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New Evidence Demonstrated the Declarant, Not the Defendant, Committed the Murders of Which Defendant Was Convicted—Motion to Vacate Defendants’ Convictions Properly Granted

The Fourth Department affirmed County Court’s vacation of defendant’s murder convictions, after a hearing, based upon newly discovered evidence. Although the “declarant” did not testify, witnesses testified declarant admitted killing the two persons defendant had been convicted of murdering. There was considerable evidence supporting the reliability of the declarant’s statements. The court noted that the declarant’s statements were admissible under an exception to the hearsay rule as “statements against penal interest” and it was reasonable to assume the declarant was “unavailable” (a requirement for admissibility) because he would assert his right to remain silent if called as a witness. The court further noted that the testimony of declarant’s ex-wife was not protected by spousal privilege. Declarant’s threat to kill his wife if she reported the murders to the police removed the “communications from the protection of privilege:”

Contrary to the People’s contention, County Court properly determined, following a hearing, that defendant proved by a preponderance of the evidence that “[n]ew evidence has been discovered since the entry of [the] judgment . . . , which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g]; see CPL 440.40 [6]). People v Pierre, 2015 NY Slip Op 04985, 4th Dept 6-12-15

 

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The Private Right of Action Afforded to Patients in “Residential Health Care Facilities” Pursuant to Public Health Law 2801-d Does Not Apply to Residents of a Group Home for the Developmentally Disabled

Plaintiff’s brother, Brian, is developmentally disabled and resided in a group home operated by the defendant.  Plaintiff alleged her brother was injured as a result of the negligence of defendant’s employees and brought suit under Public Health Law 2801-d, which allows a private right of action by patients against “residential health care facilities.”  The Fourth Department determined the group home was not a “residential health care facility” within the meaning of the Public Health Law 2801-d and, therefore, the causes of action based on that statute should have been dismissed:

In contrast to a hospital or nursing home, the group home owned and operated by defendant is governed by the Mental Hygiene Law and regulated by the Office for People with Developmental Disabilities (OPWDD), and operates pursuant to a certificate issued by the Commissioner of OPWDD (see Mental Hygiene Law article 16; 14 NYCRR part 686; see also Mental Hygiene Law § 13.07). The group home is classified as an “individualized residential alternative” community residence, defined as “a facility providing room, board, and individualized protective oversight” for “persons who are developmentally disabled and who, in addition to these basic requirements, need supportive interpersonal relationships, supervision, and training assistance in the activities of daily living” (14 NYCRR 686.99 [l] [2] [iii]). Under the plain language of the regulations governing it, the group home does not serve “principally” as a facility “for the rendering of health-related service” governed by Public Health Law article 28 (§ 2800). Burkhart v People, Inc., 2015 NY Slip Op 04974, 4th Dept 6-12-15

 

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Sentence Vacated—Sentencing Judge Relied on Materially Untrue Assumptions and Misinformation About Defendant’s Criminal History

Although the error was not preserved, the Fourth Department, in the interest of justice, determined defendant’s sentence should be vacated.  At sentencing, the judge made statements alleging past criminal acts by the defendant which were unsupported by the record:

… [W]e conclude that the court erred in sentencing defendant on the basis of “materially untrue assumptions or misinformation” … . Here, the court characterized defendant as having been involved in “more than 40 residential burglaries” and “all the tens of burglaries,” but those statements are unsupported by the record and therefore constitute improper speculation… . People v Mcknight, 2015 NY Slip Op 04961, 4th Dept 6-12-15

 

Prima Facie Case of Defamation Made Out in the Complaint

The Fourth Department determined the complaint made out a prima facie case of defamation. The statements were included in a newspaper article and were attributed to defendant. The court succinctly explained the applicable law:

“The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se”…, and we conclude that the complaint sufficiently alleges those elements and, thus, states a viable cause of action. We further conclude, contrary to defendant’s contention, that the “particular words complained of” were sufficiently set forth in the complaint as required by CPLR 3016 (a) and, in any event, plaintiff attached to the complaint the full Niagara Falls Reporter article containing the alleged defamatory statements … . Defendant contends that, because he did not participate in the drafting of the Niagara Falls Reporter article, he cannot be held liable for defamation and, thus, the court properly granted his cross motion. That contention is without merit. It is well established that “[a]nyone giving a statement to a representative of a newspaper authorizing or intending its publication is responsible for any damage caused by the publication” … . Accadia Site Contr., Inc. v Skurka, 2015 NY Slip Op 04958, 4th Dept 6-12-15

 

Child’s Unemancipated Status Was Revived Entitling Father to Child Support

The Fourth Department determined the child’s moving in with father after becoming emancipated by leaving mother’s residence revived his unemancipated status, thereby entitling father to child support.  The child left mother to avoid her rules, including rules prohibiting the use of drugs. After living with friends for a while, the child sought treatment for drug addiction.  It was thereafter the child moved in with father:

“[T]he case law makes clear that a child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status” … . “Permitting reversion to unemancipated status is consistent with the statutory principle that parents are responsible for the support of their dependent children until the children attain the age of 21” … . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status … . Although most of the cases concerning a revival of a child’s unemancipated status involve a child’s return to the home that he or she abandoned versus the home of the noncustodial parent …, we conclude that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status inasmuch as it has generally been held that “the move from one parent’s home to the other parent’s home does not constitute emancipation as th[e] child is neither self-supporting nor free from parental control” … . In this case, the child did not immediately move in with the father after flouting the mother’s rules … . Rather, he engaged in treatment for his addiction and then resumed living under the supervision and control of a parent while attending school. Baker v Baker, 2015 NY Slip Op 05045, 4th Dept 6-12-15

 

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The One-Year-and-Ninety-Day Time Limit for Bringing Suit Under the Public Authorities Law Is a Statute of Limitations, Not a Condition Precedent to Suit, and Is Therefore Subject to the Six-Month Extension for Recommencing a Suit Which Was Dismissed Without Prejudice Provided by CPLR 205(a)

The underlying medical malpractice action is against Erie County Medical Center Corporation, a public benefit corporation.  Pursuant to Public Authorities Law 3641, a notice of claim must be filed prior to the commencement of the lawsuit. Plaintiff had not filed a notice of claim. The action was dismissed without prejudice, subject to the terms of CPLR 205(a), which allows six months to recommence an action that has not been dismissed on the merits.  When the suit was recommenced, the defendant argued that the one-year-and-ninety-day time limit for bringing suit under the Public Authorities Law was not a statute of limitations subject to the CPLR 205(a) six-month extension, rather it was a condition precedent to suit and the (second) complaint must therefore be dismissed as untimely.  The Fourth Department determined the one-year-and-ninety-day time limit for suit under the Public Authorities Law was a statute of limitations, not a condition precedent, and the six-month extension provided by CPLR 205(a) applied:

It is well settled that CPLR 205 (a) does not apply when an act has to be performed within a statutory time requirement and is a condition precedent to suit (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378-379…). We recognize, by way of example, that the one-year statutory period for commencement of suit against the Port Authority Trans-Hudson Corporation set forth in McKinney’s Unconsolidated Laws of NY § 7107 has been held to be a condition precedent to suit not entitled to the tolling benefit of CPLR 205 (a) (see Yonkers Contr. Co., 93 NY2d at 378-379). As emphasized by the Court of Appeals in Yonkers, “Unconsolidated Laws § 7107 unambiguously allows an action against the Port Authority only upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year’ ” (id., 93 NY2d at 379). Here, Public Authorities Law § 3641 (1) (c) contains no similar express conditional language.

We note that CPLR 205 (a) has been held to apply to proceedings commenced under General Municipal Law § 50-i …, the language of which is identical to that of Public Authorities Law § 3641 (1) (c) at issue herein. We thus conclude that the express language of section 3641 (1) (c) does not support defendant’s contention that the one-year and 90-day period is a condition precedent and not a statute of limitations … . Benedetti v Erie County Med. Ctr. Corp., 2015 NY Slip Op 04964, 4th Dept 6-12-15

 

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CPLR 214-c, Which Starts the Statute of Limitations Upon Discovery of the Injury, Applies Only to Toxic Torts—The Statute Does Not Apply to an Action Seeking Damages for the Allegedly Negligent Approval (by the Town) of a Defective Septic System

Plaintiffs sought replacement-cost damages for a defective septic system, alleging the town negligently approved the system prior to plaintiffs’ purchase of the property. Although the three-year statute of limitations for negligence had passed, the plaintiffs argued that CPLR 214-c applied. CPLR 214-c applies to latent defects and the statute starts running upon discovery of the injury.  The Fourth Department determined CPLR 214-c did not apply, noting that the Court of Appeals has held the statute applies only to injury from “toxic torts:”

CPLR 214-c (1) provides that “the three-year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” … .

Here, plaintiffs do not seek “damages for personal injury or injury to property” (CPLR 214-c [1]); rather, they seek to be compensated for the cost of replacing an allegedly defective septic system. Thus, section 214-c is inapplicable to this action … . Moreover, the Court of Appeals, in interpreting section 214-c, has made clear that it applies only to toxic torts …, and plaintiffs’ claims have nothing do to with toxic substances. Instead, plaintiffs merely allege that the septic system was defective and that defendants failed to identify the defects during their inspections. We thus conclude that the court properly determined that the causes of action against the moving defendants are time-barred. Clendenin v Town of Milo, 2015 NY Slip Op 04976, 4th Dept 6-12-15

 

Indictment Dismissed after Trial as Multiplicitous and Duplicitous/Grand Larceny Can Not Be Based Upon the Violation of a Regulation that Is Civil in Nature

The Fourth Department reversed defendant’s conviction and dismissed the indictment in a prosecution alleging public assistance fraud in the operation of a daycare home.  The indictment charged the defendant with grand larceny, falsifying business records and offering a false instrument for filing.  Essentially, the charges alleged the defendant billed for services provided by an unlicensed care-giver, and billed for services which were not provided.  The Fourth Department held that the entire indictment was rendered multiplicitous and duplicitous by the trial evidence.  In addition, the court determined that the grand larceny count could not be based upon the violation of a regulation requiring the presence of a licensed assistant.

With respect to multiplicity and duplicity, the court wrote:

Prosecutors and grand juries must steer between the evils known as duplicity’ and multiplicity.’ An indictment is duplicitous when a single count charges more than one offense . . . It is multiplicitous when a single offense is charged in more than one count . . . A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his [or her] ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he [or she] actually committed” … . An indictment that is not duplicitous on its face may be rendered so based upon the trial evidence … .

Here, the People correctly concede that counts 5 through 7, 9, 15 through 17, and 19 of the indictment are duplicitous and multiplicitous inasmuch as they are based on “distinct but not identifiable vouchers.” Those counts are all based on the same time period and the same vendor number and, according to the People, there is no way to identify which voucher refers to which count … .  …

With respect to the remaining counts of the indictment, we agree with defendant that counts 8, 10, 18, and 20 of the indictment were rendered duplicitous by the trial evidence.. . . As noted above, the People alleged that defendant submitted vouchers for monies to which she was not entitled because, at various dates and times, she (1) billed for hours when neither she nor her certified assistant were at the daycare, and (2) she billed for hours when the children were not at the daycare. There is no basis in the record to determine, with respect to each of those counts, whether the jury convicted defendant based upon the first act (billing for hours when the children were watched by uncertified assistants) or the second act (billing for hours when the children were not at daycare), or whether certain jurors convicted defendant upon the former and others upon the latter. Thus, “it is impossible to verify that each member of the jury convicted defendant for the same criminal act”… .

With respect to grand larceny based upon the violation of a regulation, the court wrote:

Count one of the indictment alleges that, between October 1, 2007 and July 30, 2008, defendant “stole property having a value in excess of [$3,000], to wit: a sum of money, belonging to [DSS].” Under Penal Law § 155.05 (1), “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself [or herself] or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof.” Larceny includes “obtaining property by false pretenses” (§ 155.05 [2] [a]). A defendant commits larceny by false pretenses when he or she “obtain[s] possession of money of another by means of an intentional false material statement about a past or presently existing fact upon which the victim relied in parting with the money” … .

Here, the People alleged that defendant committed larceny by false pretenses by charging for times when unlicensed assistants were watching the children in violation of OCFS regulations, and by billing for times when the children were not receiving daycare services. We question whether submitting vouchers for daycare services rendered by an uncertified assistant falls within the definition of larceny. OCFS’s regional manager testified that, although it is a “regulatory violation” for an uncertified assistant to watch children at a group day care, the regulations do not state that daycare providers are not permitted to bill for services rendered by an uncertified assistant. Indeed, the DSS special investigator referred to those hours as “billable” on his charts, although unauthorized by the regulations.

Even assuming, arguendo, that billing for services provided by an uncertified assistant constitutes a “wrongful[ ] tak[ing]” within the meaning of Penal Law § 155.05 (1), we note that “[c]onduct which is wrongful in the civil context is not necessarily wrongful’ within the meaning of the larceny statutes” … .  People v Casiano, 2014 NY Slip Op 03362, 4th Dept 5-9-14

 

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Owner of Animal Which Strays Can Be Liable in Tort for Related Motorcycle Accident

The Fourth Department determined plaintiff’s complaint should not have been dismissed.  Plaintiff’s decedent was killed when his motorcycle struck a cow which had wandered off defendant’s land:

The Court [of Appeals has] held that “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7)—is negligently allowed to stray from the property on which the animal is kept” … . Sargent v Mammoser, 2014 NY Slip Op 03372, 4th Dept 5-9-14

 

Sworn Allegations About the Conduct of a Juror in Defendant’s Motion to Set Aside the Verdict Were Sufficient to Require a Hearing About Whether a Substantial Right Had Been Prejudiced

The Fourth Department determined defendant was entitled to a hearing on his motion to set aside the verdict:

The sworn allegations in defendant’s moving papers, i.e., that he learned after the verdict was rendered that a juror who had allegedly been “holding out” contacted defendant’s aunt between the first and second days of deliberation and discussed the likelihood of a guilty verdict when the jury reconvened the following morning, “required a hearing on the issue whether the juror’s alleged misconduct prejudiced a substantial right of defendant” … . People v Tucker, 2014 NY Slip Op 03415, 4th Dept 5-9-14

 

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