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IN THIS JUVENILE DELINQUENCY PROCEEDING, THE JUVENILE’S BEHAVIOR—LOOKING AT THE UNDERCOVER VEHICLE AND TURNING HIS BICYCLE AROUND—DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION JUSTIFYING THE STREET STOP (FIRST DEPT). ​

The First Department, reversing Family Court’s finding there was reasonable suspicion justifying the street stop of the juvenile, determined the officers’ observation of the juvenile’s “look[ing] in the direction of one of the unmarked vehicles, back pedal[ing], duck[ing], turn[ing] the bicycle around and rid[ing] in the opposite direction” was not sufficient. The police had been alerted to a gunshot in the area. A handgun was retrieved from the juvenile:

… [T]he totality of the circumstances did not support Family Court’s finding that the officer had reasonable suspicion to justify the stop, and his detention was unlawful because appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation” … . Police, in two unmarked vehicles, while canvassing the area in response to a “Shotspotter” sensor report of shots fired, observed appellant riding a bicycle on the sidewalk. An officer observed appellant look in the direction of one of the unmarked vehicles, back pedal, duck, turn the bicycle around and ride in the opposite direction. The officer found appellant’s actions suspicious, exited the vehicle, approached appellant, ordered him to stop, grabbed him by both wrists and pushed him against the wall. While appellant was detained another officer observed a bulge in appellant’s pocket, squeezed the pocket area and retrieved a firearm.

Although an officer observed an L-shaped object in appellant’s pocket during the detention, there is no evidence or any reasonable inference that the officer “was in a position to view the contraband absent the unlawful detention” … . Matter of W.P., 2024 NY Slip Op 06426, First Dept 12-19-24

Practice Point: Here the police were canvassing the area after a report of a gunshot. They stopped the juvenile after observing him look at their undercover vehicle and turn his bicycle around. A handgun was retrieved during the stop. The First Department held the observations did not provide the police with “reasonable suspicion” and the street stop was therefore not justified.

 

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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION REQUIRING CONSENT TO WARRANTLESS SEARCHES; IN THE PLEA PROCEEDINGS, DEFENDANT ADMITTED PUNCHING THE VICTIM; THE PROBATION CONDITION ALLOWING SEARCHES FOR DRUGS AND WEAPONS HAD NO CONNECTION TO THE UNDERLYING OFFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) a waiver of appeal does not preclude challenging a condition of probation requiring warrantless searches, and (2) there was no basis for requiring defendant to consent to warrantless searches:

… [D]efendant’s challenge to the condition of probation requiring that he consent to warrantless searches survives even a valid waiver … . Here, during the plea proceedings, defendant admitted that he intentionally caused injury to the victim by punching him with a closed fist. The Department of Probation recommended that, as a condition of probation, defendant consent to warrantless searches for illegal drugs and weapons to help ensure the safety of the public and probation officers. We find that the condition of probation was not reasonably related to defendant’s rehabilitation, given that defendant’s conviction did not involve the use of a weapon and did not appear connected to the sale or use of drugs … . People v Thomas, 2024 NY Slip Op 06427, First Dept 12-19-24

Practice Point: A waiver of appeal does not preclude a challenge to a probation condition requiring consent to warrantless searches.

Practice Point: The probation condition requiring consent to warrantless searches must have some connection to the underlying offense. Searches for drugs and weapons had no connection to the underlying offense in this case where defendant admitted punching the victim with his fist.

 

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HERE THE PROVISIONS IN THE LETTER AGREEMENT DID NOT GIVE PLAINTIFF THE EXCLUSIVE RIGHT TO SELL THE PROPERTY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the letter agreement did not give plaintiff an exclusive right to sell the property:

Plaintiff’s argument that the parties’ letter agreement gave it an exclusive right to sell is unavailing. To create an exclusive right to sell, a contract “must clearly and expressly provide that a commission is due upon sale by the owner or exclude the owner from independently negotiating a sale” … . The agreement here lacks express language excluding a direct conveyance by defendants, nor is that a necessary implication of its terms … . The agreement’s language requiring defendants to “inform” plaintiff if contacted about potential transactions is insufficient to create an exclusive right to sell … . Moreover, plaintiff fails to show that the agreement’s tail provision, entitling plaintiff to a fee for efforts at procuring a transaction during its engagement even if the transaction were completed only after the termination of that engagement, necessarily implied that the parties intended to create an exclusive right to sell. Cantor Fitzgerald & Co. v ObvioHealth Pte Ltd., 2024 NY Slip Op 06421, First Dept 12-19-24

Practice Point: This decision gives some insight into the criteria for conferring the exclusive right to sell property.

 

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DEFENDANT POLICE OFFICER WAS ENGAGED IN AN “EMERGENCY OPERATION” WITHIN THE MEANING OF VEHICLE AND TRAFFIC LAW 1104 WHEN HIS POLICE VAN STRUCK PLAINTIFF AS SHE STEPPED INTO THE ROAD FROM BETWEEN PARKED CARS; DEFENDANT DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS AND, THEREFORE, COULD NOT BE HELD LIABLE FOR PLAINTIFF’S INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant police officer’s motion for summary judgment dismissing the complaint should have been granted. Plaintiff was struck by defendant’s police van when plaintiff stepped into the road from between two parked cars. Defendant police office was responding to an “assault in progress” when plaintiff was struck:

Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104, by submitting evidence that he was responding to a radio call about an “assault in progress” at the time of the accident … . The police officer therefore was privileged to drive in the wrong direction on the roadway … , and can be found liable only if he operated the vehicle in reckless disregard for the safety of others … .

Defendants demonstrated that the officer did not act with reckless disregard based on his testimony that he entered the eastbound lane after ascertaining that there was no traffic, turned on the siren and lights, and was unable to avoid striking plaintiff when she stepped out in front of the police van, despite hitting the brakes hard … . Yuet C. Chiu-Yu v Chin, 2024 NY Slip Op 06273, First Dept 12-12-24

Practice Point: Defendant police officer was responding to an “assault in progress” and testified he had activated his siren and lights and had checked for pedestrians prior to striking plaintiff as she stepped into the road from between parked cars. The officer testified he braked hard but could not avoid striking plaintiff. Defendants were entitled to summary judgment because the officer demonstrated he did not operate his vehicle in “reckless disregard” for the safety of others.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR COUNSEL OF HIS CHOICE, ASSIGNED COUNSEL’S DISPARAGING REMARKS, AND ASSIGNED COUNSEL’S FAILURE TO INFORM DEFENDANT DEPORTATION WAS MANDATORY, AMOUNTED TO A DEPRIVATION OF DEFENDANT’S RIGHT TO COUNSEL; GUILTY PLEA WITHDRAWN AND VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to withdraw and vacate his guilty plea should have been granted. Defendant did not receive effective assistance of counsel:

The People concede that defendant’s right to counsel was violated by the court’s ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter … , and by the conflict of interest between assigned counsel and defendant that arose from counsel’s disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing.

Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant’s conviction would trigger mandatory deportation … . People v Pan, 2024 NY Slip Op 06166, First Dept 12-10-24

Practice Point: The judge improperly prohibited defendant from obtaining counsel of his choice.

Practice Point: Assigned counsel’s disparaging remarks about defendant created a conflict of interest.

Practice Point: Assigned counsel’s failure to inform defendant deportation was mandatory constituted ineffective assistance.

 

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THE ZONING REGULATION WHICH REQUIRES PAYMENT TO AN “ARTS FUND” OF $100 PER SQUARE FOOT FOR CONVERSION OF “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO FULLY RESIDENTIAL USE IS AN UNCONSTITUTIONAL TAKING (FIRST DEPT).

The First Department, reversing Supreme Court, found unconstitutional a NYC Zoning Regulation (ZR) which required artists who wish to convert their “joint living-work quarters for artists (JLWQA)” to residential use to pay $100 per square foot to an “Arts Fund.” The fund did not have a sufficient connection with the government’s land-use interest:

The ZR amendment passed by the City, in establishing the Special SoHo-NoHo Mixed Use District (SNX District), provides current JLWQA unit owners a pathway to convert uses but also requires them, if and when they seek conversion, to contribute “$100.00 per square foot of floor area to be converted” to the Arts Fund, with annual increases … . “[T]he payment of such non-refundable contribution shall be a precondition to filing for or issuing of any building permit allowing the conversion [of] a joint living-work quarters for artists to a residence” … .

The Arts Fund fee constitutes a permit condition for which the “two-part test modeled on the unconstitutional conditions doctrine” applies … . Thus, the permit condition “must have an ‘essential nexus’ to the government’s land-use interest,” which “ensures that the government is acting to further its stated purpose” … , and the condition “must have ‘rough proportionality’ to the development’s impact on the land-use interest” … .

In applying the two-part test, we find that petitioners are entitled to a declaration that the Arts Fund fee requirement constitutes a taking without just compensation (US Const Amend V; NY Const art I, § 7[a]). Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2024 NY Slip Op 06118, First Dept 12-5-24

Practice Point: Here a zoning regulation which required payment of a fee of $100 per square foot to an “Arts Fund” as a precondition for a building permit was deemed an unconstitutional taking.

 

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THE COURT SHOULD NOT HAVE DELEGATED TO MOTHER ITS AUTHORITY TO SET A VISITATION SCHEDULE FOR FATHER; FORENSIC MENTAL HEALTH EVALUATIONS AND COUNSELING MAY BE APPROPRIATE WHERE, AS HERE, A CHILD REFUSES VISITATION WITH A PARENT (FIRST DEPT).

The First Department, reversing Family Court, determined the court improperly delegated to mother the authority to control father’s visitation with the child. The First Department noted that forensic mental health examinations may be appropriate where, as here,  a child refuses to visit with a parent:

Here, Family Court’s order that the father have visitation as agreed between the parties in consultation with the child is an impermissible delegation of its authority to the mother and child, and essentially causes the father to have no visitation at all. Furthermore, despite the father’s lack of sensitivity to the child … we cannot find on this record that there was a showing adequate to justify terminating the father’s contact with the child; that is, that any form of contact under all circumstances would be harmful to the child’s welfare.

We note that Family Court may order forensic mental health evaluations where a visitation petition is pending and where doing so will facilitate the court’s determination (Family Court Act § 251[A]; 22 NYCRR 202.18). “[T]he value of forensic evaluations of the parents and children has long been recognized,” including when a child refuses to visit with a parent … . We further note that a court may place restrictions on visitation that promote the child’s best interests and are not unduly restrictive, including ordering therapeutic or other kinds of supervised visitation … . The court may also make directives as to the amount and type of contact a parent has with the child between visits. Finally, a court may direct a parent to attend counseling as a component of a visitation plan, where doing so promotes the child’s best interests … . Matter of Michael B. v Patricia S., 2024 NY Slip Op 06005, First Dept 12-3-24

Practice Point: Family Court cannot not delegate to a parent its authority to set the other parent’s visitation schedule.

Practice Point: Where a child refuses to visit with a parent, the court may order forensic mental health evaluations and counseling.

 

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ALTHOUGH THE GUARANTEES REQUIRED THAT THE TENANT SURRENDER THE PREMISES IN THE CONDITION DESCRIBED BY THE LEASE, THE GUARANTEES DID NOT INCORPORATE THE LEASE OR EXPRESSLY REQUIRE COMPLIANCE WITH THE SURRENDER TERMS OF THE LEASE; THEREFORE THE TENANT’S FAILURE TO COMPLY WITH THE SURRENDER TERMS OF THE LEASE DID NOT TRIGGER THE GUARANTORS’ OBLIGATIONS (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the language of the guarantees controlled and the guarantors were relieved of responsibility for the tenant’s rent payments when the tenant surrendered the property in compliance with the terms of the guarantees. Although the guarantees referred to surrendering the premises in the condition required by the lease, the guarantees did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger any obligation on the part of the guarantors:

… [T]he guarantees expressly limit defendants’ liability to the terms contained therein, which, as relevant here, only require that tenant surrender the premises in compliance with the surrender provisions set forth in the guarantees. While the guarantees mandated tenant surrender the premises in the condition required by the terms of the lease, they do not incorporate the terms of the underlying lease by reference … or expressly require that tenant’s surrender of the premises be performed pursuant to the terms of the lease … .

Therefore, while tenant was required to obtain written consent of the surrender from plaintiff under the lease, the motion court improperly determined that tenant’s failure to do so precluded the guarantors’ avoidance of liability for unpaid rent after tenant’s surrender … . ROC-Lafayette Assoc., LLC v Sturm, 2024 NY Slip Op 06016, Frist Dept 12-3-24

Practice Point: The language of a guarantee is strictly construed. Here the guarantees required surrender of the premises in the condition described by the lease but did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger the guarantors’ responsibility for the tenant’s rent payments. The tenant had fully complied with the surrender terms in the guarantees.

 

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IN A SIDEWALK SLIP AND FALL CASE, COMMUNICATION WITH THE CITY BY PHONE DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT, EVEN IF THE COMMUNICATION WAS REDUCED TO WRITING; PLAINTIFF DID NOT DEMONSTRATE AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT APPLIED (FIRST DEPT).

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined the “written notice” requirement for municipal liability was not met and plaintiff did not demonstrate an exception to the written notice requirement was applicable:

While walking down a sidewalk on West 26th Street in Manhattan, plaintiff tried to navigate around other pedestrians and tripped and fell on a metal fence surrounding a tree well, known as a tree guard, where there was no longer a tree. Plaintiff seeks to hold the City of New York and New York City Parks Department and Recreation liable for his fall on the theory that defendants created a hazard by leaving the tree guard after they removed the tree. Defendants’ motion for summary judgment should have been granted.

The City sustained its initial burden of demonstrating that it did not receive prior written notice of the condition that caused plaintiff’s accident. A search of Department of Transportation and Department of Parks and Recreation records revealed only two 311 calls for the accident site. The calls resulted in service reports reflecting removal of dead trees and a direction for a City employee to investigate whether replacement of the trees was appropriate. No party disputes that the trees were not replaced before the accident. However, verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy the prior written notice requirement, even if the writing includes a service report, as it does here … … .

As a result, the burden shifted to plaintiff to demonstrate that one of the exceptions to the prior written notice requirement applied … . Plaintiff failed to raise a triable issue of fact concerning whether the City affirmatively created the defective condition through an act of negligence or that a special use resulted in a special benefit to it … . Plaintiff’s theory was that his accident was the result of a combination of inadequate lighting, the height and color of the tree well guard, and the removal of the tree without replacement. However, his expert failed to cite relevant industry-wide standards and practices regarding the construction or design of a tree well border from which the City may have deviated. Moreover, plaintiff did not show that the City’s failure to replace the trees was an affirmative act of negligence, rather than a negligent omission, that created an immediately apparent dangerous condition … . Carney v City of New York, 2024 NY Slip Op 05884, First Dept 11-26-24

Practice Point: Re: municipal liability for a sidewalk slip and fall, phone communications about the defect do not satisfy the written notice requirement even if the communications are reduced to writing.

 

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A COMBINED MOTION TO REARGUE AND MOTION TO RENEW IS PROPER; HERE SUPREME COURT CORRECTLY DENIED THE MOTION TO REARGUE BUT SHOULD HAVE CONSIDERED THE MOTION TO RENEW; MATTER REMANDED (FIRST DEPT). ​

The First Department, remanding the matter to Supreme Court, determined the combined motion to reargue and motion to renew was properly brought. The motion to reargue was properly denied, but the motion could should have considered the motion to renew:

A combined motion for leave to reargue and renew is permitted so long as each branch of the motion is separately identified and supported (CPLR 2221 [f]). Here, the motion court considered plaintiff’s combined motion to be “couched” as one for reargument and improvidently failed to address or analyze plaintiff’s application for renewal.

Plaintiff in this case submitted a medical expert’s affidavit as new or additional facts not included on the motion to vacate, which this Court in the past has deemed to be sufficient to support a motion to renew … . As plaintiff properly submitted a combined motion for reargument and renewal, CPLR 2221 (f) required the court to “decide each part of the motion as if it were separately made.” Pellerano v New York City Health & Hosps. Corp., 2024 NY Slip Op 05899, First Department 11-26-24

Practice Point: It is proper to combine a motion to reargue and a motion to renew. The motions should be considered separately. Here the denial of the motion to reargue was proper but the motion to renew should also have been considered. The matter was remanded.

 

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