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CLAIMANT, A MEMBER OF THE CITY BOARD OF ASSESSMENT AND REVIEW (BAR) HIRED TO REVIEW THE FAIRNESS OF PROPERTY TAX ASSESSMENTS, WAS NOT AN EMPLOYEE OF THE CITY AND THEREFORE WAS NOT ELIBIBLE FOR UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a City Board of Assessment and Review (BAR) member, was not an employee of the city and therefore was not entitled to unemployment insurance benefits. BAR members determine the fairness of property tax assessments:

… [C]laimant acknowledged … that neither the City Assessor nor any other City entity has control over BAR’s review and determination of grievances or the means by which such determinations are reached (see RPTL 523, 525, 526). Rather, the City Assessor merely provides BAR with the necessary property information, and once BAR reaches its determination, the role of the City Assessor is limited to adjusting the tentative assessment roll — as necessary — before the assessment roll is finalized (see RPTL 526 [5]). Notably, although the City Assessor could return a determination to BAR to correct “technical” errors, the City Assessor could not alter or modify the determination reached by BAR (see RPTL 526 [5]). Finally, the record reflects that the City Assessor could neither sanction nor terminate a member of BAR.

Based upon the foregoing, the Board’s finding of an employment relationship is not supported by substantial evidence. Matter of McLaughlin (City of Albany–Commissioner of Labor), 2021 NY Slip Op 06119, Third Dept 11-10-21

 

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NOTING THE SPLIT OF AUTHORITY BETWEEN THE 2ND AND 4TH DEPARTMENTS, THE 3RD DEPARTMENT SIDED WITH THE 2ND AND HELD THAT, WHERE THE PROPERTY OWNER IS DECEASED, JURISDICTION OVER THE PERSONAL REPRESENTATIVE OF THE DECEDENT IS REQUIRED FOR AN IN REM TAX FORECLOSURE PROCEEDING (THIRD DEPT).

The Third Department, in a complex tax foreclosure case involving many other parties and many other issues, in a full-fledged opinion by Justice Lynch, over a dissent, determined the city could not proceed against property owned by a deceased party without jurisdiction over the personal representative of the decedent’s estate. The court noted a split of authority between the Second and Fourth Departments. The Fourth Department held that a tax foreclosure is an in rem proceeding (against the property) and the death of the owner is therefore irrelevant. The Third Department sided with the contrary ruling by the Second Department(requiring jurisdiction over the personal representative). The two-justice dissent argued the Fourth Department’s approach is the correct one:

Supreme Court properly granted Paul’s motion to vacate the default judgment. Paul is the adult son of Paywantie Allicock (hereinafter decedent), who purchased the property at 82 James Street in the City of Schenectady, Schenectady County (hereinafter the property) in 2004 and resided there with her son until she passed away in May 2015. Paul continues to reside at the premises. At issue is whether petitioner duly acquired jurisdiction over the property for purposes of this RPTL article 11 in rem foreclosure proceeding, commenced in April 2019. Pertinent here, there is a split between the Second and Fourth Departments as to whether a tax foreclosure proceeding may include a parcel where the owner is deceased at the time the action is commenced (compare Matter of Foreclosure of Tax Liens, 165 AD3d at 1116, with Hetelekides v County of Ontario, 193 AD3d 1414, 1419-1420 [2021]). We ascribe to the viewpoint expressed by the Second Department that such a proceeding may not be commenced until such time as the petitioner first acquires jurisdiction over the personal representative of the decedent’s estate … . Matter of City of Schenectady, 2021 NY Slip Op 06120, Third Dept 11-10-21

 

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THE COURT SHOULD NOT HAVE CONDITIONED ITS SANDOVAL RULING ON WHETHER DEFENSE COUNSEL CROSS-EXAMINES THE PEOPLE’S WITNESSES ABOUT THEIR CRIMINAL HISTORIES (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the judge’s ruling that defendant can be cross-examined about prior convictions if the defense cross-examines the People’s witnesses on their criminal histories was improper:

A trial court may “make an advance ruling as to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a defendant’s credibility” … . “[A] balance must here be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him [or her] from taking the stand on his [or her] own behalf” and thereby denying the jury significant material evidence … . These considerations “simply do not apply to a witness who is not a defendant, and cross-examination of such a witness should therefore be permitted with respect to any immoral, vicious or criminal act committed by him [or her] which may reflect upon his [or her] character and show him [or her] to be unworthy of belief” … .

… Supreme Court failed to engage in the appropriate balancing between the probative worth of the convictions on the issue of the defendant’s credibility against the possible prejudice to the defendant … , and, instead, improperly conditioned its Sandoval ruling on whether defense counsel would impeach the People’s witnesses with their criminal histories. …  Whether the defendant impeaches the credibility of the People’s witnesses during cross-examination based upon those witnesses’ criminal histories, or whether the People’s witnesses testify, are not relevant factors to consider in making a Sandoval ruling … . People v Brannon, 2021 NY Slip Op 06184, Second Dept 11-10-21

 

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THE JUDGE DID NOT ENSURE THAT DEFENDANT’S WAIVER OF A JURY TRIAL WAS KNOWING, INTELLIGENT AND VOLUNTARY (SECOND DEPT).

The Second Department, reversing defendant’s manslaughter and criminal possession of a weapon convictions, determined the judge did not make an adequate inquiry to ensure defendant’s waiver of a jury trial was knowing, intelligent and voluntary. Although the issue was not preserved, the appeal was considered in the interest of justice:

A defendant’s waiver of the right to a jury trial is governed by CPL 320.10, which provides, in relevant part, that a defendant “may at any time before trial waive a jury trial and consent to a trial without a jury in the superior court in which the indictment is pending. . . . Such waiver must be in writing and must be signed by the defendant in person in open court in the presence of the court, and with the approval of the court” … . In addition, the record as a whole must also reflect that “[t]he circumstances surrounding the waiver . . . support the conclusion that it was knowing, intelligent and voluntary” … . While the trial judge eliciting the defendant’s “full understanding of the importance of the right being waived” … is considered good practice, “no particular catechism is required to establish the validity of a jury trial waiver” … .

… [A]t the time of the purported jury waiver, the 76-year-old defendant—who had no prior contact with the criminal justice system other than a disorderly conduct violation dating back to 1980—had a recent history of paranoid delusional thinking and possible early dementia and was being treated with anti-psychotic medication. The defendant had been examined several times pursuant to CPL article 730 and had repeatedly been found unfit to proceed in the two years immediately following his arrest. … [D]uring the very terse oral colloquy that preceded the signing of the written waiver, the Supreme Court did not ask the defendant, for instance, if he was compliant with his anti-psychotic medication and was able to understand the proceedings. Indeed, the court failed to ask the defendant a single question relating to the waiver. People v Black, 2021 NY Slip Op 06183, Second Dept 11-10-21

 

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FAMILY COURT SHOULD NOT HAVE RETURNED THE CHILD TO THE PARENTS’ CUSTODY AFTER THE CHILD HAD BEEN TEMPORARILY REMOVED BECAUSE OF APPARENT ABUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parents’ application for the return of their child after a temporary removal pursuant to Family Court Act article 10 should not have been granted:

“An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child’s life or health'” … . * * *

The petitioner established a prima facie case of child abuse against the parents by presenting evidence that injuries Ezara sustained would not ordinarily occur absent an act or omission of the caregiver, and that the parents were the caregivers of Ezara during the relevant time period … . Specifically, the petitioner’s expert in child abuse pediatrics testified that the then two-month-old Ezara had multiple rib fractures, which appeared to have been sustained at different times, as well as fractures in his legs and a laceration of his spleen, and further testified within a reasonable degree of medical certainty that these injuries were caused by non-accidental trauma. The parents failed to rebut the presumption of culpability with a reasonable and adequate explanation for Ezara’s injuries … . Further, the petitioner established that the parents demonstrated such an impaired level of parental judgment with respect to Ezara so as to create a substantial risk of harm to any child in their care … . Matter of Chase P. (Maureen Q.), 2021 NY Slip Op 06173, Second Dept 11-10-21

 

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THE AIDING AND ABETTING FRAUD AND JUDICIARY LAW CAUSES OF ACTION WERE PRECLUDED BY THE NOERR-PENNINGTON DOCTRINE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION DID NOT ALLEGE RELIANCE (SECOND DEPT).

The Second Department determined the aiding and abetting fraud and Judiciary Law 487 causes of action were barred by the Noerr-Pennington doctrine (see Mine Workers v Pennington, 381 US 657; Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc., 365 US 127), and the complaint did not state a cause of action for fraudulent inducement:

“The Noerr-Pennington doctrine protects the right under the First Amendment to the United States Constitution to petition the government for governmental action, including through litigation and activity incidental to litigation” … . …

… Supreme Court properly concluded that the causes of action alleging that the defendants aided and abetted fraud and violated Judiciary Law § 487 were barred by the Noerr-Pennington doctrine. The Noerr-Pennington doctrine applied to these causes of action insofar as they were based upon litigation and activities that were incidental to litigation, and the pertinent allegations did not fit within either the “sham” or the “corruption” exceptions to the Noerr-Pennington doctrine … . …

Where a cause of action is based upon misrepresentation or fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). Here, the allegations in the complaint failed to sufficiently allege justifiable reliance, and therefore failed to state a cause of action for fraudulent inducement … . Louie’s Seafood Rest., LLC v Brown, 2021 NY Slip Op 06167, Second Dept 11-10-21

 

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QUESTIONS OF FACT ABOUT THE APPLICABILITIY OF THE ASSUMPTION OF THE RISK DEFENSE AND THE VALIDITY OF THE RELEASE UNDER THE GENERAL OBLIGATIONS LAW PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT FITNESS CENTER; ALLEGEDLY, PLAINTIFF WAS INJURED WHEN THE TRAINER INSTRUCTED HIM TO ATTEMPT A BALANCING EXERCISE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were question of fact about whether the defendant fitness center could assert the assumption of the risk defense, or whether the released executed by plaintiff was valid pursuant to the General Obligations Law:

The defendant failed to establish … the plaintiff assumed the risk of injury when he unsuccessfully attempted the balancing exercise. The deposition testimony … raises questions of fact as to whether the trainer exposed the plaintiff to an unassumed risk. Specifically, the trainer allegedly encouraged the plaintiff to attempt the exercise after he expressed that he could not perform it, by allegedly offering verbal reassurances such as “I’m right here,” which the plaintiff mistakenly believed meant that the trainer would catch him or stabilize him if he began to fall … .

The defendant also failed to establish … the plaintiff’s claims are barred by the release the plaintiff executed. The defendant failed to demonstrate the inapplicability of General Obligations Law § 5-326, which would render the release void, as the defendant’s evidence did not establish as a matter of law that its facility was not a “gymnasium” within the meaning of that statute … . Haggerty v Northern Dutchess Hosp., 2021 NY Slip Op 06162, Second Dept 11-10-21

 

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ALTHOUGH THE ISSUES ON APPEAL COULD HAVE BEEN RAISED IN AN APPEAL WHICH WAS DISMISSED FOR FAILURE TO PROSECUTE, THE COURT EXERCISED ITS JURISDICTION TO CONSIDER THE INSTANT APPEAL; THE MOTION FOR A JUDGMENT AS A MATTER OF LAW WAS BROUGHT BEFORE PLAINTIFF CLOSED HER CASE AND THEREFORE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the defense judgment as a matter of law in this medical malpractice case, determined: (1) although the issues could have been raised in the appeal of the original judgment which was dismissed for failure to prosecute, the Second Department exercised its jurisdiction to consider the issues in this appeal from the denial of the motion to reargue; (2) the motion for a judgment as a matter of law was premature (made before plaintiff closed her case) and therefore should not have been granted:

… [A]s a general rule we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, we have the inherent jurisdiction to do so … . Here, the plaintiff appealed from the March 29, 2018 judgment entered in favor of the defendants, and that appeal was dismissed for lack of prosecution. Nevertheless, under the circumstances, including that the appeal from the judgment was still pending at the time the notice of appeal was filed from the subject order made upon reargument, we exercise our jurisdiction to review the issues properly raised on the appeal from the order … . …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the defendants’ motions for judgment as a matter of law dismissing the complaint were made before the close of the plaintiff’s case, and were not based upon admissions by the plaintiff. Fuchs v Long Beach Med. Ctr., 2021 NY Slip Op 06153, Second Dept 11-10-21

 

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THE JUDGE SHOULD NOT HAVE DISMISSED THE COMPLAINT SUA SPONTE; ALTHOUGH DEFENDANT WAS NOT SERVED, DEFENDANT’S APPEARANCE PRO SE WAIVED ANY LACK-OF-JURISDICTION ARGUMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint and noted that a party (Taddeo) who has not been served, but who appears in the action pro se, has waived a lack-of-jurisdiction argument:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Moreover, a ministerial dismissal, made without notice and without benefit of further judicial review, is erroneous … . Under such circumstances, the court should direct the parties to show cause why the complaint should not be dismissed, and enter a formal order of dismissal on notice to the parties… .

Here, the Supreme Court never ordered the plaintiff to show cause why its failure to serve [defendant] should not result in the dismissal of the complaint. The court had only directed the plaintiff to provide certain information, and the plaintiff did so.

The Supreme Court also erred in concluding that the failure to serve [defendant] constituted a jurisdictional defect. “An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer” . Here, by filing a pro se answer that did not include an objection to jurisdiction, Taddeo waived any argument that the court lacked personal jurisdiction over him … . Bayview Loan Servicing, LLC v Taddeo, 2021 NY Slip Op 06147, Second Dept 11-10-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY RE: DEFENDANT’S WAIVER OF THE RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING BEFORE ALLOWING DEFENDANT TO PROCEED WITHOUT AN ATTORNEY; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new custody hearing, determined the judge did not make the required inquiry before allowing defendant to waiver her right to counsel:

The parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (Family Ct Act § 262[a][v]; see Judiciary Law § 35[8] …). A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right … . Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order … . Wondemagegehu v Edem, 2021 NY Slip Op 06213, Second Dept 11-10-21

 

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