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Petitioners Did Not Have Standing to Contest County’s Negative Declaration After a SEQRA Review

The Fourth Department determined petitioners did not have standing to contest the county’s negative declaration pursuant to a State Environmental Quality Review Act (SEQRA) review.  The action involved the county’s permitting the Monroe County Fair and Recreation Association, Inc. to operate a four-day agricultural festival on county land:

Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise a SEQRA challenge” based solely on a party’s proximity … . In such a situation, parties seeking to establish standing must establish that the injury of which they complain “falls within the zone of interests,’ or concerns, sought to be promoted or protected” …, and that they “would suffer direct harm, injury that is in some way different from that of the public at large” … . Contrary to petitioners’ contention, we conclude that the court properly determined that the environmental effects relied on by each petitioner to establish his or her standing are no different in either kind or degree from that suffered by the general public … . We further conclude that the alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … . Thus, the court did not err in concluding that none of the petitioners has standing … . Matter of Kindred v Monroe County, 2014 NY Slip Op 05069, 4th Dept 7-3-14

 

Court Has Discretion to Order an Informal Psychological Assessment in Response to Defense Counsel’s Request for an Article 730 Assessment to Determine Whether Defendant Is Competent to Stand Trial

The Fourth Department noted that Supreme Court had the discretion to order an informal psychological assessment in response to defense counsel’s request for an examination pursuant to Criminal Procedure Law Article 730 to determine whether defendant was competent to stand trial:

…[D]efendant contends that Supreme Court erred in failing to follow the requirements of CPL article 730 to determine whether he was competent to stand trial at the time his case was presented to the grand jury (see CPL 730.30 [1]). We reject that contention. The record establishes that the court granted defense counsel’s request for a “forensic examination” of defendant by ordering only an informal psychological examination and not by issuing an order of examination pursuant to CPL article 730. We conclude that “[t]he decision of the court to order an informal psychological examination was within its discretion . . . and did not automatically require the court to issue an order of examination or otherwise comply with CPL article 730′ “… . People v Castro, 2014 NY Slip Op 05102, 4th Dept 7-3-14

 

Assault Counts Should Have Been Dismissed As Inclusory Concurrent Counts of the Counts Charging Assault in the First Degree as a Sexually Motivated Felony

The Fourth Department determined that counts of an indictment should have been dismissed as inclusory concurrent counts:

We agree with defendant … that the fourth and sixth counts of the indictment, each charging him with assault in the first degree, must be reversed and dismissed pursuant to CPL 300.30 (4) as inclusory concurrent counts of counts five and seven, each charging him with assault in the first degree as a sexually motivated felony. We therefore modify the judgment accordingly. CPL 300.30 (4) provides in pertinent part that “[c]oncurrent counts are inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater.” A crime is a lesser included offense of another where “it is theoretically impossible to commit the greater crime without at the same time committing the lesser . . . [, as] determined by a comparative examination of the statutes defining the two crimes, in the abstract” … . Here, “defendant could only commit the sexually motivated felon[ies] if it was proven that he had committed the underlying [assaults] and that the [assaults were] committed for his own sexual gratification” … . Thus, the underlying assault counts charging assault in the first degree should have been dismissed as inclusory concurrent counts of the counts charging assault in the first degree as a sexually motivated felony upon defendant’s conviction of the latter crime… .  People v Dallas, 2014 NY Slip Op 05083, 4th Dept 7-3-14

 

In a Partition Action, Tenant in Common Not Liable to Other Tenants in Common for Use and Occupancy of the Property/Tenant in Common Entitled to Reimbursement from Other Tenants in Common for Taxes and Repairs

In the context of a partition action, the Fourth Department explained that a tenant in common is not liable to other tenants in common for the use and occupancy of the property and is entitled to reimbursement of any payments made for taxes and repairs:

Contrary to plaintiffs’ contention, the court properly determined that defendant was not liable to them for the value of defendant’s use and occupancy. “[P]artition is an equitable remedy in nature and [the court] has the authority to adjust the rights of the parties so [that] each receives his or her proper share of the property and its benefits” (Hunt v Hunt, 13 AD3d 1041, 1042). A tenant in common “has the right to take and occupy the whole of the premises and preserve them from waste or injury, so long as he or she does not interfere with the right of [the other tenants] to also occupy the premises” … . “Mere occupancy alone by one of the tenants does not make that tenant liable to the other tenant[s] for use and occupancy absent an agreement to that effect or an ouster” … , both of which are absent here.

Contrary to plaintiffs’ further contention, the court properly determined that defendant was entitled to be reimbursed for payments that he made for property taxes and repairs. It is well settled that a tenant in common is entitled to be reimbursed for the share of the taxes paid by him for the benefit of other tenants in common … . Additionally, a tenant in common is entitled to be reimbursed for money expended in maintaining, repairing and improving the property, if such maintenance, repairs, and improvements were undertaken in good faith and were necessary to protect or preserve the property … . Cooney v Shepard, 2014 NY Slip Op 04589, 4th Dept 6-20-14

 

Rebuttal Witness Properly Called by the People to Show Possible Bias of Defense Witness

The Fourth Department, over a strong two-justice dissent, determined that a rebuttal witness called by the People was properly allowed to testify to demonstrate the bias of a defense witness.  The explanation about the relevance of the rebuttal testimony is fact-specific.  The dissenters did not see the rebuttal testimony as relevant to the defense witness’ bias and did not agree that the “bias” rationale for the rebuttal was actually raised in the trial court:

…[T]he rebuttal witness was properly called to give testimony that was relevant to the defense witness’s bias or motive to fabricate, which is not collateral … . The defense witness was defendant’s former girlfriend, and the rebuttal witness was defendant’s ex-wife, who married defendant after he and the defense witness ended their romantic relationship. In her cross-examination of the defense witness, the prosecutor attempted to show that defendant and the defense witness were romantically involved at the time of the trial, but the defense witness would admit only that she and defendant were friends, and claimed that she and defendant had been friends “all along,” i.e., they were friends even when defendant and the rebuttal witness were married. The prosecutor informed the court that she wanted to call the rebuttal witness to rebut the defense witness’s testimony that she and defendant were “friends this entire time.” We disagree with our dissenting colleagues that the rebuttal witness should not have been allowed to testify. Reading the prosecutor’s colloquy with the court on this issue, together with her cross-examination of the defense witness, we conclude that the purpose of calling the rebuttal witness was to show that defendant and the defense witness were romantically involved at the time of the trial, which the prosecutor believed could be inferred if the defense witness and defendant had not been friends when he was married to the rebuttal witness.

We also disagree with our dissenting colleagues that our affirmance of the trial court’s ruling violates People v Concepcion (17 NY3d 192). The Court of Appeals has ” construed CPL 470.15 (1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court’ ” (id. at 195). Contrary to the position of the dissent, we are not affirming on a ground that is different from that determined by the court. The court allowed the rebuttal witness to testify for the “limited purpose” of whether the defense witness and defendant were friends, and we conclude that the court’s determination was proper. We simply differ from the dissent in our interpretation of the meaning of the rebuttal witness’s testimony tending to show that the defense witness and defendant were not friends after defendant married the rebuttal witness.  People v Nicholson, 2014 NY Slip Op 04611, 4th Dept 6-20-14

 

Defendant’s Temporary Possession of a Weapon Was “Innocent”

The Fourth Department determined defendant’s conviction for possession of a weapon was against the weight of the evidence. Defendant’s half-brother handed her the weapon just before he became involved in an altercation.  The court determined defendant’s possession of the weapon was “innocent:”

“Under our law, in certain circumstances, the possession of a weapon may be innocent and not criminal. Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose” … . “This defense of temporary and lawful’ possession applies because as a matter of policy the conduct is not deemed criminal” … . Furthermore, a “defendant is not required to prove that h[er] possession of the weapon was innocent. Rather, the People are required to prove beyond a reasonable doubt both that the defendant knowingly possessed the weapon and that such possession was not innocent” … . For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was] not used in a dangerous manner” … . People v Holes, 2014 NY Slip Op 04643, 4th Dept 6-20-14

 

In Absence of a “Special Relationship” Insurer Not Liable for Agent’s Negligent Misrepresentation

The Fourth Department determined the insurance carrier was entitled to summary judgment because it did not have a “special relationship” with the insured.  Plaintiff’s insurance had been cancelled for lack of payment.  After a loss, the plaintiff sued the insurer alleged that he had relied on the agent’s representation that his insurance premium had been paid.  Absent a “special relationship” suit can not be premised on such reliance:

We agree with defendant that the court erred in denying its motion for summary judgment dismissing the complaint, the gravamen of which is a claim for negligent misrepresentation. An essential element of such a claim is the “duty to use reasonable care to impart correct information due to a special relationship between the parties” … . A special relationship may arise from “a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . According to plaintiff, he had a special relationship with defendant based on a course of dealing. We conclude that defendant met its burden on the motion, and plaintiff failed to raise an issue of fact concerning the existence of a special relationship … . The interactions between plaintiff and defendant on which plaintiff relies ” would [not] have put [an] objectively reasonable insurance agent[] on notice that [his or her advice] was being sought and specially relied on’ ” … , such that a special relationship was formed based on a course of conduct. Defendant therefore cannot be held liable for negligent misrepresentation based on its agent’s response to an inquiry from plaintiff concerning whether his policy premium had been paid. In view of our determination, we do not consider defendant’s remaining contentions. Majtan v Urbanke Assoc Inc, 2014 NY Slip Op 04631, 4th Dept 6-20-14

 

Petition for Modification of Custody Should Not Have Been Dismissed Without a Hearing

The Fourth Department determined Family Court should not have dismissed mother’s petition for a modification of custody without holding a hearing:

It is well settled that a party seeking a change in an established custody arrangement must show “a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child[ren]” … . Although a “hearing is not automatically required whenever a parent seeks modification of a custody order”… , we conclude that the mother made a sufficient evidentiary showing of a change in circumstances to warrant a hearing … . “[T]he mother’s allegations that [the father] imposed excessive and inappropriate discipline on the subject children, including corporal punishment, [were] sufficient to warrant a hearing” … , as were the mother’s allegations that the father had refused to permit her to exercise visitation with the subject children for four weeks … . Consequently, we agree with the mother that the court erred in dismissing the petition without conducting a hearing.  Matter of Isler v Johnson, 2014 NY Slip Op 04678, 4th Dept 6-20-14

 

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Mother Not Adequately Apprised of Her Right to Counsel—New Hearing Ordered

The Fourth Department determined a new hearing was required because mother was not adequately apprised of her right to counsel:

We agree with the mother that she was denied her right to counsel. The mother was entitled to representation based upon her status as a respondent in a Family Court Act article 6 proceeding and a person alleged to be in willful violation of a court order, and Family Court’s inquiry concerning her decision to proceed pro se was insufficient to enable the court to determine whether she knowingly, intelligently and voluntarily waived her right to counsel… . Matter of Seifert v Pastwick, 2014 NY Slip Op 04677, 4th Dept 6-20-14

 

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Party Represented by Counsel at a Scheduled Court Appearance Has Not Failed to Appear

In affirming the termination of mother’s parental rights, the Fourth Department noted that a party who is represented by an attorney at a scheduled court appearance has not failed to appear:

A party who is represented at a scheduled court appearance by an attorney has not failed to appear’ ” … . The mother initially appeared at the fact-finding hearing, and her attorney participated in the hearing by presenting an opening statement and cross-examining the first witness. The mother’s attorney chose not to participate in the remainder of the hearing when the mother left the courtroom after the first witness testified. Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default”… . Matter of Savanna G, 2014 NY Slip Op 04658, 4th Dept 6-20-14

 

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