a permanent injunction is not properly before us. In their notice of cross appeal, plaintiffs indicate that they are cross-appealing from the order “to the extent that the [c]ourt reached a determination as set forth in paragraph ‘e’ finding that the actions taken by . . . [d]efendants . . . constitute a taking.” It is well settled that, where a party files a notice of cross appeal indicating that it is appealing from a specific part of an order, that party “is limited by its notice of cross appeal to arguing only with respect to the” part of the order listed in the notice … . Pearl St. Parking Assoc. LLC v County of Erie, 2022 NY Slip Op 04235, Fourth Dept 7-1-22

Practice Point: When a party appeals from an order, only those portions of the order listed in the notice of appeal are before the court. If a portion of the order is not listed, the appellate court will not consider it.

 

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PETITIONER HELD HIMSELF OUT AS THE FINANCIAL DECISION-MAKER OF THE BUSINESS AND THE TAX TRIBUNAL PROPERLY FOUND PETITIONER WAS PERSONALLY LIABLE FOR UNPAID EMPLOYEE WITHHOLDING TAXES; THE TWO DISSENTERS ARGUED THAT PETITIONER WAS NOT THE FINANCIAL DECISION-MAKER AND WAS PUT IN CHARGE ONLY TO ALLOW THE BUSINESS TO BE CERTIFIED AS A MINORITY BUSINESS-ENTERPRISE; THE IRS IN A PARALLEL PROCEEDING HAD ABSOLVED PETITIONER OF LIABILITY (THIRD DEPT).

The Third Department, over a two-justice dissent, determent the Tax Tribunal properly found that petitioner was a “responsible person” such that he can be held personally liable for unpaid employee withholding taxes. According to the dissent, petitioner held himself out as the business’s (NECC’s) financial decision-maker as part of an agreement with the 51% shareholder, Anthony Nastasi (the actual financial decision-maker) in order that the business would be certified as a minority business-enterprise and be eligible for certain state contracts as a result. In a parallel proceeding brought against petitioner by the IRS, petitioner was absolved of liability:

Notwithstanding evidence that could support a contrary determination, it is undisputed that petitioner was president, the majority shareholder, had check signing authority, was involved in daily field operations and derived a substantial part of his income from NECC. Additionally, petitioner intentionally held himself out to third parties, as well as to the Division of Taxation itself, as the contact person and responsible person for New York taxes by signing state tax returns and checks accompanying the returns, executing a sales tax certificate of authority listing himself as the corporation’s responsible person, filling out the Division’s “Responsible Person Questionnaire,” and maintaining communication with the Department. Accordingly, respondent’s determination that petitioner is a responsible person has a rational basis, is supported by substantial evidence and must be upheld … . Matter of Black v New York State Tax Appeals Trib., 2022 NY Slip Op 04200, Third Dept 6-30-22

Practice Point: Even though there was evidence petitioner was put in charge of the business solely to allow it to be certified as a minority business enterprise, the Third Department upheld the Tax Tribunal’s determination that petitioner was a “responsible person” liable for unpaid employee withholding taxes. The two dissenters argued petitioner was not a “responsible person” and should be absolved of liability, which was the result in the parallel IRS proceeding. The result in this case was dictated by the standard for appellate review of an administrative determination. As long as there is evidence in the record which supports the Tax Tribunal’s ruling, the ruling will be deemed rational and upheld.

 

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