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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

 

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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Plaintiff’s Allegations of Injuries in the Bill of Particulars Were Not So Broad as to Constitute a Waiver of the Physician-Patient Privilege for Plaintiff’s Entire Medical History

The Fourth Department determined plaintiff’s allegations of injuries in the bill of particulars was not so broad as to place plaintiff’s entire medical history in controversy:

In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy” … . Indeed, that waiver ” does not permit wholesale discovery of information regarding [plaintiff’s] physical and mental condition’ ” … . Contrary to defendants’ contention, the allegations in the bill of particulars that plaintiff sustained “serious and permanent injuries, including: toxic keratitis; bilateral corneal abrasions; severe bilateral photophobia; impaired vision; decrease in vision; need for corneal transplants; loss of enjoyment of life; disability; and pain and suffering” “do not constitute such broad allegations of injury’ that they place plaintiff’s entire medical history in controversy” … . The court properly conducted an in camera review to redact irrelevant information …, and properly limited disclosure to the “conditions affirmatively placed in controversy” … . Reading v Fabiano, 2015 NY Slip Op 02634, 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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