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Lease Provision Allowing the Landlord to Recover Attorney’s Fees in an Action Against the Tenant Triggered the Tenant’s Reciprocal Right to Recover Attorney’s Fees Against the Landlord Pursuant to Real Property Law 234 Should Tenant Prevail in the Action

The Court of Appeals, in a full-fledged opinion by Judge Rivera,  determined that a provision in a lease which allowed the landlord to recover attorney’s fees in a successful action against the tenant for failure to cure a default triggered the tenant’s right to attorney’s fees under Real Property Law 234 should the tenant prevail in the action:

Under Real Property Law § 234,

“Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as a result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.”

In order for the tenant to be eligible for attorneys’ fees under this section, the parties’ lease must permit the landlord, in any action or summary proceeding, to recover attorneys’ fees as a result of the tenant’s breach. Where a lease so provides, the court must interpret the lease to similarly permit the tenant to seek fees incurred as a result of the landlord’s breach or the tenant’s successful defense of a proceeding by the landlord. Here, we hold that paragraph 15 provides the basis for the tenant’s claim for reciprocal rights to attorneys’ fees within the meaning of Real Property Law § 234.

Paragraph 15 of the lease, titled “Tenant’s default”, sets forth the landlord’s remedies and the tenant’s liabilities upon the tenant’s failure to comply with a term or rule in the lease. According to this paragraph, where a properly notified tenant fails to cure a default the landlord may cancel the lease and retake possession of the premises, if necessary, by way of an eviction proceeding or other lawsuit. Upon cancellation of the lease and the landlord’s repossession of the premises the tenant is liable for rent for the unexpired term. The landlord’s rights to attorneys’ fees are set forth in clause D. (3) of this paragraph, which states, in part,

“D. If this Lease is cancelled, or Landlord takes back the Apartment, the following takes place:. . . .

“(3) Any rent received by Landlord for the re-renting shall be used first to pay Landlord’s expenses and second to pay any amounts Tenant owes under this Lease. Landlord’s expenses include the costs of getting possession and re-renting the Apartment, including, but not only reasonable legal fees, brokers fees, cleaning and repairing costs, decorating costs and advertising costs.”

Thus, clause D. (3) anticipates that after a tenant’s default leads to the reletting of the premises, the landlord is entitled to collect attorneys’ fees incurred in gaining possession. Under these circumstances, clause D. (3) complies with the requirements of Real Property Law § 234 that the lease provide “in any action or summary proceeding” for the landlord’s recovery of attorneys’ fees “incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease.” Graham Ct Owner’s Corp v Taylor, 2015 NY Slip Op 01482, CtApp 2-19-15

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No Notice of Claim Requirement for Human Rights Law Action Against City/Questions of Fact About City’s Motivation for Allowing Firefighter Promotion Eligibility Lists to Expire Precluded Summary Judgment in Favor of White Firefighters Alleging Reverse, Disparate Treatment Racial Discrimination

The Court of Appeals, in a full-fledged opinion by Judge Lippman, with concurring and concurring/dissenting opinions, determined that summary judgment should not have been granted to white firefighters who sued the city alleging the promotion eligibility lists were improperly allowed to expire resulting in reverse, disparate treatment racial discrimination. The court first held that the notice of claim requirement for actions against a municipality (General Municipal Law 50-i) does not apply to actions brought under the Human Rights Law.  The court went on to hold that questions of fact about the city’s motivation for allowing the promotion eligibility lists to expire precluded summary judgment:

…[W]e reject the City’s argument for dismissal on the basis of plaintiffs’ failure to file a notice of claim prior to commencement of this action. General Municipal Law § 50-e (1) (a) requires service of a notice of claim within 90 days after the claim arises “[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation.” General Municipal Law § 50-i (1) precludes commencement of an action against a city “for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,” unless a notice of claim has been served in compliance with section 50-e. The Appellate Division departments addressing the issue have determined that the General Municipal Law does not encompass a cause of action based on the Human Rights Law and “[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria” … . Human rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor do we perceive any reason to encumber the filing of discrimination claims. Accordingly, we conclude that there is no notice of claim requirement here. * * *

In this case, the issue of liability turns on the factual circumstances behind the City’s actions, the strength of its justifications and its motivations. It is undisputed that the plaintiffs here made out a prima facie case of discrimination, as the City chose not to promote white candidates from the eligibility list. The burden then shifted to the City to prove that it had “a strong basis in evidence to justify its race conscious action” … . * * *

Based on the record before us, we conclude that whether the City had “a strong basis in evidence to believe it [would] be subject to disparate-impact liability” at the time that it terminated the promotion eligibility lists … raises issues of fact that cannot be determined on motions for summary judgment.  Margerum v City of Buffalo, 2015 NY Slip Op 01378, CtApp 2-17-15

 

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Local Law Imposing Residency Restrictions Upon a Level One Sex Offender Who Was No Longer Subject to State Sex-Offender Residency Restrictions Preempted by Implication—The Body of State Law Regulating Sex Offenders Evinced the State’s Intent to “Occupy the Field”

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a Nassau County Local Law which prohibited registered sex offenders from residing within 1000 feet of a school was preempted by the body of state law regulating the residency of sex offenders.  In this case, the defendant was adjudicated a level one sex offender (the lowest level of “danger” to the community) and had been discharged from parole.  The state sex-offender residency restrictions no longer applied to him. The Court of Appeals held that the body of law enacted by the state in this area, by implication, evinced an intent to “occupy the field” and therefore local governments did not have the power to enact their own sex-offender residency laws:

Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the State (see NY Const, art IX, § 2 [c]; Municipal Home Rule Law § 10 [1] [i]; [ii] [1] [a] [12]). This doctrine of preemption is a significant restriction on a local government’s home rule powers because although localities are “invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern'” … . * * *

The doctrine of field preemption prohibits a municipality from exercising a police power “when the Legislature has restricted such an exercise by preempting the area of regulation” … . Although field preemption may be “express” as evidenced by the Legislature’s stated directive, it may also “be implied from a declaration of State policy by the Legislature . . . or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” … . Intent to preempt the field may “be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area” … . * * *

The defendant in this appeal is a designated level one sex offender, is not on probation or parole, nor is he subject to conditional release or PRS. None of the [state] provisions that even touch upon residency or placement apply to him. …[T]hat does not mean that the State has delegated to local governments the duty of enacting residency laws concerning registered sex offenders. Nor does it mean … that “the Legislature has chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance” … . Rather, it is clear that the State has been continuously active in this field and, as such, it is evident that the State has chosen to occupy it. People v Diack, 2015 NY Slip Op 01376, CtApp 2-17-15

 

Defendant Should Not Have Been Denied His Right to Testify Before the Grand Jury Because He Struck Out Waiver Provisions Not Required by Statute

The Court of Appeals determined defendant was denied his right to testify before the grand jury.  The waiver presented to the defendant as a prerequisite to his testifying included the provisions required by statute, plus three additional provisions.  The defendant struck out the additional provisions and signed the waiver.  Because the defendant struck out the three additional provisions, he was not allowed to testify by the district attorney.  The Court of Appeals held that the signed waiver was sufficient, without the struck-out provisions, because it included all the provisions required by statute.  Therefore, defendant should have been allowed to testify:

CPL 190.50 (5) provides that a defendant must be permitted to testify before a grand jury if he serves upon the People a notice of intent to testify, appears at the designated time and place, and signs and submits a waiver of immunity pursuant to CPL 190.45. The parties do not dispute that defendant complied with the first two requirements of CPL 190.50 (5). Rather, the issue presented on this appeal is whether defendant complied with the third requirement of signing a waiver of immunity. CPL 190.45 (1) provides:

“A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he [or she] waives his privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to section 190.40 . . . . “

The People presented defendant with a waiver of immunity form that included the provisions required by CPL 190.45, and three additional provisions that are not required under that statute. * * *

Defendant’s statutory right to testify before the grand jury was violated. This right “‘must be scrupulously protected'” … . Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify. People v Brumfield, 2015 NY Slip Op 01377, CtApp 2-17-15

 

Harassment Not a Lesser Included Offense of Attempted Assault Third Degree

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reaffirmed prior case law and held that harassment is not a lesser included offense of attempted assault in the third degree, even where both offenses are based on the same conduct. Here defendant was accused of deliberately bumping into the complainant as she was coming up the stairs.  She fell back but was not injured because her husband was directly behind her on the stairwell.  The defendant was convicted of both offenses and appealed arguing that the harassment conviction could not stand because it was “included” in the attempted assault conviction. The Court of Appeals determined it was possible (in the abstract) to be convicted of one of the two offenses without being convicted of the other because of the different intent requirements—harassment requires the intent to annoy, assault requires the intent to injure:

To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a defendant must establish “that it is theoretically impossible to commit the greater offense without at the same time committing the lesser” … . Such determination requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution … . Thus, the defendant must show that the offense “is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense” … . Since defendant cannot establish that in all circumstances it is impossible to commit attempted assault without also committing harassment, his challenge to his conviction on both these counts fails as a matter of law.

Our comparison of attempted assault and harassment establishes that these counts do not share a common intent element. To be guilty of attempted assault in the third degree requires proof that defendant “engage[d] in conduct which tends to effect the commission of [assault],” with the “intent to cause physical injury to another” (Penal Law §§ 110, 120.00 [1]). A conviction for harassment requires that defendant “with intent to harass, annoy or alarm another . . . [,] shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” (Penal Law § 240.26 [1]). People v Repanti, 2015 NY Slip Op 01375, CtApp 2-17-15

 

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Under the Facts, the Judge’s Failure to Mention the Imposition of Post-Release Supervision as Part of the Sentence at the Time of the Plea Was an Error that Must Be Preserved by Objection (No Objection Made)

The Court of Appeals, over a dissent, determined that defendant, under the facts, was precluded from raising the judge’s failure to inform defendant at the time of defendant’s plea that post-release supervision (PRS) would be part of defendant’s sentence because the error was not preserved by objection.  Here defendant and/or defendant’s counsel had been informed of the imposition of PRS both before and after the plea:

In People v Catu [4 NY3d 242], this Court held that “the trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” … . A court is not required to engage in any particular litany when allocuting a defendant, but the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant … . We found that “[p]ostrelease supervision is significant” and that a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntary and intelligently choose among alternative courses of action” … .

Defendant claims that his plea was not knowing, voluntary and intelligent under Catu because County Court failed to reiterate the term of PRS during the plea colloquy. We hold that, under the circumstances of this case, defendant was required to preserve his claim.

Defendant and his attorney had three opportunities to object to the imposition of PRS: at the initial scheduled sentencing July 15, at his sentencing on July 28, and at the appearance on August 17. Neither defendant nor defense counsel expressed any objection to the imposition of PRS. Because defendant had ample opportunity to raise an objection to the PRS component prior to and during these proceedings, defendant was required to preserve his claim … . People v Crowder, 2015 NY Sip Op 01481, CtApp 2-17-15

 

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Motion for a Change of Venue Can Be Entertained in “Dangerous Sex Offender” Trials and Hearings Under the Mental Hygiene Law/Non-Final Order Which Necessarily Affects the Final Order Is Appealable

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that “dangerous sex offender” trials and hearings under the Mental Hygiene Law are subject to the change of venue procedures under the CPLR.  Here, after the motion for a change of venue was denied, the petitioner refused to attend the hearing.  The Court of Appeals noted that the denial of the motion to change venue, although a non-final order, was appealable because it necessarily affected the final order:

Mental Hygiene Law § 10.08 (e) provides that “[a]t any hearing or trial pursuant to the provisions of this article, the court may change the venue of the trial to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent.”  * * * The construction of the provision is somewhat ambiguous, in that, if the legislature intended to restrict a change of venue to article 10 trials, the reference to “any hearing or trial” would appear to be superfluous. We see no need to read a restriction into the statute limiting annual review hearings solely to the few counties where secure treatment facilities are located.

However, petitioner failed to establish good cause for the change of venue. As noted above, the statute provides that good cause “may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent” (Mental Hygiene Law § 10.08 [e]). The affidavit submitted in support of the motion did urge, generally, that it would be inconvenient and burdensome for unnamed family members and other potential witnesses to travel to Oneida County, but failed to identify a single witness that would testify on petitioner’s behalf. Nor did the affidavit set forth the subject of any proposed testimony — let alone identify any information that would be potentially relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement. Therefore, the motion for a change of venue was properly denied. Matter of Tyrone D v State of New York, 2015 NY Slip Op 01301, CtApp 2-13-15

 

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Appeal Should Not Have Been Dismissed as Moot Because the Underlying Order of Protection Had Expired—There Are Significant Negative Consequences of the Issuance of an Order of Protection Which May Affect Appellant in the Future

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the appeal by respondent, who had been found to have committed a Family Offense and against whom an order of protection had been issued, should not have been dismissed as moot because the order of protection had expired.  The Court of Appeals explained that the issuance of the order of protection could have significant negative future consequences for the respondent:

“[i]n general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” …. The ability of an appellate decision to directly and immediately impact the parties’ rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand “what ifs.” On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal … .

In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggests that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. ** * *In the face of the substantial probability that the order of protection will prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor will directly vindicate his interest in avoiding that consequence of the order.

The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent’s credibility …. . Furthermore, since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law §§ 221-a [1]; 221-a [6]; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual]).[FN2]

Beyond its legal consequences, the order of protection places a severe stigma on respondent, and he can escape that stigma by prevailing on appeal … . Matter of Veronica P v Radcliff A, 2015 NY Slip Op 01300, CtApp 2-13-15

 

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Violation of Labor Law Can Serve as a Basis for a Damages Action by a Police Officer Against the City Re: Injuries Suffered on the Job

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that a violation of Labor Law 27-a can serve as the basis of a damages action by a police officer injured while on the job.  Plaintiff officer was injured when she fell off a truck while loading wooden barricades:

With [the] understanding of the legislative intent to give broad application to GML § 205-e, we turn to defendants' challenge to plaintiff's cause of action for damages. To succeed on their summary judgment motion, defendants must establish “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” … . For the reasons we discuss, defendants have failed to meet their burden.

In order to assert a claim under GML § 205-e, a plaintiff “must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm” … . Defendants allege plaintiff cannot satisfy the first requirement because the Labor Law may not serve as a basis for her cause of action. We disagree.

As a predicate to her GML damages cause of action plaintiff relies specifically on Labor Law § 27-a (3) (a) (1), which provides that “[e]very employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees.”

Defendants counter that because [Labor Law 27-a] lacks a private right of action plaintiff cannot base her GML § 205-e claim on section 27-a. However, that is exactly what GML § 205-e permits and what the Legislature intended. While it is true that [the Labor Law]  does not contain an express private right of action …, GML § 205-e does not require that the predicate for a police officer's action contain an existing right to sue. Gammons v City of New York, 2014 NY Slip Op 08869, CtApp 12-18-14

 

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Rule Allowing Testing of Horses for Speed-Enhancing Drugs at Times Other than Just Before a Race Is a Valid Exercise of Racing & Wagering Board’s Authority

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that the NYS Racing & Wagering Board did not exceed its authority when it promulgated rules allowing testing horses for the presence of speed-enhancing drugs at times other than immediately preceding a race:

While it is true that an administrative agency within the executive branch may not under the guise of rule-making engage in basic policy determinations reserved to the Legislature …, it is also true that the Legislature “has considerable latitude in determining the reasonable and practicable point of generality in adopting a standard for administrative action and, thus, [that] a reasonable amount of discretion may be delegated to . . . administrative officials” … . Here, the Legislature, in drafting Racing Law § 301 (2), was at pains to be explicit that that subsection was not to be construed as a limitation upon respondent's powers “to supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted” and in that connection to “adopt rules and regulations . . . to carry into effect its [respondent's] purposes and provisions and to prevent circumvention or evasion thereof” (Racing Law § 301 [1]). Thus, not only does section 301 when read in its entirety make plain that the Legislature had no purpose of restricting respondent's general supervisory power over pari-mutuel harness race meetings, but it specifically authorizes regulatory action to prevent the circumvention or evasion of existing rules, necessarily including those whose object, sensibly understood, is “effectually” to prevent horses from racing under the influence of speed-enhancing doping agents. Out-of-competition drug testing, which, as noted, has as its raison d'etre the plugging of a loophole created in the pre-existing regulatory regimen by the introduction of doping agents capable of affecting competitive performance while eluding race day detection, is precisely the sort of measure contemplated by section 301 (1). As for section 902 (1), it too has no apparent limiting purpose — its designation of a laboratory to perform equine drug testing at race meetings does not reasonably signify that such testing may be required by respondent only at race meetings. Matter of Ford v NYS Racing & Wagering Board, 2014 NY Slip Op 08870, CtApp 12-18-14

 

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