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ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the arbitrator’s award should have been confirmed. The dispute concerned a broker’s fee provision in a lease. The arbitrator reasoned that the lease provision did not control because at the time the tenants bought the property the lease had expired and tenancy was month to month. The First Department explained the extremely limited court-review powers re: arbitration awards:

CPLR 7511 provides just four grounds for vacating an arbitration award, including that the arbitrator “exceeded his power” (CPLR 7511[b][1][iii]), which “occurs only where the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . Mere errors of fact or law are insufficient to vacate an arbitral award … . “[C]ourts are obligated to give deference to the decision of the arbitrator, … even if the arbitrator misapplied the substantive law in the area of the contract” … .

Here, the arbitrator’s conclusion that a sales commission was not due under the precise terms of the Agreement because the lease was not extended is neither wholly irrational nor contrary to any strong public policy … . Matter of NRT N.Y. LLC v Spell, 2018 NY Slip Op 07664, First Dept 11-13-18

ARBITRATION (ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT))/CIVIL PROCEDURE (ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT))/CONTRACT LAW (ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT))

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined, in the interest of justice, that defendant should not have been sentenced as a second felony offender based upon a Pennsylvania burglary conviction:

… [T]he predicate conviction, i.e., the Pennsylvania crime of burglary (18 Pa Cons Stat § 3502), is not the equivalent of a New York felony. Although defendant failed to preserve that contention for our review … , we exercise our power to address it as a matter of discretion in the interest of justice … . Upon our review of Pennsylvania statutory and case law, “there is no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder knowingly’ enter or remain unlawfully in the premises . . . [and t]he absence of this scienter requirement from the Pennsylvania burglary statute renders improper the use of the Pennsylvania burglary conviction as the basis of the defendant’s predicate felony adjudication” … . People v Funk, 2018 NY Slip Op 07558, Fourth Dept 11-9-18

CRIMINAL LAW (SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/SENTENCING (SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/SECOND FELONY OFFENDER (DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT).

The Fourth Department determined the ruling by the US Supreme Court in Riley v California (124 S Ct 2473) did not provide grounds for defendant’s second and untimely motion to suppress evidence seized from a search of his cell phone pursuant to a warrant. Before applying for the warrant, at the time of arrest, a police officer sent a text to a phone number used in communications between the victim and defendant and noted that a text message arrived on defendant’s phone shortly thereafter. The Fourth Department held that sending the text and observing the arrival of a text did not violate Riley:

The Riley Court determined that “officers must generally secure a warrant before conducting [a search of data stored in a cell phone]” … . Here, the search warrant application for defendant’s phone indicates, among other things, that, after defendant’s arrest and the recovery of a cell phone from him during a search incident to the arrest, the applicant officer sent a text message to the phone number that had been used during earlier communications between the victim and defendant, and the officer noted that the phone recovered from defendant upon his arrest signaled the arrival of a new text message moments later. Contrary to defendant’s contention, however, nothing in the warrant application supports the inference that the police opened or manipulated the phone to get inside to retrieve data prior to obtaining the search warrant. Although Riley prohibits warrantless searches of cell phones incident to a defendant’s arrest, Riley does not prohibit officers from sending text messages to a defendant, making observations of a defendant’s cell phone, or even manipulating the phone to some extent upon a defendant’s arrest …  Indeed, Riley provides that the search incident to arrest exception to the warrant requirement entitles law enforcement officers to “examine the physical aspects of the phone” after it has been seized … . Inasmuch as the information included in the warrant application is not suggestive of a warrantless search of the phone, we conclude that the Supreme Court’s decision in Riley did not provide good cause for defendant’s untimely second suppression motion. Thus, the motion was properly denied … .

Moreover, even if the officer’s actions in sending a confirmatory text message to defendant’s phone did constitute an unlawful search under Riley, we nevertheless conclude that the validity of the warrant to search defendant’s phone was not vitiated. The police did not use the alleged illegal search ” to assure themselves that there [was] cause to obtain a warrant’ in the first instance” … , and the remaining factual allegations in the warrant application provided probable cause to search the cell phone that was recovered from defendant at the time of his arrest. People v Hackett, 2018 NY Slip Op 07557, Fourth Dept 11-9-18

CRIMINAL LAW (POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SUPPRESSION (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))

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DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined that Supreme Court did not abuse its discretion when it declined to sentence youthful offender treatment. The majority deemed the 35 year sentence excessive and directed that the sentences be served concurrently. The dissenters argued that the sentences were not excessive:

CPL 720.10 (3) provides that “a youth who has been convicted of an armed felony offense . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Contrary to defendant’s contention, “traditional sentencing factors, such as the criminal’s age, background and criminal history, are not appropriate to the mitigating circumstances analysis . . . Rather, the court must rely only on factors related to the defendant’s conduct in committing the crime, such as a lack of injury to others or evidence that the defendant did not display a weapon during the crime”… , or other factors that are directly related to the crime of which defendant was convicted … . Here, we perceive no basis to disturb the court’s determination that defendant is not an eligible youth because, in the first crime of which he was convicted, “defendant carried a gun to an encounter with known gang members, displayed the gun, . . . and . . . fired a shot that struck one of the” gang members… , and he was again armed with a loaded weapon when he was arrested several weeks later. …

The victim in this case is a rival gang member who attempted to rob members of defendant’s gang. Defendant arrived at the scene of the attempted robbery and shot at the victim, who was struck by a bullet but survived. Defendant obviously deserves a stern sentence but, in our view, 35 years is too severe. Indeed, the maximum punishment for intentional murder is 25 years to life … . Defendant has no prior criminal record (he was adjudicated a youthful offender on a misdemeanor), he was only 18 years old when he committed the crimes, and the People offered him a 20-year sentence prior to trial as part of a plea bargain. Under the circumstances, and considering that the victim was attempting to commit an armed robbery when he was shot, we conclude that defendant’s sentence is unduly harsh and severe. People v Jones, 2018 NY Slip Op 07556, Fourth Dept 11-9-18

CRIMINAL LAW (DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/YOUTHFUL OFFENDER DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/SENTENCING (HARSH AND EXCESSIVE, DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/YOUTHFUL OFFENDER DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/HARSH AND EXCESSIVE SENTENCE (DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))

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FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined that, although father left his job in Virginia voluntarily, his petition to modify his support after taking a lower-paying job in New York should have been granted. Father left the better paying job to be closer to his son, who had recently moved with his mother from Virginia to New York:

“It is well settled that a loss of employment may constitute a change in circumstances justifying a downward modification of [child support] obligations where [such loss] occurred through no fault of the [party seeking modification] and the [party] has diligently sought re-employment” … . As a general rule, a parent who voluntarily quits a job will not be deemed without fault in losing such employment… . Nevertheless, that general rule should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason, such as the need to live closer to a child … . As one court has explained, a “parent who chooses to leave his [or her] employment rather than [live] hundreds of miles away from his [or her] children is not voluntarily unemployed or underemployed. Instead, he [or she] is a loving parent attempting to do the right thing for his [or her] children. To punish such a parent by requiring higher child support . . . is neither good law nor good policy” … . Matter of Parmenter v Nash, 2018 NY Slip Op 07553, Fourth Dept 11-9-18

FAMILY LAW (SUPPORT, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))/SUPPORT (FAMILY LAW, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))

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DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT).

The Fourth Department vacated defendant’s guilty plea because he was not informed of the postrelease supervision aspect of the sentence:

On appeal from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree …, defendant contends that reversal of the judgment and vacatur of the plea are required because County Court failed to advise him, at the time of the plea, of the period of postrelease supervision that would be imposed at sentencing. We agree … . People v Hemingway, 2018 NY Slip Op 07587, Fourth Dept 11-9-18

CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/SENTENCING (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/GUILTY PLEA  (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/POSTRELEASE SUPERVISION (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))

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EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined evidence of routine maintenance of the parking lot, essentially evidence habit, was properly admitted in this slip and fall case which resulted in a defense verdict:

… [P]laintiff appeals from an order that, inter alia, denied that part of his pretrial motion seeking to preclude habit evidence. …

” Proof of a deliberate repetitive practice by one in complete control of the circumstances’ is admissible provided that the party presenting such proof demonstrates a sufficient number of instances of the conduct in question’ ” … . Here, the testimony of the maintenance staff concerning their daily routine in maintaining the subject parking lot was properly admitted as evidence of their conduct prior to the incident at issue. Rozier v BTNH, Inc., 2018 NY Slip Op 07575, Fourth Dept 11-9-18

NEGLIGENCE (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/HABIT (SLIP AND FALL, EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))

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AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the vehicle stop could not be justified on the ground that the stop was made by a peace officer, and also could not be justified on the ground the stop was a citizen’s arrest. Therefore the motion to suppress the firearm found in the car was properly granted. The vehicle stop was made by an agent with the US Customs and Border Protection Air and Marine Operations after the agent became concerned about the driver’s dangerous operation. The agent called the Buffalo Police Department and pulled the car over using his truck’s emergency lights. A police officer arrived and the officer and the agent approached the car together:

In concluding that the agent unlawfully stopped the vehicle, the [motion] court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment. The court also determined that the traffic stop could not be justified as a valid citizen’s arrest because the agent, who had the powers of a peace officer, activated the emergency lights and approached the stopped vehicle with the BPD officer and therefore acted under color of law and with the accouterments of official authority rather than as a private citizen. …

A private person, however, is not authorized to display such emergency lights from his or her private vehicle… . Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense … . Thus, the agent was not lawfully acting merely as a private person effectuating a citizen’s arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. …

Even if a violation of the citizen’s arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures … by precluding a person who “act[ed] under color of law and with all the accouterments of official authority” from justifying an unlawful search or seizure as a citizen’s arrest … , and that suppression is warranted where, as here, the purported private person is cloaked with official authority and acts with the participation and knowledge of the police in furtherance of a law enforcement objective … . People v Page, 2018 NY Slip Op 07552, Fourth Dept 11-9-18

CRIMINAL LAW (SUPPRESSION, PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/PEACE OFFICER (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/CITIZEN’S ARREST (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/VEHICLE STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/TRAFFIC STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/STREET STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))

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ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, over a two-justice dissent, considering a matter of first impression, reversing Supreme Court, determined that a gas supply company could not acquire easements over private property by eminent domain for the installation of a pipeline for which the state denied a permit:

In February 2017, the FERC [Federal Energy Regulatory Commission] granted petitioner’s application for a certificate of public convenience and necessity to construct and operate a 97-mile natural gas pipeline from Pennsylvania into western New York. The pipeline’s proposed route travels directly across respondents’ land … . Within the voluminous certificate, the FERC found that petitioner’s “proposed [pipeline] project is consistent with the Certificate Policy Statement,” i.e., the public interest. “Based on this finding and the environmental review for the proposed project,” the FERC further found “that the public convenience and necessity require approval and certification of the project.” …

… [T]he New York State Department of Environmental Conservation (DEC) denied petitioner’s application for a WQC [water quality certification]. The WQC application, held the DEC, “fails to demonstrate compliance with New York State water quality standards.” Petitioner has taken various steps to challenge the WQC denial, including the filing of a petition for judicial review in the Second Circuit pursuant to 15 USC § 717r (d). It appears that those challenges have not yet been finally resolved. It is undisputed, however, that if the WQC denial is ultimately upheld, the pipeline cannot be built … . * * *

… [P]etitioner is trying to expropriate respondents’ land in furtherance of a pipeline project that, as things currently stand, cannot legally be built. Such an effort turns the entire concept of eminent domain on its head. If the State’s WQC denial is finally annulled or withdrawn, then petitioner can file a new vesting petition. But until that time, petitioner cannot commence a vesting proceeding to force a sale without going through the entire EDPL [Eminent Domain Procedure Law] article 2 process. Matter of National Fuel Gas Supply Corp. v Schueckler, 2018 NY Slip Op 07550, Fourth Dept 11-9-18

UTILITIES (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/REAL PROPERTY LAW (GAS PIPELINE, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/EMINENT DOMAIN (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/ENVIRONMENTAL LAW  (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))

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PLAINTIFF BANK DID NOT MEET FACE TO FACE WITH DEFENDANT BEFORE THREE MONTHLY MORTGAGE PAYMENTS WERE MISSED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been denied. Plaintiff bank did not seek a face to face meeting with defendant before three mortgage payments were missed:

In her pro se answer to the amended complaint, defendant alleged that the loan was subject to Federal Housing Administration guidelines and that plaintiff failed to comply with the regulations of the Department of Housing and Urban Development requiring the mortgagee to undertake certain pre-foreclosure measures, including a face-to-face meeting with the mortgagor, with respect to such loans. Although defendant did not specifically cite 24 CFR 203.604, the regulation establishing the face-to-face meeting requirement, in her answer, we afford the pro se answer a liberal reading … , and conclude that defendant “sufficiently apprise[d] plaintiff” that she was challenging plaintiff’s compliance with the requirements of that regulation … .

Plaintiff failed to establish that it complied with the requirements of 24 CFR 203.604 and thus failed to establish that it was entitled to judgment as a matter of law on the amended complaint… . More specifically, plaintiff did not arrange or attempt to arrange a face-to-face interview with defendant at any time “before three full monthly installments . . . [were] unpaid” (§ 203.604 [b]). Instead, the first attempt was made in June 2011, i.e., more than six months after the first installment went unpaid. Moreover, plaintiff did not establish that it sent notices to defendant by certified mail, as required by section 203.604 (d).  Bank of Am., N.A. v Spencer, 2018 NY Slip Op 07573, Fourth Dept 11-9-18

FORECLOSURE (PLAINTIFF BANK DID NOT MEET FACE TO FACE WITH DEFENDANT BEFORE THREE MONTHLY MORTGAGE PAYMENTS WERE MISSED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/BANKING LAW (FORECLOSURE, PLAINTIFF BANK DID NOT MEET FACE TO FACE WITH DEFENDANT BEFORE THREE MONTHLY MORTGAGE PAYMENTS WERE MISSED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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