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Garage Not Used Exclusively for an Exempt Purpose Not Entitled to Tax Exemption/Supreme Court Should Not Have Deemed the “Statement of Undisputed Material Facts” to Have Been Admitted by the Respondent, Despite Respondent’s Failure to Provide a Paragraph by Paragraph Response As Required by the Rule

The Fourth Department determined that property (a parking garage) was not entitled to tax exempt status because it was not used exclusively for an exempt purpose, noting that parking for private-practice physician’s offices was not exempt (parking for a hospital is). The Fourth Department further held that the respondent city did not admit to the petitioner’s “Statement of Undisputed Material Facts,” even though the city did not submit a paragraph by paragraph response as required by the relevant Rule of the Commercial Division:

It is well settled that, pursuant to the RPTL, “[r]eal property owned by a corporation or association organized or conducted exclusively for . . . hospital . . . purposes . . . and used exclusively for carrying out thereupon . . . such purpose[] . . . shall be exempt from taxation” (RPTL 420-a [1] [a]). Here, respondents concede that petitioner is organized for an exempt purpose, as a hospital, and thus only the second prong of the statute is at issue. “[T]he test of entitlement to tax exemption under the used exclusively clause of [RPTL 420-a (1) (a)] is whether the particular use is reasonably incident[al] to the [primary or] major purpose of the [corporation] . . . Put differently, the determination of whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes” … . “The burden of establishing that the property is entitled to a tax exemption rests with the taxpayer” … . Additionally, when a taxpayer in a tax certiorari proceeding seeks summary judgment, “it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor . . . , and he must do so by tender of evidentiary proof in admissible form” … .

Here, we agree with respondents that petitioner failed to establish that the primary use of the subject parcels is for exempt purposes, and thus it failed to meet its burden on the motion. Indeed, the evidence submitted by petitioner in support of the motion established that an undetermined portion of the people who used the garage did so for purposes associated with nonexempt uses such as the adjacent private physicians’ offices. Inasmuch “[a]s the private practice of medicine by a hospital’s attending physicians is primarily a commercial enterprise, and such physicians’ offices are not entitled to a tax exemption under RPTL 420-a . . . , the parking spaces subleased to those offices cannot be said to so further the hospital’s purposes as to create an entitlement to an exemption” … . * * *

…[W]e conclude that the court abused its discretion in deeming respondents to have admitted all the information in petitioner’s “Statement of Undisputed Material Facts” submitted pursuant to Rule 19-a of the Rules of the Commercial Division of the Supreme Court ([hereafter, 19-a Statement] see 22 NYCRR 202.70 [g] [Rule 19-a (a)]). The 19-a Statement was merely an almost verbatim repetition of an affidavit submitted by one of petitioner’s employees in support of the motion, and respondents clearly disputed the content of the information in it. Further, petitioner failed to submit sufficient evidence in admissible form in support of the 19-a Statement, as required by the Rule (see 22 NYCRR 202.70 [g] [Rule 19-a (d)]; …). Although “the rule gives a motion court the discretion to deem facts admitted, the court is not required to do so” … . Consequently, although “it would have been better for [respondents] to submit a paragraph-by-paragraph response to [petitioner’s] statement” as required by the regulation (… see 22 NYCRR 202.70 [g] [Rule 19-a (b)]), under the circumstances the court abused its discretion in deeming the entire statement admitted. The evidence submitted in support of petitioner’s motion failed to eliminate all “triable issues of fact and the court was not compelled to grant summary judgment solely on the basis of blind adherence to the procedure set forth in Rule 19-a” … . Matter of Crouse Health Sys., Inc. v City of Syracuse, 2015 NY Slip Op 02258, 4th Dept 3-20-15

 

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County Has a Duty to Protect Jail Inmates from the Foreseeable Assaults by Other Inmates

The Fourth Department explained the law concerning when a municipality may be liable for an assault by one inmate (in county jail) upon another.  The court also noted that, absent a local law to the contrary, the county may not be held vicariously liable for the actions of the county sheriff or sheriff’s deputies:

We agree with plaintiff … that the court erred in granting defendant’s motion and dismissing the complaint in its entirety on the ground that it owed no duty of care to plaintiff, who was being held in jail on a pending criminal charge at the time of the assaults. It is well settled that “[a] municipality owes a duty to inmates in correctional facilities to safeguard them from foreseeable assaults [by] other inmates” … . “[T]his duty does not render the municipality an insurer of inmate safety, and negligence cannot be established by the mere occurrence of an inmate assault . . . Rather, the scope of the [municipality’s] duty to protect inmates is limited to risks of harm that are reasonably foreseeable’ ” … . We therefore modify the order… by … reinstating that part of the first cause of action alleging that defendant breached the duty it owed to plaintiff to protect him from foreseeable assaults committed by other inmates. Villar v County of Erie, 2015 NY Slip Op 02229, 4th Dept 3-20-15

 

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Municipalities (Counties) Are Not “Persons” and Therefore Cannot Challenge a Statute on Due Process Grounds

The Fourth Department determined municipalities are not “persons” and cannot sue under the due process clause of the US or New York Constitutions to declare a statute unconstitutional.  Here the counties sought to have a law prohibiting reimbursement for certain Medicaid expenses (section 61) overturned:

Here, petitioners contend that respondents’ enactment of section 61 impermissibly deprived them of vested rights to repayment under Social Services Law § 368-a, in violation of their rights under the due process clauses of the federal and state constitutions. The Fourteenth Amendment of the United States Constitution provides in relevant part that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Similarly, article I, § 6 of the New York State Constitution provides in relevant part that “[n]o person shall be deprived of life, liberty or property without due process of law.” Thus, the constitutional provisions share a common link, i.e., they protect a “person” (id.; see US Const, 14th Amend, § 1).

Contrary to petitioners’ contentions, we conclude that they are not persons within the meaning of the constitutional due process provisions. This principle was stated clearly by the United States Court of Appeals for the Seventh Circuit, which concluded that “[m]unicipalities cannot challenge state action on federal constitutional grounds because they are not persons’ within the meaning of the Due Process Clause” (City of East St. Louis v Circuit Court for Twentieth Judicial Circuit, St. Clair County, Ill., 986 F2d 1142, 1144). Other decisions, without using the term “person,” also support the conclusion that a municipal body may not use the due process clause to challenge legislation of the municipality’s creating state. Thus, “[i]t has long been the case that a municipality may not invoke the protections of the Fourteenth Amendment against its own state . . . A municipality is thus prevented from attacking state legislation on the grounds that the law violates the municipality’s own rights . . . Moreover, while municipalities or other state political subdivisions may challenge the constitutionality of state legislation on certain grounds and in certain circumstances, these do not include challenges brought under the Due Process . . . Clause[] of the Fourteenth Amendment . . . This is because a municipal corporation, in its own right, receives no protection from the . . . Due Process Clause[] vis-a-vis its creating state’ ” … . Matter of County of Chautauqua v Shah, 2015 NY Slip Op 02245, 4th Dept 3-20-15

 

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Fraud Action Based Upon Statements of Opinion Properly Pled/Negligent Misrepresentation Not Properly Pled–No Allegation of Privity or Privity-Like Relationship

In an action stemming from defendant-investment-ratings-agency’s high rating of worthless residential-mortgage-backed securities, the Fourth Department determined the complaint properly pled a fraud cause of action, even though based upon statements of opinion. The court further determined the negligent misrepresentation cause of action was deficient in that privity or a privity-like relationship was not alleged:

Although statements of opinion generally are not actionable in a fraud cause of action …, defendant correctly recognizes that statements of opinion may nevertheless be actionable as fraud if the plaintiff can plead and prove that the holder of the opinion did not subjectively believe the opinion at the time it was made and made the statement with the intent to deceive … . As one court has explained, a fraud claim based on an expression of opinion “is actionable in an appropriate case not because the opinion is objectively’ wrong. Rather, in an appropriate case it is actionable because the speaker either did not in fact hold the opinion stated or because the speaker subjectively was aware that there was no reasonable basis for it . . . In the first instance, the speaker will have lied as to his or her subjective mental state. In the second, he or she implicitly would have represented that there was a reasonable basis for the statement of opinion, knowing that the implicit representation was false” … . Here, we agree with defendant that its credit ratings were statements of opinion, not fact … , but we conclude that plaintiff adequately pleaded that defendant did not believe its opinions when it issued the ratings. Plaintiff set forth in detail the reasons why defendant was aware that the ratings were inflated, including its allegation that defendant failed to follow its own policies and procedures in determining the ratings. * * *

To establish a claim for negligent misrepresentation based on the allegedly inaccurate credit ratings, plaintiff must allege that “(1) the [defendant] must have been aware that the [ratings] were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party . . . was intended to rely; and (3) there must have been some conduct on the part of the [defendant] linking [it] to that party . . . , which evinces the [defendant’s] understanding of that party[‘s] . . . reliance” … . “The indicia, while distinct, are interrelated and collectively require a third party claiming harm to demonstrate a relationship or bond with the once-removed [defendant] sufficiently approaching privity’ based on some conduct on the part of the [defendant]’ ” … .

The complaints here failed to plead that a special or privity-like relationship existed between plaintiff and defendant … . M&T Bank Corp. v McGraw-Hill Cos., Inc., 2015 NY Slip Op 02372, 4th Dept 3-20-15

 

Actus Reus for Burglary and Murder Not the Same—Consecutive Sentences Valid

The Fourth Department, over a two-justice dissent, determined the defendant was properly sentenced to consecutive terms for burglary and murder.  The defendant broke into the victim’s home, dragged her downstairs and murdered her.  The court held that the actus reus for the burglary was completed before the murder:

Defendant was convicted of burglary for unlawfully entering the victim’s dwelling, with the aggravating factors of causing physical injury to the victim (§ 140.30 [2]), and using or threatening the immediate use of a dangerous instrument (§ 140.30 [3]), i.e., a butcher knife. Defendant was charged with intentionally causing the victim’s death by repeatedly stabbing her with a butcher knife. It is well established that, in considering whether sentences must run concurrently under Penal Law § 70.25 (2), “the court must determine whether the [actus reus] element is, by definition, the same for both offenses (under the first prong of the statute), or if the [actus reus] for one offense is, by definition, a material element of the second offense (under the second prong)” … . “[W]hen the actus reus is a single inseparable act that violates more than one statute, single punishment must be imposed” … . Although the actus reus elements of the burglary counts and the murder count overlap under the facts presented here, we nevertheless conclude that the People “establish[ed] the legality of consecutive sentencing by showing that the acts or omissions’ committed by defendant were separate and distinct acts” … . The evidence established that, after defendant entered the apartment through a window that he smashed with a cinder block, he dragged the victim from her bed and down the stairs to the living room, where he killed her. People v Brahney, 2015 NY Slip Op 02227, 4th Dept 3-20-15

 

 

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Cheerleader Assumed the Risk of Practicing with an Injured Teammate

The Fourth Department determined plaintiff’s daughter assumed the risk of practicing with a teammate who had a sprained ankle.  It was alleged that the injured teammate, because of the injury, held on to plaintiff’s daughter too long before throwing her into the air, which in turn caused plaintiff’s daughter to be injured:

It is well settled that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . We have previously held that cheerleading is the type of athletic endeavor to which the doctrine of assumption of the risk applies … . That doctrine does not, however, shield defendants from liability for exposing participants to unreasonably increased risks of injury … . * * *

We agree with defendant that the daughter’s practicing with the teammate while knowing that the teammate had an injured ankle is analogous to a cheerleader practicing without a mat …, or to an athlete playing on a field that is in less than perfect condition … . We therefore conclude that defendant established as a matter of law that this action is barred by the doctrine of assumption of risk, and plaintiff failed to raise an issue of fact … . Jurgensen v Webster Cent. Sch. Dist., 2015 NY Slip Op 02377, 4th Dept 3-20-15

 

Abuse of Discretion to Deny Defendant’s Request for New Defense Counsel—Request Was Supported by Specific Legitimate Concerns and Was Joined by Defense Counsel

The Fourth Department, over a dissent, determined Supreme Court should not have denied defendant’s request for new counsel, which was echoed by defense counsel and supported by specific, legitimate concerns.  The conviction was reversed and a new trial ordered. The Fourth Department outlined the analytical criteria:

The determination “[w]hether counsel is substituted is within the discretion and responsibility of the trial judge . . . , and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[]” … . Thus, where a defendant makes “specific factual allegations” against defense counsel … , the court must make at least “some minimal inquiry” to determine whether the defendant’s claims are meritorious … . Upon conducting that inquiry, “counsel may be substituted only where good cause’ is shown” … .

Here, the court erred in determining that a breakdown in communication between attorney and client cannot constitute good cause for substitution of counsel. Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel …, where a complete breakdown has been established, substitution is required … . Here, both defendant and defense counsel agreed that they were unable to communicate, and nothing said by either of them during the court’s lengthy inquiry indicated otherwise.

We conclude that the court also erred in suggesting that any breakdown in communication was “initiated or promoted by the defendant as opposed to defense counsel.” That conclusion is not supported by the record, which shows that the breakdown in communication resulted from legitimate concerns defendant had about defense counsel’s performance. People v Gibson, 2015 NY Slip Op 02236, 4th Dept 3-20-15

 

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Hockey Player Assumed Risk of Having His Bare Foot Stepped on in the Locker Room by a Player Wearing Skates

The Fourth Department determined plaintiff, a varsity hockey player, had assumed the risk of having his bare foot stepped on in the locker room by a player who was still wearing his hockey skates:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ ” … . By engaging in such an activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “The question of whether the consent was an informed one includes consideration of the participant’s knowledge and experience in the activity generally” … .

Initially, we reject plaintiff’s contention that assumption of the risk does not apply because he was no longer playing hockey at the time of his injury. It is undisputed that the accident “occurred in a designated athletic or recreational venue” and that the activity at issue “was sponsored or otherwise supported by the [school district] defendant[s]” … “[T]he assumption [of risk] doctrine applies to any facet of the activity inherent in it” … . * * *

“As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . “[A]wareness of risk is not to be determined in a vacuum [but] . . . is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . “[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . Litz v Clinton Cent. Sch. Dist., 2015 NY Slip Op 02239, 4th Dept 3-20-15

 

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Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

 

Failure to Inform Defendant of the Period of Postrelease Supervision Required Reversal in the Absence of an Objection

The Fourth Department determined the defendant’s conviction must be reversed because he was not informed of the period of postrelease supervision (PRS) at the time of the plea, and he could not be expected to object because he was not informed of the PRS until the end of the sentencing hearing:

…[D]efendant was not required to preserve for our review his challenge to the imposition of PRS under these circumstances. “A defendant cannot be expected to object to a constitutional deprivation of which [he] is unaware . . . [W]here the defendant was only notified of the PRS term at the end of the sentencing hearing, the defendant can hardly be expected to move to withdraw [the] plea on a ground of which [he or she] has no knowledge’ . . . And, in that circumstance, the failure to seek to withdraw the plea or to vacate the judgment does not preclude appellate review of the due process claim” … . Furthermore, “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the [PRS] component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (People v Catu, 4 NY3d 242, 245). “[T]he record does not make clear, as required by Catu, that at the time defendant took his plea, he was aware that the terms of the court’s promised sentence included a period of PRS” because only the term of incarceration of 20 years was stated on the record … . While a term of PRS was mentioned earlier in the plea negotiations, it is undisputed that there was no mention of PRS at the plea proceeding and, based on our review of the record, we conclude that defendant was not “advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding” … . People v Rives, 2015 NY Slip Op 02316, 4th Dept 3-20-15

 

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