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Damage to Building Caused By Excavation Next Door Constituted “Vandalism”

In a full-fledged opinion by Judge Smith, over a partial dissent, the Court of Appeals answered two certified questions from the Second Circuit.  The case involved damage to a building caused by the excavation of a parking garage next door. The question was whether the damage could fall within the meaning of “vandalism” in the building owner’s insurance policy, even though the alleged acts were not directed at the damaged building.  The Court of Appeals answered in the affirmative:

It is true that, in some cases of alleged vandalism not directed at particular property, the term does not intuitively seem to fit.  … The word vandalism, which derives from the sack of Rome by the original Vandals in 455 AD (see IV, Gibbon, The History of the Decline and Fall of the Roman Empire at 246-248 [Folio Society 1986]), more readily brings to mind people who smash and loot than business owners who seek their own profit in disregard of the injury they do to the property of others.  We conclude, however, that there is no principled distinction between the two.  An excavator who is paid to dig a hole, and does so in conscious disregard of likely damage to the building next door, is, for these purposes, not essentially different from an irresponsible youth who might dig a hole on the same property, with the same effect, whether in search of buried treasure or just for fun. …

In common speech, and by the express terms of the policy in suit, vandalism is “malicious” damage to property.  The Second Circuit’s second question asks, in essence, what state of mind amounts to “malice” for these purposes.  We answer by adopting, insofar as it relates to property damage, the formulation we have used in reviewing awards of punitive damages. Conduct is “malicious” for these purposes when it reflects “such a conscious and deliberate disregard of the interests of others that [it] may be called willful or wanton”… .  Georgitsi Realty LLC v Penn-Starr Insurance Co, 156, CtApp 10-17-13

 

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Son’s Application for Succession to Mitchell-Lama Apartment Should Not Have Been Denied Because of Mother’s Failure to File Income Affidavit

In a full-fledged opinion by Judge Lippman, with three dissenters, the Court of Appeals determined that his mother’s failure to file an income affidavit did not warrant the denial of her son’s [Murphy’s] application for succession to the Mitchell-Lama apartment vacated by his parents:

In this case, DHCR [Division of Housing and Community Renewal] contests neither Murphy’s status as a family member, nor that he lived in the apartment during the relevant two-year period of 1998-1999.  The sole basis for DHCR’s denial of Murphy’s application was that his mother did not file the requisite income affidavit for 1998, the year prior to Murphy’s high school graduation.  Given the overwhelming evidence of primary residence, and the absence of any indication that the failure to file was related to Murphy’s status as a co-occupant or an income-earner,  we hold that it was arbitrary and capricious for DHCR to deny succession on the basis of the failure to file a single income affidavit.

There is no doubt that DHCR has a compelling interest in encouraging the timely filing of income affidavits in order to fairly and efficiently administer the Mitchell-Lama program. Housing companies and supervising agencies like DHCR rely on these affidavits to monitor both the number and aggregate income of occupants, information that is crucial to determining the appropriate amount of rent and to ensuring that tenants remain eligible for the rental subsidy.  Accordingly, failure to file income affidavits can result in harsh penalties: the tenant can be charged a surcharge on rent for the applicable year (as occurred here), or can be evicted (see 9 NYCRR §§ 1727-2.6 [a] and 1727-5.3 [a] [7]).

In the succession context, however, the principal purpose of the income affidavit is to provide proof of the applicant’s primary residence… . As both Supreme Court and the Appellate Division noted, Murphy provided ample evidence in support of his succession application evincing that he resided in the apartment during 1998 and 1999.  Indeed, DHCR does not dispute Murphy’s residency for the past 32 years.  DHCR instead cites only his mother’s technical non-compliance for a single year to justify evicting him from the only home he has ever known.

Notwithstanding the importance of the income affidavit requirement, given the overwhelming evidence of residency provided in this case, and the lack of relationship between the tenant-of-record’s failure to file and Murphy’s income or cooccupancy, DHCR’s decision to deny Murphy succession rights was arbitrary and capricious.  Matter of Murphy v NYS Division of Housing and Community Renewal, 146, CtApp 10-17-13

 

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Assignment of Counsel Required Before Determining Whether Appeal Should Be Dismissed as Untimely

The Court of Appeals determined the appellate division was required to assign counsel upon a showing of indigency before ruling on whether defendant’s first-tier appeal as of right should be dismissed for failure to meet the timeliness requirement in the 2nd Department’s rules:

In this case, the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it.  Notwithstanding the Appellate Division’s rule mandating automatic dismissal of an untimely perfected appeal (see 22 NYCRR 670.8 [f]), its decision to dismiss the appeal here remained a discretionary determination on the merits of a threshold issue on defendant’s first-tier And an appellate court had not yet passed on, nor had counsel presented, defendant’s appellate claims with respect to dismissal or any other matter, thus leaving defendant ill equipped to represent himself. Because the factors cited in Douglas [372 US 387], Halbert [545 US 605] and Taveras [463 F3d 141], are present in the instant case, the Appellate Division was required to assign defendant an attorney upon a showing of indigence in order to enable him to oppose the court’s motion to dismiss his first-tier appeal as of right, and the court’s failure to appoint counsel to represent defendant without considering his indigency or the merits of dismissal warrants reversal and reinstatement of defendant’s appeal.  Upon remittal to the Appellate Division, that court should decide whether defendant is indigent pursuant to CPLR 1101.  If defendant establishes his indigence, the court must assign counsel to litigate the dismissal motion, and the court should determine, in its discretion, whether dismissal is appropriate. appeal, rather than an automatic bar to appeal … . People v Kordish, 252, CtApp 10-17-2013

 

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Uncharged Crime Evidence (911 Call) Admissible to Explain Aggressive Actions of Police

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined it was not an abuse of discretion to allow in evidence a 911 call, which could have been interpreted to have implicated defendant in an uncharged robbery, to explain the aggressive actions of the police when they stopped and seized the defendant, who was convicted of a weapon-possession charge:

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” … .  Yet this case-specific, discretionary exercise remains within the sound province of the trial court …, which is in the best position to evaluate the evidence … .  Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law … .

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion.  The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant … .  Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop.  But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself.  The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car.  By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge ….  The People had the burden of proving every element of the resisting arrest charge …, and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant … .  Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked.  There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run.  The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony.  Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” … .  People v Morris, 147, CtApp 10-15-13

 

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Failure to Allow Hearsay Admissible as Statement Against Penal Interest Required Reversal

In a weapon-possession case, the Court of Appeals, over a dissent, reversed the appellate division and held the defendant should have been allowed to call an attorney to testify that a (separately tried and acquitted) co-defendant told the attorney the weapon at issue was hers.  The court found the attorney’s testimony was admissible under the statement-against-penal-interest exception to the hearsay rule:

The declaration against penal interest exception to the hearsay rule “recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true” … .  The exception has four components:    (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … .  The fourth factor is the “most important” aspect of the exception … .  Assuming that the other elements are satisfied, such statements can be admissible if there is “a reasonable possibility that the statement might be true” … .

We conclude that the courts below erred by focusing on the inconsistency between the … codefendant’s trial testimony and her pretrial statement to [the] lawyer. Knowledge that a declaration is against penal interests must be assessed “at the time” it was made …, and later recantations generally affect the weight and credibility that a fact-finder should ascribe to the statement.  Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case:  the handgun was found in a handbag located in the rear of the automobile directly adjacent to the … codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement was against her interests.  Contrary to the dissent’s contention, there was also sufficient proof that the woman was not available to testify.  Finally, the exclusion of the statement cannot be deemed harmless because the People’s case was not overwhelming.  Defendants are therefore entitled to a new trial.  People v Shabazz, 150, CtApp 10-15-13

 

Out of State Conviction of then 15-Year-Old Could Not Serve as Basis for Second Felony Offender Sentence

The Court of Appeals determined that the defendant’s Pennsylvania conviction for third degree murder (when the defendant was 15) could not serve as the basis for a second felony offender sentence.  In so finding, the court noted that the error did not need to be preserved for the Court of Appeals to reach it:

As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record … . * * *

Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct.  Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them.  So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.  People v Santiago, 159, CtApp 10-15-13

 

As Long As Work-Related Injury Was A Cause of Death, Death Benefit Must Be Paid—No Apportionment Between Non-Work-Related and Work-Related Causes of Death

In a full-fledged opinion by Judge Read, the Court of Appeals determined death benefits under the Workers’ Compensation Law (section 16) could not be apportioned between work-related and non-work-related causes of death.  As long as the work-related injury or illness is a cause of death, the benefit must be paid.  In a concurring opinion, Judge Pigott agreed that the benefit cannot be apportioned, but concluded the result in this case, where the claimant’s (Hroncich’s) death was primarily related to non-work-related thyroid cancer, should be that no death benefit was available.;

Importantly, there is no language in section 16 to suggest that the Board should apportion death benefits to workrelated and non-work-related causes when fashioning an award. Presumably, if the legislature had wanted this to be the case, it would have said so.  Instead, however, the legislature made employers joint-and-several insurers of their injured employees’ lives, subject to a prescribed schedule of payments.  The death benefit is not about replacing lost wages, but rather compensates for a life lost at least partly because of work-related injury or disease (see e.g. Bill Jacket, L 1990, ch 296 [authorizing $50,000 in death benefits to non-dependent survivors]).  Matter of Hroncich v Con Edison…, 145, CtApp 10-15-13

 

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Law Requiring Approval Before Health Care Facility Withdraws or Transfers Assets Held Valid

In a full-fledged opinion by Judge Lippman, the Court of Appeals reversed the lower courts and found that Public Health Law 2808(5)(c), which requires the Commissioner of Health’s approval before a residential health care facility withdraws or transfers more than three percent of its assets, did not violate substantive due process and did not delegate legislative authority to the Commissioner:

The lower courts, we believe, erred in concluding that the subject statute was offensive to substantive due process. Economic regulation will violate an individual’s substantive due process property interest only in those situations, vanishingly rare in modern jurisprudence, where there is absolutely no reasonable relationship to be perceived between the regulation and the achievement of a legitimate governmental purpose …; the regulation, to be actionable, must be arbitrary in the constitutional sense — which is to say “so outrageously arbitrary as to constitute a gross abuse of governmental authority”  … . * * *

Plaintiffs’ alternative theory for deeming § 2808 (5) (c) unconstitutional — that the provision’s catch-all phrase effects an improper delegation of legislative policy-making power — is not, in our view, more viable than their substantive due process claim.    * * * The enumerated criteria clearly tie the Commissioner’s disposition of an equity withdrawal application to the financial condition of the facility and its quality of care record.  These are highly pertinent and not excessively general criteria and it is reasonably clear, and in any case conceded by defendants, that the catch-all’s immediately subsequent reference to “such other factors” does not authorize application dispositions based on criteria that are generically different.  Brightonian Nursing Home… v Daines…, 161, CtApp 10-15-13

 

Part-time Resident of New York Can Apply for Pistol Permit

In a full-fledged opinion by Judge Pigott, the Court of Appeals answered a certified question from the Second Circuit and determined a person who has a part-time residence in New York State, but who is not domiciled in New York, can apply for a pistol permit in New York (based upon the language of the controlling statute):

Penal Law § 400 (3) (a) states that applications for a license to carry a pistol or revolver “shall be made and renewed . . . to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.” The applicant’s residence is referred to in the context of delineating the procedure whereby an individual files an application for a license.  The applicant is instructed to apply to the licensing officer in the city or county where he resides (or is principally employed, etc.).  The plain language of the statute is not consistent with the theory that the law requires an applicant to establish domicile as an eligibility requirement. Were it so, we would expect to see the manner of proof of domicile set out in the statute. Osterweil v Bartlett, 167, CtApp 10-15-13

 

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Plaintiff’s Proof of Reason for Termination of Treatment Was Sufficient to Get By Defendant’s Summary Judgment Motion

Over two dissenters, the Court of Appeals reversed the grant of summary judgment to the defendant with respect to plaintiff’s proof of “serious injury” under the No-Fault Law.  Plaintiff testified that he stopped physical therapy because “they cut [him] off like five months.”  The appellate division held that bare assertion was insufficient to justify the termination of treatment and documentary evidence of the exhaustion of insurance benefits or at least an indication the claimant could not pay for the treatment was required. In reversing, the Court of Appeals wrote:

We stated in Pommells [4 NY3d 566] that a plaintiff claiming “serious injury” within the meaning of the No-Fault Law “must offer some reasonable explanation” for terminating treatment (4 NY3d at 574).  We did not require any particular proof regarding that explanation, although we recognized that there is “abuse of the No-Fault Law in failing to separate ‘serious injury’ cases, which may proceed to court, from the mountains of other auto accident claims, which may not”… .

The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident.  While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy.  Ramkumar v Grand Style Transportation Enterprises Inc…, 170, CtApp 10-15-13

 

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