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Although “Zone of Danger” Damages Were Asserted in the Complaint, the Failure to Request a “Zone of Danger” Jury Instruction and the Failure to Object to the Verdict Sheet (Which Did Not Mention “Zone of Danger” Damages) Precluded the Trial Court from Setting Aside the Verdict and Ordering a New Damages Trial

The Court of Appeals determined the trial court should not have set aside the verdict because “zone of danger” damages to loved ones who witnessed the death of plaintiff’s decedent (apparently caused by a collapse of a roof) were not presented to the jury. Although asserted in the complaint, no jury instruction on “zone of danger” damages was requested and no mention of “zone of danger” damages appeared on the verdict sheet.  Plaintiffs did not object to the jury charge or verdict sheet:

The issue of whether plaintiffs Gary Motelson and Evan Motelson had suffered and/or would continue to suffer emotional distress, as a result of being placed in a zone of danger wherein they witnessed the death of Steven Motelson, while asserted in the complaint, was not argued to the jury at trial. Nor was this question addressed in Supreme Court’s charge or submitted to the jury on the verdict sheet. Significantly, the questions on the verdict sheet concerning the roof support system asked the jury about the causation of “Steven Motelson’s injuries and death,” and not about harms to any others. Plaintiffs did not object to the jury charge or verdict sheet. In these circumstances, Supreme Court erred when it set aside the jury verdict and ordered a new trial on damages. Motelson v Ford Motor Co, 2014 NY Slip Op 07926, CtApp 11-18-14

 

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Fact that Property Has a Use “Auxiliary or Incidental to the Main Exempt Purpose” Does Not Defeat the Real Property Tax Exemption Under RPTL 420-a

The Court of Appeals, in finding the property owned by a not-for-profit religious corporation exempt from real estate tax, determined that the “exclusive use” clause of Real Property Tax Law (RPTL) 420-a should be interpreted broadly:

Under [RPTL 420-a], real property owned by a corporation that is “organized and conducted exclusively” for charitable and/or religious purposes, if “used exclusively” for such purposes, “shall be exempt from taxation” (RPTL 420-a [1] [a]). We have defined the term “exclusively” as used in this context “to connote ‘principal’ or ‘primary,’ such that purposes and uses merely ‘auxiliary or incidental to the main and exempt purpose’ and use will not defeat the exemption'” … . Matter of Maetreum of Cybele, Magna Mater Inc v McCoy, 2014 NY Slip Op 07929, CtApp 11-18-14

 

Apartment Buildings Used to House Actors and Staff of a Youth and Summer Theater Entitled to Exemption from Real Property Tax Under Real Property Tax Law (RPTL 420-a)—Property Used to Further “Educational, Moral and Mental Improvement”

The Court of Appeals, in a full-fledged opinion by Judge Lippman, affirmed the appellate division’s finding that two apartment buildings used to house the actors and staff of a not-for-profit theater corporation (Merry-Go-Round Playhouse) were entitled to (real estate) tax-exempt status. The fact that admission is charged for performances did not warrant denial of  the exemption:

Under the Real Property Tax Law, “[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes . . . and used exclusively for carrying out thereupon one or more of such purposes . . . shall be exempt from taxation as provided in this section” (RPTL 420-a [1] [a]). The burden of establishing that the property is entitled to a tax exemption rests with the taxpayer … .

Here, it is clear that petitioner is organized exclusively for an exempt purpose, in that it is intended to promote appreciation for the arts/musical theater, thereby providing education to the community and advancing the moral or mental improvement of area residents. The summer stock theater does not have the same educational component as the youth theater, but is similarly geared toward promoting the arts. In addition, although the summer stock theater charges admission, that bare fact cannot nullify petitioner’s tax exempt purpose. We have previously observed that “[a] ‘commercial patina’ alone is not enough to defeat tax-exempt status” … . Merry-Go-Round asserts without contradiction that the theater generally either breaks even or operates at a loss. There is no indication that petitioner is organized for the purpose of making a profit and this limited commercial aspect does not preclude it from receiving a tax exemption.

“The test of entitlement to tax exemption under the used exclusively clause of the statute is whether the particular use is reasonably incidental to the primary or major purpose of the facility. Put differently, the determination of whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes” … . …

…[T]he primary use of the apartment buildings is in furtherance of Merry-Go-Round’s primary purpose. Petitioner established that the housing is used to attract talent that would otherwise look to other theaters for employment, that the living arrangement fosters a sense of community and that the staff spends a significant portion of its off-hours in furtherance of theater-related pursuits. In addition …the record shows that petitioner would have difficulty recruiting qualified staff if it did not provide the housing, which would undermine its primary purpose. Although we have not previously addressed the provision of tax exempt housing in relation to an arts organization, the statute does not elevate one exempt purpose over another. Under these circumstances, the use of the property to provide staff housing is reasonably incidental to petitioner’s primary purpose of encouraging appreciation of the arts through theater. Matter of Merry-Go-Round Playhouse Inc v Assessor of City of Auburn, 2014 NY Slip Op 07928, CtApp 11-18-14

 

 

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Evidence of Defendant’s Silence at the Time of Arrest Should Not Have Been Allowed—New Trial Ordered

The Court of Appeals reversed defendant’s conviction and ordered a new trial because evidence of defendant’s silence at the time of arrest was erroneously allowed:

Absent “unusual circumstances,” evidence of a defendant’s silence at the time of arrest is generally inadmissible under common-law evidentiary principles … . And the use for impeachment purposes of a defendant’s silence after receiving Miranda warnings has been deemed impermissible as a matter of due process … . Under the circumstances presented, we conclude that defendant did not open the door to evidence of his post-Miranda silence and, therefore, Supreme Court erred in permitting its introduction at trial. Nor can the error be viewed as harmless in this case.  People v Hill, 2014 NY Slip OP 07925, CtApp 11-18-14

 

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Civil Commitment of Two Sex Offenders Reversed—In One Case the Proof the Offender Had “Serious Difficulty In Controlling” His Sexual Conduct Within the Meaning of Article 10 of the Mental Hygiene Law Was Legally Insufficient—In the Other Case, Proof the Offender Suffered from Anti-Social Personality Disorder (ASPC) Alone Did Not Meet the Definition of “Mental Abnormality” in Article 10 of the Mental Hygiene Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, reversed the civil commitment of two sex offenders, finding the proof required by Article 10 of the Mental Hygiene Law lacking. In the case of Kenneth T, the state claimed Kenneth suffered from “paraphilia not otherwise specified” (paraphilia NOS) and “antisocial personality disorder” (ASPD).  In the case of Donald DD, the state claimed Donald suffered from ASPD alone.  The Court of Appeals, with respect to Kenneth T, seriously questioned, but did not decide, whether the proof of paraphilia NOS and ASPD sufficiently demonstrated a “mental abnormality” under Article 10 of the Mental Hygiene Law.  The court suggested that a Frye hearing to test the scientific soundness of the opinion evidence in this regard would be a good idea. Sidestepping that issue on stare decisis grounds, the court reversed Kenneth's civil commitment because the proof Kenneth had “serious difficulty in controlling” his sexual conduct within the meaning of section 10.03 (i) was not clear and convincing.  With respect to Donald DD, the court unambiguously ruled that proof of ASPD alone is never sufficient proof of a mental abnormality within the meaning of section 10.03 (i):

We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and reincarceration. A detailed psychological portrait of a sex offender would doubtless allow an expert to determine the level of control the offender has over his sexual conduct. However, … testimony that Kenneth T. lacked “internal controls such as a conscience that might curb his impulses” is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. * * *

Donald DD.'s appeal presents us with an opportunity to decide a question left open in Matter of State of New York v John S. (23 NY3d 326 [2014]), namely whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes … . We hold that it cannot. Matter of State of New York v Donald DD, 2014 NY Slip Op 07295, CtApp 10-28-14

 

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Where a Witness Is Incarcerated Pursuant to the Judiciary Law, After A Finding the Witness is In Contempt, and the Incarceration Is Not Specifically Imposed for a Definite Period As Punishment, But Rather Is Imposed to Induce the Witness to Obey the Court’s Order, the Contempt Finding is Civil in Nature—Double Jeopardy Will Not Bar Prosecution of the Witness for Criminal Contempt Under the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the contempt finding and incarceration of the defendant (under the Judiciary Law) following the defendant's refusal to testify at his brother's trial was civil, not criminal, in nature.  Therefore, the prohibition against double jeopardy did not bar the prosecution from charging the defendant with criminal contempt (under the Penal Law),  The Judiciary Law allows a finding of civil or criminal contempt.  Where, as here, a defendant is incarcerated in the hope that the incarceration will induce the defendant to follow the court's order (in this case the order to testify under immunity), but no period of incarceration is specifically designated and imposed as a punishment for failure to obey the court's order, the proceedings are civil in nature.

…”'[I]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish civil from criminal contempt” (… . Where a defendant is held in contempt for the remedial purpose of compelling compliance, imprisonment continues until such time as the contemnor acquiesces or is no longer able to do so … . Once the contemnor agrees, there is no remedial purpose to be served by continued confinement. The contemnor, therefore, holds “the keys of their prison in their own pockets” … .

In contrast, where a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended —by the contemnor's compliance with the law, then the contempt is not remedial but punitive. As the Supreme Court has stated, “[i]f the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and [the defendant] cannot shorten the term by promising not to repeat the offense” … . * * *

For a court to summarily punish contempt, our Judiciary Law requires issuance of an order “stating the facts which constitute the offense” and “plainly and specifically prescribing the punishment to be inflicted” (Judiciary Law § 755 [emphasis added]). Notably absent from County Court's order of contempt here is a plain and specific statement of the punishment to be imposed upon defendant. The record reveals that the court issued a mandate of commitment and that defendant was confined pursuant to that mandate; no where does the record indicate the precise term of commitment. * * *

In cases where a court invokes its contempt power to coerce a defendant's obedience, the best practice would be for the court to state on the record that defendant may purge the contempt through compliance with the law. However, based on the record before us, it is clear that County Court did not summarily adjudicate defendant in criminal contempt or impose a definite sentence of punishment in accordance with the Judiciary Law. Therefore, defendant's conditional imprisonment was for the remedial purpose of compelling defendant's testimony, and as a consequence defendant's subsequent prosecution for contempt was not barred by double jeopardy. People v Sweat, 2014 NY Slip Op 07292, CtApp 10-28-14

 

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Revised Retainer Agreement, Which Changed the Fee Arrangement from Hourly to a 40% Contingency, Was Not Unconscionable/the Continuing Representation Doctrine Will Not Extend the Statute of Limitations for an Action Seeking the Return of Gifts Made by a Client to Her Attorneys Where the Sole Basis for the “Continuing Representation” Is a Fee Dispute

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that, under the facts, a 40% contingent-fee retainer-agreement was not unconscionable.  The court further determined the six-year statute of limitations for an action seeking the return of gifts given to attorneys by their client was not tolled by the continuing representation doctrine because the doctrine is not applicable if the “continuing representation” is a fee dispute between the attorneys and client.  The underlying action was a suit by the beneficiaries of an estate worth $1 billion against the executor of the estate.  The estate litigation went on for more than 20 years.  The wife of the decedent, Alice Lawrence, after paying some $18 million in attorneys' fees under a retainer agreement, sought and negotiated a new contingent-fee agreement (40% of the amount recovered).  Lawrence was actively involved in the litigation and was apparently very savvy concerning financial affairs.  After the contingent-fee agreement was entered, the case took a sudden turn when the executor agreed to settle for more than $100 million, entitling Lawrence's attorneys to a fee of more than $40 million. Reversing the appellate division, the Court of Appeals determined the contingent-fee retainer agreement must be enforced:

Courts “give particular scrutiny to fee arrangements between attorneys and clients,” placing the burden on attorneys to show the retainer agreement is “fair, reasonable, and fully known and understood by their clients” … . A revised fee agreement entered into after the attorney has already begun to provide legal services is reviewed with even heightened scrutiny, because a confidential relationship has been established and the opportunity for exploitation of the client is enhanced … . …[A]n unconscionable contract is generally defined as “one which is so grossly unreasonable as to be unenforceable according to its literal terms because of an absence of meaningful choice on the part of one of the parties [procedural unconscionability] together with contract terms which are unreasonably favorable to the other party [substantive unconscionability]” … . * * *

Absent incompetence, deception or overreaching, contingent fee agreements that are not void at the time of inception should be enforced as written … . …”[T]he power to invalidate fee agreements with hindsight should be exercised only with great caution” because it is not “unconscionable for an attorney to recover much more than he or she could possibly have earned at an hourly rate” … . * * *

We have never endorsed continuous representation tolling for disputes between professionals and their clients over fees and the like, as opposed to claims of deficient performance where the professional continues to render services to the client with respect to the objected-to matter or transaction. Nor do the rationales underlying continuous representation tolling support its extension beyond current limits. Matter of Lawrence, 2014 NY Slip Op 07291, CtApp 10-28-14

 

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“Preamble” to Miranda Warnings Used In Queens County Undermined the Effectiveness of the Miranda Warnings—Defendants’ Statements Should Have Been Suppressed

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that the “preamble” to the Miranda warnings used by the police and the District Attorney's staff in Queens County undermined the effectiveness of the warnings to the extent that the defendants (Dunbar and Lloyd-Douglass)  were not adequately and effectively advised of their Fifth Amendment right to avoid self-incrimination:

[The “preamble” was as follows:]

“If you have an alibi, give me as much information as you can, including the names of any people you were with.

“If your version of what happened is different from what we've been told, this is your opportunity to tell us your story.

“If there is something you need us to investigate about this case you have to tell us now so we can look into it.

“Even if you have already spoken to someone else you do not have to talk to us.

“This will be your only opportunity to speak with us before you go to court on these charges.” * * *

Before they were read their Miranda rights, Dunbar and Lloyd-Douglas were warned, for all intents and purposes, that remaining silent or invoking the right to counsel would come at a price —they would be giving up a valuable opportunity to speak with an assistant district attorney, to have their cases investigated or to assert alibi defenses. The statements to “give me as much information as you can,” that “this is your opportunity to tell us your story” and that you “have to tell us now” directly contradicted the later warning that they had the right to remain silent. By advising them that speaking would facilitate an investigation, the interrogators implied that these defendants' words would be used to help them, thus undoing the heart of the warning that anything they said could and would be used against them. And the statement that the prearraignment interrogation was their “only opportunity” to speak falsely suggested that requesting counsel would cause them to lose the chance to talk to an assistant district attorney.

In sum, the issue in these cases is not whether, under the totality of the circumstances, these defendants' waivers were valid, but rather whether or not they were ever “clearly informed” of their Miranda rights in the first place, as is constitutionally required. We agree with the Appellate Division that they were not: the preamble undercut the meaning of all four Miranda warnings, depriving Dunbar and Lloyd-Douglas of an effective explanation of their rights. People v Dunbar, 2014 NY Slip Op 07293, CtApp 10-28-14

 

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Marriage Between a Half-Uncle and Half-Niece Is Not Prohibited by Domestic Relations Law 5 (3)

The Court of Appeals, in answering a certified question from the Second Circuit, determined that a marriage between a half-uncle and half-niece is not incestuous under Domestic Relations Law 5 (3).  The husband is the half-brother of the petitioner-wife's mother.  Petitioner is a citizen of Vietnam and the husband is a naturalized American citizen.  An immigration judge had declared the marriage void and ordered petitioner removed from the country. Judge Smith, in one of two concurring opinions, wrote:

Section 5 of the Domestic Relations Law reads in full:

“A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:

“1. An ancestor and a descendant;

“2. A brother and sister of either the whole or the half blood;

“3. An uncle and niece or an aunt or nephew.

“If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner.”

We must decide whether subdivision 3 of this statute should be read to include a half-uncle and half-niece (or half-aunt and half-nephew). There is something to be said on both sides of this question.  * * *

Domestic Relations Law § 5 is in part a criminal statute: it says that the participants in a prohibited marriage may be fined, and may be imprisoned for up to six months. Penal Law § 255.25, using language very similar to that of Domestic Relations Law § 5 (“ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece”), makes entry into a prohibited marriage a class E felony. Where a criminal statute is ambiguous, courts will normally prefer the more lenient interpretation, and the courts of several other states have followed that rule in interpreting their criminal laws not to prohibit relationships between uncles and nieces, or aunts and nephews, of the half blood … .  * * *

We are not geneticists, and the record and the briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively correct-seeming conclusion that the genetic risk in a half-uncle, half-niece relationship is half what it would be if the parties were related by the full blood. Indeed, both parties acknowledged at oral argument that the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage of first cousins. First cousins are allowed to marry in New York, and I conclude that it was not the Legislature's purpose to avert the similar, relatively small, genetic risk inherent in relationships like this one.  Nguyen v Holder, 2014 NY Slip Op 07290, CtApp 10-28-14

 

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“Drug Factory” Presumption re: Possession of Drugs to Which the Defendant Is In “Close Proximity” Does Not Apply to A Defendant Who Is Arrested Outside the Building Where the Drugs Are Located and Who Was Not Trying to Escape/Where a Jury Is Instructed It Can Consider Two Different Theories of Possession, and One of Those Theories Should Not Have Been Available for the Jury’s Consideration, the Relevant Convictions Must Be Reversed—the Jury Could Have Based Its Verdict on the Erroneously-Charged Theory

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trial judge should not have allowed the jury to consider whether the defendant, who was arrested outside the apartment, was in “close proxity” to the cocaine in the apartment.  Penal Law 220.25(2) creates a presumption that persons in “close proximity” to drugs that are being mixed or packaged possesses those drugs (the so-called “drug factory” presumption). The trial judge also instructed the jury they could consider whether the defendant constructively possessed the drugs by virtue of his control over the area where the drugs were found.  Because it can not be determined whether the jury based its verdict on the erroneous “drug factory” charge or the correct “constructive possession” charge, the relevant convictions were reversed and a new trial ordered.  The Court of Appeals went through all the scenarios which have been held to constitute “close proximity” to drugs and concluded that where a defendant is outside the structure where the drugs are located and is not in the process of fleeing, the “drug factory” presumption does not apply:

…[T]he presumption may apply even in cases where a defendant has exited the premises, when the defendant is caught in immediate flight, or apprehended fleeing the premises “upon the sudden appearance of the police” … . We need not determine on this appeal how far from the premises defendant may be apprehended and still be subject to the presumption. We note, however, that the boundary in these cases is not limitless. Suffice it to say, that each incremental enlargement of the distance between the defendant and the premises where the drugs are found tests the underlying justification of the presumption, and makes it susceptible to challenge. …

Applying these principles to the record before us, we conclude that defendant was not in close proximity to the drugs when they were found within the meaning of section 220.25(2). He was not in the room where the drugs were found, in an adjacent room within the same apartment, or in a “closet, bathroom or other convenient recess[].” Nor was he found immediately outside the premises while trying to escape.  People v Kims, 2014 NY Slip Op 07196, CtApp 10-23-14

 

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