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Defendant’s Indelible Right to Counsel Did Not Attach When the Attorney for Defendant’s Husband’s Estate Communicated with the Police—The Attorney Was Unaware that Defendant Was a Suspect In Her Husband’s Death at the Time of the Communication

The Fourth Department determined a communication with the police by the attorney who represented the estate of defendant’s husband did not trigger the attachment of her indelible right to counsel (rendering a subsequent statement inadmissible).  The defendant was convicted of murdering her husband.  At the time the probate attorney communicated with the police, he identified himself as the estate’s attorney and was not aware defendant was a suspect in her husband’s death:

The evidence established that defendant was the personal representative of the estate …, and that the attorney’s representation of her was only with respect to her role as personal representative of the estate. The attorney testified that at no time did he know that defendant was a suspect in decedent’s death, which he believed to have been a suicide; that he identified himself as the attorney for decedent’s estate in his communications with the police; and that he would not have given defendant advice related to a criminal investigation because to do so would be a conflict of interest with his role as the attorney for the estate. It is well established that, although “an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel . . . , a relationship formed in a civil matter is not entitled to the same deference” … . People v Castor, 2015 NY Slip Op 03648, 4th Dept 5-1-15

 

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Attorney’s Charging Lien Based Upon a Judgment for Child Support Arrears Was Proper—Relevant Law Explained

The Fourth Department, in the context of plaintiff’s attempt to collect a judgment reflecting child support arrears, determined an attorney’s charging lien was appropriately attached to the proceeds of the sale of defendant’s property.  The court rejected the argument that child support payments are exempt from an attorney’s charging lien, at least under the facts of this case.  Here the children were already emancipated and the nonpayment was not enforced for 16 years.  The Fourth Department explained the law surrounding attorney’s charging liens, and noted the exemptions for proceedings before “a department of labor” and an award of alimony or maintenance:

Under the common law, “the attorney’s lien was a device invented by the courts for the protection of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained’ “… . Judiciary Law § 475 “codifies and extends the common-law charging lien” …, by providing an attorney with “a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come” (§ 475 …). The statute is remedial in nature and therefore must “be construed liberally in aid of the object sought by the [L]egislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action” … . “The lien comes into existence, without notice or filing, upon commencement of the action or proceeding,” and “gives the attorney an equitable ownership interest in the client’s cause of action” … .

The only exception contained in the statute is for proceedings before “a department of labor” (Judiciary Law § 475). In addition to that statutory exception, the Court of Appeals has held that, as a matter of public policy, a charging lien may not attach to an award of alimony or maintenance … . Mura v Mura, 2015 NY Slip Op 03639, 4th Dept 5-1-15

 

Spectator Watching People Sledding Assumed the Risk of Being Struck

The Fourth Department determined plaintiff assumed the risk of injury when she stood at the bottom of a hill to watch people sledding down the hill.  The court noted that in a suit against participants in a sport, a spectator is held to have assumed the risks inherent in the activity, including the risk of being struck:

To establish the defense, “a defendant must show that [the] plaintiff was aware of the defective or dangerous condition and the resultant risk, although it is not necessary to demonstrate that [the] plaintiff foresaw the exact manner in which his [or her] injury occurred” … . … [I]n a suit against participants in [an applicable activity], a spectator generally will be held to have assumed the risks inherent in the [activity], including the specific risk of being struck’ ” … . For instance, it has been held that a spectator at a baseball game assumes the risk of being struck by a foul ball … .

Here, we similarly conclude that, by standing on the side of the hill while watching other people sledding, plaintiff assumed the risk of being struck by a sled. Savage v Brown, 2015 NY Slip Op 03638, 4th Dept, 5-1-15

 

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Double Jeopardy Does Not Bar Prosecution of a Lesser Included Offense Never Considered by the Trier of Fact in the First Trial

The Fourth Department noted that an Article 78/prohibition action is a proper vehicle for raising double jeopardy as a bar to a prosecution. Defendant was charged with two counts of Driving While Intoxicated (DWI) and one count of Driving While Ability Impaired (DWAI).  In a bench trial, defendant was acquitted of one count of DWI and the second count of DWI, of which defendant was initially convicted, was subsequently dismissed pursuant to a post-trial motion because of the legal insufficiency of the evidence.  Under these circumstances, because the DWAI count was never considered in the bench trial, a second trial on that charge alone does not violate the double jeopardy prohibition:

“[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his [or her] decision based upon appropriate legal criteria” … . Here, the court, upon acquitting defendant of common-law DWI, would have applied the “acquit-first” rule …, and next considered DWI, per se, before reaching DWAI as a lesser included offense under either count of DWI … . Inasmuch as the court convicted defendant of the count charging DWI, per se, it could not have reached the lesser included offense of DWAI. Consequently, we conclude that “double jeopardy concerns . . . are not present in the case at hand . . . [because] the People here d[o] not seek to retry defendant on the count[, i.e., DWI, per se, or common-law DWI] of which he was acquitted at the first trial. Rather, the only count at issue in the retrial [will be] the lesser [DWAI] charge for which the [court did not] reach a verdict. At no point during the retrial [will] defendant [be] in jeopardy of conviction of the greater offense. Thus, there [i]s no constitutional double jeopardy bar to [a] second trial” on the lesser included offense of DWAI … . Matter of Case v Sedita, 2015 NY Slip Op 03630, 4th Dept 5-1-15

 

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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