You are here: / Municipal Law
, , , , ,

Privatization of a Mitchell-Lama Cooperative Housing Corporation Is Not a Taxable Conveyance Subject to the Real Property Transfer Tax

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the reconstitution of a cooperative housing corporation [Trump Village], changing from a Mitchell-Lama corporation pursuant to the Private Housing Finance Law [PHFL] to a corporation pursuant to the Business Corporation Law, was not a conveyance of real property subject to the Real Property Transfer Tax [RPTT]. The NYC Department of Finance characterized the change as a taxable conveyance and was seeking over $21,000,000 in tax and penalties.  The Court of Appeals held that the amendment to the certificate of incorporation did not create a new corporation and that the amended certificate did not constitute a deed:

In support of their position that the privatization of Trump Village is a taxable event, defendants argue that an amendment to a certificate of incorporation is a “deed.” Defendants also assert that Trump Village is a new corporation and that there was actually a conveyance of real property to a different corporation, with Trump Village being both the grantor and grantee. However, defendants’ construction of the RPTT cannot be reconciled with the plain language of the statute. Furthermore, even if there were any ambiguities regarding the application of the RPTT to this situation, “doubts concerning [a taxing statute’s] scope and application are to be resolved in favor of the taxpayer”… . Thus, we reject defendants’ strained interpretation of section 11-2102(a) of the Administrative Code of the City of New York. …

Trump Village …, is the same corporation that was named in the original certificate of incorporation. The Business Corporation Law distinguishes between amending a certificate of incorporation (§ 801 et seq.) and formation of a corporation (§ 401 et seq.). Section 801 (14) provides that a certificate of incorporation may be amended “to strike out, change or add any provision . . . relating to the business of the corporation, its affairs, its right or powers . . . .”…

The PHFL provides that a Mitchell-Lama corporation “may be voluntarily dissolved” and “[t]hat upon dissolution, title to the project may be conveyed in fee to the owner or owners of its capital stock or to any corporation designated by it or them for that purpose, or the company may be reconstituted pursuant to appropriate laws relating to the formation and conduct of corporations”(PHFL § 35 [3][emphasis added]). Accordingly, there are two options for the process of privatization, and plaintiff chose the second option – – reconstitution through amendment of its certificate of incorporation [FN1]. Defendants posit that the legislature intended the word “reconstitute” to mean the same thing as “reincorporate.” However, as long ago as 1857, it was recognized that reincorporation “cannot be deemed the formation of a new corporation, but should be regarded as the continuation of the existing one”… . Trump Vil Section 3 v City of New York, 2014 NY Slip Op 08788, CtApp 12-17-14

 

,

Article 78 Is Proper Mechanism for Seeking Return of Property Held by the Police Department/Here Petitioner Was Not Entitled to Return of Firearm Not Licensed in New York/Firearms Owners’ Protection Act Did Not Apply

The Second Department determined that, although an Article 78 proceeding can be used to seek the return of property from the police department, the proceeding can not be used to seek the return of contraband.  Under the facts here, the firearm at issue was contraband because the petitioner did not have a license to possess it in New York, in spite of the fact the firearm had been legally purchased and possessed in California. In addition, the court held that the petitioner was not simply transporting the firearm through New York, an act protected by the Firearms Owners’ Protection Act (18 USC 926A):

Under the circumstances of this case, the Supreme Court correctly determined that the Firearm Owners’ Protection Act (18 USC § 926A) was not applicable. “Section 926A permits a licensee, in certain circumstances, to transport a firearm from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm'” … . The firearm owner must be actually engaging in travel or acts incidental to travel …, and during the transportation, the weapon and ammunition must not be readily accessible … . Here, the petitioner failed to establish that he was only engaged in travel through New York so as to invoke the protection of section 926A … . Matter of Khoshneviss v Property Clerk of NYC Police Dept, 2014 NY Slip Op 08844, 2nd Dept 12-17-14

 

, ,

Complaint Can Not Be Deemed a Late Notice of Claim/Application to File a Late Notice of Claim Can Not Be Granted After the Statute of Limitations Has Run/City Is Not Required to Plead the Failure to File a Notice of Claim as a Defense/Participation in Discovery Did Not Preclude the City from Moving to Dismiss Based Upon Plaintiff’s Failure to File a Notice of Claim (After the Statute of Limitations Had Run)

The Second Department reversed Supreme Court’s determination that the complaint be deemed a late notice of claim against the city in a slip and fall case.  The court noted that Supreme Court did not have the power to accept the complaint as a late notice of claim, did not have the power to grant an application to file a late notice of claim after the statute of limitations had passed, the city was under no obligation to plead the absence of a notice of claim as a defense, and the city was not precluded from raising the defense by participating in discovery:

Here … the Housing Authority … was “under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement” … . “Furthermore . . . participation in pretrial discovery did not preclude [it] from raising the untimeliness of the notice of claim” … . In short, there is no evidence in the record demonstrating that the Housing Authority engaged in any misleading conduct which would support a finding of equitable estoppel … . Furthermore, there is no indication in the record that the plaintiff relied upon any alleged act or omission of the Housing Authority or that such reliance caused the plaintiff to change her position to her detriment or prejudice … . Accordingly, the Supreme Court should have granted the Housing Authority’s motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to serve a timely notice of claim, and denied that branch of the plaintiff’s cross motion which was to deem the complaint to be a late notice of claim and to deem it to have been timely served nunc pro tunc.  Feliciano v NYC Hous Auth, 2014 NY Slip OP 08807, 2nd Dept 12-17-14

 

,

Code Provision Prohibiting the Placement of Signs on Public Property Is a Constitutional, Content-Neutral Restriction of Speech Which Was Severable from the Rest of the Code Chapter—There Was, Therefore, No Need to Assess the Constitutionality of the Entire Chapter (As the Appellate Division Had)

Reversing the Appellate Division, the Court of Appeals determined that section 57A-11 of the Town Code, which prohibited the placement of signs on public property, could be severed from the rest of chapter and was a valid, content-neutral regulation of speech.  The Appellate Division had held that section 57A-11, which was valid standing on its own, could not be severed from the rest of the chapter and that the chapter as a whole was unconstitutional because it favored commercial over noncommercial speech. The defendant here had pled guilty to violating section 57A-11:

“In a statutory context, our test for severability has been whether the Legislature would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether” … . In Superfund Coalition, for example, the unconstitutional portion was at the “core” of the statute, and “interwoven inextricably through the entire regulatory scheme” (id.). By contrast, section 57A-11 deals only with signs posted on public property, a discrete regulatory topic and regime. This is reinforced by section 57A-11 (A), which explains the provision’s purpose and focuses entirely on the unique problems posed by signs on public right-of-ways. In light of section 57A-11’s independent legislative purpose, this provision can be severed from any unconstitutional portions of chapter 57A. We therefore need not and do not consider the constitutionality of any part of chapter 57A except section 57A-11. * * *

Section 57A-11 of the Town Code * * * imposes a content- neutral ban on all signs on public property, and applies to both commercial and non-commercial signs without consideration of their content. Further, it directly serves the Town’s valid interests in traffic safety and aesthetics, as expressly articulated in section 57A-11 (A). People v On Sight Mobile Opticians, 2014 NY Slip Op 08761, CtApp 12-16-14

 

, , ,

Deeply Divided Court Reverses Plaintiff’s Malicious Prosecution-False Arrest Verdict and Orders a New Trial/Error Not to Allow Unredacted Autopsy Report Into Evidence/The Nature of the Evidence Necessary to Demonstrate Probable Cause to Arrest Was the Core of the Disagreement Among the Justices

The First Department, over a two-justice dissent, reversed a plaintiff’s verdict and ordered a new trial.  Plaintiff’s baby died a few weeks after birth.  The medical examiner concluded that the baby died of malnutrition that was not due to a detectable defect in her digestive system.  The plaintiff was charged with the baby’s death, but the charges were dropped about a month later. Plaintiff sued the city, alleging malicious prosecution and false arrest.  Both causes of action require a finding that the police did not have probable cause to arrest.  The probable cause determination was left to the jury (which concluded the police did not have probable cause).  The majority decided it was reversible error not to admit the full autopsy report, including the redacted conclusion that the “manner of death” had been “homicide (parental neglect).”  The dissent vehemently argued that the arresting officer had enough information, both from the autopsy report and his investigation, to conclude that the baby had been adequately fed and that, therefore, the jury’s finding the officer did not have probable cause to arrest was supported by the evidence. The concurring decision vehemently disagreed with the dissent, arguing that the arresting officer had probable cause as a matter of law:

From the concurrence:

“Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent person in believing that the offense has been committed” … . “The evidence necessary to establish probable cause to justify an arrest need not be sufficient to warrant a conviction” … . And, as previously discussed, conflicting evidence as to guilt or innocence, and discrepancies in the case being built against the arrested person, while relevant to the prosecution’s ability to prove guilt beyond a reasonable doubt at trial, are not relevant to the determination of whether there was probable cause for an arrest … . Further, “when the facts and circumstances are undisputed, when only one inference [concerning probable cause] can reasonably be drawn therefrom and when there is no problem as to credibility . . . , the issue as to whether they amount to probable cause is a question of law” … . Since there is no dispute about either (1) plaintiff’s status as the infant’s sole custodian, (2) the contents of the autopsy report, or (3) the detective’s reliance upon the autopsy report in making the arrest and initiating the subsequently aborted prosecution, probable cause for plaintiff’s arrest and prosecution existed as a matter of law. It follows that this case should not have been submitted to the jury and that the City’s motion for judgment notwithstanding the verdict should have been granted. * * *

From the dissent:

The evidence demonstrated that notwithstanding the conclusion in the autopsy report that the child died of malnutrition, the detective testified that two medical professionals who viewed the child’s body saw no apparent signs of neglect or abuse, found food in the child’s stomach, and concluded that she appeared to be well fed. Thus, there was no indication that plaintiff had either intentionally, recklessly or negligently starved the infant. The jury reasonably could have found that, at the time of arrest, there was no basis for a prudent person to believe that an offense had been committed. That is, that the mother did not act recklessly or negligently in feeding the child and/or not realizing that the child was malnourished, or did not in fact commit any offense whatsoever. * * * … [T]he contents of the report along with the other evidence did not provide probable cause to believe that a crime had been committed. Moreover, under the circumstances of this case, it cannot be said that “it was reasonable, as a matter of law,” for the detective to discredit plaintiff’s account. Cheeks v City of New York, 2014 NY Slip Op 08764, 1st Dept 12-16-14

 

, ,

Landlord Properly Granted Summary Judgment in Action Stemming from an Assault on Landlord’s Premises—Plaintiff Unable to Raise a Question of Fact Whether the Assailants Were Intruders, as Opposed to Tenants or Invitees

The First Department determined summary judgment was properly awarded to the landlord in an action based upon an attack upon plaintiff on the landlord’s premises.  Plaintiff was not able to raise a question of fact about whether the assailants were intruders, as opposed to tenants or invitees:

A landlord has a common-law duty to take minimal precautions to protect tenants from a third party’s foreseeable criminal conduct … . In order to recover damages, a tenant must establish that the landlord’s negligent conduct was a proximate cause of the injury … . Where a plaintiff alleges that a criminal attack in a building was proximately caused by a landlord’s failure to provide adequate security, “[the] plaintiff can recover only if the assailant was an intruder” (id. at 551). “To defeat a motion for summary judgment, a plaintiff need not conclusively establish that the assailants were intruders, but must raise triable issues of fact as to whether it was more likely than not that the assailants were intruders who gained access to the premises through the negligently-maintained entrance” … . Applying these principles, no triable issue of fact exists here because there is no evidence from which a jury could conclude, without pure speculation, that the assailants were intruders, as opposed to tenants or invitees. Hierro v New York City Hous Auth, 2014 NY Slip Op -8734, 1st Dept 12-11-14

 

,

Statutory Privilege Afforded Emergency Vehicles (Imposing a “Reckless Disregard” Standard for Accident-LiabilIty) Is Not Dependent Upon Whether the Emergency Lights and Siren Were Activated

The First Department determined summary judgment was properly granted to the city in a case stemming from a collision with a police car.  The evidence that the police car, which was “performing an emergency operation,” stopped at a stop sign before proceeding into the intersection where it was struck by the taxi in which plaintiff was a passenger was sufficient to demonstrate the police officer did not act recklessly.  It did not matter whether the emergency lights and siren were activated:

As the police vehicle was an authorized emergency vehicle (Vehicle and Traffic Law § 101), performing an emergency operation by “pursuing an actual or suspected violator of the law” (Vehicle and Traffic Law § 114-b), the operator was authorized to proceed through the red light, once it slowed down “as may be necessary for safe operation” (Vehicle and Traffic Law § 1104 [a],[b][2]). Thus, in order to hold the municipal defendants liable, plaintiff must demonstrate that the officer driving the police vehicle acted with “reckless disregard for the safety of others,” which requires a showing that he “has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … .

Here, the officer’s uncontroverted testimony was that he came to a complete stop prior to entering the intersection. That he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless … . That issues of fact exist as to whether the police lights were on (which plaintiff saw prior to the accident, but the taxi driver testified he did not), or whether the siren was activated, is not material, as a police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light (Vehicle and Traffic Law § 1104[c]). Thus, the evidence demonstrates that the officer driving the police vehicle lawfully exercised the privilege, and appellants have produced no evidence of any other facts or circumstances which would raise a triable issue as to any reckless conduct by the officer.  Flynn v Sambuca Taxi LLC, 2014 NY Slip OP 08723, 1st Dept 12-11-14

 

, ,

Doctrine of Res Judicata Did Not Preclude Lawsuit Against Defendant Building Inspector In His Individual Capacity After Summary Judgment (In Defendant’s Favor) In an Action Against Defendant In His Official Capacity—Transactional Approach to Res Judicata Explained

The Second Department determined that summary judgment in favor of the defendant (Maikisch) in an action brought against a town and defendant in his capacity as building inspector did not, pursuant to the doctrine of res judicata, preclude a lawsuit against the defendant in his individual capacity. The court explained the analytical criteria:

This State has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . “It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination–—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'” … . “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'”

…[I]n the prior action, the plaintiff made no claim against Maikisch in his capacity as an individual. Rather, the plaintiff sought relief, in the form of a declaratory judgment, against the Town and Maikisch in his capacity as Building Inspector of the Town. “It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued” … .

In any event, the differences which exist between the issues raised in the prior litigation and those raised now, namely, the differences in the kind of relief sought, in the kind of facts to be proved, and in the kind of law to be applied, outweigh the similarities to such an extent as to render the doctrine of res judicata inapplicable … . In the prior action, the plaintiff sought a judgment declaring that the subject property was exempt from certain land-use and building code regulations. There, the plaintiff alleged that, for reasons stated, the relevant regulations were inapplicable the subject property. In this action, the plaintiff seeks to recover money damages from Maikisch individually, based on contract and tort theories. In this action, the plaintiff alleges, inter alia, that Maikisch breached an oral contract between the parties, breached a fiduciary duty owed to the plaintiff, and tortiously interfered with the plaintiff's business relations. Specialized Realty Servs LLC v Maickisch, 2014 NY Slip Op 08627, 2nd Dept 12-10-14

 

,

Bicyclist Assumed Risk of Injury While Jumping His Bicycle Off a Dirt Mound on a Dirt Bike Trail In a Park

The Second Department determined plaintiff-bicyclist assumed the risk of injury while jumping his bicycle off a dirt mound on a dirt bike trail in a park:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting or recreational activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in and arise out of the nature of the activity … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . “If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty” by making the conditions as safe as they appear to be … . This includes risks associated with the construction of the playing surface and any open and obvious condition on it … .

In support of their motion, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of his injuries by voluntarily jumping his bicycle from the subject dirt mound, and that the plaintiff was fully aware of the condition of the mound at the time of the accident, as he successfully jumped off the mound twice prior to the accident… . Mamati v City of New York Parks & Recreation, 2014 NY Slip Op 08406, 2nd Dept 12-3-14

 

,

Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury

The Second Department determined a personal injury action was properly dismissed because the condition which led to plaintiff's injury (a five-foot drop from the top of a retaining wall to the sidewalk) was not the cause of the accident.  Infant plaintiff lost control of her bicycle, left the path, and was injured when she went over the top of the retaining wall and fell to the sidewalk:

Although the issue of proximate cause is generally one for the finder of fact …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … .

Here, the evidence submitted in support of the defendant's motion, which included a transcript of the deposition testimony of the infant plaintiff, demonstrated that the accident was proximately caused by the infant plaintiff's failure to control her bicycle and the failure of the bicycle's brakes … . The retaining wall, which was erected a considerable distance from the portion of the paved pedestrian path from which the infant plaintiff deviated, merely furnished the condition or occasion for the infant plaintiff's accident, and was not one of its causes … . Any alleged negligence in the design, maintenance, or management of the retaining wall did not proximately cause the subject accident … . Rattray v City of New York, 2014 NY Slip Op 08416, 2nd Dept 12-3-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy