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“Negligent Ownership and Maintenance” vs “Negligent Abatement” Causes of Action in Lead-Paint Case

In a lead-paint damages case, the Fourth Department determined the landlord was entitled to summary judgment on the cause of action alleging negligent ownership and maintenance (lack of notice), but was not entitled to summary judgment on the cause of action alleging negligent abatement of the hazard:

To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition” … .Defendant met his burden of establishing that he had no actual or constructive notice of the hazardous lead paint condition prior to an inspection conducted by the county department of health, and plaintiff failed to raise a triable issue of fact… .. Contrary to defendant’s contention, however, the court properly denied that part of his cross motion seeking summary judgment dismissing the second cause of action, which alleges negligent abatement of the lead-based paint hazard. Defendant failed to establish his prima facie entitlement to judgment as a matter of law with respect to that cause of action.  Pagan v Rafter, 210, 4th Dept, 6-14-13

 

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Late Notice of Claim Properly Allowed

In affirming the grant of a motion to serve a late notice of claim, the Fourth Department explained the relevant principles:

A notice of claim must be served within 90 days after the claim accrues, although a court may grant leave extending that time, provided that the application therefor is made before the expiration of the statute of limitations period of one year and 90 days (see General Municipal Law § 50-e [1] [a]; [5]).The decision whether to grant such leave “compels consideration of all relevant facts and circumstances,” including the “nonexhaustive list of factors” in section 50-e (5) ….The three main factors are “whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … “[T]he presence or absence of any one of the numerous relevant factors the court must consider is not determinative” …, and “[t]he court is vested with broad discretion to grant or deny the application”… .  Dalton v Akron Central Schools, 408, 4th Dept, 6-14-13

 

National Labor Relations Board Had First Crack at Collective Bargaining Agreement Matter Under Preemption Doctrine

The Fourth Department determined the National Labor Relations Board, under the doctrine of federal preemption of state law, had first crack at determining whether it had jurisdiction over a collective bargaining matter, as opposed to the NYS Public Employment Relations Board (PERB):

We agree with petitioners, however, that Supreme Court erred in determining that PERB properly exercised jurisdiction over those matters.    Inasmuch as the two collective bargaining matters “arguably” fall within the scope of the National Labor Relations Act (NLRA)…, the National Labor Relations Board (NLRB) has primary jurisdiction “to determine in the first instance” whether its jurisdiction preempts PERB’s jurisdiction …..  Under the circumstances of this case, and in the interest of judicial economy, we hold the case pending a determination of the NLRB whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB’s jurisdiction… . Buffalo United Charter School, et al v NYS Public Employment Relations Board, et al, 515, 4th Dept, 6-7-13

 

Parole Violation Did Not Preclude Application for Resentencing Under the Drug Law Reform Act

The Fourth Department determined County Court erred when it denied defendant’s application for resentencing under the Drug Law Reform Act on the ground defendant was a reincarcerated parole violator.  Nor did it matter that defendant was released from parole supervision after he made the application.  People v Saffold, 666, 4th Dept, 6-7-13

 

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People Did Not Meet Burden of Going Forward at Suppression Hearing

The Fourth Department determined the People did not meet their “burden of going forward” at the suppression hearing and suppressed the evidence seized from the defendant.  After an anonymous call describing a person who looked nothing at all like the defendant, the police approached, detained and searched the defendant:

The officer who approached defendant testified at the suppression hearing that he asked defendant to step away from a group of individuals with whom defendant was socializing.  The officer escorted defendant to the curb while physically holding defendant’s waistband, and he instructed defendant to face the street and to place his hands on the roof of a civilian vehicle.  The officer testified that at that time defendant was not free to leave.  Having detained defendant in that manner, the officer then explained to defendant the reason for the police presence.  The officer asked defendant if he had any contraband and if defendant would consent to a search of his person.  Defendant consented to the search, during which the police obtained the physical evidence sought to be suppressed.  In light of the fact that defendant was illegally detained, i.e., without a reasonable suspicion that he was committing or had committed a crime (see CPL 140.50 [1]), his consent to the search immediately thereafter cannot be considered voluntary ….

Although “ ‘a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance’ ” ….  We agree with defendant that the People failed to meet that burden.  People v Noah, 414, 4th Dept, 6-7-13

 

Conviction Reversed Because Uncharged Theory Considered by Jury

The Fourth Department reversed defendant’s conviction for criminal impersonation because the jury was allowed to consider a theory of prosecution that was not charged:

…[T]he court’s jury instructions with respect to the crime of criminal impersonation in the first degree permitted the jury to convict him upon a theory not charged in the indictment, and thus violated his right to be tried for only those crimes charged in the indictment, as limited by the bill of particulars …. …[W]e address defendant’s contention despite his failure to preserve it for our review … . The fifth count of the indictment alleged that defendant committed the crime of criminal impersonation when he pretended to be a police officer and, “in the course of such pretense, committed or attempted to commit the felony of [r]ape in the first degree.”    The court’s instructions, however, permitted the jury to convict defendant upon finding that he committed any felony in the course of pretending to be a police officer, thus allowing the jury to convict defendant upon a theory not charged in the indictment.  People v Williams, 340, 4th Dept, 6-7-13

 

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Failure to Prove Defendant Did Not Have a Good Faith Belief He Had a Claim of Right to Property Precluded Larceny Conviction

The Fourth Department determined there was insufficient evidence to support a grand larceny charge based upon the defendant’s taking a jeep from his girlfriend’s residence.  Prior to defendant’s taking the jeep, his girlfriend had agreed to transfer it to him—an offer she subsequently told defendant was “off:” The Fourth Department held the People had not proven the defendant did not have a good faith belief that he had a claim of right to the jeep:

It is well established that “a good faith claim of right is properly a defense—not an affirmative defense—and thus, ‘the people have the burden of disproving such defense beyond a reasonable doubt’ ” … .A defendant is not required to “establish that he previously owned or possessed the property at issue in order to assert the claim of right defense” …. The test is whether a defendant had a “subjective[,] good faith” belief that he or she had a claim of right to the relevant property, not whether defendant’s belief was reasonable … . Based on the testimony of defendant’s former girlfriend, which is the only evidence that relates to the claim of right issue, we conclude that it was unreasonable for the jury to conclude that the People established beyond a reasonable doubt that defendant did not have a subjective, good faith basis for believing that the Jeep was his, and thus the verdict with respect to the grand larceny in the fourth degree count is against the weight of the evidence ….  People v Rios, 223, 4th Dept, 6-7-13

 

Undue Influence Criteria Explained

The Fourth Department affirmed Surrogate’s Court’s determination that the decedent was not subjected to undue influence in making a will.  The Court explained the legal principles at work as follows:

It is well settled that a will contestant seeking to prove undue influence must show the “exercise [of] a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity [that] could not be resisted, constrained the testator to do that which was against [his or] h[er] free will” …. “Undue influence must be proved by evidence of a substantial nature . . . , e.g., by evidence identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” …. “Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact” … .  Matter of Lee, 235, 4th Dept, 6-7-13

 

Attempt to Deny Visitation to Incarcerated Mother Denied

In affirming Family Court’s denial of grandmother’s (the child’s primary physical custodian’s) petition to suspend the child’s visitation with mother, who is incarcerated, the Fourth Department wrote:

Even assuming, arguendo, that the grandmother established “ ‘a change in circumstances sufficient to warrant an inquiry into whether the best interests of the [child] warranted a change in custody’ ”…, we conclude that, contrary to the grandmother’s contention, visitation with the mother at the correctional facility is in the child’s best interests.

There is a presumption that visitation with the noncustodial parent is in thechild’s best interests…, and a “parent’s incarceration, by itself, does not vitiate” that presumption….“Unless there is a compelling reason or substantial evidence that visitation with an incarcerated parent is detrimental to a child’s welfare, such visitation should not be” suspended ….    We conclude that the grandmother failed to establish by a preponderance of the evidence that visitation with the mother would be detrimental to the child, and thus she did not overcome the presumption that visitation with the mother is in the child’s best interests… .  Matter of Cormier v Clarke…, 409, 4th Dept, 6-7-13

 

Nature of Declaratory Judgment and Doctrine of Ripeness Explained

In affirming the result in an Article 78/declaratory judgment proceeding which unsuccessfully challenged the Department of Environmental Conservation’s finding that petitioner had violated statutory and regulatory provisions relating to the application of pesticide, the Fourth Department explained the principles underlying a declaratory judgment action and the doctrine of ripeness:

Petitioners sought a declaration of the rights of the parties with respect to a 2002 consent order, and also sought further declarations that petitioners had the right to obtain waivers of the right to notification of the approximate dates upon which petitioners would apply products to the property of other customers. Pursuant to CPLR 3001, “[t]he supreme court may render a declaratory judgment . .. as to the rights and other legal relations of the parties to a justiciable controversy.” “A declaratory judgment action thus ‘requires an actual controversy between genuine disputants with a stake in the outcome,’ and may not be used as ‘a vehicle for an advisory opinion’ ” … . Here, the court, with the consent of the DEC, dismissed all charges related to alleged violations of the 2002 consent order, and thus no active controversy remained with respect to it.  *  *  *

The test for ripeness is well settled, to wit, a determination must be final before it is subject to judicial review (see CPLR 7801 [1]). “In order to determine whether an agency determination is final, a two-part test is applied. ‘First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and[,] second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party’ ” … .  Matter of Green Thumb Lawn Care, Inc v Iwanowicz…, 372, 4th Dept, 6-7-13

 

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