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THE ARGUMENT THAT THE PROBATION OFFICER’S SEARCH OF DEFENDANT’S RESIDENCE WAS UNLAWFUL AND UNREASONABLE BECAUSE IT WAS BASED SOLELY ON AN UNCORROBORATED ANONYMOUS TIP WAS NOT PRESERVED FOR APPEAL, THE DISSENT DISAGREED; DEFENDANT DID NOT DEMONSTRATE DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE ISSUE (FOURTH DEPT).

The First Department, over a dissent, determined the issue whether the probation officer’s search of defendant’s residence was improperly based solely on an anonymous tip was not preserved for appeal. In addition, the defendant did not demonstrate defense counsel was ineffective for failing to preserve the issue. The dissent argued the record did not support the motion court’s finding the warrantless search was lawful and reasonable:

Contrary to defendant’s contention, he did not preserve that issue for our review through either that part of his omnibus motion seeking to suppress the evidence or his posthearing memorandum. A question of law with respect to a ruling of a suppression court is preserved for appeal when “a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal” (CPL 470.05 [2] …). In his omnibus motion, defendant sought, inter alia, suppression of the evidence seized during the search on the ground that the evidence “was taken in violation of . . . defendant’s constitutional rights” inasmuch as it was done without “a search warrant or probable cause.” Those “broad challenges” are insufficient to preserve defendant’s present contention … . In defendant’s posthearing memorandum, he argued that the search was invalid because there was no warrant or consent to search, that the search was not rationally related to the duties of the officer, and that the parole officers were acting as police officers when conducting the search. He did not raise his present contention that the People were required to prove that the information provided to the officer satisfied the Aguilar-Spinelli test in order for the search to be lawful, even though he was then aware of the basis for the search … . Nor did the court expressly decide that issue … . People v Murray, 2021 NY Slip Op 02896, Fourth Dept 5-7-21

 

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PETITIONER, WHO HAD WORKED FOR THE TOWN FOR 32 YEARS, TOOK $181 FROM PETTY CASH AND LEFT A NOTE INDICATING SHE OWED MONEY TO THE FUND; THE LARCENY AND THEFT CHARGES WERE ANNULLED; TERMINATION WAS TOO SEVERE A PUNISHMENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the theft and larceny charges against petitioner should be annulled and termination of petitioner’s employment with the town was too severe a penalty. Petitioner took $181 from petty cash but left a note indicating she owed money to the fund:

We agree with petitioner that the determination of guilt on charges 1 and 2, which charged her respectively with theft and larceny, is not supported by substantial evidence. A person “commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). “Theft” is a synonym of “larceny” (Black’s Law Dictionary 1780 [11th ed 2019]). We conclude that petitioner’s actions, particularly the creation and placement of the note, are inconsistent with an intent to deprive or appropriate (see § 155.00 [3], [4] …). …

… [I]n light of petitioner’s 32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude … , we conclude that the penalty of termination is ” ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” … . Matter of Gray v LaFountain, 2021 NY Slip Op 02624, Fourth Dept 4-30-21

 

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PLAINTIFF WAS INJURED DURING A WATER POLO GAME IN GYM CLASS; HIS NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined a student’s negligent supervision cause of action against the school district stemming from injuries during a water polo game in gym class properly survived summary judgment. Plaintiff alleged his head hit the bottom of the pool:

… [D]efendants failed to meet their initial burden inasmuch as their own submissions on the motion raise triable issues of fact whether they engaged in negligent supervision and whether that negligence was a proximate cause of plaintiff’s injuries. While defendants’ submissions established that the physical education teacher who supervised water polo had modified the typical rules thereof to prevent contact, defendants’ papers raise issues of fact whether those rules were enforced, the water polo game as modified was safe and age-appropriate, and the supervision of the game was reasonable under the circumstances. Among other things, defendants submitted the deposition of the physical education teacher, wherein he provided conflicting testimony as to whether he actually allowed contact during the water polo game and whether he allowed students to take the ball from each other. His testimony therefore created an issue of fact whether defendants had notice of students engaging in dangerous conduct similar to the conduct that caused plaintiff’s injuries and, thus, whether such conduct was preventable … . Zalewski v East Rochester Bd. of Educ., 2021 NY Slip Op 02700, Fourth Dept 4-30-21

 

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A TAX FORECLOSURE PROCEEDING IS AN IN REM ACTION AGAINST THE PROPERTY, NOT THE PROPERTY OWNER; THEREFORE THE ACTION WAS NOT A NULLITY DESPITE THE DEATH OF THE OWNER (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the tax foreclosure proceeding was not a nullity and did not violate due process. The foreclosed restaurant belonged to plaintiff’s husband, who died in 2006. The treasurer of Ontario County followed all the proper procedures for notification of the tax foreclosure proceedings. Tax foreclosure is an in rem action to which there are no parties. So the argument that the action could not be brought against the deceased owner of the restaurant was rejected:

… [B]y statute, mortgagors are necessary party defendants to mortgage foreclosure actions (see RPAPL 1311 [1]). In contrast, a petition in a tax foreclosure proceeding relates only to the property and not any particular person (see RPTL 1123 [2] [a]). The distinction between in rem tax foreclosure proceedings and mortgage foreclosure actions with respect to the “parties” is critical. While an action or proceeding cannot be commenced against a dead person who, by necessity, is a named party to the action … , a tax foreclosure proceeding is not commenced against any person; it is commenced against the property itself. The owners are not necessary “parties” to the tax foreclosure proceeding; they are only “[p]arties entitled to notice” of the proceeding (RPTL 1125 [1] [a]; see RPTL 1123 [1], [2] [a]; cf. RPAPL 1131). As a result, the tax foreclosure proceeding was properly commenced even though decedent had died … , and there was no need to substitute someone for the dead owner (see CPLR 1015). Hetelekides v County of Ontario, 2021 NY Slip Op 02697, Fourth Dept 4-30-21

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR CONSTRUCTIVE TRUST AND PROMISSORY ESTOPPEL; THE UNJUST ENRICHMENT ELEMENT OF THE CONSTRUCTIVE TRUST WAS NOT PRECLUDED BY A CONTRACT SIGNED BY PLAINTIFF AS A TRUSTEE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a partial dissent, determined the complaint stated a cause of action for a constructive trust, the unjust enrichment element of the constructive trust was not precluded by a contract, and the alleged promise to take care of plaintiff in return for an interest in an LLC was clear and unambiguous enough to support a cause of action for promissory estoppel:

According to plaintiff, defendant [plaintiff’s daughter] had promised that, if plaintiff created the LLC and gave her a 90% membership interest in the LLC and control as sole manager, she would “help [plaintiff] manage his businesses and real property interests, help take care of [plaintiff and his wife], help ensure their financial well-being, and visit them often.” After plaintiff’s wife died, defendant allegedly ended all direct communication with plaintiff and gave “sporadic and cursory” attention to plaintiff’s business and real property interests, prompting him to commence this action. * * *

Inasmuch as the amended complaint alleged a confidential or fiduciary relation, a promise, and a transfer made in reliance on that promise, the issue concerning the [constructive trust] cause of action is whether the amended complaint adequately alleged unjust enrichment.

“[I]n order to sustain an unjust enrichment claim, ‘[a] plaintiff must show that (1) the other party was enriched, (2) at [the plaintiff’s] expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered’ ” … . … Where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded” … .

Here, there is a written contract that covers the particular subject matter, i.e., the LLC’s operating agreement. That agreement, however, was executed by defendant and plaintiff in his role as trustee. … Inasmuch as plaintiff, individually, was not a party to the operating agreement, his first cause of action, insofar as it was asserted by him, individually, is not precluded by the written contract … . Van Scoter v Porter, 2021 NY Slip Op 02692, Fourth Dept 4-30-21

 

DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF FELL WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant in this slip and fall case did not demonstrate it lacked constructive notice of the water on the floor as a matter of law. Defendant did not submit any proof demonstrating when the area was last cleaned or inspected:

To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . A “defendant cannot satisfy its burden merely by pointing out gaps in the plaintiff’s case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident” … . While defendant submitted evidence that it hired a contractor who was generally expected to clean up any hazards, such as water on the floor, it did not submit evidence establishing when the area of plaintiff’s fall was last inspected … . As a result, ” ‘[a] triable issue of fact exists as to when the [area of plaintiff’s fall] was last inspected in relation to the accident and, thus, whether the alleged hazardous condition . . . existed for a sufficient length of time prior to the incident to permit . . . defendant to remedy that condition’ ” … . Furthermore, “[t]he fact that plaintiff did not notice water on the floor before [s]he fell does not establish defendant[‘s] entitlement to judgment as a matter of law on the issue whether that condition was visible and apparent” … . Arghittu-Atmekjian v TJX Cos., Inc., 2021 NY Slip Op 02689, Fourth Dept 4-30-21

 

DEFENDANT’S ALLEGED FAILURE TO MAINTAIN ITS TRUCK LED TO AN ACCIDENT IN WHICH A VAN DRIVEN BY PLAINTIFF’S EMPLOYEE STRUCK DEFENDANT’S EMPLOYEE; A LAWSUIT BY DEFENDANT’S EMPLOYEE AGAINST PLAINTIFF CULMINATED IN A $900,000 SETTLEMENT; PLAINTIFF ALLEGED THE RESULTING INCREASED INSURANCE PREMIUMS FORCED PLAINTIFF OUT OF BUSINESS; THE LOSS OF PLAINTIFF’S BUSINESS WAS NOT A FORESEEABLE CONSEQUENCE OF DEFENDANT’S ALLEGED FAILURE TO MAINTAIN ITS TRUCK (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s negligence was not a proximate cause of the damages suffered by plaintiff. Two wheels fell off defendant’s dump truck. Plaintiff’s (Able Medical’s) employee struck one of the wheels and then struck defendant’s employee, the truck driver. Defendant’s employee sued the plaintiff and the matter was settled for $900,000. Plaintiff alleged the increase in insurance premiums resulting from the accident and settlement forced plaintiff to go out of business:

… [P]laintiffs’ theory of causation is based on a lengthy chain of events spanning the course of two and a half years. In their complaint, plaintiffs alleged that defendant failed to maintain its truck, that rear wheels fell off of the truck causing a motor vehicle accident, that the accident resulted in a lawsuit, and that the settlement of the lawsuit ultimately resulted in an increase in insurance premiums for plaintiffs, which caused plaintiffs to close their business. On its motion, defendant established that those alleged economic injuries were not a foreseeable consequence of defendant’s alleged negligent maintenance of its truck and, thus, the connection between defendant’s activities and plaintiffs’ economic losses is too tenuous and remote to permit recovery … . Able Med. Transp., Inc. v Paragon Envtl. Constr., Inc., 2021 NY Slip Op 02687, Fourth Dept 4-30-21

 

QUESTION OF FACT WHETHER AN UNGUARDED, UNILLUMINATED SEAWALL AT THE BACK OF DEFENDANTS’ YARD CONSTITUTED AN ACTIONABLE DANGEROUS CONDITION; PLAINTIFF, AT NIGHT, FELL OVER THE WALL DOWN TO THE BEACH BELOW (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the unguarded seawall in defendants’ backyard constituted a dangerous condition. Plaintiff was at defendants’ party and walked to the back of the yard to relieve himself when he fell over the wall, which was 20 feet above the lake:

Defendants’ backyard is approximately 20 feet above the lake, separated by a natural cliff that runs along the shoreline. Built into the face of the cliff is the 15-foot-high seawall, which consists of two levels, with an upper and a lower platform, and a cement staircase built into the center of the seawall that permits access from the backyard to the lower platform. Defendants’ backyard includes a cement sidewalk that leads to the top of the seawall’s staircase. Plaintiff fell off the seawall down to the beach below and sustained various injuries. * * *

… [D]efendants failed to eliminate all triable issues of fact whether the alleged hazard posed by the cliff and seawall, given the lighting conditions at the time of the accident, “was visible and obvious or presented a latent, dangerous condition” … . Stempien v Walls, 2021 NY Slip Op 02683, Fourth Dept 4-30-21

 

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NON-OWNER DID NOT HAVE STANDING TO MOVE TO VACATE AN ERIE COUNTY TAX FORECLOSURE SALE; THE RIGHT TO PAY THE DELINQUENT TAXES HAD BEEN EXTINGUISHED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the tax foreclosure sale of property owned by Black Rock to appellant should not have been vacated.  Respondent, Fedder, moved to vacate the sale. After County Court granted Fedder’s motion, the delinquent taxes were paid, the County issued a certificate of redemption to Black Rock, which then sold the property to Fedder:

… [T]his is not a mortgage foreclosure action, where the “equity of redemption” permits property owners “to redeem their property by tendering the full sum” owed before a valid sale is effectuated … . Here, instead, the right to pay the delinquent taxes by virtue of the equity of redemption was extinguished several months prior to Fedder’s motion by order to show cause, according to the ECTA [Erie County Tax Act], the public notice of foreclosure, and the terms of the judgment of foreclosure (see ECTA §§ 11-10.0, 11-12.0; see also RPTL art 11 … ). … [T]he purported redemption, the issuance of the certificate of redemption, and the purported sale and transfer of title from Black Rock to Fedder are nullities … . …

Fedder did not have standing to seek equitable relief in this case. Pursuant to ECTA § 7-10.0, the court could not set aside the sale to appellant “except upon a proceeding brought therefor by the owner of such real property within three months from the date of such sale.” Here, no such proceeding was brought. Instead, Fedder, a nonowner, filed a motion by order to show cause in this foreclosure action, and Black Rock, the owner, was not a party to the motion. In light of the ” ‘clear legislative intent’ ” of section 7-10.0 …, Fedder did not have standing to seek rescission of the sale.  Matter of Foreclosure of Tax Liens, 2021 NY Slip Op 02681, Fourth Dept 4-30-21

 

IN THIS LIEN LAW DISPUTE OVER PAYMENT PURSUANT TO CONSTRUCTION CONTRACTS, DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THE RESTORATION OF IMPROPERLY DIVERTED TRUST ASSETS WITH NON-TRUST ASSETS LIMITED DEFENDANTS’ DAMAGES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this Lien-Law construction-contract action, over a dissent, determined defendants did not demonstrate as a matter of law that the improper diversion of trust assets was cured by the restoration of trust assets with non-trust assets:

“[T]he primary purpose of [Lien Law] article 3-A and its predecessors . . . [is] to ensure that those who have directly expended labor and materials to improve real property [or a public improvement] at the direction of the owner or a general contractor receive payment for the work actually performed” … . “Use of trust assets for any purpose other than the expenditures authorized in Lien Law § 71 before all trust claims have been paid or discharged constitutes an improper diversion of trust assets, regardless of the propriety of the trustee’s intentions” … . Under Lien Law article 3-A, a trust beneficiary may maintain an action “to recover trust assets from anyone to whom they have been diverted with notice of their trust status” … . * * *

… [T]he court erred in granting defendants’ motion in part by limiting the potential damages in the diversion causes of action to a maximum of $104,205.99 based on Top Capital’s [defendant’s] alleged restoration of trust assets through payments made with non-trust assets … . Plaintiffs allege that approximately $1.4 million in trust assets was improperly diverted by defendants. The court, in limiting the potential recovery on the diversion causes of action, credited not just Top Capital but all defendants for the approximately $1.3 million Top Capital paid DiMarco [plaintiff] from non-trust assets after the trust fund was depleted. That was error because defendants failed to establish their entitlement to a restoration defense as a matter of law. Contrary to defendants’ assertion, the Court of Appeals has rejected the argument that a defendant can cure an improper diversion of trust assets, and therefore avoid liability for that diversion, by a subsequent payment from non-trust assets … . DiMarco Constructors, LLC v Top Capital of N.Y. Brockport, LLC, 2021 NY Slip Op 02680, Fourth Dept 4-30-21

 

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