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THE JURY FOUND THE DEFENDANT SEX OFFENDER DID NOT SUFFER FROM A MENTAL ABNORMALITY WHICH AFFECTED HIS ABILITY TO CONTROL HIS BEHAVIOR AND WAS THEREFORE ENTITLED TO RELEASE; UPON THE STATE’S MOTION THE VERDICT WAS SET ASIDE; THE APPELLATE DIVISION REVERSED FINDING THAT THE STATE WAS NOT PREJUDICED BY ALLEGED JUROR MISCONDUCT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the sex offender civil management verdict, which found defendant did not suffer from a mental abnormality and was therefore entitled to release, should not have been set aside. The state argued the jury foreperson’s telling the jury that, according to the foreperson’s father, “if inmates wanted to do something in prison they could do it” constituted jury misconduct. The remark was relevant to the expert testimony about the ways an inmate can act out sexually. The defendant argued he had not been cited for sexual misbehavior during his 30 years in prison, so the evidence he could have acted out was relevant to his ability to control his behavior:

… [W]e conclude that petitioner [the state] was not prejudiced by the foreperson’s failure to disclose during voir dire that his father previously worked as a correction officer… . We note that several of the jurors in this case either worked in prison or had close relations who worked as correction officers or in law enforcement. Neither party seems to have considered that to have been a disqualifying attribute because those jurors were selected to serve on the jury. Indeed, because the trial was held in the shadow of Auburn Correctional Facility, it would have been difficult for the parties to select 12 qualified jurors with no connection to the prison. Petitioner’s attorney was well aware of that fact and seized upon it during summation, urging the jurors to draw upon their knowledge of the internal workings of prisons in order to decide the case. Petitioner had every reason to believe that a jury packed with prison employees and their relations would likely return a verdict unfavorable to the convicted offender. Petitioner cries foul only because its strategy backfired. Matter of State of New York v Donald G., 2020 NY Slip Op 04716, Fourth Dept 8-20-20

 

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ALTHOUGH THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING A VIOLENT COURTROOM SCENE IN A MOVIE TO BE PLAYED FOR THE JURY BECAUSE THE DEFENDANT HAD QUOTED DIALOGUE FROM IT, THE ERROR WAS HARMLESS; THE DISSENT ARGUED IT WAS NOT HARMLESS ERROR (FOURTH DEPT).

The Fourth Department determined it was harmless error to allow the prosecutor in this murder case to show part of a movie from which the defendant had posted dialogue. The dissent argued the error was not harmless:

… [T]he court abused its discretion when it permitted the prosecutor to play for the jury a scene from the film, The Boondock Saints. The scene takes place inside a courtroom, where the protagonists threaten everyone with pistols. Some people in the scene, presumably those playing the jurors, watch in astonishment while ducking for cover. The protagonists make loud, self-aggrandizing statements, declaring themselves vigilantes tasked by God with bringing justice to the world (e.g. “Each day we will spill their blood till it rains down from the sky!”). For those who do not behave morally, the protagonists offer a message: “One day you will look behind you and you will see we three . . . and we will send you to whichever God you wish.” The protagonists put their guns to the back of the defendant’s head while he is knelt on the floor in an execution-style pose. Gunfire erupts, and everyone runs out of the courthouse screaming.

The prosecutor’s ostensible reason for playing that particular scene was to rebut defendant’s testimony that he was coerced by his accomplice into participating in the murder and subsequently lying to the police. The relevance of that scene is that defendant posted quotations from it on social media two days after the victim’s murder and one day before he gave the allegedly coerced statement to the police. …

Because the probative value of the scene from The Boondock Saints video was substantially outweighed by the danger that its admission would prejudice defendant or mislead the jury, the court abused its discretion in admitting it … . People v Horn, 2020 NY Slip Op 04712, Fourth Dept 8-20-20

 

TREE-CUTTING IS A COVERED ACTIVITY PURSUANT TO LABOR LAW 240 (1) AND 241 (6) IF DONE IN CONNECTION WITH A COVERED CONSTRUCTION PROJECT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor 240 (1) should not have been granted, defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied, and defendant’s motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted. Plaintiff was injured cutting trees, which is a covered activity when done in connection with a construction project:

Although trees are not structures and tree removal in and of itself is not an enumerated activity within the meaning of Labor Law § 240 (1), tree removal performed to facilitate an enumerated activity does come within the ambit of this statute (see Lombardi v Stout, 80 NY2d 290, 296 [1992]). Defendant failed to meet its initial burden on that part of its motion because defendant’s own submissions raised a triable issue of fact whether plaintiff’s tree removal work at the time of the accident was ancillary to the larger construction project, specifically the culvert installation work, that was ongoing at the time of the accident … . Contrary to plaintiff’s further contention, however, the court properly denied his cross motion seeking summary judgment on the issue of defendant’s liability under section 240 (1) inasmuch as plaintiff failed to eliminate all triable issues of fact whether his tree removal work “[fell] into a separate phase easily distinguishable from other parts of the larger construction project” … . …

Although it is well settled that Labor Law § 241 (6) does not apply to a worker who engages in tree trimming that is unrelated to construction, demolition or excavation work … , as noted above, there is a triable question of fact whether plaintiff’s work at the time of his accident was related to the culvert installation work and was thus related to construction, demolition or excavation work.  …

[Re: the Labor law 200 cause of action] defendant met its burden … by submitting evidence establishing “that the alleged dangerous condition arose from the . . . methods [of plaintiff’s employer] and that defendant did not exercise supervisory control over the removal of the tree or any aspect of plaintiff’s activities” … . Krencik v Oakgrove Constr., Inc., 2020 NY Slip Op 04642, Fourth Dept 8-20-20

 

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THE DEFENDANT’S SIGNATURE ON THE PRENUPTIAL AGREEMENT WAS NOT ACKNOWLEDGED UNTIL RIGHT BEFORE THE DIVORCE PROCEEDINGS, SEVEN YEARS AFTER PLAINTIFF’S SIGNATURE ON THE AGREEMENT WAS ACKNOWLEDGED; IN THIS CIRCUMSTANCE, THE PRENUPTIAL AGREEMENT MUST BE MUTUALLY REAFFIRMED TO BE VALID (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the prenuptial agreement was not valid and enforceable. The agreement was not acknowledged in front of a notary in 2011 by the defendant. Plaintiff had signed and acknowledged the agreement in 2011. Seven years later, right before the divorce proceedings, defendant had his signature acknowledged and he filed the agreement:

… [W]e conclude that, when an acknowledgment is missing from a nuptial agreement, an acknowledgment and a reaffirmation by the parties is required to cure the defect. To hold otherwise would permit a spouse to act unilaterally to cure the lack of his or her acknowledgment at some later date, and would thereby permit that spouse to choose, based on circumstances that may have changed in ways unanticipated by the other spouse at the time of the initial signing of the agreement, whether to acknowledge the agreement and make it enforceable or to leave it unacknowledged and defective. When the parties mutually sign and acknowledge the agreement, it is clear that they are mutually binding themselves to the weighty decisions that they deliberated on. Thus, in order for the acknowledgment to have true significance and purpose, it must be done contemporaneously with the parties’ signatures or, if the acknowledgment occurs at a later date, the agreement must be mutually reaffirmed by the parties … . Anderson v Anderson, 2020 NY Slip Op 04640, Fourth Dept 8-20-20

 

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PLAINTIFF’S HOMEOWNER’S POLICY EXCLUDED COVERAGE FOR INTENTIONAL ACTS; THEREFORE THE INSURER WAS NOT OBLIGATED TO DEFEND PLAINTIFF IN A SUIT STEMMING FROM AN ALLEGED ASSAULT BY PLAINTIFF ON HIS NEIGHBOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant insurer was not obligated to defend plaintiff (pursuant to plaintiff’s homeowner’s policy) because the injuries stemmed from an apparent assault by plaintiff on his neighbor (Salerno) and therefore involved intentional, not negligent, acts. The policy excluded coverage for injuries resulting from intentional acts. Salerno sued plaintiff in tort:

In assessing whether a policy exclusion for injuries ” intentionally caused’ ” by the insured applies, a court must look to the pleadings in the underlying action and “limit [its] examination to the nature of the conduct [of the insured] as it is there described” … . The “analysis depends on the facts which are pleaded, not conclusory assertions” … . When a complaint alleges in a conclusory manner that an assault was committed negligently, an insurer has no duty to defend where the insured does not provide “evidentiary support for the conclusory characterization of [the] conduct as negligent or provide an explanation of how the intrinsically intentional act[] of assault . . . could be negligently performed” … . An insured may not “exalt form over substance by labeling [an underlying tort] action as one to recover damages for negligence” where the conduct is inherently intentional … .

Here, the second cause of action in the Salerno complaint contains no more than a conclusory characterization of plaintiff’s conduct as negligent without any supporting factual allegations. Thus, the complaint in the underlying action does not contain sufficient allegations of negligence to avoid the policy exclusion … . Scalzo v Central Co-op. Ins. Co., 2020 NY Slip Op 04639, Fourth Dept 8-20-20

 

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THE SOLAR ARRAY IS ATTACHED TO THE COLLEGE’S LAND AND IS THEREFORE TAXABLE REAL PROPERTY; THE ARRAY IS OWNED BY THE INSTALLER, NOT THE COLLEGE, AND IS THEREFORE NOT EXEMPT FROM TAXATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the solar array installed on petitioner-college’s land was owned by the installer, Argos, not the college, and is taxable as real property because it is permanently attached to the land:

Respondents contend that the system constitutes taxable real property under RPTL 102 (12) (b). We agree. Pursuant to that statute, taxable real property is defined as “[b]uildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto” (id.). “The common law relating to fixtures provides guidance in determining whether particular items fall within [that] statutory definition” … . “To meet the common-law definition of fixture, the personalty in question must: (1) be actually annexed to real property or something appurtenant thereto; (2) be applied to the use or purpose to which that part of the realty with which it is connected is appropriated; and, (3) be intended by the parties as a permanent accession to the freehold” … . …

… .RPTL 420-a (1) (a) provides, in relevant part, that “[r]eal property owned by a corporation or association organized or conducted exclusively for . . . educational . . . purposes, and used exclusively for carrying out thereupon . . . such purposes . . . shall be exempt from taxation.” “Land and [structures] are separately defined as taxable forms of real property (see RPTL 102 [12] [a], [b]), and [parties to an agreement] may agree to their separate ownership” … . …

Here, it is undisputed that petitioner is a qualifying corporation, but Argos is not, and that the system is used for a qualifying purpose; therefore, whether the system is tax exempt depends on its ownership. Matter of Cornell Univ. v Board of Assessment Review, 2020 NY Slip Op 04636, Fourth Dept 8-20-20

 

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THE ORAL STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION IS INVALID AND UNENFORCEABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined the oral stipulation of settlement in this divorce action is invalid and unenforceable. The dissent argued defendant wife was not aggrieved because the parties contentions were resolved by the stipulation which was incorporated into the judgment of divorce:

… [T]he parties placed on the record an oral stipulation of settlement that, inter alia, provided for the distribution of the marital property. Although the oral stipulation contemplated the signing of a postnuptial agreement, defendant wife refused to sign such an agreement. Nevertheless, Supreme Court issued a judgment that acknowledged that the parties had placed on the record in open court an oral stipulation resolving all disputed issues, and that provided, inter alia, that the oral stipulation was incorporated but not merged into the judgment. …

We agree with defendant that the oral stipulation rendered in open court did not satisfy the requirements of Domestic Relations Law § 236 (B) (3), and it is therefore invalid and unenforceable. “In matrimonial actions . . . an open court stipulation is unenforceable absent a writing that complies with the requirements for marital settlement agreements” … . “More particularly, to be valid and enforceable, marital settlement agreements must be in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded’ … . McGovern v McGovern, 2020 NY Slip Op 04635, Fourth Dept 8-20-20

 

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NOTWITHSTANDING ANY PRECEDENT TO THE CONTRARY, THE APPELLATE DIVISION CAN REVIEW THE RECORD OF A TRIAL AND FIND THE VERDICT UNSUPPORTED BY THE FACTS DESPITE THE ABSENCE OF A MOTION TO SET ASIDE THE VERDICT; HERE THE RECORD IN THIS TRAFFIC ACCIDENT CASE DID NOT SUPPORT THE FINDING THAT THE DRIVER OF A NEW YORK STATE THRUWAY DUMP TRUCK ACTED RECKLESSLY BY PARKING THE TRUCK ON THE SHOULDER OF THE THRUWAY (FOURTH DEPT).

The Fourth Department, refusing to follow any decisions to the contrary, determined, despite the defendant’s failure to make a motion to set aside the verdict, the appellate court may review the record and render a judgment warranted by the facts. The Fourth Department, over a two-justice dissent, reversed the plaintiffs’ verdict in this traffic accident case. Defendant, an employee of the New York State Thruway Authority, was the driver of a dump truck parked on the shoulder of the thruway while other employees picked up debris in the median. The truck was parked 18 inches to the left of the fog line. Plaintiffs’ van drifted out of its lane and struck the back of the dump truck. The plaintiffs argued defendant was required by the relevant regulations to pull off “as far from traffic as feasible.” The Fourth Department held that, although failure to pull off the highway further than 18 inches may demonstrate a lack of due care, it did not demonstrate recklessness as required by Vehicle and Traffic Law 1103:

… [A]t the time of the collision, defendant had parked the truck entirely outside of the travel lane approximately 18 inches to the left of the yellow fog line on or near the rumble strips located on the shoulder. Defendant had also activated multiple hazard lights on the truck, which consisted of regular flashers, two amber lights on the tailgate, beacon lights, and four flashing caution lights on the arrow board. Moreover, the undisputed evidence established that there were no weather, road, or lighting conditions creating visibility or control issues for motorists on the morning of the incident. Even if, as the court found, defendant knew or should have known that vehicles occasionally leave the roadway at a high rate of speed due to motorists being tired, distracted, or inattentive, we conclude that, here, it cannot be said that defendant’s actions were of an “unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and . . . done . . . with conscious indifference to the outcome” … . Alexandra R. v Krone, 2020 NY Slip Op 04631, Fourth Dept 8-20-20

 

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CLAIMANT’S PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS STUDENT-ON-STUDENT ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant’s petition for leave to file a late notice of claim on the school district in this student-on-student third-party assault case should not have been granted:

” In determining whether to grant such leave, the court must consider, inter alia, 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’ ” … . …

… [C]laimant described the assault on her child as “unprovoked,” and the accident report prepared contemporaneously by a school nurse, which claimant submitted with her reply affidavit, describes a single punch resulting only in a headache and swollen face. Inasmuch as “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” …, we agree with respondent that the known facts failed to give “reasonable notice from which it could be inferred that a potentially actionable wrong had been committed by [respondent]”. Matter of Mary Beth B. v West Genesee Cent. Sch. Dist., 2020 NY Slip Op 04630, Fourth Dept 8-20-20

 

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DEFENDANT WAS ARRESTED BY OFFICERS WHO BELIEVED HE WAS DEFENDANT’S BROTHER FOR WHOM THERE WERE OUTSTANDING ARREST WARRANTS; THE PEOPLE FAILED TO MEET THEIR BURDEN OF GOING FORWARD AT THE SUPPRESSION HEARING BECAUSE THEY FAILED TO PROVE THE EXISTENCE AND VALIDITY OF THE ARREST WARRANTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined defendant’s motion to suppress the weapon seized from after he fled the police should have been granted. At the suppression hearing the officers testified they thought defendant was defendant’s brother and approached defendant because they aware of outstanding warrants for the brother’s arrest. To meet their burden of going forward at the suppression hearing, the People were required to prove the existence and validity of the arrest warrants, but no such proof was presented:

… ” [T]he arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer (a) has probable cause to arrest the person sought, and (b) reasonably believed the person arrested was the person sought’ ” … . The ” reasonableness of the arresting officers’ conduct must be determined by considering the totality of the circumstances surrounding the arrest’ ” … . Thus, to establish a lawful arrest of defendant, the People were required to establish the existence of a validly issued arrest warrant for defendant’s brother or probable cause to arrest him … and, here, the People concede that the police arrested defendant based only upon the arrest warrants issued for defendant’s brother.

Contrary to the People’s position and the dissent’s assertion, we conclude that defendant challenged the existence and validity of the arrest warrants for his brother by questioning the police witnesses at the suppression hearing concerning the status of the arrest warrants and whether they were still valid … . Notably, the court acknowledged and “accept[ed] that the [d]efendant [was] in fact contesting the validity of [the] warrants.” Once defendant challenged the existence and validity of the arrest warrants, the People were ” required to make a further evidentiary showing by producing the . . . warrant[s]’ ” … , or “reliable evidence that the warrant[s were] active and valid” … . Here, the People failed to meet their burden inasmuch as they failed to produce the arrest warrants themselves or other reliable evidence that the warrants were active and valid … . People v Dortch, 2020 NY Slip Op 04711, Fourth Dept 8-20-20

 

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