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THE MUNICIPAL LAW PROVISION WHICH REQUIRES JUNK YARDS TO BE LICENSED DOES NOT APPLY IN PLAINTIFF TOWN WHERE DEFENDANT OPERATES HER JUNK YARD; A LOCAL ZONING ORDINANCE, WHICH DOES NOT REQUIRE LICENSURE, IS THE CONTROLLING LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Municipal Law provision which requires junk yards to be licensed does not apply to defendant because the local zoning ordinance is the controlling law:

… [T]he parties dispute whether General Municipal Law § 136 applies to junkyards located within plaintiff [town]. That statute provides that it “shall not be construed to . . . supersede . . . ordinances or local laws for the control of junk yards . . . and shall not be deemed to apply to any municipality which has any ordinance or local law or regulation to license or regulate junk yards” (General Municipal Law § 136 [12]).

We agree with defendant that General Municipal Law § 136 is inapplicable to plaintiff’s regulation of her junkyard inasmuch as plaintiff has a local “zoning ordinance[] . . . for the control of junk yards . . . in effect” … . Plaintiff’s Zoning Ordinance … defines the term “Junkyard,” establishes Zoning Districts, including, as relevant here, an “Agricultural/Residential District” and an “Industrial Zoning District,” provides that a junkyard is allowed only in an Industrial Zoning District and only with a Special Use Permit, and governs the application for and issuance of Special Use Permits. Plaintiff [town] therefore effectively implemented an “ordinance or local law or regulation to license or regulate junk yards” … . It is of no moment that plaintiff’s Zoning Ordinance did not include a specific policy for issuing a license for junkyards … . Town of Montezuma v Smith, 2024 NY Slip Op 06433, Fourth Dept 12-20-24

Practice Point: By its own terms the General Municipal Law provision which requires licensure of junk yards does not apply in towns that have a zoning ordinance which regulates junk yards, even where the ordinance does not require licensure.

 

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THE GRAND JURY WAS PROPERLY INSTRUCTED ON THE DEFINITION OF “IMPAIRED” IN THE CONTEXT OF VEHICLE AND TRAFFIC LAW 1192 (4-A) (FELONY AGGRAVATED DRIVING WHILE INTOXICATED); THE FOURTH DEPARTMENT DISAGREED WITH THE DEFINITION OF “IMPAIRED” ADOPTED BY THE THIRD DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s dismissal of the felony aggravated driving while intoxicated count, in a full-fledged opinion by Justice Curran, determined the grand jury was properly instructed on the definition of “impaired.” The Fourth Department noted its disagreement with the Third Department on this issue:

… [T]he People correctly instructed the grand jury that the term “impaired” in the context of Vehicle and Traffic Law § 1192 (4-a) is defined as the defendant’s consumption of a combination of drugs and alcohol to the point that it “has actually impaired, to any extent, the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

In reaching that conclusion, we also note our respectful disagreement with the Third Department’s decision in People v Caden N. (189 AD3d 84 [3d Dept 2020], lv denied 36 NY3d 1050 [2021]), which defined the term “impaired” in the context of drug consumption in accordance with the heightened standard typically applicable in cases of “intoxication” by alcohol … . Ultimately, we conclude that the term “impaired” should be defined consistently across the Vehicle and Traffic Law—whether in the context of impairment by alcohol or in the context of impairment by drugs or a combination of drugs and alcohol. * * *

… [T]he Court of Appeals, in Cruz, clearly defined the term “impaired” to mean—in the context of alcohol consumption—that a defendant “has actually impaired, to any extent, the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (48 NY2d [419] at 427 …). In defining “impaired” that way, the Court sharply distinguished the term “impaired” from the separate term “intoxication,” as used in Vehicle and Traffic Law § 1192 (3), noting that the latter term denoted “a greater degree of impairment which is reached when [a] driver has voluntarily consumed alcohol to the extent that [they are] incapable of employing the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (Cruz, 48 NY2d [419] at 428). The Court concluded that the terms impaired and intoxicated are not interchangeable … . People v Dondorfer, 2024 NY Slip Op 06432, Fourth Dept 12-20-24

Practice Point: In the Fourth Department “impaired” in the context of felony aggravated driving while intoxicated (Vehicle and Traffic Law 1104 (4-a)” means impairment “to any extent [of] the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

 

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A HANDGUN USED AS BLUDGEON IS A “DANGEROUS INSTRUMENT” WHICH WILL SUPPORT A BURGLARY FIRST DEGREE COUNT; COUNTY COURT SHOULD NOT HAVE REDUCED THE CHARGE TO BURGLARY SECOND (FOURTH DEPT).

The Fourth Department, reversing County Court and reinstating the reduced count, determined the handgun with which the victim was allegedly struck was a “dangerous instrument” despite the fact it had not been fired. County Court had reduced the charge from Burglary first to Burglary second on the ground the handgun had not been shown to be a “dangerous instrument:”

The People were required to present competent evidence to the grand jury demonstrating that defendant or another participant in the crime used, or threatened the immediate use of, a dangerous instrument (see Penal Law § 140.30 [3]). A dangerous instrument is defined as “any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (§ 10.00 [13]).

At the grand jury hearing, the victim testified that three men entered her apartment and the first man who walked in had a gun. She further testified that, at one point, “the guy with the gun” became “more upset” and hit her “upside the head” with the gun.

It is well established that “a ‘gun [that is] used as a bludgeon’ is a dangerous instrument” … because it ” ‘is readily capable of causing death or other serious physical injury’ ” … . Here, County Court ruled that the evidence before the grand jury was legally insufficient to establish that the item used by defendant or another participant in the crime was a dangerous instrument because it was not discharged during the incident and there was no evidence that the item was recovered or tested. That was error. We agree with the People that they were not required to submit evidence that the item described by the victim as a gun was an operable or loaded firearm in order to meet the dangerous instrument element of the crime … . We further agree with the People that they were not required to prove that the victim suffered an injury but, rather, needed only to establish that “under the circumstances in which [the instrument, article, or substance was] used . . . or threatened to be used, [it was] readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13] …). It is reasonable for a grand jury to infer that hitting the victim on the side of the victim’s head with a gun could cause serious physical injury. Thus, the evidence was sufficient to permit the inference that defendant or another participant in the crime used a dangerous instrument … . People v Delee, 2024 NY Slip Op 06491, Fourth Dept 12-20-24

Practice Point: A handgun used as a bludgeon is a “dangerous instrument” within the meaning of the Penal Law and the Burglary First Degree statute. The People need not show the handgun was operable or that the victim suffered a serious injury.

 

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THE CHOICE OF FORUM CLAUSE (ARIZONA) IN THE CONTRACT IS ENFORCEABLE AND IS NOT AFFECTED BY AN ARGUMENT QUESTIONING THE VALIDITY OF A CHOICE OF LAW CLAUSE; THE FACT THAT THE NEW YORK PLAINTIFF WILL HAVE TO TRAVEL TO ARIZONA DOES NOT AFFECT THE ENFORCEABILITY OF THE CHOICE OF FORUM CLAUSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to dismiss the New York complaint based upon the choice of forum clause (Arizona) in the contract should have been granted. Plaintiff argued the contract was illegal under New York law. But a choice of forum clause is independent from a choice of law clause:

The contract between the parties provided that Arizona law would govern “the rights and obligations” of the parties under the contract. It further provided that all disputes arising out of the contract “shall be subject to the exclusive jurisdiction and venue of the state or federal courts sitting in Maricopa County, Arizona.” That forum selection clause is prima facie valid and enforceable unless shown by plaintiff to be ” ‘unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court’ ” … .

In opposition to the motion, plaintiff argued that the contract’s “pay-if-paid” provision, together with a provision prohibiting plaintiff from contacting clients of defendant, rendered the contract void as against public policy of New York. Plaintiff’s argument, however, “is misdirected [inasmuch as t]he issue [it] raise[s] is really one of choice of law, not choice of forum” … . ” ‘[O]bjections to a choice of law clause are not a warrant for failure to enforce a choice of forum clause’ ” … . Plaintiff has not shown that enforcement of the forum selection clause contravenes New York public policy … . Nor has plaintiff shown that enforcement would be unreasonable or unjust or alleged that the clause was the result of fraud or overreaching … . Plaintiff’s further argument in opposition to the motion—i.e., that it would be a hardship for plaintiff’s owner to go to Arizona to litigate this dispute—is an insufficient basis on which to deny the motion … . The fact that New York may be a more convenient forum is immaterial inasmuch as defendant’s motion is based on the parties’ contract and not on the doctrine of forum non conveniens … . Prestige Lawn Care of WNY, LLC v Facilitysource, LLC, 2024 NY Slip Op 06483, Fourth Dept 12-20-24

Practice Point: Consult this decision for a discussion of a choice of forum clause versus a choice of law clause versus the doctrine of forum non conveniens.

 

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ON THE PEOPLE’S APPEAL, THE TRIAL COURT’S VACATION OF THE JUDGMENT OF CONVICTION BASED ON NEW EVIDENCE WAS REVERSED; THE NEW EVIDENCE INDICATED THAT, ALTHOUGH DEFENDANT WAS NOT THE SHOOTER, DEFENDANT WAS AN ACCOMPLICE TO THE SHOOTER; AN INTERMEDIATE APPELLATE COURT CAN ONLY CONSIDER THE TRIAL COURT’S GROUNDS FOR ITS RULINGS, OR RULINGS ADVERSE TO THE APPELLANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and denying the motion to vacate the criminal possession of a weapon conviction, determined new evidence which indicated defendant was not the shooter but had provided the machine gun to the shooter (Scott)  would not have resulted in a more favorable verdict. Defendant would have been convicted as an accomplice. In rejecting an argument on appeal that was not part of the ruling below, the Fourth Department explained that its appellate jurisdiction is limited to grounds relied on by the trial court which were adverse to the appellant:

… [W]e conclude that the evidence in question is not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g] …). Scott’s deposition testimony establishes that defendant possessed the loaded machine gun, provided it to Scott, transported Scott to the vicinity of the crime, and had a motive to harm the victims because his family had “beef” with theirs, thus providing sufficient evidence to support a verdict of guilty as an accomplice to the weapons possession of which he was convicted … . ” ‘[W]hether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant’ ” … .

Defendant requests that we affirm on the ground, which he asserted in the court below, that consideration of the new evidence in light of a theory of accessorial liability requires an impermissible amendment to the indictment. We agree with the People that we have no authority to affirm on that basis … .

Under CPL 470.15 (1), “[u]pon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” * * * The Appellate Division engages in “the type of appellate overreaching prohibited by CPL 470.15 (1)” when it “renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in [the appellant’s] favor” … .

Here, the court determined that “the accessorial liability theory, if presented at a new trial, would not constitute an impermissible amendment to the indictment in violation of the defendant’s constitutional rights,” clearly resolving that issue in the People’s favor.  People v Dixon, 2024 NY Slip Op 06473, Fourth Dept 12-20-24

Practice Point: New evidence indicated defendant was not the shooter but had provided the weapon to the shooter with the requisite intent. Because the new evidence would not have resulted in a more favorable verdict on the criminal possession of a weapon charge, defendant’s motion to vacate the judgment of conviction should have been denied.

Practice Point: An intermediate appellate court can only consider grounds for rulings relied on by the trial court or rulings adverse to the appellant.

 

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THE DENIAL OF DEFENDANT’S MOTION TO SEVER THE CHARGES RELATING TO TWO SEPARATE MURDERS, COMMITTED NEARLY TWO YEARS APART, WAS NOT AN ABUSE OF DISCRETION; DEFENDANT DID NOT DEMONSTRATE THE JURY WOULD HAVE HAD DIFFICULTY CONSIDERING SEPARATELY THE PROOF FOR EACH OFFENSE (CT APP).

The Court of Appeals, affirming defendant’s murder convictions, in a full-fledged opinion by Judge Halligan, over two comprehensive dissenting opinions, determined the denial of defendant’s motion to sever the charges relating to two separate murders, committed nearly two years apart, was not error:

The first victim was the defendant’s roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body was found in a shallow grave in May 2015. The defendant was arrested in 2017 … . * * *

Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be “in the interest of justice and for good cause shown” (id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of “two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan” … .

The statute specifies two situations that establish good cause: first, where there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and second, where there is “[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial” … . The statute expressly notes that good cause is not limited to these grounds … , and we have explained that “a defendant’s fundamental right to a fair trial free of undue prejudice” must be protected when offenses are joined for trial … . …

… The defendant asserts that “the jury was incapable of considering the proof separately with respect to each offense” because the proof of each crime was “markedly different” and “dissimilar.” … [But] the key question is whether it would be difficult for the jury to consider separately the proof for each offense … . People v Mero, 2024 NY Slip Op 06385, CtApp 12-19-24

Practice Point: Consult this opinion, especially the extensive dissents, for a comprehensive discussion of the issues raised by trying a defendant for two unrelated murders, separated by years, in a single trial.

 

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DEFENDANT’S CROSSING THE FOG LINE ON THE RIGHT SIDE OF THE HIGHWAY THREE TIMES IN SECONDS CONSTITUTED PROBABLE CAUSE FOR THE TRAFFIC STOP (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was probable cause for the traffic stop which resulted in a DWI conviction. Defendant’s car crossed the fog line on the right side of the roadway three times within seconds:

When a driver swerves over the fog line repeatedly, in quick succession, they have failed to “drive[ ] as nearly as practicable entirely within a single lane” in violation of VTL § 1128 (a) (see e.g. Schoonmaker v New York State Dept. of Motor Vehicles, 33 NY3d 926, 928 [2019] [testimony that vehicle “ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle’s right front tire” provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle, 71 AD3d 1176, 1177, 1178 [2d Dept 2010]; People v Parris, 26 AD3d 393, 394 [2d Dept 2006]; cf. People v Davis, 58 AD3d 896, 898 [3d Dept 2009] [police officer’s testimony that driver had made “brief contacts with the fog line,” but not that driver was, for example, “weaving, driving erratically or even that he drove onto the shoulder” was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers’ observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. People v Rufus, 2024 NY Slip Op 06384, CtApp 12-19-24

Practice Point: Here defendant’s crossing the fog line on the right side of the highway three times in seconds violated the Vehicle and Traffic Law and constituted probable cause for the traffic stop.

 

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THE SO-CALLED “LUXURY DEREGULATION” PROVISION OF THE NYC RENT STABILIZATION LAW WAS REPEALED AS OF JUNE 14, 2019; APARTMENTS WITH LEASES IN EFFECT ON THE REPEAL DATE WHICH, PRIOR TO THE REPEAL, HAD BEEN ORDERED TO BECOME DEREGULATED, WERE NO LONGER ELIGIBLE FOR DEREGULATION AS OF JUNE 14, 2019 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined that the NYC Division of Housing and Community Renewal (DHCR) properly interpreted a provision of the Rent Stabilization Law which repealed the so-called “luxury deregulation” of rent stabilized residences. Prior to the operative date of the repeal, June 14, 2019, landlords could deregulate apartments if the tenant’s income exceeded the statutory threshold for two years:

Our primary task on this appeal is statutory interpretation. Specifically, we are asked to determine whether the Division of Housing and Community Renewal (DHCR) properly interpreted part D of the Housing Stability and Tenant Protection Act of 2019 (HSTPA)—repealing so-called “luxury deregulation” of rent stabilized residences—as applying to apartments that, prior to the repeal, were ordered to become deregulated upon expiration of the tenants’ leases, which would not expire until after the effective date of the repeal. We answer that question in the affirmative and hold that, contrary to petitioner’s contention, DHCR’s interpretation of part D as eliminating luxury deregulation for an apartment owned by petitioner was proper and did not constitute an impermissible retroactive application. Matter of 160 E. 84th St. Assoc. LLC v New York State Div. of Hous. & Community Renewal, 2024 NY Slip Op 06377, CtApp 12-19-24

 

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PLAINTIFFS WERE PREJUDICED BY THE JURY SELECTION PROCESS WHICH DID NOT ALTERNATE THE PEREMPTORY CHALLENGES; THE FIRST QUESTION POSED TO THE JURY EFFECTIVELY PRECLUDED THE JURORS FROM CONSIDERING THE APPROPRIATE LEGAL ISSUE, I.E., WHETHER THE PLAINTIFF SUFFERED A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW (THIRD DEPT).

The Third Department, reversing the jury verdict and ordering a new trial in this Insurance Law 5102(d) “serious injury” case, determined the plaintiffs were prejudiced by the jury selection method used the trial judge, and the first question on the verdict sheet was improper because it effectively precluded the jury from considering the relevant question, whether plaintiff suffered a “serious injury:”

The court’s failure to alternate the peremptory challenge process … placed plaintiffs in the untenable position of having to utilize a peremptory challenge for a prospective juror that may not have been necessary had defendants been required to go first. This error compromised the fairness of the jury selection process.

Plaintiffs further contend that Supreme Court erred by including the first question on the verdict sheet — i.e., “[h]ave the plaintiffs . . . established that the incident . . . was a substantial factor in causing [Mormile’s] injuries?” We agree.  The specific issue for the jury to resolve was whether, as a result of the subject accident, Mormile sustained a “serious injury” as set forth in question 2 on the verdict sheet (did Mormile “sustain a significant limitation of use of a body function or system”); question 3 (did Mormile “sustain a permanent consequential limitation of use of a body organ or member”); question 4 (did Mormile “sustain a injury that resulted in a significant disfigurement”); and question 5 (did Mormile “suffer a medically determined injury or impairment of a non-permanent nature . . . that prevented him from performing all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident?”).

The first question effectively only asks whether there was probable cause to establish that Mormile’s injuries resulted from the accident (see PJI 2:70). Having answered “No” to that global question, the jury did not answer questions 2 through 5. In effect, the jury did not resolve the appropriate legal issue, i.e., whether Mormile sustained a “serious injury” in the accident, as defined under each of the four distinct categories at issue … . Mormile v Marshall, 2024 NY Slip Op 06390, Third Dept 12-19-24

Practice Point: Failure to alternate the peremptory challenges compromised the fairness of the jury selection process.

Practice Point: The first question on the verdict sheet effectively precluded the jury from considering the appropriate legal issue, i.e., whether plaintiff suffered a “serious injury” within the meaning of the Insurance Law.

 

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THE FORECLOSURE ACTION WAS TIMELY COMMENCED WHEN THE SUMMONS AND COMPLAINT WERE FILED IN 2013; THE COURT ERRED IN DEEMING THE ACTION COMMENCED WHEN THE SUMMONS AND COMPLAINT WERE SERVED IN 2022 (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the foreclosure action was timely, noting that the time the foreclosure action was commenced was when the summons and complaint were filed, not when they were served:

The sole issue this Court is tasked with addressing is whether the action was timely commenced. “An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213 [4]), which begins to run from the due date of each unpaid installment, from the date the mortgagee is entitled to demand full payment, or from the date the mortgage debt has been accelerated” … . Acceleration occurs when, among other things, a lender demands payment in full by commencing a foreclosure action … . The operative date for determining whether a claim was interposed within the limitations period is the date of commencement, and “an action is commenced upon the filing of the summons and complaint, not service” … .

Supreme Court incorrectly determined that plaintiff’s claim was interposed upon [defendant] Coppola when she was served with process in January 2022, rather than upon the filing of the summons and complaint in September 2013 … . Deutsche Bank Trust Co. Ams. v DiGioia, 2024 NY Slip Op 06403, Third Dept 12-19-24

Practice Point: The foreclosure action was commenced when the summons and complaint were filed in 2013, not when they were served in 2022.

 

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