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THE LEASE REQUIRED THE OUT-OF-POSSESSION LANDLORD TO REPAIR STRUCTURAL DEFECTS IN THE ROOF AND WALLS; THERE WAS A QUESTION OF FACT WHETHER WATER ENTERED THE PREMISES THROUGH DEFECTS IN THE ROOF AND WALLS CAUSING THE ALLEGED DANGEROUS CONDITION, A CRACK IN THE FLOOR WHICH ALLEGEDLY CONTRIBUTED TO PLAINTIFF’S INJURY (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the out-of-possession landlord was required under the terms of the lease to repair structural defects in the roof and walls and there was a question of fact whether such defects caused a crack in the floor. The cracked floor was alleged to constitute a dangerous condition which cause a load of tines in a payloader to fall and injure plaintiff:

Plaintiff commenced this negligence action seeking damages for personal injuries he sustained when tires that were being moved by a forklift struck him when they fell from the forklift after it drove over a crack in the concrete floor. Insofar as relevant to this appeal, the complaint asserted a negligence cause of action against Estes Express Lines (defendant), which owned the premises on which plaintiff was injured, alleging that defendant negligently permitted a dangerous condition to exist on the premises that contributed to his injury, i.e., the crack in the concrete floor. * * *

… [P]laintiff raised a triable issue of fact whether defendant was liable based on its contractual obligation to maintain the structural integrity of the roof and walls. … [T]he court …. properly denied defendant’s motion for summary judgment. … [P]laintiff submitted an affidavit from one of plaintiff’s former colleagues and from a code enforcement officer, who each averred that the damage to the floor may have been caused by water damage or water infiltration due to poor maintenance of the roof and walls. Plaintiff’s former colleague further averred that defendant had conducted annual inspections of the property and had previously repaired damage to the floor of the premises. Thus, there is a question of fact concerning defendant’s liability for defects in the condition of the floor … . Weaver v Deronde Tire Supply, Inc., 2022 NY Slip Op 07328, Fourth Dept 12-23-22

Practice Point: Whether an out-of-possession landlord is liable for injury caused by dangerous conditions on the property can be determined by the terms of the lease. Here the lease required the landlord to repair structural defects in the roof and walls. Plaintiff alleged water entered the premises through those structural defects causing a crack in the floor which contributed to his injury. Plaintiff’s allegations survived summary judgment.

 

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THE CONDEMNATION OF THE REAL PROPERTY WAS NOT FOR A COMMERCIAL PURPOSE AS REQUIRED BY THE CONTROLLING STATUTES; THE DETERMINATION TO CONDEMN THE PROPERTY WAS ANNULLED OVER AN EXTENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, annulling the determination to condemn real property, over an extensive dissent, held that the purpose for the condemnation was not “commercial” as required by the statutes authorizing condemnation by the Oneida County Industrial Development Agency (OCIDA):

Petitioners commenced this original proceeding pursuant to EDPL [Eminent Domain Procedure Law] 207 seeking to annul the determination of respondent Oneida County Industrial Development Agency (OCIDA) to condemn certain real property by eminent domain. Pursuant to EDPL 207 (C), this Court “shall either confirm or reject the condemnor’s determination and findings.” Our scope of review is limited to “whether (1) the proceeding was constitutionally sound; (2) the condemnor had the requisite authority; (3) its determination complied with [the State Environmental Quality Review Act (SEQRA)] and EDPL article 2; and (4) the acquisition will serve a public use” … .

… OCIDA lacked the requisite authority to acquire the subject property. As an industrial development agency, OCIDA’s statutory purposes are … to “promote, develop, encourage and assist in the acquiring . . . [of] . . . commercial . . . facilities” (General Municipal Law § 858). OCIDA’s powers of eminent domain are restricted by General Municipal Law § 858 (4), which provides, in relevant part, that an industrial development agency shall have the power “[t]o acquire by purchase, grant, lease, gift, pursuant to the provisions of the eminent domain procedure law, or otherwise and to use, real property . . . therein necessary for its corporate purposes.” The purposes enumerated in the statute do not include projects related to hospital or healthcare-related facilities (see § 858). While OCIDA’s determination and findings indicate that the subject property was to be acquired for use as a surface parking lot, the record establishes that, contrary to respondents’ assertion, the primary purpose of the acquisition was not a commercial purpose. Rather, the property was to be acquired because it was a necessary component of a larger hospital and healthcare facility project. Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 2022 NY Slip Op 07327, Fourth Dept 12-23-22

Practice Point: If the purpose for the condemnation of real property does not comply with the purposes allowed by the controlling states, the determination to condemn the property will be annulled by the courts.

 

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PHONE CALLS TO THE PROTECTED PERSON SUPPORTED CRIMINAL CONTEMPT SECOND DEGREE BUT NOT CRIMINAL CONTEMPT FIRST DEGREE (FOURTH DEPT).

The Fourth Department determined phone calls, as opposed to “contact with the protected person,” did not support the contempt first degree convictions. However the phone calls did support contempt second degree:

The … five counts of criminal contempt in the first degree … are based on evidence establishing that an order of protection had been issued against defendant for the benefit of a person and that on five occasions defendant made telephone calls from the Monroe County Jail to that person. … … With respect to those counts, the People were required to establish that defendant committed the crime of criminal contempt in the second degree … , and that he did so “by violating that part of a duly served order of protection . . . which requires the . . . defendant to stay away from the person or persons on whose behalf the order was issued” … . Here, defendant was in jail when the calls at issue were made and the People failed to “prove[], beyond a reasonable doubt, that defendant had any contact with the protected person during the charged incident[s]” … . People v Caldwell, 2022 NY Slip Op 07325, Fourth Dept 12-23-22

Practice Point: Here criminal contempt first degree required proof defendant failed to “stay away” from the protected person. That portion of the order was not violated by defendant’s phone calls to the protected person (which supported convictions for criminal contempt second degree).

 

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THE AMENDED STATUTE CHANGING THE CRITERIA FOR NEGLECT BASED ON MARIHUANA USE WENT INTO EFFECT TWO DAYS BEFORE THE HEARING AND WAS NOT APPLIED TO THE FACTS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined whether mother neglected the children within the meaning of the statute as amended by the Marihuana Regulation and Taxation Act required remittal:

“The Marihuana Regulation and Taxation Act …  amended Family [Court] Act § 1046 (a) (iii) … by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided ‘[that there is] a separate finding that the child’s physical[,] mental or emotional condition was impaired or is in imminent danger of becoming impaired’ ” … . The amendment to section 1046 (a) (iii) went into effect … two days before the court rendered its decision in this case and, “[a]s a general matter, a case must be decided upon the law as it exists at the time of the decision” … . Inasmuch as petitioner’s presentation of evidence was based on the state of the law at the time of the hearing, however, petitioner may not have fully explored the issue of impairment. We therefore remit the matter to Family Court to reopen the fact-finding hearing on the issue whether the children’s condition was impaired or at imminent risk of impairment as a result of the mother’s use of marihuana … . Matter of Gina R. (Christina R.), 2022 NY Slip Op 07321, Fourth Dept 12-23-22

Practice Point: The Family Court Act was amended to prohibit a finding of neglect based solely on marihuana use unless there is a finding the child’s physical, mental or emotional condition was impaired or in danger of being impaired by the marihuana use.

 

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UPON REMITTITUR FROM THE COURT OF APPEALS, THE APPELLATE DIVISION AGAIN FOUND THE SEVEN-YEAR PREINDICTMENT DELAY DID NOT DEPRIVE DEFENDANT OF DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, upon remittal from the Court of Appeals, determined defendant was not deprived of his right to due process by the seven-year preindictment delay. The Fourth Department had reached that same conclusion before the matter was heard by the Court of Appeals. The Court of Appeals sent the matter back because it found the Fourth Department did not correctly analyze the case under the Taranovich (37 NY2d 442, 445 [1975]) factors:

After review of defendant’s contention upon remittitur, we conclude that he was not deprived of due process of law by the preindictment delay. In determining whether defendant was deprived of due process, we must consider the factors set forth in Taranovich, which are: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . “[N]o one factor [is] dispositive of a violation, and [there are] no formalistic precepts by which a deprivation of the right can be assessed” … , but “it is well established that the extent of the delay, standing alone, is not sufficient to warrant a reversal” … . People v Johnson, 2022 NY Slip Op 07407, Fourth Dept 12-23-22

Practice Point: The seven-year preindictment delay, applying the Taranovich factors, did not deprive defendant of due process of law.

 

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THE MOTION COURT ABUSED ITS DISCRETION BY DEEMING PLAINTIFF’S STATEMENT OF MATERIAL FACTS ADMITTED BECAUSE DEFENDANTS DID NOT SUBMIT A COUNTER STATEMENT OF UNDISPUTED FACTS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that defendants’ failure to submit a counter statement of undisputed facts (22 NYCRR 202.8-g[b]) should not have been deemed an admission to plaintiff’s statement of material facts. Therefore plaintiff’s motion for summary judgment on the breach of contract cause of action should not have been granted:

Although the court had discretion under section 202.8-g (former [c]) to deem the assertions in plaintiff’s statement of material facts admitted, it was not required to do so … .  “[B]lind adherence to the procedure set forth in 22 NYCRR 202.8-g” was not mandated … .

Here, considering that plaintiff’s statement of material facts did not fully comply with 22 NYCRR 202.8-g (d) and ignored the pivotal factual dispute arising from discovery, we conclude that, although it would have been better practice for defendants to “submit a paragraph-by-paragraph response to plaintiff’s statement” … , “the court abused its discretion in deeming the entire statement admitted” … . On the Water Prods., LLC v Glynos, 2022 NY Slip Op 07320, Fourth Dept 12-23-22

Practice Point: Here plaintiff submitted a statement of material facts but defendants did not submit a counter statement of undisputed facts. The motion court was not required to deem the statement of material facts admitted and should not have done so under the specific circumstances of this case. Plaintiff’s motion for summary judgment in this breach of contract action should not have been granted.

 

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THE PEOPLE DID NOT DEMONSTRATE THE POLICE OFFICER HAD SUFFICIENT TRAINING AND EXPERIENCE TO VISUALLY ESTIMATE THE SPEED OF DEFENDANT’S CAR; SUPPRESSION SHOULD HAVE BEEN GRANTED IN THIS SPEEDING CASE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the People did not demonstrate the defendant was speeding. No radar gun was used and the officer estimated defendant’s speed. The People did not demonstrate the officer had sufficient training and experience to support the speed-estimate:

At the suppression hearing, the officer testified that he stopped the vehicle after he visually estimated defendant’s speed at 82 miles per hour in a 65 mph zone, and there was no testimony that the officer used a radar gun to establish defendant’s speed. While it is well-settled that a qualified police officer’s testimony that he or she visually estimated the speed of a defendant’s vehicle may be sufficient to establish that a defendant exceeded the speed limit … , here, the People failed to establish the officer’s training and qualifications to support the officer’s visual estimate of the speed of defendant’s vehicle … . Thus, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping defendant’s vehicle in the first instance, we conclude that the court erred in refusing to suppress the physical evidence and defendant’s statements obtained as a result of the traffic stop. Because our determination results in the suppression of all evidence supporting the crime charged, the indictment must be dismissed … . People v Reedy, 2022 NY Slip Op 07397, Fourth Dept 12-23-22

Practice Point: Although a police officer’s visual estimate of a vehicle’s speed may be sufficient to support a speeding conviction, the People must show the officer had sufficient training and experience to make the speed-estimate, which was lacking in this case.

 

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AT THE TIME THE POLICE PARKED THE POLICE CAR BEHIND THE CAR IN WHICH DEFENDANT WAS A PASSENGER SUCH THAT THE DRIVER COULD NOT LEAVE THE AREA, THE POLICE DID NOT HAVE REASONABLE SUSPICION THAT THE OCCUPANTS OF THE CAR HAD COMMITTED A CRIME; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the police did not have the requisite reasonable suspicion when they parked behind the vehicle in which defendant was a passenger such that the driver could not leave the area. Therefore defendant’s motion to suppress should have been granted:

Police officer testimony at the suppression hearing established that, at the time the officers made the initial stop, they were responding to the sound of multiple gunshots that had originated at or near the gas station, which was known to be a high crime area. The officers also testified, however, that at no time did they visually observe the source of the gunshots, and they did not see any shots emanating from the area where defendant’s vehicle was parked. The officers’ attention was drawn to defendant’s vehicle because, at the time they arrived on the scene, it had collided with another vehicle as it tried to leave the area. Defendant’s vehicle was one of a number of vehicles and pedestrians that the police saw trying to leave the gas station due to the ongoing gunfire. Under those circumstances—i.e., where the police are unable to pinpoint the source of the gunfire, and the individuals in defendant’s vehicle are not the only potential suspects present at the scene—the evidence does not provide a reasonable suspicion that the individuals in defendant’s vehicle had committed, were committing, or were about to commit a crime … . On the record before us, defendant’s vehicle was, at most, “simply a vehicle that was in the general vicinity of the area where the shots were heard,” which is insufficient to establish reasonable suspicion … . People v Singletary, 2022 NY Slip Op 07392, Fourth Dept 12-23-22

Practice Point: Parking a police car behind a car such that the car cannot leave is a seizure requiring reasonable suspicion a crime has taken place.

 

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THERE WERE QUESTIONS OF FACT WHETHER DEFENDANTS IN THIS DOG-BITE CASE, INCLUDING THE LANDLORD, WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES; THE PRE-DISCOVERY SUMMARY JUDGMENT MOTION WAS PREMATURE; THE ACTION WAS NOT FRIVOLOUS; THE DEFENDANTS WERE NOT ENTITLED TO ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this dog-bite case were not entitled to summary judgment, the action was not frivolous, and defendants were not entitled to attorney’s fees. In addition, the summary judgment motion, made before discovery, was deemed premature. The court found there were questions of fact whether defendants, including the landlord (held to an ordinary negligence standard) were aware of the dog’s vicious propensities. The relationships among the parties and the unsuccessful arguments made by defendants in support of summary judgment are too detailed to fairly summarize here:

… “[A]n owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities” … . “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” … . “Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … .

… “[A] landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable [under a negligence standard] to a person who while thereafter on the premises is bitten by the dog” … . When, “during the term of the leasehold[,] a landlord becomes aware of the fact that [the] tenant is harboring an animal with vicious propensities, [the landlord] owes a duty to protect third persons from injury . . . if [the landlord] ‘had control of the premises or other capability to remove or confine the animal’ ” … . Michael P. v Dombroski, 2022 NY Slip Op 07318, Fourth Dept 12-23-22

Practice Point: A landlord who is aware of a dog’s vicious propensities can be held liable in a dog-bite case under a standard negligence theory.

 

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THE AMENDMENTS TO THE ANTI-SLAPP STATUTES SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY TO DISMISS PLAINTIFF’S DEFAMATION COMPLAINT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the amendments to the anti-SLAPP statutes (Civil Rights Law §§ 70-a, 76-a) do not apply retroactively and therefore should not have been the basis for dismissal of plaintiff’s defamation complaint:

… [T]the presumption against retroactivity is not overcome because “[n]othing in the text ‘expressly or by necessary implication’ requires retroactive application of the [anti-SLAPP] statute as amended . . . Nor does the legislative history support such an interpretation” … . First, the text of the legislation does not contain an express statement requiring retroactive application … . Second, while the anti-SLAPP amendments took effect “immediately” (id.), that term “is equivocal in an analysis of retroactivity” … . Third, although the legislation is remedial in nature and such legislation is generally applied retroactively “to better achieve its beneficial purpose” … , simply classifying a statute as remedial “does not automatically overcome the strong presumption of prospectivity” … . Finally, the legislative history establishes that the rationale for the amendments was to better advance the purposes of speech protection for which the anti-SLAPP law was initially enacted and to remedy the courts’ failure to use their discretionary powers to award costs and fees in such cases. However, the legislative history does not offer any explicit or implicit support for retroactive application … . Therefore, we conclude that “the presumption of prospective application of the [anti-SLAPP] amendments has not been defeated” … . Hoi Trinh v Nguyen, 2022 NY Slip Op 07387, Fourth Dept 12-23-22

Practice Point: The recent amendments to the anti-SLAPP statutes (Civil Rights Law 70-a, 76-a) do not apply retroactively.

 

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