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The Destruction of Decedent’s Body in a Trash Compactor Gave Rise to a Cause of Action for Loss of Sepulcher

The Fourth Department determined plaintiff, decedent’s sister, had stated a cause of action for loss of sepulcher.  The decedent was crushed to death after falling into a trash compactor provided by the defendants.  His body was never recovered.  The court noted that adult children have “priority” over a sibling to bring an action for loss of sepulcher, but both have standing to do so.  Although decedent’s sister has standing to bring the action, she will have to demonstrate she has “priority” at trial (there was no indication the adult children sought to exercise the right to bring the action):

“It is well established that the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … .  “To establish a cause of action for interference with the right of sepulcher, plaintiff must establish that:  (1) plaintiff is the decedent’s next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff’s right to immediate possession of the decedent’s body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish, which is generally presumed” … . Shepherd v Whitestar Development Corp…, 1144, 4th Dept 1-3-14

 

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Twenty-Two-Year-Old Conviction Reversed Because of Ineffective Assistance of Counsel

The Fourth Department, over a two-justice dissent, reversed defendant’s 1992 conviction.  The conviction had already been upheld on appeal.  But, in 2012, a writ of coram nobis was brought arguing defendant did not receive a fair trial because of the ineffectiveness of his counsel.  The writ was granted and, on appeal, the court determined defendant was entitled to a new trial.  Defense counsel was deemed ineffective (1) for failure to object to the elicitation of testimony about a threat which had been precluded by the trial judge, and (2) for using a flawed alibi defense (referring to the wrong days of the week) which gave the jury the impression the alibi witnesses were testifying falsely:

We conclude that “defendant has demonstrated the absence of any strategic or other legitimate explanation for his attorney’s” failure to object to the introduction of this prejudicial and previously precluded testimony … .  Moreover, after defense counsel failed to object to the admission of that precluded testimony, the prosecutor continued to use that testimony to full advantage, arguing on summation that the threat to the prosecution witness “puts the [d]efendant [at the crime scene] just as easily as any person you saw in there” … .  Defense counsel’s error in failing to object to the testimony of the prosecution witness “simply cannot be construed as a misguided though reasonably plausible strategy decision” …, and “ ‘is sufficiently serious to have deprived defendant of a fair trial’… . * * *

Presenting an alibi defense for the wrong date or time has been found, by itself, to constitute ineffective assistance of counsel … .  We conclude that presenting an alibi defense for the wrong day of the week, as occurred here, similarly constitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibi testimony cannot be construed as a plausible strategy… . People v Jarvis, 1009, 4th Dept 1-3-14

 

Decedent’s Divorce Did Not Invalidate Provisions of Her 1996 Will Which Made Her Former Father-In-Law the Alternate Executor and Alternate Beneficiary/Proof Was Insufficient to Demonstrate the 1996 Will Had Been Revoked by a Lost Will

In a full-fledged opinion by Justice Scudder, over a lengthy dissent by Justice Peradotto, the Fourth Department affirmed Surrogate’s Court’s determination that a 1996 will must be admitted to probate and any provisions of the will not affected by decedent’s divorce must be honored.  The petitioner was the (divorced) decedent’s former father-in-law who was named alternate executor and alternate beneficiary of the 1996 will.  Under New York law, decedent’s divorce revoked the testamentary distribution to her ex-husband and revoked her ex-husband’s appointment as executor, but the provisions of the will relating to decedent’s former father-in-law remained viable. The objectants argued that the 1996 will had been revoked by a subsequent will which was lost. The Fourth Department found that there was insufficient evidence presented at the hearing to show that the lost will was duly executed and attested and, therefore, there was insufficient evidence the prior will had been revoked:

Pursuant to New York law, the testamentary distribution to the ex-husband and his appointment as executor are revoked, but all other provisions of the will remain valid (see EPTL 5-1.4 [a], [b]…). * * *

We are constrained to conclude that the evidence at the hearing is insufficient to establish that the Lost Will was duly executed and attested … .  With respect to New York’s EPTL 3-2.1, there was no testimony that the document was signed or acknowledged by decedent in the presence of the witnesses. Furthermore, there was no evidence that decedent declared to the witnesses that the document was her will.  Finally, although the neighbor testified that decedent’s signature appeared on the document, there was no evidence that the signature was at the end of the document. Matter of Lewis…, 1170, 4th Dept 1-3-14

 

Imposition of a Recreation Fee on New Construction In Lieu of Land for a Park Was Proper Pursuant to Town Law 277

The Fourth Department determined Supreme Court should not have annulled the town’s imposition of a recreation fee upon each apartment and townhouse in a subdivision plat, in lieu of land for a park, pursuant to Town Law 277:

Inasmuch as the Court of Appeals has rejected the notion that section 277 (4) is a “taxing” statute …, we must decide whether respondent’s determination that the Town needs “additional funds to develop parks and recreational facilities,” not additional land, is consistent with the legislative purpose of that statute.  The Court of Appeals has recognized that section 277 (4) “ ‘represents a legislative reaction to the threatened loss of open land available for park and recreational purposes resulting from the process of development in suburban areas and the continuing demands of the growing populations in such areas for additional park and recreational facilities’ ” … .  In that vein, section 277 (4) (b) provides that a set-aside of land for a park or other recreational purposes may be required if the planning board has made a finding that a proper case for such land exists.  That section further provides that “[s]uch findings shall include an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth to which the particular subdivision plat will contribute” (id. [emphasis added]).  Section 277 (4) (c) provides that, in the event the planning board determines that a park may not be suitably located on the subdivision plat, “[a]ny monies required by the planning board in lieu of land for park, playground or other recreational purposes, pursuant to the provisions of this section, shall be deposited into a trust fund to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property” (emphasis added).

Here, the court concluded that the assessment of recreation fees was unjustified because respondent found that the Town did not need more recreational land.  As noted, however, Town Law § 277 (4) provides that concern over population demand for additional recreational facilities and the unsuitability of the plat at issue may justify the assessment of recreation fees.  Furthermore, contrary to petitioners’ contention, the application of section 277 involves a town-based review, not a plat-based review.  We thus conclude that the court erred in determining that respondent acted irrationally in imposing the recreation fees at issue… . Matter of Legacy at Fairways LLC… v Planning Board of Town of Victor, 1063, 4th Dept 12-27-13

 

Res Ipsa Loquitur Cause of Action Should Not Have Been Dismissed/Question of Fact About Whether Handrail Which Came Loose Was In Exclusive Control of Defendant

The Fourth Department determined Supreme Court should not have granted defendant’s motion for summary judgment on plaintiff’s res ipsa loquitur case of action.  Plaintiff was injured when a handrail came loose from the wall in her apartment building:

Supreme Court … erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant established as a matter of law that it did not have exclusive control of the handrail, i.e., one of the necessary conditions herein for the applicability of the doctrine of res ipsa loquitur ….  We conclude that plaintiff raised an issue of fact whether the handrail was in the exclusive control of defendant, and thus that the court erred in granting defendant’s motion … .  …

“The exclusive control requirement . . . is that evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it . . . The purpose is simply to eliminate within reason all explanations for the injury other than defendant’s negligence” … .  Here, plaintiff established that access to the internal stairway is limited to the residents of the three units in the building and defendant’s maintenance staff …, and a former maintenance staff person testified that railings in other buildings had become loose and were tightened as needed.  We therefore conclude that plaintiff raised an issue of fact “that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it”… . Herbst v Lakewood Shores Condominium Association, 1337, 4th Dept 12-27-13

 

Restaurant Chair Collapsed: No Question of Fact About Constructive Notice of Condition of the Chair/Res Ipsa Loquitur Did Not Apply

The Fourth Department, over a two-justice dissent, affirmed the grant of summary judgment to defendant restaurant owner.  A chair at the restaurant collapsed when plaintiff sat down.  The court determined the defendant did not have constructive notice of the condition of the chair and the doctrine of res ipsa loquitur did not apply:

The duty of a property owner to inspect his or her property “is measured by a standard of reasonableness under the circumstances” … .  Here, defendant testified that she wipes down the chairs at the end of each day and that, “every month or so,” she performs a “major cleaning” of the restaurant, which includes an inspection of the chairs.  In the absence of any prior complaints, incidents, accidents, or any other circumstances that should have aroused defendant’s suspicion that the chairs were defective …, we conclude that plaintiffs failed to raise a triable issue of fact concerning the reasonableness of defendant’s inspection practices, and thus whether defendant had constructive notice of the alleged defective condition of the chair.

We reject plaintiffs’ alternative contention that notice to defendant was not required because the doctrine of res ipsa loquitur applies.  That doctrine “does not apply here because, inter alia, defendant was not in exclusive control of the instrumentality that allegedly caused plaintiff’s injuries,” i.e., the chair… . Catalano v Tanner, 1087, 4th Dept 12-27-13

 

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Conversion Cause of Action Cannot Be Based Solely Upon Allegations of Breach of Contract

In a detailed decision construing contract language, the Fourth Department noted that the conversion cause of action should be dismissed because no tortious conduct over and above the failure to fulfill the contract was alleged:

“[I]t is well established that a cause of action to recover damages for conversion cannot be predicated on a mere breach of contract” … .  Because plaintiff “failed to show . . . that [defendant] engaged in tortious conduct separate and apart from [its alleged] failure to fulfill its contractual obligations,” the cause of action for conversion must be dismissed… . Lehr, Inc v T-Mobile USA Inc…, 1085, 4th Dept 12-27-13

 

Strict Liability for Clean Up of Petroleum Spilled Between 1890 and 1935

The Fourth Department determined the current owners of land contaminated with petroleum between 1890 and 1935 were strictly liable for clean-up under the Navigation Law, despite intervening use of the land as a scrap yard:

We conclude that plaintiffs established their entitlement to a determination that defendants are contributing “dischargers” pursuant to Navigation Law § 172 (8) and thus are strictly liable under section 181 (1) for, inter alia, the cleanup and removal costs…, despite the fact that the parcels subsequently were the sites for various commercial operations that also may have contributed to the contamination of the properties, including a scrap yard.  …

Plaintiffs provided the affidavits of two experts explaining that samples taken from depths of 6 to 14 feet below the surface contained contaminants that are consistent with refinery operations and that, based upon the age and depths of the samples, could only have been caused by the refinery operations. One Flint St LLC… v Exxon Mobil Corporation…, 1281, 4th Dept 12-27-13

 

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Criteria for Review of Agency’s Condemnation of Land Explained/Failure to Consider Future Development of Land Did Not Constitute Improper Segmentation of Environmental Impact Review

The Fourth Department determined the condemnation of land by the Lockport Industrial Development Agency (LIDA) and the related State Environmental Quality Review Act (SEQRA) review were properly done. The court determined that the failure to consider future development of the land did not amount to an improper segmentation of the SEQRA review process: The court explained its review powers in this context as follows:

It is well settled that the scope of our review of LIDA’s determination is “very limited” … .  We must “ ‘either confirm or reject [LIDA’s] determination and findings,’ and [our] review is confined to whether (1) the proceeding was constitutionally sound; (2) [LIDA] had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use” (id.; see EDPL 207 [C]).  “The burden is on the party challenging the condemnation to establish that the determination ‘was without foundation and baseless’ . . . Thus, ‘[i]f an adequate basis for a determination is shown and the objector cannot show that the determination was without foundation, the [condemnor’s] determination should be confirmed’… . * * *

Although LIDA considered only the impact of the acquisition and not the impact of potential development, we reject [the] contention that LIDA thereby improperly segmented the SEQRA review process (see 6 NYCRR 617.2 [ag]).  Although LIDA intends to sell the property to a potential developer, there was no identified purchaser or specific plan for development at the time the SEQRA review was conducted …, and thus we conclude that under these facts the acquisition is not a “separate part[] ‘of a set of activities or steps’ in a single action or project”… . Matter of GM Components Holdings LLC v Town of Lockport Industrial Development Agency, 1275, 4th Dept 12-27-13

 

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No Legal Duty Owed Independent of Contract—Negligence Cause of Action Dismissed

In the context of the dismissal of a tort action against Ferguson Electric Service Company after a building fire, the Fourth Department explained when a contractual relationship can give rise to an action in tort:

“It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . . This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … .  Plaintiffs cannot maintain their tort cause of action because Ferguson … owed no legal duty that is independent of the contract … .  Moreover, “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party…”… . Niagara Foods, Inc…v Ferguson Electric Service Company, Inc…, 1044, 4th Dept 11-15-13

 

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