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Questions of Fact Whether Name Added to Bank Account Created a Convenience Account or a Joint Tenancy with Right of Survivorship

The Fourth Department determined there was a question of fact whether plaintiff’s adding another’s (John’s) name to a bank account was done for convenience or to provide John with a right to the funds:

There is no dispute that the account in which the funds had been deposited was designated a joint account. The sole question is whether that account was a convenience account, in which case the money deposited therein would be considered “the sole property of [plaintiff]” and could not be used to satisfy a judgment against John (… see Banking Law § 678). Otherwise, if the account was a joint tenancy account with a right of survivorship or a tenancy in common account, John would be deemed to have “an ownership interest in one half of the moneys deposited therein” … . Defendant contends that, by placing John’s name on the bank account as a joint tenant, the account is presumed to be a joint tenancy account with a right of survivorship (see Banking Law § 675). We reject that contention. “Although the bank account is designated as joint,’ the account documents do not contain the necessary survivorship language, and thus the statutory presumption of a right of survivorship does not apply” … .

We agree with defendant that plaintiff failed to establish as a matter of law that she intended to create a convenience account (see Banking Law § 678), as opposed to either a joint tenancy account with right of survivorship (see § 675), or a tenancy in common account (see EPTL 6-2.2 [a]). …  Plaintiff stated that she added John’s name to the account because she was “fearful for [her] own safety” and “feared the risk of additional violence against [her].” Plaintiff wanted to make sure that, if anything happened to her, “the funds [would] be available for the welfare of [her] granddaughter.” Those statements seemingly establish that plaintiff “did not have a present intention to transfer an interest in the [money] to [John], despite having placed his name on the [account]” … . Moreover, John made no deposits or withdrawals to the account, which also supports plaintiff’s position that the account was opened as a matter of convenience only … .

Nevertheless, we conclude that plaintiff’s statements raise a triable issue of fact whether she intended John to have a right of survivorship in the joint tenancy account. …[W]hile the signature card’s reference to a document stating that rights of survivorship are created when obtaining a joint bank account is insufficient to invoke the statutory presumption of Banking Law § 675 … , it is a factor that may be considered when determining whether the bank account is a joint tenancy account with survivorship rights … . Sweetman v Suhr, 2015 NY Slip Op 02583, 4th Dept 3-27-15

 

Family Court Abused Its Discretion by Failing to Consider the Least Restrictive Alternative Disposition in a Juvenile Delinquency Proceeding

The Fourth Department determined Family Court had not considered the least restrictive available alternatives for disposition in a non-felony juvenile delinquency proceeding.  Family Court had placed the juvenile in the custody of the Department of Social Services for 12 months for each of three adjudications:

It is well settled that, when determining an appropriate disposition in a juvenile delinquency case involving acts that are not felonies, “the court shall order the least restrictive available alternative” and “shall consider the needs and best interests of the respondent as well as the need for protection of the community” (Family Ct Act § 352.2 [2] [a]…). Although “[t]he court has broad discretion in determining the appropriate disposition in juvenile delinquency cases” …, we agree with respondent that the court abused its discretion under the circumstances presented here. The evidence presented at the dispositional hearing and the predispositional and probation update reports prepared in conjunction with that hearing establish that respondent’s home environment was “toxic” and he suffered from mental health issues that required treatment. In addition, the update to the original report indicated that respondent had recently been staying with a family friend who had known him since birth, that the friend had petitioned for custody of respondent, and that there had been no new arrests during that time. The update also indicated that the friend was able to devote significant time to supervising respondent, and that the friend resided with a woman who managed a residential home. In addition, both the family friend and the woman with whom he lived testified at the dispositional hearing that they could help with respondent’s supervision. Consequently, “we agree with [respondent] that the court erred in failing to consider the least restrictive available alternative in fashioning an appropriate dispositional order” … . We therefore modify the order by vacating the disposition and, in light of the lapse of time since the order was entered, we remit the matter to Family Court for a new dispositional hearing. Matter of Jacob A.T., 2015 NY Slip Op 02658, 4th Dept 3-27-15

 

Duration of Supervised Visits Cannot Be Left Up to Supervising Agency

The Fourth Department noted that Family Court failed to set up a proper visitation schedule because the court left the duration of the visits up to the supervising agency:

Although the court’s determination that visitation must be supervised is supported by the record …, we note that the court set no minimum time period for the monthly visitation and left the duration of visitation, “up to a maximum of eight hours,” to be determined solely based on the availability of “any authorized agency that supervises visitation.” Consequently, we agree with the mother that the court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” the duration of each visit … . We therefore modify the order accordingly, and we remit the matter to Family Court to determine the duration of visitation… . Matter of Ordona v Cothern, 2015 NY Slip Op 02652, 4th Dept 3-27-15

 

Stipulation to a Reduced Tax Assessment Freezes the Assessment at the Reduced Level for Three Years by Operation of Statute

Choosing not to follow the 3rd Department, the Fourth Department, in a full-fledged opinion by Justice Centra, determined a stipulation to a reduced property tax assessment is equivalent to a judicial reduced assessment and is frozen at the reduced level for three years pursuant to Real Property Tax Law (RPTL) 727:

RPTL 727 (1) provides in relevant part that, “[e]xcept as hereinafter provided, . . . where an assessment being reviewed pursuant to this article is found to be unlawful, unequal, excessive or misclassified by final court order or judgment, the assessed valuation so determined shall not be changed for such property for the next three succeeding assessment rolls prepared on the basis of the three taxable status dates next occurring on or after the taxable status date of the most recent assessment under review in the proceeding subject to such final order or judgment. Where the assessor or other local official having custody and control of the assessment roll receives notice of the order or judgment subsequent to the filing of the next assessment roll, he or she is authorized and directed to correct the entry of assessed valuation on the assessment roll to conform to the provisions of this section.”

…[T]he statute imposes a three-year freeze of the assessment where an order or judgment is issued determining that the assessment is unlawful, unequal, excessive, or misclassified … . Where, as here, there is a stipulation between the parties agreeing to a lower assessment, the stipulation has the same effect as a judicial determination that the assessment is unlawful, unequal, excessive, or misclassified … . The three-year freeze applies to the “next three succeeding assessment rolls” from the “date of the most recent assessment under review” (RPTL 727 [1]). Here, the assessment under review was the 2007 tax year, and therefore the next three succeeding assessment rolls, i.e., from 2008 through 2010, must have that same assessment. The second sentence of RPTL 727 (1), which was added a few years after the statute was enacted, specifically addresses the situation in which the assessor receives the order or judgment after the next assessment roll has already been filed. In that case, the assessor is directed to correct the assessed valuation “to conform to” the requirements of RPTL 727. Once the assessment has been corrected, the property owner may make an application for a refund (see RPTL 726 [1] [c]). Therefore, the application of RPTL 727 (1) in this case resulted in an automatic reduction in the assessment for the 2008-2009 school tax year, without the need for any filing of a tax certiorari proceeding by petitioner.  Matter of The Torok Trust v Town Bd. of Town of Alexandria, 2015 NY Slip Op 02632, 4th Dept 3-27-15

 

Maneuvering a Heavy Door from a Scissors Lift to the Door Opening on the Second Floor Was Not an Elevation-Related Risk within the Meaning of Labor Law 240(1)/Nature of Labor Law 200 Action Explained

The Fourth Department determined maneuvering a heavy door across a two-foot gap between the scissors lift on which plaintiff was standing and the door opening on the second floor was not an elevation-related risk within the meaning of Labor Law 240(1).   Plaintiff’s Labor Law 200 and common law negligence causes of action, however, survived defendant’s summary judgment motion:

“Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide employees with a safe place to work” … . The duty does not, however, “extend to hazards which are part of or inherent in the very work which the contractor is to perform’ ” … . Here, plaintiff’s accident resulted from the manner in which the work was performed, and it is undisputed that defendant had the authority to supervise and control the methods and manner of plaintiff’s work, and that it in fact exercised such supervisory control … . Contrary to defendant’s contention, we conclude that defendant failed to establish as a matter of law that the risk of injury owing to moving a heavy door across a two-foot gap while at an elevated height with the assistance of a single worker was “inherent in plaintiff’s work” … . We agree with defendant, however, that the court erred in denying that part of its motion and granting that part of plaintiffs’ cross motion with respect to the Labor Law § 240 (1) claim, and we therefore modify the order accordingly. “The extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” … . Rather, the statute “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” … . Here, plaintiff injured his back while maneuvering a heavy door across a lateral gap; the door did not fall or descend even a de minimis distance owing to the application of the force of gravity upon it … . Although “the injured plaintiff’s back injury was tangentially related to the effects of gravity upon” the door he was lifting, “it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)” … . We thus conclude that the hazard at issue here, i.e., lifting or carrying a heavy object across a lateral gap, even while positioned at a height, is a “routine workplace risk[]” of a construction site and not a “pronounced risk[] arising from construction work site elevation differentials” … . Carr v McHugh Painting Co., Inc., 2015 NY Slip Op 02584, 4th Dept 3-27-15

 

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Despite Broad General Language, the Release Applied Solely to the Property-Damage Claim Referenced In It and Not to Plaintiff’s Personal Injury Action

The Fourth Department determined Supreme Court should not have dismissed a complaint based upon a release signed by the plaintiff. The release related only to the particular property damage claims referenced in the document—despite broad prefatory language:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained in a motor vehicle accident. She had previously commenced an action in Rochester City Court seeking $4,741.04 for property damage to her vehicle. In consideration of that sum, plaintiff signed a release in favor of, inter alia, defendant Zacharey A. Taylor (defendant), releasing him from “all actions, causes of action . . . claims and demands whatsoever” that plaintiff “ever had” against defendant “from the beginning of the world to the day of the date of this RELEASE. And more particularly for any and all property damage claims as a result of [the subject] motor vehicle accident.”

We conclude that Supreme Court erred in granting defendant’s motion to dismiss the complaint against him in the instant action pursuant to CPLR 3211 (a) (5) based upon the release. “The meaning and scope of a release must be determined within the context of the controversy being settled” … , and “a release may not be read to cover matters which the parties did not desire or intend to dispose of” … . “Moreover, it has long been the law that where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby” … . Here, viewing the release in the context of the controversy being settled and in light of the specific reference to plaintiff’s property damage claims, we conclude that the parties intended that plaintiff release only such property damage claims … . Corzatt v Taylor, 2015 NY Slip Op 02621, 4th Dept 3-27-15

 

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Failure to Read Defendant His Miranda Rights, After the Defendant Interrupted the Reading of the Rights by Telling the Officer He Knew His Rights, Required Suppression of the Statements

The Fourth Department determined that defendant was entitled to a new trial with respect to the charges related to unwarned statements he made to the police.  When an officer started to read the Miranda rights to the defendant he stopped the officer by saying he knew his rights.  The defendant thereafter made several statements in the absence of any Miranda warnings:

It is well settled that “[a]n individual taken into custody by law enforcement authorities for questioning must be adequately and effectively apprised of his rights’ safeguarded by the Fifth Amendment privilege against self-incrimination” … . The Miranda warnings “are an absolute prerequisite to interrogation’ ” … . Here, the court concluded that defendant understood his rights based on the fact that he had been given Miranda warnings before he gave his August 16, 2010 statement [re: a different, unrelated offense]. A court, however, does not ” inquire in individual cases whether the defendant was aware of his rights without a warning being given’ ” … . Defendant’s statements made on November 17, 2010 must therefore be suppressed because the Miranda warnings were not given until after defendant was interrogated… . People v Jackson, 2015 NY Slip Op 02623, 4th Dept 3-27-15

 

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Insufficient Evidence Defendant “Caused” the Victim’s Death within the Meaning of the Felony Murder Statute—The Victim, Who Was Assaulted by the Defendant, Died of a Heart Attack

The Fourth Department determined there was insufficient evidence to support defendant’s felony murder conviction.  Defendant assaulted the victim during a burglary/robbery.  The victim, who was obese and had heart disease, suffered a fatal heart attack. The Fourth Department held that the People did not present sufficient evidence the defendant caused the victim’s death within the meaning of the felony murder statute:

A person is guilty of felony murder when, during the commission or attempted commission of an enumerated felony, either the defendant or an accomplice “causes the death of a person other than one of the participants” (Penal Law § 125.25 [3]). A person “causes the death” of another person “when the . . . culpable act is a sufficiently direct cause’ of the death so that the fatal result was reasonably foreseeable” … . Such a culpable act is a sufficiently direct cause of death when it is “an actual contributory cause of death, in the sense that [it] forged a link in the chain of causes which actually brought about the death’ ” … . “An obscure or a merely probable connection between an assault and death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide” … .

Here, we conclude that the People failed to prove beyond a reasonable doubt that it was reasonably foreseeable that defendant’s actions, i.e., unlawfully entering the victim’s apartment and assaulting him, would cause the victim’s death. As noted, the victim died of a heart attack, and the injuries inflicted upon him by defendant were not life threatening. Indeed, the most serious injury inflicted was a fractured jaw. Although the Chief Medical Examiner testified for the People at trial that defendant caused the victim’s death, she explained that her opinion in that regard was based on her assertion that, “but for” defendant’s actions, the victim would not have died of a heart attack. As the court properly instructed the jury, however, “more than but for’ causation [is] required” to establish felony murder … . Notably, the Chief Medical Examiner did not testify that defendant’s culpable act was a direct cause of the death or that the fatal result was reasonably foreseeable. We thus conclude that the evidence is legally insufficient to establish that defendant committed felony murder, as charged in counts one and two of the indictment, and we therefore modify the judgment accordingly. People v Davis, 2015 NY Slip Op 02628, 4th Dept 3-27-15

 

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Appeal Waiver Invalid/Court Erroneously Told Defendant His Request for a Hearing on the Persistent Violent Felony Offender Tolling Calculations Violated the Plea Agreement—Matter Remitted for a Hearing

The Fourth Department determined defendant’s waiver of appeal was invalid and defendant was entitled to a hearing on the time-calculations associated with the “persistent violent felony offender” status.  The ten-year period between the current felony and the prior felony is tolled by any periods of incarceration.  Defendant objected to the tolling calculations made by County Court. County Court effectively coerced defendant to agree to its tolling calculations by erroneously telling defendant his request for a hearing violated the plea agreement:

…[T]he waiver of the right to appeal is invalid inasmuch as there is no indication in the record that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty … . We further agree with defendant that this case should be remitted for a hearing on the issue whether he is a persistent violent felony offender. A persistent violent felony offender is one who is convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions (see § 70.08 [1] [a]). The sentence upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04 [1] [b] [v]).

Here, defendant admitted that he was convicted of two prior violent felonies, but objected to the tolling periods that were computed by County Court pursuant to Penal Law § 70.04 (1) (b) (v) and requested a hearing. After some discussion with the court, defendant conceded that the court’s computations were correct, essentially waiving the necessity for a hearing. …[H]is waiver of the hearing was not effective because it was the product of impermissible coercion by the court. The court indicated that it could consider defendant’s request for a hearing to be a violation of the plea agreement, but that was not accurate. “While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence” … . People v Vanhooser, 2015 NY Slip Op 02640, 4th Dept 3-27-15

 

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Mall Security Guards Did Not Actively Participate in Arrest of Plaintiff But Rather Acted at the Behest of the Police—False Arrest, False Imprisonment and Malicious Prosecution Causes of Action Against the Mall Should Have Been Dismissed

The Fourth Department determined the causes of action against a mall for false arrest, false imprisonment and malicious prosecution should have been dismissed.  The court determined the mall personnel (security guards) did not actively cause the plaintiff to be arrested, but rather were instructed to act by the police:

…[T]he causes of action for false arrest and false imprisonment are synonymous …, and our analysis treats them as such. We agree with the Mall defendants that the court erred in denying that part of their motion concerning those causes of action. In order to establish liability therefor on the part of the Mall defendants, plaintiff is required to prove, inter alia, that the Mall defendants ” took an active role in the [arrest] of the plaintiff, such as giving advice and encouragement or importuning the authorities to act’ “… . Here, however, the Mall defendants met their initial burden on their motion of establishing as a matter of law that their security guard did not take the requisite “active role” in arresting plaintiff. Contrary to plaintiff’s contention, the record establishes that the security guard handcuffed plaintiff only at the direction of a Town of Greece police officer (hereafter, police officer), who informed plaintiff that she was under arrest … .

…[T]he court erred in denying that part of their motion seeking dismissal of the cause of action for malicious prosecution. In order to hold the Mall defendants liable for that tort, plaintiff is required to prove, inter alia, “the commencement . . . of a criminal proceeding by the [Mall] defendant[s] against” her … . To establish that element, plaintiff would have to prove that the Mall defendants “affirmatively induced the [police] officer to act,” for example, by “taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the [police] officer [was] not acting of his own volition” … . We conclude in this case, however, that the Mall defendants met their initial burden on their motion of establishing that they did not commence a criminal proceeding against plaintiff inasmuch as the security guard did not affirmatively induce the police officer to act to the point where the police officer was not acting of his own volition. Indeed, the record establishes that the police officer observed the altercation, and acted of his own volition in directing the security guard to handcuff plaintiff and in informing plaintiff that she was under arrest. Washington v Town of Greece, 2015 NY Slip Op 02661, 4th Dept 3-27-15

 

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