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THE LANDOWNER AND THE TENANT TAXI COMPANY HAD THE SAME PRINCIPAL, A HOSE WAS USED BY INDEPENDENT CONTRACTORS TO WASH THE TAXIS, PLAINTIFF ALLEGEDLY SLIPPED ON THE WATER FROM THE HOSE WHICH FROZE, THE LANDOWNER DID NOT ESTABLISH IT WAS AN OUT OF POSSESSION LANDLORD, THE LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, over a dissent, reversing Supreme Court, determined the landowner was not entitled to summary judgment in this slip and fall case. The principal of the property owner, 514 West, is also the principal of the tenant, Style, a taxi company. Independent contractors used a hose to wash the cars. Water from the hose froze and plaintiff allegedly slipped and fell on the ice. The First Department noted the close connection between 514 West and Style and found that 514 West did not establish it was on out-of-possession landlord:

514 West, which owns the building adjacent to the roadway in which plaintiff slipped and fell on ice, failed to make a prima facie showing of its entitlement to summary judgment, since the evidence it submitted raises genuine issues of fact about whether it created the dangerous condition … . For example, its principal, who is also the principal of codefendant Style Management Co., Inc. (Style), the taxi company housed at the building owned by 514 West, admitted that there is a hose attached to the building, which the independent contractors who work for the taxi company would use to wash the cars. It is water from this hose, which pooled in the street and then froze, that plaintiff allegedly slipped on. “It is . . . a general rule that an abutting owner is liable if, by artificial means . . . water from the property is permitted to flow onto the public sidewalk where it freezes”… . 514 West asserts that Style operated the hose, not it, thus absolving it of liability. However, 514 West fails to establish that it is an out-of-possession landlord; indeed, given the very close connection between 514 West and Style, which, again, have the same principal, it is not possible on this record to determine, as a matter of law, that the former is without liability as a landowner. Malik v Style Mgt. Co. Inc., 2019 NY Slip Op 00372, First Dept 1-22-19

 

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APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE USING ITS PLENARY POWER, DESPITE THE FACTS THAT (1) THE SENTENCE WAS WITHIN PERMISSIBLE LIMITS, (2) THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, AND (3) DEFENDANT HAD AN EXTENSIVE CRIMINAL HISTORY (FIRST DEPT).

The First Department, over a dissent, exercised its power to modify an unduly harsh or severe sentence that is within the permissible range. Defendant, who was homeless, attempted to buy toothpaste with a counterfeit $20 bill. The sentence was reduced from 4 to 8 years to 3 to 6 years:

The Appellate Division has “broad plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” … . A trial court need not abuse its discretion for the Appellate Division to substitute its own discretion … . We may “reduce a sentence in the interests of justice, taking into account factors such as defendant’s age, physical and mental health, and remorse” … .

The immediate object of defendant’s crime was to purchase basic human necessities, including food and toothpaste. In consideration of the fact that he was a 53 year-old, unemployed homeless man, with longstanding medical and substance abuse issues, a reduction of his sentence to 3 to 6 years is appropriate.

Defendant’s extensive criminal history does not preclude a determination that his sentence is excessive … . People v Mitchell, 2019 NY Slip Op 00371, First Dept 1-22-19

 

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ALTHOUGH THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF ON A SUBWAY FOR A TRANSIT VIOLATION, THE CONCURRENCE CALLED INTO QUESTION THE ‘TRANSIT DATABASE’ WHICH PROBABLY INCLUDES PERSONS WHOSE CRIMINAL CHARGES WERE SEALED AND DISMISSED, THE DATABASE DOES NOT PROVIDE A DISTINCT BASIS FOR ARREST (FIRST DEPT).

The First Department, over a concurrence, determined that there was probable cause to arrest the plaintiff based on the transit offense of passing between two subway cars on a moving train. Because there was probable cause, the majority did not reach the issue of the fairness or constitutionality of a so-called “transit database” which encompasses so-called “transit recidivists.” The concurrence made it clear that plaintiff’s designation as a “transit recidivist” did not provide the police with a separate basis to arrest plaintiff:

From the concurrence:

It must be said that plaintiff’s designation as a transit recidivist did not give the officers a separate basis to arrest plaintiff … . The definition of “transit recidivist” at the time of plaintiff’s arrest encompassed not only persons convicted of crimes, but those with prior arrests in the transit system or prior felony arrests within New York City … . This overbroad classification subverted the presumption of innocence and likely violated state sealing laws. …

… [T]he database was likely contaminated by sealed arrests and summons histories and, as such, ran afoul of provisions of the Criminal Procedure Law that require that the records of any criminal prosecution terminating in a person’s favor or by way of noncriminal conviction be sealed …  Statistics … indicate that in 2016 alone, over 50% of all criminal cases arraigned in New York City Criminal Court were terminated in favor of the accused, and accordingly entitled to sealing … . From 2007 through 2015 an average of 23% of all criminal summonses were dismissed for facial insufficiency … . Unless otherwise permitted by law, no one, including a private or public agency, can access a sealed record, except with a court order upon a showing that justice so requires.

The presence of arrest and summons data in the database also undercut the presumption of innocence insofar as persons were threatened with punishment on account of allegations that may have been unsubstantiated or dismissed.

…[T]his is not the first NYPD database to have included unlawfully broad data. NYPD previously recorded the name of every individual stopped and frisked as recently as 2010, until forced by a federal lawsuit to discontinue the practice.

Finally, there is little doubt that the “transit recidivist” database had a disproportionately negative effect on black and Hispanic communities, perpetuating this City’s history of overpolicing communities of color. Vargas v City of New York, 2019 NY Slip Op 00370, First Dept 1-22-19

 

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QUESTION OF FACT WHETHER CITY HAD PRIOR WRITTEN NOTICE OF THE DEFECTS IN THE SIDEWALK AND RAILING WHERE PLAINTIFF’S DECEDENT FELL INTO A GORGE, CITY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (THIRD DEPT).

The Third Department determined the city’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff’s decedent fell from a paved trail into a gorge. There were questions of fact about whether the city had prior written notice of the broken sidewalk and railing:

… [P]laintiff produced a police investigation report concluding that decedent had fallen along a part of the trail with multiple defects, including broken pavement, a “bent/unsecured hand railing . . . and huge gap spaces in sidewalk edge adjacent to [the] cliff side edge.” Plaintiff also demonstrated that, by the time of the fall, the Department of Public Works had received numerous written complaints about the condition of the trail. General complaints and the subsequent efforts of department personnel to evaluate the condition of the trail did not “obviate the need for prior written notice” of the particular defects implicated in decedent’s fall … . That said, one of the written complaints was a January 2012 email forwarded to an Assistant Superintendent of Public Works that was, according to his testimony, “probably” shared with the Superintendent of Public Works, and attached to the email is a map with photographs that appear to reference the defects in the area where decedent fell. Van Wageningen v City of Ithaca, 2019 NY Slip Op 00343, Third Dept 1-17-19

 

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APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM AGAINST THE VILLAGE STEMMING FROM A HAZARDOUS SUBSTANCE IN THE WATER SUPPLY PROPERLY GRANTED, ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND WAS NOT PREJUDICED BY THE DELAY (THIRD DEPT).

The Third Department determined Supreme Court properly granted petitioners’ application to file late notices of claim against the village stemming from a hazardous substance, PFOA, in the municipal water supply. Although petitioners did not have an adequate excuse for the delay, respondents had timely knowledge of the facts underlying the claim and were not prejudiced by the the delay:

… [I]t is evident that respondent was well aware of the PFOA contamination in its municipal water system, the likelihood of increased PFOA levels in the blood of its residents as a result of exposure to PFOA and the potential negative health consequences as a result thereof. On the record before us, therefore, respondent cannot plausibly claim that it had only a “general awareness” of the presence of PFOA in its municipal water system. Accordingly, we conclude that Supreme Court properly found that respondent had actual notice of all the essential facts underlying petitioners’ claims … . …

Further, there has been no demonstration of substantial prejudice to respondent as a result of petitioners’ delay in seeking to file late notices of claim … . Respondent has been aware of the subject PFOA contamination since at least October 2014, it was apprised of the potential negative health risks to its residents from PFOA exposure and, as a result of the blood testing program commenced by DOH, it learned of the elevated levels of PFOA in its residents — despite its efforts to downplay said results. Moreover, respondent alleges that it has located the source of the PFOA contamination and petitioners, as residents of respondent, remain available for any further investigation into whether respondent’s conduct was the proximate cause of their alleged injuries. In turn, other than the passage of time, respondent has offered no particularized evidence in opposition to establish that it suffered substantial prejudice … . Matter of Holbrook v Village of Hoosick Falls, 2019 NY Slip Op 00342, Third Dept 1-17-19

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PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR LAW 240 (1) AND 241 (6) WHEN A BRIDGE FORM HE WAS UNLOADING FELL ON HIM, PLAINTIFF MADE A SUFFICIENT SHOWING OF LONG-ARM JURISDICTION TO WARRANT DISCOVERY (THIRD DEPT).

The Third Department determined the Labor Law 240 (1) and 241 (6) causes of action were properly dismissed because plaintiff’s decedent was not involved in construction work when a 2500 pound bridge form fell on him. The court further found that plaintiff had made a sufficient showing that long-arm jurisdiction may apply to Spillman, the manufacturer of the bridge form, to allow discovery:

In support of her claimed violations of Labor Law §§ 240 (1) and 241 (6), plaintiff alleged that, at the time that decedent sustained the fatal injuries, he had been unloading a bridge form that had been delivered to the manufacturing facility operated by LHV so that it could be used in the manufacture and fabrication of construction materials that would be eventually used during unspecified construction at an unspecified construction site. As Supreme Court aptly concluded, these allegations “do not support any contention that the work being done at the time of the incident was, in any manner, an integral part of an ongoing construction contract or was being performed at an ancillary site, incidental to and necessitated by such construction project, where the materials involved were being readied for use in connection with a covered activity,” so as to bring it within the ambit of Labor Law § 240 (1) … . …

For the same reasons, plaintiff’s factual allegations did not support a conclusion that decedent’s injuries occurred in an “area[] in which construction, excavation or demolition work [was] being performed” (Labor Law § 241 [b]) and, thus, Supreme Court’s dismissal of plaintiff’s Labor Law § 241 (6) claim was proper … . …

Viewing the facts in the light most favorable to plaintiff as the nonmoving party, we agree with Supreme Court that the foregoing provided the “sufficient start” required to warrant further discovery on the issue of whether personal jurisdiction may be properly exercised over Spillman under CPLR 302 (a) (3), while also comporting with federal due process requirements … . Archer-Vail v LHV Precast Inc., 2019 NY Slip Op 00341, Third Dept 1-17-19

 

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QUESTIONS OF FACT ABOUT THE TIMELINESS OF THE NOTICE OF LIEN, THE CHARACTER OF THE WORK AND EXAGGERATION PRECLUDED SUMMARY DISCHARGE OF THE NOTICE OF LIEN, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the contractor’s notice of lien was valid on its face and should not have been summarily discharged because unresolved questions of fact required trial:

“A court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19 (6)” … . Pursuant to that provision, a court may summarily discharge a notice of lien where, among other things, “it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished” or the notice was not timely filed … . …

“Because the lien was timely on its face, the court was not permitted to summarily discharge it on the basis of untimeliness” … . …

Petitioners attack the character of the labor furnished, asserting that respondent’s work in July 2016 was for a water line that was not part of any contract between the parties. This assertion merely “raises a factual issue as to the relationship of the last item of work to the parties’ contract … . …

“[A]lthough Lien Law § 39 provides that a willfully exaggerated lien is void, the issue of willful or fraudulent exaggeration is one that also ordinarily must be determined at the trial of [a lien] foreclosure action”  … . Matter of Beebe v Liebel, 2019 NY Slip Op 00337, Third Dept 1-17-19

 

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PETITION WAS PROPERLY DISMISSED BECAUSE IT DID NOT DEMONSTRATE SUBJECT MATTER JURISDICTION ON ITS FACE, BUT BECAUSE THE MERITS WERE NOT ADDRESSED THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (THIRD DEPT).

The Third Department determined Family Court properly dismissed a petition because there was no indication that New York had jurisdiction, the petition should not have been dismissed with prejudice because the merits were not reached:

Upon review of the petition, Family Court, sua sponte, found that the children resided in Georgia and dismissed the petition with prejudice for lack of subject matter jurisdiction. Petitioner appeals.

In his petition, petitioner alleged that respondent is an aunt of the children who obtained temporary guardianship of them following the mother’s death and, further, that the children reside with respondent in Georgia; notably, however, he did not allege that a New York court had made a prior custody determination involving the children, nor did he allege any circumstances involving the children that would support a specific basis for jurisdiction. Thus, the petition fails to allege any facts that would provide New York with jurisdiction to make the determination in this case … and, therefore, Family Court did not err by dismissing this proceeding without a hearing … . However, inasmuch as Family Court dismissed the proceeding for lack of subject matter jurisdiction based solely upon a review of petitioner’s sparse pro se petition and without reaching the merits, it erred in dismissing the proceeding with prejudice … . Matter of David EE. v Laquanna FF., 2019 NY Slip Op 00336, Third Dept 1-17-19

 

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FAMILY COURT SHOULD NOT HAVE ORDERED A GENETIC MARKER TEST WITHOUT A HEARING AND THE CHILD DID NOT RECEIVE ADEQUATE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined Family Court should not have ordered a genetic marker paternity test without a hearing and the child did not receive adequate assistance of counsel:

The attorney for the child (hereinafter AFC) informed the court that, through discussions with the grandmother, the AFC learned that the child might also hold a belief that someone else is his father. The record does not give any indication that the AFC discussed with the child his belief as to who his father is. Beyond a few short and scattered statements, there was no substantive evidence or discussion of who has a parent-child relationship with the child and whether, due to equitable estoppel, a genetic marker test would not be in the child’s best interests. The court’s order is reflective of this, as it strictly relates to how the test is to be carried out and contains no case-specific discussion. Accordingly, Family Court did not possess adequate information to determine the child’s best interests and, as such, it erred in ordering genetic marker testing without first conducting a hearing … .

Additionally, we find that the child did not receive the effective assistance of counsel. The record is bereft of evidence indicating that the AFC consulted with the child, who was from 4½ to 6 years old throughout the time of this litigation … . We recognize that such consultation runs the risk of raising parentage concerns not harbored by the child; nevertheless, a patient, careful and nuanced inquiry is not only possible, but necessary … . “Counsel’s failure to consult with and advise the child to the extent of and in a manner consistent with the child’s capabilities constitutes a failure to meet [his or her] essential responsibilities as the [AFC]” … . Inasmuch as consultation with the child and subsequent communication of the child’s position to Family Court are of the utmost importance … , it is clear that the child did not receive meaningful representation … . Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 2019 NY Slip Op 00335, Third Dept 1-17-19

 

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TERRORISM CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE, THERE WAS NO EVIDENCE DEFENDANT INTENDED TO INFLUENCE THE POLICY OR ACTIONS OF THE SHERIFF’S OFFICE WHEN HE SAID HE WAS GOING TO ‘COME BACK AND SHOOT THE PLACE DOWN’ (THIRD DEPT).

The Third Department, reversing defendant’s “terrorism” conviction after trial, determined there was legally insufficient evidence defendant intended to influence the policy or actions of a governmental body, here the Warren County Sheriff’s Office (WCSO). When defendant was told at the sheriff’s office that his certificate of disposition was insufficient and defendant’s property could not be returned to him, he allegedly said he would “come back and shoot the place down.” He was convicted of making a terroristic threat and sentenced to five years in prison:

… [T]he record contains no evidence of a necessary element of the crime of making a terroristic threat — that defendant intended to influence a policy of a governmental unit by intimidation or coercion, or that he intended to affect the conduct of a unit of government by murder, assassination or kidnapping. [The sheriff’s evidence custodian] testified that as defendant exited the lobby of the WCSO building, he was mumbling to himself and she “heard the word shoot.” She then asked defendant what he had said, and he replied by stating “come back and shoot the place down.” Defendant made no statement relating his threat to any policy of the WCSO or demanding that it take any specific action. People v Kaplan, 2019 NY Slip Op 00329, Third Dept 1-17-19

 

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