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CODEFENDANT WAS SEEN ENTERING A CAR WITH A WEAPON WHICH WAS LATER FOUND ON THE SIDE OF THE ROAD, STATUTORY PRESUMPTION THAT THE WEAPON WAS POSSESSED BY ALL IN THE CAR DID NOT APPLY, DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a weapon, determined the evidence was legally insufficient to support the conviction. A co-defendant was seen (by the police) getting into a car with the weapon. Defendant also got into the car. The police followed. Before the police pulled the car over, when the car was out of sight, the weapon was thrown out of the car. A cell phone found near the weapon was tied to the defendant, but the weapon was not. The statutory presumption that a weapon in a vehicle is possessed by all in the vehicle did not apply because the weapon was in the possession of a codefendant when he got into the car:

We agree with defendant that the evidence is legally insufficient to support the conviction. There is no evidence that he owned or was operating the vehicle, nor is there evidence that he engaged in any other activity that would support a finding that he constructively possessed the weapon… Furthermore, the statutory presumption of possession set forth in Penal Law § 265.15 (3) also does not apply here. The statute provides that “[t]he presence in an automobile, other than a stolen one or a public omnibus, of any firearm . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . is found” … . The statute further provides, however, that the presumption does not apply, inter alia, “if such weapon . . . is found upon the person of one of the occupants therein” (§ 265.15 [3] [a]). Here, the weapon was not found in the vehicle, and the codefendant was holding it while he was observed entering the vehicle. Consequently, “the evidence is clearcut and leads to the sole conclusion that the weapon was . . . upon the person” of the codefendant … .

The People’s contention that defendant threw the weapon out the window, or assisted the codefendant in doing so, because it was found on the right side of the vehicle is based on speculation. Finally, the People introduced no evidence that would support a finding that defendant possessed the weapon as an accomplice. People v Willingham, 2018 NY Slip Op 00733, Fourth Dept 2-2-18

 

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NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT).

The Fourth Department, in a comprehensive decision dealing with several substantive issues not summarized here, affirmed defendant’s first degree murder (four counts) and burglary convictions, and reduced the arson second degree conviction to arson third degree. The victims were not alive when the fire was set. The definition of “person” (in the Arson second statute) was interpreted to refer to a living person. In addition, the court held that the motion to suppress the cell site location information (CSLI), which the police obtained without a warrant, and which placed defendant in the town where the crime was committed at the time of the crime, was properly denied:

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As the Fifth Circuit Court of Appeals has written, “[w]e understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags . . . or the view of their property from 400 feet above the ground . . . to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy” (Application of U.S. for Historical Cell Site Data, 724 F3d at 615).

With respect to defendant’s state constitutional challenge, we conclude that “there is no sufficient reason’ to afford cell site location information at issue here greater protection under the state constitution than it is afforded under the federal constitution” … . People v Taylor, 2018 NY Slip Op 00709, Fourth Dept 2-2-18

CRIMINAL LAW (NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/CELL SITE LOCATION INFORMATION (CSIL) (CRIMINAL LAW, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/SEARCH AND SEIZURE (CELL SITE LOCATION INFORMATION, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, CELL SITE LOCATION INFORMATION, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION (FOURTH DEPT))

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POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a forged instrument (counterfeit check), determined two categories of hearsay evidence were improperly admitted without foundation:

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… [T]he court “erred in admitting in evidence a printout of electronic data that was displayed on a computer screen [after] defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule . . . [because they] presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business” … . …

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… [T]he court improperly admitted an investigator’s testimony about the results of a search he ran in a credit bureau’s commercial database for email addresses and a telephone number contained in a cover letter that enclosed the counterfeit check defendant tried to cash. The People failed to establish the requisite foundation for this testimony inasmuch as the investigator did not testify that he “is familiar with the practices of [the] company that produced the records at issue” and that he “generally relies upon such records” … . People v Jones, 2018 NY Slip Op 00710, Fourth Dept 2-2-18

CRIMINAL LAW (EVIDENCE, HEARSAY, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARSAY, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/HEARSAY (CRIMINAL LAW, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/BUSINESS RECORDS (HEARSAY,  POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))

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MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the defendant’s murder conviction was against the weight of the evidence. The majority stated that the evidence demonstrated the defendant was probably guilty, but did not rise to proof beyond a reasonable doubt. The dissenters stated they “agreed” with the majority’s “implicit” determination that there was sufficient evidence to support the verdict, but they disagreed with the majority’s conclusion that the conviction was against the weight of the evidence. The decision describes the evidence in great detail which cannot be fairly summarized here. In a nutshell, there was evidence the defendant went into a motel room with the victim, where the victim was found dead. But the majority noted there was other evidence to suggest the victim had left the motel room at some point and someone other than the defendant was also in the room:

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The People’s case thus rested on three pillars of circumstantial evidence: (1) the fact that defendant entered the hotel with the victim at approximately 7:00 p.m., some 15 hours before his dead body was found in the hotel room; (2) the fact that defendant repeatedly lied to the police when he said that he did not know the victim and had never met him; and (3) the fact that the victim’s vehicle was found abandoned on a city street approximately six-tenths of a mile from defendant’s residence.

… [D]efendant’s presence in the room, although incriminating, is by no means conclusive considering that other people may have been in the room with the victim and that the Medical Examiner could not determine the time of death. As for defendant’s lies to the police, it appears that he may not have been living as an openly gay man—he had a girlfriend and children from different women— and he may have said that he did not know the victim so as not to reveal his sexual orientation. Finally, although the presence of the vehicle so close to defendant’s residence is suspicious, the victim was known to drive around the city looking for sexual partners … . * * *

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Although the police cannot be faulted for arresting defendant, nor the People for prosecuting him, the evidence at trial simply failed to prove defendant’s guilt beyond a reasonable doubt. There are too many unanswered questions for us to be comfortable that the right person is serving a life sentence for the victim’s murder.

From the dissent:  We agree with the implicit determination of our colleagues that there is sufficient evidence to support the jury’s verdict of murder in the second degree  … , but we respectfully disagree with their conclusion that the verdict is against the weight of the evidence. People v Carter, 2018 NY Slip Op 00711, Fourth Dept 2-2-18

CRIMINAL LAW (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE/AGAINST THE WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))

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FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the arresting officer did not have cause to frisk the defendant, which revealed a weapon. The motion to suppress the weapon should have been granted. The officer had responded to a call about a shooting at a bar which described the suspect as a male Hispanic. The officer found a bullet fragment and some blood in a parking lot and he approached a group of people who were about 10 to 25 feet away. One person in the group appeared to the officer to be a male Hispanic. Someone in the group said they didn’t hear or see anything. The officer then frisked the defendant, who is black, not Hispanic:

… [T]he police had an objective, credible reason to approach the group of five people in the parking lot and to request information in light of the report of a shooting at or near that location at some unidentified earlier time. Thus, we conclude that the police encounter was lawful at its inception… . The People correctly concede, however, that the officer’s encounter with defendant constituted a level three forcible detention under the four-tiered De Bour framework …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … .

We conclude that, “[b]ecause of the lack of correspondence between defendant’s appearance and the description of the suspected [shooter that was] transmitted to the officer[] . . . , the officer[] had no basis for concluding that the reported crime had been committed by defendant” … . “Nor can the [frisk of defendant] and seizure of the gun be justified as having been in the interests of the officer[‘s] safety, since there was no testimony that the officer[] believed defendant to be carrying a weapon” … ,and the People presented no other evidence establishing that the officer had reason to fear for his safety … . People v Roberts, 2018 NY Slip Op 00725, Fourth Dept 2-2-18

 

CRIMINAL LAW (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SEARCH AND SEIZURE  (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/STREET STOPS (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

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DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant did have standing to move to vacate a default judgment on the ground that the court which issued the judgment did not have personal jurisdiction over the defendant. The judgment had been satisfied by a property execution on the defendant’s bank account:

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Where, as here, a defendant moves to vacate a default judgment on the ground that the court that rendered the judgment lacked personal jurisdiction over the defendant … a finding in favor of the defendant would mean that the judgment was “a nullity” . It necessarily follows that, “if a judgment is a nullity, it never legally existed so as to become extinguished by payment” … . …

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In addition, inasmuch as plaintiff levied the judgment amount with interest by a property execution on defendant’s bank account, we conclude that defendant did not voluntarily pay and satisfy the judgment … . Thus, it cannot be said that she waived the defense of lack of personal jurisdiction … . Cach, LLC v Ryan, 2018 NY Slip Op 00755, Fourth Dept 2-2-18

 

DEBTOR-CREDITOR (DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/CIVIL PROCEDURE (PERSONAL JURISDICTION, DEFAULT JUDGMENT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/DEFAULT JUDGMENT (PERSONAL JURISDICTION, (DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/PERSONAL JURISDICTION (DEFAULT JUDGMENT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))

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PETITIONER WAS DENIED HIS RIGHT TO CALL WITNESSES, NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department annulled the determination and ordered a new disciplinary hearing because petitioner was denied his right to call witnesses:

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“An inmate has a right to call witnesses at a disciplinary hearing so long as the testimony is not immaterial or redundant and poses no threat to institutional safety or correctional goals” … . Respondent correctly concedes that the Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations … . Inasmuch as a good faith reason for denying the witnesses appears in the record, only petitioner’s regulatory right, not his constitutional right, to call those witnesses was violated, and thus the proper remedy is a new hearing … . Matter of Adams v Annucci, 2018 NY Slip Op 00695, Fourth Dept 2-2-18

DISCIPLINARY HEARINGS (INMATES) (PETITIONER WAS DENIED HIS RIGHT TO CALL WITNESSES, NEW HEARING ORDERED (FOURTH DEPT))

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NON-SOLICITATION AGREEMENT WAS THE PRODUCT OF OVERREACHING AND WILL NOT BE ENFORCED (FOURTH DEPT).

The Fourth Department determined Supreme Court correctly found, after a bench trial, that a non-solicitation agreement between defendant Johnson and her employers (plaintiffs) should not be enforced because the agreement was the product of overreaching:

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Plaintiffs had the burden of demonstrating that, in imposing the terms of the non-solicitation covenant, they did not engage in “overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct, but ha[d] in good faith sought to protect a legitimate interest” … , and they did not meet that burden. The evidence established that the non-solicitation covenant was imposed as a condition of Johnson’s employment, after she had left her former employer and her position there had been filled, which belies plaintiffs’ contention that Johnson’s bargaining position was equal or superior to theirs… . In addition, plaintiffs required all employees, regardless of position, to sign an agreement containing a non-solicitation covenant as a condition of employment, which undercuts plaintiffs’ contention that the covenant was necessary to protect their legitimate business interests … . Finally, the fact that the agreement provides for partial enforcement of the non-solicitation covenant, which is clearly over-broad under New York law, casts doubt on plaintiffs’ good faith in imposing the covenant on Johnson … . Brown & Brown, Inc. v Johnson, 2018 NY Slip Op 00728, Fourth Dept 2-2-18

EMPLOYMENT LAW (NON-SOLICITATION AGREEMENT WAS THE PRODUCT OF OVERREACHING AND WILL NOT BE ENFORCED (FOURTH DEPT))/CONTRACT LAW (NON-SOLICITATION AGREEMENT WAS THE PRODUCT OF OVERREACHING AND WILL NOT BE ENFORCED (FOURTH DEPT))/NON-SOLICITATION AGREEMENT (EMPLOYMENT LAW, NON-SOLICITATION AGREEMENT WAS THE PRODUCT OF OVERREACHING AND WILL NOT BE ENFORCED (FOURTH DEPT))/CONTRACT LAW (NON-SOLICITATION AGREEMENT WAS THE PRODUCT OF OVERREACHING AND WILL NOT BE ENFORCED (FOURTH DEPT))

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QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT).​

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment should not have been granted. Defendants sold used gas pumps to a scrap yard, stating that the pumps had been drained of gasoline. When one of the pumps was sent to the shredder it exploded, injuring plaintiff. The other pumps were found to have one to two gallons of gasoline in them. The Fourth Department held there was a question of fact whether defendants were casual sellers of gas pumps and therefore did not owe plaintiff a duty of care. The Fourth Department further held that, even if defendants were casual sellers of gas pumps, there was a question of fact whether they owed a duty of care to plaintiff because the hazard was not open and obvious:

Although it is well settled that casual or occasional sellers of products do “not undertake the special responsibility for public safety assumed by those in the business of regularly supplying those products”… , the evidence submitted by defendants in support of their motion failed to establish that their sale of gas pumps was “wholly incidental” to their business of installing and servicing petroleum distribution systems … .

Even assuming, arguendo, that defendants were merely casual sellers of used gas pumps, we cannot conclude as a matter of law that defendants owed no duty to plaintiff. Even casual sellers owe a duty to warn of dangers that are not open and obvious or readily discernable … . Rosario v Monroe Mech. Servs., Inc., 2018 NY Slip Op 00732, Fourth Dept 2-2-18

NEGLIGENCE (QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/CASUAL SELLERS (NEGLIGENCE, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, DUTY TO WARN, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/WARN, DUTY TO (NEGLIGENCE, OPEN AND OBVIOUS, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/PRODUCTS LIABILITY  (QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))

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RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined that a release drawn up by the initial executor, who died, was not valid because the objectant, a beneficiary of the will who signed the release, was not informed that the value of the securities in the estate had declined significantly and was not informed of the ramifications of the executor’s decision to leave a trust unfunded. Surrogate’s Court had erroneously placed the burden of demonstrating the release was invalid on the objectant:

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… [T]he Surrogate improperly shifted the burden from petitioners to objectant to prove that the release was fraudulently obtained and erred in determining that the release is valid. With releases, “as in other instances of dealing between a fiduciary and the person for whom he [or she] is acting, there must be proof of full disclosure by the [executor] of the facts of the situation and the legal rights of the beneficiary” … . A release should be subject to careful scrutiny, and the executor must affirmatively demonstrate full disclosure of “material facts which he [or she] knew or should have known” … . “The mere absence of misrepresentation, fraud, or undue influence in the obtaining of a release is not sufficient to insulate the release from a subsequent attack by the beneficiaries; the fiduciary must affirmatively demonstrate that the beneficiaries were made aware of the nature and legal effect of the transaction in all its particulars” … . Here, petitioners’ burden of proving that full disclosure was provided was improperly shifted to objectant, i.e., the beneficiary who challenged the validity of the release.

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Decedent’s will contemplated equal bequests to objectant and his sister (decedent’s children). There was a substantial discrepancy in the value of the properties decedent left to each child, however, and most of objectant’s inheritance was to come from the liquidation of the estate’s securities. The will also directed that the trust be funded in the maximum sum allowable to benefit decedent’s children and their descendants. Objectant and the executor were named as co-trustees of the trust. Accurate information concerning the current value of the estate’s securities and the propriety of defunding the trust in contravention of the will was therefore highly material to objectant. Matter of Alford, 2018 NY Slip Op 00752, Fourth Dept 2-2-18

 

 

TRUSTS AND ESTATES (RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT))/RELEASES (TRUSTS AND ESTATES, RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT))/EXECUTORS (RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT))

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