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COUNTY COURT PROPERLY RELIED ON THE RESULTS OF A HEARING BEFORE A JUDICIAL HEARING OFFICER TO DETERMINE AMOUNT OF RESTITUTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, held County Court properly relied upon the results of a hearing conducted by a judicial hearing officer (JHO) to determine the amount of restitution to be paid by the defendant. The defendant was given the opportunity to submit additional evidence to County Court:

While Penal Law § 60.27 (2) “emphatically advises that it is 'the court' . . . which is to conduct any hearing thought necessary for this purpose” … , the court is “not . . . restricted to reliance upon only competent evidence” (Kim, 91 NY2d at 411). Rather, CPL 400.30 “embodies a liberal evidentiary standard”… and provides that “[a]ny relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] [emphasis added]). That is, even where “the record does not contain sufficient evidence to support such finding [of the actual amount of loss]” or the defendant has requested a hearing (Penal Law § 60.27 [2]), nothing in the statutory text requires a formal evidentiary hearing. Rather, as noted, this Court has characterized the hearing as “a reasonable opportunity [for the defendant] to contest the People's evidence or supply evidence on his [or her] own behalf”… . People v Connolly, 2016 NY Slip Op 03651, CtApp 5-10-16

CRIMINAL LAW (COUNTY COURT PROPERLY RELIED ON THE RESULTS OF A HEARING BEFORE A JUDICIAL HEARING OFFICER TO DETERMINE AMOUNT OF RESTITUTION)/RESTITUTION (CRIMINAL LAW, COUNTY COURT PROPERLY RELIED ON THE RESULTS OF A HEARING BEFORE A JUDICIAL HEARING OFFICER TO DETERMINE AMOUNT OF RESTITUTION)

RECORDS OF THE NEW YORK POLICE DEPARTMENT’S USE OF VANS WHICH SCAN BUILDINGS AND VEHICLES FOR EXPLOSIVES AND DRUGS EXEMPT FROM DISCLOSURE; RECORDS RELATING TO THE HEALTH AND SAFETY EFFECTS OF THE SCANNING ARE NOT EXEMPT.

The First Department, partially reversing Supreme Court, determined certain records relating to the NYPD's use of Z-backscatter vans for terrorism-related surveillance were exempt from disclosure. The Z-backscatter technology uses radiation to scan buildings and vehicles for evidence of explosives and drugs. People are exposed to low levels of radiation by the devices. The Appellate Division held that information related to past uses of the vans was exempt from disclosure, but information related to the health and safety effects was not exempt:

NYPD has articulated a “particularized and specific justification for not disclosing” these records … . NYPD submitted an affidavit of Richard Daddario, NYPD's Deputy Commissioner of Counterterrorism, who averred that the vans are a highly specialized and nonroutine technology used to combat terrorism in New York City. Daddario explained that in light of the ongoing threat of terrorism, releasing information describing the strategies, operational tactics, uses and numbers of the vans would undermine their deterrent effect, hamper NYPD's counterterrorism operations, and increase the likelihood of another terrorist attack. * * *

The court … properly directed NYPD to disclose tests or reports regarding the radiation dose or other health and safety effects of the vans. Daddario's affidavit does not explain how general health and safety information about the van's radiation could be exploited by terrorists. Matter of Grabell v New York City Police Dept., 2016 NY Slip Op 03685, CtApp 5-10-16

FREEDOM OF INFORMATION ACT (RECORDS OF THE USE OF VANS BY THE NYPD WHICH SCAN BUILDINGS AND VEHICLES FOR EXPLOSIVES AND DRUGS EXEMPT FROM DISCLOSURE; RECORDS RELATING TO THE HEALTH AND SAFETY EFFECTS OF THE SCANNING ARE NOT EXEMPT)/SURVEILLANCE (RECORDS OF THE USE OF VANS BY THE NYPD WHICH SCAN BUILDINGS AND VEHICLES FOR EXPLOSIVES AND DRUGS EXEMPT FROM DISCLOSURE; RECORDS RELATING TO THE HEALTH AND SAFETY EFFECTS OF THE SCANNING ARE NOT EXEMPT)/POLICE (RECORDS OF THE USE OF VANS BY THE NYPD WHICH SCAN BUILDINGS AND VEHICLES FOR EXPLOSIVES AND DRUGS EXEMPT FROM DISCLOSURE; RECORDS RELATING TO THE HEALTH AND SAFETY EFFECTS OF THE SCANNING ARE NOT EXEMPT)/BACKSCATTER TECHNOLOGY (RECORDS OF THE USE OF VANS BY THE NYPD WHICH SCAN BUILDINGS AND VEHICLES FOR EXPLOSIVES AND DRUGS EXEMPT FROM DISCLOSURE; RECORDS RELATING TO THE HEALTH AND SAFETY EFFECTS OF THE SCANNING ARE NOT EXEMPT)

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CONSOLIDATED MORTGAGES CONSIDERED FIRST MORTGAGE OF RECORD WITH PRIORITY OVER COMMON CHARGES LIEN.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined a lien for unpaid (condominium) common charges did not take priority over the second of two Citibank mortgages which were consolidated. Plaintiff was the winning bidder in a foreclosure action commenced by the condominium board for unpaid common charges. Plaintiff took the property subject to the “first mortgage of record.” Years before the common charges lien two mortgages taken out by the previous condominium owner had been consolidated. Plaintiff argued the second of those two consolidated mortgages should be extinguished by the foreclosure action because, by statute, the lien for the common charges was subject only to the “first mortgage of record.” The Court of Appeals held the two consolidated mortgages should be considered the “first mortgage” in this context:

Given the practical realities of this case, … the agreement between Citibank and the previous unit owner to consolidate the mortgages “into a single mortgage lien,” recorded years before the common charges lien, qualifies as “the first mortgage of record.” To hold otherwise places form over substance. Indeed, the ease with which a formulaic application of the term “first mortgage of record” can be manipulated demonstrates that such holding would not promote the statutory purpose. Plotch v Citibank, N.A., 2016 NY Slip Op 03648, CtApp 5-10-16

FORECLOSURE (CONSOLIDATED MORTGAGES CONSIDERED FIRST MORTGAGE OF RECORD WITH PRIORITY OVER COMMON CHARGES LIEN)/REAL PROPERTY LAW (CONDOMINIUM COMMON CHARGES, CONSOLIDATED MORTGAGES CONSIDERED FIRST MORTGAGE OF RECORD WITH PRIORITY OVER COMMON CHARGES LIEN)/MORTGAGES (CONDOMINIUM COMMON CHARGES, ​CONSOLIDATED MORTGAGES CONSIDERED FIRST MORTGAGE OF RECORD WITH PRIORITY OVER COMMON CHARGES LIEN)/CONDOMINIUMS (COMMON CHARGES LIEN, ​CONSOLIDATED MORTGAGES CONSIDERED FIRST MORTGAGE OF RECORD WITH PRIORITY OVER COMMON CHARGES LIEN)

JUDGES NOT ENTITLED TO DAMAGES BASED UPON INADEQUATE COMPENSATION.

The Court of Appeals determined present and retired judges were not entitled to damages based on inadequate compensation during the years legislation considering judicial compensation was improperly linked to unrelated policy initiatives. Although the Court of Appeals struck down the practice, called linkage, as a violation of the separation of powers, the court did not make the finding that judicial compensation was in fact too low during those years. To do so and award damages would intrude on the legislature's budgetary powers:

…[W]e suggested that money damages would be an inappropriate form of relief from the State's unconstitutional linkage practice because any mandate that the State pay money damages would, as a practical matter, be tantamount to a directive to increase judicial compensation in a manner that would arrogate the legislative branch's budgetary powers to the judiciary. Thus, we observed that, in fashioning a remedy, “deference to the Legislature — which possesses the constitutional authority to budget and appropriate — is necessary” … and that “whether judicial compensation should be adjusted, and by how much, is within the province of the Legislature” … . Larabee v Governor of the State of N.Y., 2016 NY Slip Op 03646, CtApp 5-10-16

JUDGES (JUDGES NOT ENTITLED TO DAMAGES BASED UPON INADEQUATE COMPENSATION)

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WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW.

The Court of Appeals held questions of fact precluded summary judgment in an action to determine whether a two-mile system of ponds and streams in a remote area of the Adirondack Mountains is navigable-in-fact.  If it is, it is subject to a public right of navigation (by canoe). If it isn't the adjacent private property owners can prohibit public use:

As a general principle, if a waterway is not navigable-in-fact, “it is the private property of the adjacent landowner” … . A waterway that is navigable-in-fact, however, “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” … . To be subject to this public easement, a waterway must provide practical utility to the public as a means for transportation, whether for trade or travel (Adirondack League Club, 92 NY2d at 603). In Adirondack League Club, though we did “not broaden the standard for navigability-in-fact,” we held that recreational use may properly be “part of the navigability analysis” … . Friends of Thayer Lake LLC v Brown, 2016 NY Slip Op 03647, CtApp 5-10-16

ENVIRONMENTAL LAW (WATER LAW, WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)/WATER LAW (WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)/ADIRONDACKS (WATER LAW, WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)

PETITIONER NEED NOT CHALLENGE THE REAL PROPERTY TAX ASSESSMENT EVERY YEAR TO BE ENTITLED TO BUSINESS INVESTMENT EXEMPTION REFUNDS FOR THOSE YEARS.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissent, reversing the Appellate Division, determined petitioner need not challenge the real property tax assessment every year to be entitled to business-investment-exemption refunds for the years following the year the assessment and exemption were challenged. Real Property Tax Law 485-b provides a partial ten-year exemption for certain improvements made to real property:

… [T]he business investment exemption is of ten years' duration and the amount of the exemption in each of the ten years is calculated using a single assessment roll … . * * *

… [W]hen a computational error based on a single assessment roll results in the miscalculation of the RPTL 485-b exemption, we hold that this error may be challenged by a single petition at the time the error is discernible. It is a waste of resources for all involved, including the courts, to require a property owner to bring a challenge addressing the same error in each and every year the exemption applies. Matter of Highbridge Broadway, LLC v Assessor of the City of Schenectady, 2016 NY Slip Op 03544, CtApp 5-5-16

REAL PROPERTY TAX LAW (PETITIONER NEED NOT CHALLENGE THE REAL PROPERTY TAX ASSESSMENT EVERY YEAR TO BE ENTITLED TO BUSINESS INVESTMENT EXEMPTION REFUNDS FOR THOSE YEARS)/BUSINESS INVESTMENT EXEMPTION (REAL PROPERTY TAX LAW, PETITIONER NEED NOT CHALLENGE THE REAL PROPERTY TAX ASSESSMENT EVERY YEAR TO BE ENTITLED TO BUSINESS INVESTMENT EXEMPTION REFUNDS FOR THOSE YEARS)

STORM IN PROGRESS RULE APPLIED AS A MATTER OF LAW.

The Court of Appeals, over a three-judge dissent, determined claimant's slip and fall complaint was properly dismissed because defendant demonstrated the storm in progress rule applied. There had been an ice storm the night before, a wintry mix was falling at 6:50 am and a light rain was falling when claimant slipped and fell on ice at 8:15 am. The dissent argued the weather conditions were contested raising questions of fact about when the storm ended, if at all, and, if it did end, how much time elapsed before the fall. Sherman v New York State Thruway Auth., 2016 NY Slip Op 03546, CtApp 5-5-16

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS RULE APPLIED AS A MATTER OF LAW)/SLIP AND FALL (STORM IN PROGRESS RULE APPLIED AS A MATTER OF LAW)/STORM IN PROGRESS RULE (SLIP AND FALL, STORM IN PROGRESS RULE APPLIED AS A MATTER OF LAW)

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ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT COVERED BY THE RELEVANT POLICY.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing the Appellate Division, re: claims stemming from lead paint exposure, determined the antisubrogation rule did not apply to a party, ANP, which was not covered by the relevant policy:

… [T]he antisubrogation rule is an exception to the right of subrogation … . Under that rule, “an 'insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered . . . even where the insured has expressly agreed to indemnify the party from whom the insurer's rights are derived'” … . In effect, “an insurer may not step into the shoes of its insured to sue a third-party tortfeasor . . . for damages arising from the same risk covered by the policy” … , even where there is an express subrogation agreement … . The two primary purposes of the antisubrogation rule are to avoid “a conflict of interest that would undercut the insurer's incentive to provide an insured with a vigorous defense” and “to prohibit an insurer from passing its loss to its own insured” … .  * * *

The antisubrogation rule … requires a showing that the party the insurer is seeking to enforce its right of subrogation against is its insured, an additional insured, or a party who is intended to be covered by the insurance policy in some other way … . Here, as recognized by the courts below, ANP and its predecessor were not insured under the relevant insurance policies. … Thus, the principal element for application of the antisubrogation rule — that the insurer seeks to enforce its right of subrogation against its own insured, additional insured, or a party intended to be covered by the insurance policy — is absent. Millennium Holdings LLC v Glidden Co., 2016 NY Slip Op 03543, CtApp 5-5-16

INSURANCE LAW (INSURANCE LAW, ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT COVERED BY THE RELEVANT POLICY)/SUBROGATION (INSURANCE LAW, ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT COVERED BY THE RELEVANT POLICY)/ANITSUBROGATION RULE  (INSURANCE LAW,  ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT COVERED BY THE RELEVANT POLICY)

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APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a partial dissent, determined appeals as of right, irrespective of the issues raised, should not be dismissed because the appellant has been deported. Permissive appeals, such as an appeal of the denial of a motion to vacate a conviction, are, however, subject to discretionary dismissal because the appellant has been deported:

… [W]e conclude that this Court’s holding in Ventura [17 NY3d 675] prohibits an intermediate appellate court from exercising its discretion to dismiss a pending direct appeal on the ground that the defendant has been involuntarily deported, regardless of the appellate contentions raised by the defendant. …

We reach a different conclusion with respect to [a] pending permissive appeal. Our holding in Ventura was based upon a criminal defendant’s fundamental right to a direct appeal granted by CPL 450.10. That statute has no application, however, in the context of permissive appeals. Rather, CPL 450.15 governs an appeal from an order denying a CPL 440.10 motion to vacate a judgment, and provides that a certificate granting leave to appeal must be obtained pursuant to CPL 460.15 (see CPL 450.15 [1]). In Ventura, this Court spoke of a criminal defendant’s “absolute right,” “statutory right,” “fundamental right,” and “basic entitlement” to appellate consideration of a direct appeal … . A defendant has no such fundamental right or basic entitlement to appeal where the defendant must seek permission to appeal to the intermediate appellate court pursuant to CPL 450.15. …

Where an intermediate appellate court has permissive jurisdiction over a pending appeal, the intermediate appellate court retains its discretion to dismiss the pending permissive appeal due to the defendant’s involuntary deportation. People v Harrison, 2016 NY Slip Op 03547, CtApp 5-5-16

CRIMINAL LAW (APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/APPEALS (CRIMINAL, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/IMMIGRATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/DEPORTATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)

STANDARD FOR REVIEW OF GOING-PRIVATE MERGERS ANNOUNCED; SHAREHOLDER CLASS ACTION CHALLENGING THE GOING-PRIVATE MERGER DISMISSED.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined a shareholder class action complaint challenging a going-private merger was properly dismissed for failure to state a cause of action. The court adopted a Delaware standard of review for going-private mergers, i.e., where the controlling shareholder seeks to buy out all the outstanding shares and, in effect, take the publicly-traded company private. Plaintiff argued the “entire fairness” review standard should be applied. Defendants argued the “business judgment” review standard should be applied. The Court of Appeals chose a middle ground (the Delaware standard) which is essentially the business judgment standard with added protections for minority shareholders:

Plaintiff urges that we apply the entire fairness standard, which places the burden on the corporation's directors to demonstrate that they engaged in a fair process and obtained a fair price. Defendants seek application of the business judgment rule, with or without certain conditions. We are persuaded to adopt a middle ground. Specifically, the business judgment rule should be applied as long as the corporation's directors establish that certain shareholder-protective conditions are met; however, if those conditions are not met, the entire fairness standard should be applied.

[The adopted Delaware standard has been summarized as follows:] … “[I]n controller buyouts, the business judgment standard of review will be applied if and only if: (i) the controller conditions the procession of the transaction on the approval of both a Special Committee and a majority of the minority stockholders; (ii) the Special Committee is independent; (iii) the Special Committee is empowered to freely select its own advisors and to say no definitively; (iv) the Special Committee meets its duty of care in negotiating a fair price; (v) the vote of the minority is informed; and (vi) there is no coercion of the minority” … . Matter of Kenneth Cole Prods., Inc, 2016 NY Slip Op 03545, CtApp 5-5-16

CORPORATION LAW (STANDARD FOR REVIEW OF GOING-PRIVATE MERGERS ANNOUNCED; SHAREHOLDER CLASS ACTION CHALLENGING THE GOING-PRIVATE MERGER DISMISSED)/SHAREHOLDER ACTIONS (STANDARD FOR REVIEW OF GOING-PRIVATE MERGERS ANNOUNCED; SHAREHOLDER CLASS ACTION CHALLENGING THE GOING-PRIVATE MERGER DISMISSED)/GOING PRIVATE MERGER (CORPORATION LAW, STANDARD FOR REVIEW OF GOING-PRIVATE MERGERS ANNOUNCED; SHAREHOLDER CLASS ACTION CHALLENGING THE GOING-PRIVATE MERGER DISMISSED)

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