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Regulation Properly Promulgated—Analytical Criteria Described in Some Depth

In finding that a regulation promulgated by the Department of Health (DOH) was a valid exercise of regulatory authority, the Fourth Department noted that an agency need not rely on empirical studies when it adopts a regulation, but rather can rely on the expertise and experience of the agency.  The challenged regulation limited a specific type of Medicaid-reimbursement to nursing homes pending an audit:

…DOH had statutory authority to promulgate 10 NYCRR 86-2.40 (m) (10) under Public Health Law § 2808 (2-c) (d) and … the regulation was not ” out of harmony' with an applicable statute” … . Although section 2808 (2-c) (d) does not explicitly authorize prepayment audits of residential health care facilities, “an agency can adopt regulations that go beyond the text of that legislation, provided that they are not inconsistent with the statutory language or its underlying purposes” … . Moreover, we reject petitioners' contention that DOH usurped the role of the legislature by adopting 10 NYCRR 86-2.40 (m) (10). DOH has “inherent authority to protect the quality and value of services rendered by [Medicaid] providers” … and, therefore, we conclude that DOH did not “stretch[ ] [the enabling statute] beyond its constitutionally valid reach” by adopting a regulation that allows a prepayment audit of Medicaid claims under certain circumstances … .

…10 NYCRR 86-2.40 (m) (10) “has a rational basis and is not unreasonable, arbitrary or capricious” … . Contrary to petitioners' contention, DOH is not required to rely upon empirical studies when it adopts a regulation. “Although documented studies often provide support for an agency's rule making, such studies are not the sine que non of a rational determination” … . Thus, “the commissioner [of DOH] . . . is not confined to factual data alone but also may apply broader judgmental considerations based upon the expertise and experience of the agency he [or she] heads” … . Here, DOH adopted 10 NYCRR 86-2.40 (m) (10) to “[e]nsure the accuracy and integrity of Medicaid rates that are adjusted for case mix data” (NY Reg, Jan. 2, 2013, at 16), and we conclude that adoption of the regulation was within DOH's authority in order to ” assure[] that the funds which have been set aside for (providing medical services to the needy) will not be fraudulently diverted into the hands of an untrustworthy provider of services' ” … . Matter of Adirondack Health-Uijlein Living Ctr v Shah, 2015 NY Slip Op 01073, 4th Dept 2-6-15


Commercial Property Overvalued—Evidentiary Criteria Explained In Some Depth

The Fourth Department determined three commercial properties had been overvalued for real property tax purposes.  The court discussed the relevant evidentiary criteria in considerable depth:

…[P]etitioners met their initial burden of presenting “substantial evidence that the propert[ies were] overvalued” …, thereby rebutting the “presumption of validity [that] attaches to the valuation of property made by the taxing authority” … . “In the context of tax assessment cases, the substantial evidence' standard merely requires that petitioner demonstrate the existence of a valid and credible dispute regarding valuation” … . “The ultimate strength, credibility or persuasiveness of petitioner's arguments are not germane during this threshold inquiry” … . Here, petitioners submitted appraisals by a qualified expert who valued the subject properties utilizing the income capitalization approach to valuation, which is “generally regarded as the preferred method for determining the value of income-producing propert[ies]” such as those at issue in this case …. Further, the appraisals “contained documentation and calculations to support the underlying methodolog[y] and the ultimate valuation” … . “The fact that some aspects of [the expert]'s valuation methodology may be subject to question goes to the weight to be accorded the appraisal[s] and not to the threshold issue of whether petitioner[s] produced substantial evidence to rebut the presumption of validity' … .

… It is well established that “valuation [is] largely a question of fact, and the [trial] courts have considerable discretion in reviewing the relevant evidence as to the specific propert[ies] before them” … . “As a general rule, actual rental income is often the best indicator of value” … , although actual income ” may be disregarded where it does not reflect full value' ” … . Here, there is no evidence that the rents petitioners charged were arbitrary or the result of collusion or self-dealing …, and respondents “failed to establish that the actual income was not reflective of the market for the years under review” … . * * *

“The ultimate purpose of valuation . . . is to arrive at a fair and realistic value of the property involved” … . The income capitalization approach to valuation “rests on the proposition that the value of income-producing property is the amount a willing buyer, desiring but not compelled to purchase it as an investment, would be prepared to pay for it under ordinary conditions to a seller who desires, but is not compelled, to sell . . . That amount will depend on the net income the property will likely produce inasmuch as the purchase price represents the present worth of anticipated future benefits” … . Here, the ” net income the property will likely produce' ” …, at least for the next 30 years, is the amount of the ground lease. Matter of Techniplex III v Town & Vil of E Rochester, 2015 NY Slip Op 01101, 4th Dept 2-6-15


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No Statute of Limitations Applies to an Owner Seeking to Have an Apparent Encumbrance Struck from the Record

The Fourth Department determined the six-year statute of limitations did not apply to an owner in possession of land who seeks to have an apparent encumbrance discharged from the record.  Supreme Court erred when it determined a six-year statute began to run when a tax deed erroneously purported to transfer the property:

“It is well settled that an owner in possession has a right to invoke the aid of a court of equity at any time while he is so the owner and in possession, to have an apparent, though in fact not a real incumbrance discharged from the record and such right is never barred by the [s]tatute of [l]imitations. It is a continuing right which exists as long as there is an occasion for its exercise” … . Indeed, “[a] [s]tatute of [l]imitations is one of repose designed to put an end to stale claims and was never intended to compel resort to legal remedies by one who is in complete enjoyment of all he claims . . . The logic of such a view is inescapably correct, for otherwise, the recording of the deed resulting from such a proceeding would transform the owner's absolute title in fee simple into a right of action only, the exercise of which is subject to time limitation” … .

We conclude that, inasmuch as plaintiff and his predecessors in interest have always held title and have been in continuous possession of the disputed property, the tax deed to defendants' predecessor in interest was void with respect to the disputed property because the County of Onondaga could not convey an interest in land that it did not have … . Indeed, “[a] purchaser who fails to use due diligence in examining the title is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed” … . Here, due diligence on the part of defendants would have disclosed the error in the 1959 transfer of the disputed property. Crain v Mannise, 2015 NY Slip Op 01109, 4th Dept 2-6-15


Mother’s Actions and Mental Health Issues Did Not Warrant a Finding of Neglect

The Fourth Department determined mother's actions and mental health issues did not support Family Court's neglect-finding.  The mother had left her child with appropriate caregivers and kept in touch, although she was absent longer than expected:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence . . . , first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (…see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]). “Where a motion is made by the respondent at the close of the petitioner's case to dismiss a neglect petition, [the court] must determine whether the petitioner presented a prima facie case of neglect . . . , viewing the evidence in [the] light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the proof presented” … .

We conclude that, viewing the evidence in the light most favorable to petitioner, the evidence established that the mother left the child with appropriate caregivers, who agreed to care for the child for several days; however, she left the state for approximately 24 hours, and she failed to provide a medical authorization in case of an emergency. Further, although the male caregiver was unable to reach the mother during the confrontation with the mother's grandmother, petitioner's evidence established that the mother had borrowed a telephone and had remained in contact with the caregivers each day that she was away. The evidence also established that the mother was inexperienced as a parent and that the couple with whom she lived was assisting her with parenting skills and in obtaining appropriate housing, as well as medical and other benefits.

We conclude that petitioner failed to establish that, as a result of the mother's actions, the child was in imminent danger, i.e., “near or impending [danger], not merely possible” … . We further conclude that petitioner failed to present any evidence connecting the mother's alleged mental health condition to any actual or potential harm to the child … . We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the child's physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired as a result of the mother's failure to exercise a minimum degree of care for the child … . Matter of Lacey-Sophia TR, 2015 NY Slip Op 01123, 4th Dept 2-6-15


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Action Challenging a City Resolution to Sell City Property to an Identified Purchaser Is a Challenge to an Administrative Act and Is Therefore Governed by the Four-Month “Article 78” Statute of Limitations

The Fourth Department determined the four-month “Article 78” statute of limitations applied to a challenge to a city resolution allowing the sale of city property to a particular, named purchaser  (which was an administrative act).  The action, therefore, was properly dismissed as time-barred. The court explained how an action is analyzed to determine the nature of it for purposes of applying the correct statute of limitations:

The causes of action under General Municipal Law § 51 have no specific limitations period, and we must “examine the substance of th[e] action to identify the relationship out of which the claim[s] arise[] and the relief sought” … . “If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then we must use that period” … . Ultimately, “the nature of the remedy rather than the theory of liability is the salient consideration in ascertaining the applicable [s]tatute of [l]imitations” … . Here, plaintiffs are challenging the resolution authorizing defendant Mayor to execute a purchase and sale agreement for the garage. The resolution was an administrative act, rather than a legislative act, inasmuch as it applies only to the City and [the purchaser]… . It is well established that the proper vehicle for challenging an administrative act is a CPLR article 78 proceeding, and thus the four-month statute of limitations under CPLR 217 applies … . Riverview Dev LLC v City of Oswego, 2015 NY Slip Op 01105, 4th Dept 2-6-15


Court Did Not Conduct an Adequate Investigation Into the Allegation of Improper Outside Influence on the Jury Before Granting Plaintiff’s Motion to Set Aside the Verdict—Matter Sent Back for an Evidentiary Hearing

The Fourth Department determined Supreme Court did not conduct an adequate investigation of alleged outside influence upon the jurors before granting plaintiff's motion to set aside the verdict.  There was an allegation a person who worked for an insurance company which insured some of the defendants was “stalking” the jury during the trial:

It is well settled that the decision whether to grant a motion for a new trial pursuant to CPLR 4404 (a) is committed to the trial court's discretion and will not be disturbed absent an abuse of that discretion … . Here, we agree with defendants that the court abused its discretion in the manner in which it investigated and determined the issue whether there had been improper outside influence on the jury that “was such as would be likely . . . to influence the verdict” … . Shortly after the trial had concluded and the jury was discharged, the court received notice of an allegation from one juror that a person attending the trial had been “stalking” the impaneled jurors on lunch breaks and during other recess periods. The juror described the individual's behavior as “creepy.” It was later learned that the individual was a representative of an insurance company monitoring the progress of the trial because it insured many of the defendants. As a result of the “stalking” allegation, the court conducted its own investigation and ultimately set aside the verdict, which had been entirely in defendants' favor, and ordered a new trial. We agree with defendants that the court abused its discretion in conducting an in camera interview of the complaining juror without notifying counsel, without seeking counsels' consent to that procedure …, and without providing counsel with an opportunity to be heard or to participate, even in some restricted manner, in the interview of the juror … . Further, the court limited its investigation to one juror, and we conclude that the court abused its discretion in failing to conduct a more expanded investigation, including, at a minimum, conducting an interview of all of the jurors … . Lastly, the court abused its discretion in prohibiting counsel from contacting any jurors until after plaintiff's motion to set aside the verdict was decided. This unnecessary prohibition essentially precluded defendants from obtaining and submitting any meaningful opposition to plaintiff's motion, the practical result being that the granting of plaintiff's motion was a foregone conclusion. Varano v Forba Holdings LLX 2015 NY Slip OP 01090, 4th Dept 2-6-15


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More Sophisticated DNA Test, Ruling Out the Defendant as the Source of Semen, Was a Proper Basis for Vacating Defendant’s Conviction–Criteria Described

The Fourth Department upheld County Court's grant of defendant's motion to vacate his rape conviction because a recent DNA test demonstrated he was not the source of semen found in the victim's vagina (the source was the victim's boyfriend).  At the time of the trial the DNA results were inconclusive and the prosecutor had argued the presence of semen corroborated the victim's assertion defendant had raped her:

“It is well settled that on a motion to vacate a judgment of conviction based on newly [*2]discovered evidence, the movant must establish, inter alia, that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” … . “The power to grant an order for a new trial on the ground of newly discovered evidence is purely statutory. Such power may be exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court” … . People v White, 2015 NY Slip Op 01075, 4th Dept 2-6-15


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An Action by a Judgment Creditor Pursuant to CPLR 5225 and 5227 Seeks both Legal and Equitable Relief—a Jury Trial Is Therefore Not Available

The Fourth Department determined an action to enforce a judgment against a party other than the judgment debtor (here a judgment creditor) under CPLR 5225 and 5227 is a proceeding for both legal and equitable relief for which a jury trial is not available:

“[T]he right to trial by jury is zealously protected in our jurisprudence and yields only to the most compelling circumstances” … . “Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art 1, § 2). “That guarantee extends to all causes of action to which the right attached at the time of adoption of the 1894 Constitution . . . Historically, however, actions at law were tried by a jury, [and] matters cognizable in equity were tried by the Chancellor. Even though the two systems have merged, vestiges of the law-equity dichotomy remain in the area relating to trial by jury” … .

Thus, the right to a jury trial “depends upon the nature of the relief sought” … . Under the CPLR, a jury trial is available in an action “in which a party demands and sets forth facts which would permit a judgment for a sum of money only” (CPLR 4101 [1] [emphasis added]). Where a plaintiff joins legal and equitable causes of action in a complaint, it waives its right to a jury trial … . * * *

…[W]e conclude that enforcement of a judgment under CPLR 5225 and 5227 against a party other than the judgment debtor is an outgrowth of the “ancient creditor's bill in equity,” which was used after all remedies at law had been exhausted. We thus conclude that [the judgment creditor's] use of CPLR 5225 and 5227 in this case is in furtherance of both legal and equitable relief and, therefore, that [the judgment creditor] is not entitled to a jury trial on those combined legal and equitable claims … . Matter of Colonial Sur Co v  Lakeview Advisors LLC, 2015 NY Slip Op 01002, 4th Dept 2-6-15

 

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Evidence Sufficient to Support Count Charging Sexual Abuse First Degree, Despite Evidence Defendant Did Not Touch the Victim for the Purpose of Gratifying Sexual Desire

The Fourth Department determined the evidence presented to the grand jury was sufficient to support the count charging sexual abuse in the first degree.  The issue was whether there was sufficient evidence defendant touched the victim for the purpose of gratifying sexual desire.  Based upon what the defendant said at the time, the purpose of his touching the victim was to determine whether she had recently had sex with another.  The court explained the level of proof required at the grand jury stage:

” Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof” (CPL 70.10 [1]). Thus, “[o]n a motion to dismiss an indictment based on legally insufficient evidence, the issue is whether the evidence before the [g]rand [j]ury establishes a prima facie case” … . In deciding a motion to dismiss a count of an indictment for legally insufficient evidence, a “reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crime[],' and whether the [g]rand [j]ury could rationally have drawn the guilty inference' . . . That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the [g]rand [j]ury could rationally have drawn the guilty inference' ” … .

As relevant here, “[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [b]y forcible compulsion” (Penal Law § 130.65 [1]), and sexual contact is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (§ 130.00 [3]). Consequently, the People were required to submit sufficient evidence from which the grand jury could have inferred that defendant touched the victim's vagina for the purpose of gratifying his or the victim's sexual desire. It is well settled that, “[b]ecause the question of whether a person was seeking sexual gratification is generally a subjective inquiry, it can be inferred from the conduct of the perpetrator” … . Here, we conclude that the evidence before the grand jury, viewed in the light most favorable to the People, was sufficient to permit the grand jury to infer that defendant touched the sexual and intimate parts of the victim's body by forcible compulsion for the purpose of gratifying his sexual desire … . To require, as defendant suggests, that the reviewing court accept the explanation that defendant proffered for his conduct, “would skew a reviewing court's inquiry and restrict, if not extinguish, the [g]rand [j]ury's unassailable authority to consider logical inferences that flow from the facts presented to it” … . People v Hoffert, 2015 NY Slip Op 01083, 4th Dept 2-6-15


Additional Information Constituted a “Supplemental” Bill of Particulars, Not an “Amended” Bill of Particulars—Motion In Limine Properly Denied

The Fourth Department determined Supreme Court properly denied defendant's motion in limine because the bill of particulars was merely supplemented, not amended, by the additional information. The court also noted that the motion to preclude expert testimony was properly denied because there was no showing of a willful or intentional failure to disclose and no showing of prejudice:

“Where the plaintiff[s] seek[] to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars' ” … . Here, plaintiffs' second supplemental bill of particulars alleged that plaintiff may require surgery in the future, which could involve anterior C5-6 and C6-7 discectomy and fusion. In addition, plaintiffs alleged “future cumulative economic loss” of between approximately $1,299,555.00 and $1,699,464.00. Plaintiffs had alleged in their prior bills of particulars that plaintiff may require surgery and that there would be a claim for future lost earnings. Thus, the portions of the second supplemental bill of particulars at issue were “an anticipated sequelae” of the injuries and damages previously alleged and did not allege new claims … . Sisemore v Leffler, 2015 NY Slip Op 01076, 4th Dept 2-6-15

 

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