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LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s late request to exercise a peremptory challenge to a juror should not have been denied:

Here, defense counsel momentarily lost count of the number of jurors who had been selected. As a result, defense counsel declined to exercise a peremptory challenge to prospective juror 21. When informed that prospective juror 21 was the 12th juror seated, defense counsel immediately asked the court to allow defendant to exercise his last peremptory challenge to that juror. The jury had not yet been sworn, the panel from which the alternates would be selected had not yet been called, and prospective juror 21 had not yet been informed that he had been selected. Furthermore, the People expressly declined to object to the request. Under the circumstances of this case, we conclude that the court abused its discretion in denying defendant’s request. Indeed, ” we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [the] challenge’ ” … . Such an error cannot be deemed harmless … . People v Scerbo, 2017 NY Slip Op 01073, 4th Dept 2-10-17

CRIMINAL LAW (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/PEREMPTORY CHALLENGE CRIMINAL LAW, JURORS, (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)

PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE.

The Fourth Department, over a dissent, determined defendant was not entitled to the exception to the criminal possession of a weapon statute for possession in a person’s “place of business” (reducing the offense to a misdemeanor). Here defendant brought a firearm to work at McDonald’s and shot himself in the leg. The court reasoned the “place of business” exception did not apply because McDonald’s prohibited its employees from carrying firearms:

Although the “place of business” exception is not statutorily defined, it has been “construed narrowly by the courts in an effort to balance the State’s strong policy to severely restrict possession of any firearm’ . . . with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access” … . Inasmuch as the evidence at trial established that defendant was prohibited from bringing a gun to work, we conclude that to permit defendant to be subjected only to a misdemeanor “would certainly controvert the meaning and intent of the statute” … . People v Wallace, 2017 NY Slip Op 01071, 4th Dept 2-10-17

CRIMINAL LAW (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)/WEAPONS, CRIMINAL POSSESSION (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)

DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT.

The Fourth Department, reversing County Court, determined defendant was entitled to testify before the grand jury, even though his request was received by the district attorney after deadlines had passed and after the grand jury had voted to indictment (but before filing of the indictment):

As the Court of Appeals has noted, a defendant has a right “under CPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed” … . Where, as here, defendant’s request to testify is received after the grand jury has voted, but before the filing of the indictment, defendant is entitled to a reopening of the proceeding to enable the grand jury to hear defendant’s testimony and to revote the case, if the grand jury be so advised … . People v White, 2017 NY Slip Op 01070, 4th Dept 2-10-17

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)/GRAND JURY (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)

INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND.

The Fourth Department reduced defendant’s conviction from assault first to assault second based upon insufficient proof of serious physical injury. The victim was shot in the leg:

Although the victim displayed to the jury scars on his leg caused by his gunshot wounds, “the record does not contain any pictures or descriptions of what the jury saw so as to prove that these scars constitute serious or protracted disfigurement” … . Furthermore, although the victim testified that he “feel[s] pain in [his] leg” in cold weather, we conclude that such testimony does not constitute evidence of persistent pain so severe as to cause “protracted impairment of health” … . People v Romero, 2017 NY Slip Op 01069, 4th Dept 2-10-17

CRIMINAL LAW (INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/ASSAULT (CRIMINAL LAW, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/SERIOUS PHYSICAL INJURY (CRIMINAL LAW, ASSSAULT, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)

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DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether a disclaimer in a subcontract precluded the fraud counterclaim. The court further determined the fraud counterclaim was not duplicative of the breach of contract counterclaim and the fraud counterclaim was pled with sufficient specificity. Plaintiff, Pike, did concrete and steel construction work. Defendant subcontractor, Jersen, was hired to do masonry work:

The fraud counterclaim is the sole focus of this appeal. In that counterclaim, Jersen alleged that, before it began work on the project, Pike was informed by at least one of its other subcontractors that its substrate work was not “accurate, flat or level,” i.e., was deficient. Nevertheless, Pike represented to Jersen that the substrate work “had been erected in accordance with the contract requirements and was plumb, level, and true and that [Pike] had performed a professional survey of the structural steel to confirm the same.” Jersen alleged that Pike’s representations to Jersen “were false,” and that Pike “concealed and recklessly withheld from Jersen knowledge that the substrate was not dimensionally accurate, flat or level.” Additionally, Jersen alleged that Pike made those false representations “in order to deceive Jersen and induce Jersen to commence installation upon the substrate.” Jersen further alleged that it relied on Pike’s representations and would not have commenced installation of the masonry work had Pike not misrepresented to Jersen that the substrate had been installed in accordance with the contract requirements. According to Jersen, it suffered damages as a result of its reliance on Pike’s false representations. * * *

We conclude that the subcontract is ambiguous whether the disclaimer clause in section 1.8 precludes Jersen from relying on any opinions or representations concerning work performed by others after Jersen executed the subcontract, and thus that section 1.8 does not “conclusively establish[ ] a defense” to the counterclaim for fraud … . Pike Co., Inc. v Jersen Constr. Group, LLC, 2017 NY Slip Op 01116, 4th Dept 2-10-17

CONTRACT LAW (DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)/FRAUD (DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)/DISCLAIMER (CONTRACT LAW, FRAUD, DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)

PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487; PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION.

The Fourth Department, reversing Supreme Court, determined plaintiff could bring a plenary action against their attorneys pursuant to Judiciary Law 487. The further determined the fact that plaintiff’s had previously asked for sanctions against the attorneys did not collaterally estop them from bringing the Judiciary Law action:

Plaintiffs commenced this Judiciary Law § 487 action against defendant based on her conduct when representing plaintiffs’ adversary in a foreclosure action. We agree with plaintiffs that Supreme Court erred in granting defendant’s motion to dismiss the complaint. Although plaintiffs were aware of the alleged misconduct during the pendency of the prior foreclosure action, they are not precluded from bringing a plenary action alleging a violation of Judiciary Law § 487 provided that they are not collaterally attacking the judgment from the prior action … . Indeed, the language of the statute does not require the claim to be brought in a pending action … . Here, plaintiffs are seeking to recover damages for additional legal fees made necessary by defendant’s alleged misconduct in the foreclosure action, and they are not collaterally attacking the judgment of foreclosure … .

… A motion for sanctions for frivolous conduct (see 22 NYCRR 130-1.1 [c]) is not the same as a cause of action for attorney misconduct … . We therefore conclude that collateral estoppel does not apply, inasmuch as the identical issue was not raised in the foreclosure action … . Kimbrook Rte. 31, L.L.C. v Bass, 2017 NY Slip Op 01083, 4th Dept 2-10-17

 

ATTORNEYS (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)/COLLATERAL ESTOPPEL (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)/JUDICIARY LAW 487 (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)

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DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED.

The Fourth Department determined the ruling of the zoning board of appeals (ZBA) was properly upheld by Supreme Court. Petitioner-trust owns a landlocked undeveloped parcel. An offer to buy the parcel was contingent on the grant of variances allowing off-site billboards visible from the adjacent highway. The town code allows only on-site billboards. The ZBA denied the variances.

We reject petitioners’ contention that the ZBA acted arbitrarily and capriciously in determining that they failed to establish the factors constituting unnecessary hardship required for the issuance of the use variances (see Town Law § 267-b [2] [b]). The court properly determined, upon review of the record as a whole, including the evidence submitted to the ZBA, the findings and conclusions articulated by the ZBA during the hearing, and its subsequent letter decision … , that there is substantial evidence supporting the ZBA’s determination that the hardship was self-created (see § 267-b [2] [b] [4]). * * * … [T]he Trust possesses the same unused, oddly-shaped, difficult-to-develop property that [its predecessor] purchased, and although the purchase may now be viewed as a poor investment, courts are not responsible for “guarantee[ing] the investments of careless land buyers” … .

Contrary to petitioners’ contention, the court properly concluded that there is substantial evidence supporting the ZBA’s determination that the billboards would have a negative and adverse effect upon the character of the neighborhood inasmuch as the relevant area could not aesthetically support additional signs … . Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 2017 NY Slip Op 00874, 4th Dept 2-3-17

ZONING (DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)/VARIANCES (ZONING, DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)/BILLBOARDS (ZONING, DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)

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DETERMINATION ALLOWING USE OF RESIDENTIAL STREETS TO ACCESS A CLAY MINING OPERATION REVERSED, NO DEMONSTRATION PROPERTY WAS WORTHLESS UNDER EXISTING ZONING.

The Fourth Department, reversing the zoning board of appeals (ZBA) and Supreme Court, held that the ZBA’s determination allowing respondent Seneca Meadows Inc (SMI) to use residential streets to access a clay mining operation was irrational and unreasonable. SMI did not demonstrate that no reasonable return may be obtained from the property under existing zoning:

SMI’s proposed clay mine is located within its agriculturally zoned parcel, but it is bordered by its commercially and residentially zoned parcels that provide access to public roads. The Zoning Law of the Town of Waterloo prohibits commercial excavation operations in residential districts. Nevertheless, the ZBA upheld [the code enforcement officer’s] determination that the access road can cross the residential district because the agricultural portion of the property is landlocked. …

The ZBA’s and the court’s reliance on our determination in Matter of Passucci v Town of W. Seneca (151 AD2d 984) is misplaced. In that case, similar to this case, the commercially zoned portion of the petitioner’s property was landlocked, and the only access was over the residentially zoned portion of the property (id. at 984). In that case, however, the Town’s ordinance prohibited the petitioner from using the residential portion of his premises to access his commercial portion, and thus enforcing the zoning restriction would be unconstitutionally applied inasmuch as it “would prevent [the petitioner] from making any use of the property and would destroy its economic value” (id. …). SMI has failed to carry its “heavy burden of establishing that no reasonable return may be obtained from the property under the existing zoning” … . Matter of Lemmon v Seneca Meadows, Inc., 2017 NY Slip Op 00798, 4th Dept 2-3-17

 

ZONING (DETERMINATION ALLOWING USE OF RESIDENTIAL STREETS TO ACCESS A CLAY MINING OPERATION REVERSED, NO DEMONSTRATION PROPERTY WAS WORTHLESS UNDER EXISTING ZONING)

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PETITIONER DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE REAL PROPERTY TAX ASSESSMENT WAS VALID.

The Fourth Department determined the petitioner (city) did not overcome the presumption that the respondent’s (town’s) real property tax assessment was valid. The city owned a drinking water reservoir and dam area in the town. The city failed to produce an appraisal to challenge the town’s assessment. Therefore, the town was not required to come forward with any proof to support the assessment:

It is the rule in an RPTL article 7 proceeding that the “locality’s tax assessment is presumptively valid,” but that “[the] petitioner may overcome that presumption by bringing forth substantial evidence that its property has been overvalued” … . “In the context of a proceeding to challenge a tax assessment, substantial evidence will often consist of a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser” … . Until the presumption of the validity of the assessment is overcome, there is no obligation on the part of the assessor to come forward with proof of correctness of the assessment … . Only if the petitioner rebuts the presumption of validity must the court then examine and “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . …

Here, the record contains no competent appraisal evidence by which the court plausibly might have determined that the fair value of the parcel was, on each of the taxable dates in question, $11.45 million. Given that lack of proof of valuation, it must be concluded that petitioner failed to carry its evidentiary burden in challenging its tax assessment … . Matter of City of Rome v Board of Assessors, 2017 NY Slip Op 00864, 4th Dept 2-3-17

 

REAL PROPERTY TAX LAW (PETITIONER DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE REAL PROPERTY TAX ASSESSMENT WAS VALID)/MUNCIPAL LAW (REAL PROPERTY TAX LAW, CITY DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE TOWN’S REAL PROPERTY TAX ASSESSMENT WAS VALID)

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COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT, THEREFORE, BE DISTURBED BY THE COURT; TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY.

The Fourth Department determined Supreme Court properly determined the respondent county had timely notified petitioner of the denial of petitioner’s request for Medicaid overburden expenditures. If the denial had been deemed untimely, petitioner argued, the county would be required to pay. The court noted that the county’s interpretation of the relevant time limits was rational and therefore could not be disturbed by a court. The court further noted that, even if the time limits had been exceeded, denial of the claim would still have been proper because the time limits are discretionary in this context:

It is well settled that “the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable” … . * * *

… [I]t is well settled that, “[a]bsent an express limitation upon the power of a particular agency to act after the expiration of the relevant statutory period, the time limits within which an administrative agency must act generally are construed as discretionary” … . As the Court of Appeals noted, ” [a] rule that rendered every administrative decision void unless it was determined in strict literal compliance with statutory [or regulatory] procedure would not only be impractical but would also fail to recognize the degree to which broader public concerns, not merely the interests of the parties, are affected by administrative proceedings’ ” … . Matter of County of Oneida v Zucker, 2017 NY Slip Op 00785, 4th Dept 2-3-16

MEDICAID (OVERBURDEN EXPENDITURES, COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT BE DISTURBED BY THE COURT, TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY)/ADMINISTRATIVE LAW (COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT BE DISTURBED BY THE COURT, TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY)

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