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DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK.

The First Department, in a full-fledged opinion by Justice Andrias, determined requiring defendant to register as a sex offender in New York based upon the murder of a 15-year-old in Virginia violated defendant’s right to substantive due process. Defendant shot and killed his 15-year-old half sister when he was 19. There was no sexual component to the crime. Upon his release from prison after 25 years, defendant, under Virginia law, was required to register as a sex offender (based on the age of the victim). New York has no similar registration requirement. When defendant relocated to New York he was assessed a level three sex offender in a SORA proceeding:

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…[T]he connection between defendant’s crime and the legislative purpose behind SORA is too attenuated to support finding a legitimate governmental interest in applying Correction Law § 168-a(2)(d)(ii) to defendant. The record does not establish a correlation between the murder of a victim under 15 years of age and the propensity to commit sexual offenses. Thus, the legislative purpose of protecting the public from sex offenders is not served by requiring defendant to register as a sex offender in New York pursuant to section 168-a(2)(d)(ii) solely because he is obligated to do so under a broader Virginia statute, which designates the murder of a person under the age of 15, without a sexual component, as an offense subject to registration in a registry that encompasses both sex crimes and crimes against minors.

Requiring such individuals to register as sex offenders in New York also diminishes the registry’s usefulness by including offenders who bear no meaningful relationship to SORA’s legislative purpose. There is no evidence to suggest that one who commits homicide of a minor in Virginia is more likely to commit a sex offense than one who commits homicide of a minor in New York. The statute also fails to consider the harm caused to the individual who is forced to register, even though he or she has committed a crime that has no sexual component. Being labeled as a sex offender does far more than impose a stigma to one’s reputation. It often results in the offender being subjected to social ostracism and abuse, and impedes the person’s ability to access schooling, employment, housing, and many other areas. People v Diaz, 2017 NY Slip Op 02915, 1st Dept 4-13-17

 

CRIMINAL LAW (DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK)/SEX OFFENDER REGISTRATION ACT (SORA)  (DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK)

STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL.

The First Department determined the statute prohibiting criminal possession of a weapon as an act of terrorism was not preempted by federal law and was not unconstitutional:

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Defendant has not met his burden of showing a “clear and unambiguous” congressional intent to preempt state legislation in the field of counterterrorism … . The statute is not expressly preempted by 18 USC § 2338, which states that federal district courts have exclusive jurisdiction over actions brought under 18 USC part I, chapter 113B. Although Penal Law § 490.25(1) uses language substantially identical to the federal definition of “domestic terrorism” (18 USC § 2331[5]), the Penal Law provision is a separate statute limited to the commission of enumerated state offenses.

Defendant also fails to establish implied federal preemption of state counterterrorism laws. Since a local community will typically be the most directly affected by a terrorist attack there … , the “federal interest” in counterterrorism is not “so dominant” as to “preclude” local enforcement of state laws against attempts to commit terrorist attacks … . Moreover, Congress has not enacted “a framework of regulation so pervasive” as to leave “no room for the States to supplement it” … . This is evident from the strong federal policy of cooperating with state and local governments to combat terrorism … .

The statute is not unconstitutionally vague in proscribing the “intent to intimidate or coerce a civilian population” … , in light of the Court of Appeals’ construction of the emphasized phrase in People v Morales (20 NY3d 240, 247-249 [2012]). Defendant’s arguments that the statute is unconstitutionally vague in using the phrase “unit of government” among other terms are likewise unpersuasive … .

We also reject defendant’s challenges to the statute under the Free Speech Clause of the First Amendment and article I, § 8 of the New York Constitution. We are unpersuaded by defendant’s argument that the statute amounts to an impermissible content-based restriction of speech by increasing the felony level and sentencing range imposed on those who commit an enumerated criminal offense with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping” … . Such heightened punishment for defendant’s admitted intent of, among other things, influencing the United States government’s foreign policy by building and possessing a pipe bomb does not infringe his right to free speech … . Moreover, defendant’s argument that the statute is overbroad in chilling political speech is unavailing, since any overbreadth is not “substantial . . . in relation to the statute’s plainly legitimate sweep” … of prohibiting criminal conduct perpetrated with an intent commonly associated with terrorism … . People v Pimentel, 2017 NY Slip Op 02891, 1st Dept 4-13-17

 

CRIMINAL LAW (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/TERRORISM, CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM  (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)

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EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE.

The First Department determined plaintiffs raised sufficient questions about whether defendant Starwood was an apparent or ostensible agent of the property owner, Sheraton, to justify further discovery and denial of defendant’s summary judgment motion as premature. Plaintiff was injured in a slip and fall on a hotel walkway alleged to be defective. Plaintiff sued Starwood. Starwood moved for summary judgment arguing the hotel was owned by Sheraton and the walkway maintenance was under the exclusive control of an independent contractor, ZLC. Plaintiffs demonstrated there was evidence Starwood held itself out as the owner of the property on its website:

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Starwood demonstrated that it did not own or control the hotel, and that, under the terms of the license agreement with Sheraton, ZLC was an independent contractor and was responsible for the day-to-day operations of the hotel. Under these circumstances, even if Starwood were a party to the license (or franchise) agreement, the mere existence of a franchise relationship would not provide a basis for the imposition of vicarious liability against Starwood for the negligence of the franchisee, ZLC … .

However, in opposition, plaintiff submitted evidence that Starwood’s reservations website holds the hotel out to the public as a Starwood property, and that plaintiff relied on the representations on Starwood’s website in choosing to book a room at the hotel. This evidence of public representations and reliance may support a finding of apparent or ostensible agency, which may serve as a basis for imposing vicarious liability against Starwood … . Although the license agreement required ZLC to disclose that it was an “independent legal entity operating under license” from Sheraton and to place “notices of independent ownership” on the premises, Starwood did not provide any evidence that ZLC complied with those requirements.  Stern v Starwood Hotels & Resorts Worldwide, Inc., 2017 NY Slip Op 02882, 1st Dept 4-13-17

 

CIVIL PROCEDURE (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/AGENCY  (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/NEGLIGENCE  (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)

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PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED.

The First Department, over a dissent, determined plaintiffs did not demonstrate defendants were subject to long-arm jurisdiction in New York. The dissent argued jurisdiction was obtained through the activities of defendants’ New York agents. The majority held that the conclusory allegations concerning the purported agency relationship were insufficient to survive the motion to dismiss:

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To establish that a defendant acted through an agent, a plaintiff must “convince the court that [the New York actors] engaged in purposeful activities in this State in relation to [the] transaction for the benefit of and with the knowledge and consent of [the defendant] and that [the defendant] exercised some control over [the New York actors]” … . “[T]]o make a prima facie showing of control, a plaintiff’s allegations must sufficiently detail the defendant’s conduct so as to persuade a court that the defendant was a primary actor’ in the specific matter in question; control cannot be shown based merely upon a defendant’s title or position within the corporation, or upon conclusory allegations that the defendant controls the corporation” … . Coast to Coast Energy, Inc. v Gasarch, 2017 NY Slip Op 02876, 1st Dept 4-13-17

CIVIL PROCEDURE (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/LONG ARM JURISDICTION (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/AGENCY (LONG ARM JURISDICTION, PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/AGENCY (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)

IDENTITY THEFT STATUTE AMBIGUOUS, THE ASSUMPTION OF THE VICTIM’S IDENTITY IS AN ESSENTIAL ELEMENT OF THE OFFENSE, HERE DEFENDANT USED HER OWN NAME, CONVICTION REVERSED.

The First Department, in a full-fledged opinion by Justice Acosta, determined defendant’s conviction of identity theft first degree must be vacated. Defendant tried to cash a check which was not actually from the bank identified on the face of the check. The People argued defendant was assuming the identity of the bank, which is a “person” under the law. The First Department, disagreeing with the 4th Department, found that the identity theft statute was ambiguous and the rule of lenity required the statute be interpreted to require proof of the assumption of the victim’s identity as an element of the offense:

… [T]he People failed to prove beyond a reasonable doubt that defendant assumed the identity of another person. The People argue that defendant assumed the identity of H & R Block Bank when she attempted to cash a check that contained the bank’s personal identifying information (the company’s name, address, account number, and routing number). However, the People did not demonstrate that the result of defendant’s use of that information was that she assumed the bank’s identity. To be sure, defendant presented a check containing the personal identifying information of H & R Block. However, the check was made payable to defendant, in her real name. Defendant presented her own identification establishing her identity as Blondine Destin, and signed her own name on the back of the check when the bank teller asked her to endorse it. None of the TD Bank employees were under the impression that defendant was anyone other than herself … . Thus … the evidence was legally insufficient to establish that defendant committed identity theft, because she did not assume the identity of the victim … . People v Destin, 2017 NY Slip Op 02767, 1st Dept, 4-11-17

CRIMINAL LAW (IDENTITY THEFT STATUTE AMBIGUOUS, THE ASSUMPTION OF THE VICTIM’S IDENTITY IS AN ESSENTIAL ELEMENT OF THE OFFENSE, HERE DEFENDANT USED HER OWN NAME, CONVICTION REVERSED)/IDENTITY THEFT (IDENTITY THEFT STATUTE AMBIGUOUS, THE ASSUMPTION OF THE VICTIM’S IDENTITY IS AN ESSENTIAL ELEMENT OF THE OFFENSE, HERE DEFENDANT USED HER OWN NAME, CONVICTION REVERSED)

NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM.

The First Department, reversing Supreme Court, determined that defendant bus company did not have a duty to keep the entry steps free of tracked in water during a rainstorm. Plaintiff slipped and fell on the steps while attempting to board the bus:

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Plaintiff’s claim that Swift River negligently allowed a slippery condition to persist on the stairs leading into the bus was precluded, as a matter of law, by plaintiff’s testimony that it was raining at the time of the accident … . “Defendant is not obligated to provide a constant remedy for the tracking of water onto a bus during an ongoing storm” … , and here, the evidence showed that plaintiff was the last of a group of people to board the bus during the rainstorm … . Collins v Nate Tours Bus Co., 2017 NY Slip Op 02739. 1st Dept 4-6-17

NEGLIGENCE (NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/SLIP AND FALL (NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/BUSES (SLIP AND FALL. NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/WATER, TRACKED IN (BUSES, NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)

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FAIR MARKET RENT APPEAL PROPERLY DISMISSED.

The First Department, in a full-fledged opinion by Justice Gische, affirmed the dismissal of an Article 78 petition seeking a ruling on the status of petitioners’ apartment and the legality of the rent:

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The disputes before us arise from the Fair Market Rent Appeal (FMRA) petitioners filed with respondent New York State Division of Housing and Community Renewal (DHCR), implicating both the regulatory status of their apartment and the legality of the rent they were charged from the time they first took occupancy in 2010.

The DHCR decision being challenged in this article 78 proceeding denied the FMRA as untimely because it was filed more than four years after the apartment was no longer subject to the rent control laws following the death of the previous tenant in 2004. DHCR rejected petitioners’ contention that the applicable statute of limitations should be disregarded because the owner had engaged in fraud. DHCR also rejected petitioners’ claim that the owner’s late notices and/or registrations had extended the time period within which petitioners could file an FMRA challenging the owner’s efforts to set an initial rent following the apartment’s removal from rent control. Finally, on the merits, DHCR concluded that petitioners were not entitled to either a rent-regulated apartment or regulated rent because in 2010, when they first took occupancy, the apartment was no longer receiving any J-51 tax benefits and had become vacant at a time when the legal vacancy rent clearly exceeded $2,000 per month, an amount sufficient to make it high-rent/vacancy, “luxury” decontrolled … . Matter of Park v New York State Div. of Hous. & Community Renewal, 1st Dept 4-6-17

 

LANDLORD-TENANT (FAIR MARKET RENT APPEAL PROPERLY DISMISSED)/MUNICIPAL LAW (NYC, FAIR MARKET RENT APPEAL PROPERLY DISMISSED)/FAIR MARKET RENTAL APPEAL (NYC, LANDLORD-TENANT, FAIR MARKET RENT APPEAL PROPERLY DISMISSED)

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CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT.

The First Department, over a two-justice dissent, determined that the child support provisions of a stipulation of settlement in this divorce action should not be enforced because the children’s right to child support was jeopardized. Because the stipulation put a cap on father’s child support obligations, it was possible payment of room and board (college) for one sibling could exceed the cap leaving the other siblings without support:

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“[T]he parties cannot contract away the duty of child support. Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children’s rights are involved the contract yields to the welfare of the children. The duty of a parent to support his or her child shall not be eliminated or diminished by the terms of a separation agreement, nor can it be abrogated by contract” … .

The agreement here violates this rule. The credit sought by the father takes away that portion of child support intended for the welfare of the other two children. Taken to its logical end, the agreement threatens to completely deprive the other children of any support whatsoever, if monthly room and board costs for one child were to exceed $2,500. Keller-Goldman v Goldman, 2017 NY Slip Op 02723, 1st Dept 4-6-17

 

FAMILY LAW (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/CONTRACT LAW (STIPULATION OF SETTLEMENT, DIVORCE, CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/CHILD SUPPORT (STIPULATION OF SETTLEMENT, CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/STIPULATION OF SETTLEMENT (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/DIVORCE  (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)

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KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS.

The First Department determined the death of plaintiff in her office (caused by nonparty Tarloff) was not foreseeable and the building owners and tenants could not therefore be liable in negligence:

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Even though the building contained a psychiatric suite, defendants had no duty to protect decedent from the violent actions of third parties, including former patients like Tarloff; such actions were not foreseeable, given the absence of prior violent criminal activity by Tarloff or other third parties in the building … .

Even assuming that defendants had a duty to provide “minimal precautions” … , that duty was satisfied by the provision of 24/7 doorman coverage, surveillance cameras, controlled building access, and functioning locks on the doors of the office suite and decedent’s personal office … . It is purely speculative that additional security measures — such as announcing visitors, installing an office intercom or buzzer, or keeping the office doors locked after hours — would have prevented Tarloff from killing decedent.

Any claims that the door man was negligent in failing to recognize Tarloff’s suspicious behavior was not a proximate cause of decedent’s death because it was still not foreseeable that Tarloff was about to engage in a murderous rampage. Tarloff’s conduct was a superceding cause severing the causal chain. Given that the attack was targeted and premeditated, it is “unlikely that any reasonable security measures would have deterred [Tarloff]” … . Faughey v New 56-79 IG Assoc., L.P., 2017 NY Slip Op 02608, 1st Dept 4-4-17

 

NEGLIGENCE (KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)/ASSAULT (NEGLIGENCE, KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)/FORESEEABILITY (KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)

TITLE TO ARTWORK PURCHASED DURING THE MARRIAGE CANNOT BE DETERMINED BY REFERENCE TO INVOICES ALONE.

The First Department, in a full-fledged opinion by Justice Webber, reversing Supreme Court, held that the person who holds title to artwork purchased during the marriage cannot be determined by reference to invoices alone (as Supreme Court had done). The couple purchased art worth millions of dollars. The prenuptial agreement stated that any art not owned jointly by husband and wife would be deemed to belong to the party holding title without reference to the source of the funds for the purchase:

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An invoice cannot be said to be dispositive of ownership. The purpose of the invoice is not to identify the titled owner. Moreover, there is always the potential unreliability of the information contained on the invoice. For example, for one reason or another, the price of the item(s) purchased may be inflated or deflated or the description of the merchandise or services rendered may be inaccurate or distorted.

The unreliability of an invoice as sole proof of title is evidenced by various invoices in the record before us. The parties concede that some of the invoices are inconsistent on their face, in that the name of the only party listed is not consistent with the name of that party’s account with the auction house of purchase or conflicts with the party to whom the item purchased should have been shipped. For example, the wife points to a jointly acquired and owned Jeff Koons painting, “the Empire State of Scotch, Dewars,” the invoice for which lists only the husband’s name. Anonymous v Anonymous, 2017 NY Slip Op 02613, 1st Dept 4-4-17

 

FAMILY LAW (MARITAL PROPERTY, TITLE TO ARTWORK PURCHASED DURING THE MARRIAGE CANNOT BE DETERMINED BY REFERENCE TO INVOICES ALONE)/MARITAL PROPERTY (MARITAL PROPERTY, TITLE TO ARTWORK PURCHASED DURING THE MARRIAGE CANNOT BE DETERMINED BY REFERENCE TO INVOICES ALONE)/EQUITABLE DISTRIBUTION  (MARITAL PROPERTY, TITLE TO ARTWORK PURCHASED DURING THE MARRIAGE CANNOT BE DETERMINED BY REFERENCE TO INVOICES ALONE)/INVOICES (FAMILY LAW, MARITAL PROPERTY, TITLE TO ARTWORK PURCHASED DURING THE MARRIAGE CANNOT BE DETERMINED BY REFERENCE TO INVOICES ALONE)/ARTWORK (FAMILY LAW, MARITAL PROPERTY, , TITLE TO ARTWORK PURCHASED DURING THE MARRIAGE CANNOT BE DETERMINED BY REFERENCE TO INVOICES ALONE)/DIVORCE (MARITAL PROPERTY,  TITLE TO ARTWORK PURCHASED DURING THE MARRIAGE CANNOT BE DETERMINED BY REFERENCE TO INVOICES ALONE)

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