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Juvenile Delinquency Adjudication Should Not Have Been Considered in SORA Risk Assessment—Criteria for an Upward Departure Explained

The Second Department determined defendant’s juvenile delinquency adjudication should not have been considered in determining the defendant’s risk level. The court explained the proper procedure for considering an upward departure: … “[T]he County Court upwardly departed without following the required three analytical steps of determining, first, whether an aggravating factor exists as a matter of law, second, whether the People have adduced clear and convincing evidence of the facts in support of that aggravating factor, and third, whether, in the court’s discretion, the totality of the circumstances warrant the upward departure to avoid an under-assessment of the defendant’s dangerousness and risk of sexual recidivism …”. People v Ruland,  2015 NY Slip Op 04464, 2nd Dept 5-27-15

 

Application for Area Variance Properly Denied—Analytical Criteria Described

The Second Department determined the village zoning board properly denied petitioner’s application for an area variance by considering all of the required factors enumerated in Village Law 7-712-b(3): “When determining whether to grant an application for an area variance, a Village zoning board of appeals, pursuant to Village Law § 7-712-b(3), must engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted” … . A Village board of zoning appeals must also consider “whether (1) an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some other method, other than an area variance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self created” … . Matter of Affordable Homes of Long Is., LLC v Monteverde, 2015 NY Slip Op 04480, 2nd Dept 5-27-15

 

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Lease and Lease Amendment Invalid Even Though Approved by County Legislature—County Charter Required that All Contracts with the County Be Executed by the County Executive—The County Executive Signed the Lease But Not the Lease Amendment (Which Was Integral to the Agreement)—Lease Required All Modifications to Be In Writing, So Signing the Lease Amendment Was Not a “Purely Ministerial Act”—A Municipal Contract Which Does Not Comply with Statutory Requirements or Local Law Is Invalid and Unenforceable

The Second Department determined that a lease and a lease amendment were invalid and unenforceable, even though the documents had been approved by the Nassau County Legislature.  The Nassau County Charter required that any contract entered into by the county be executed by the County Executive. The County Executive signed the lease, but not the lease amendment (which was integral to the final agreement). Execution of the lease amendment was not a “purely ministerial act” because the lease required that any modifications be in writing:

” A municipal contract which does not comply with statutory requirements or local law is invalid and unenforceable'” … . Here, the County demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the lease amendment, which was integral to the final agreement between the parties, was not executed by the County Executive or his authorized designee, as required by Nassau County Charter § 2206. Contrary to the defendant’s contention, the execution of the lease amendment by the County Executive or his designee was not a purely ministerial act in light of the express language in the lease requiring any modifications thereto to be in writing … . Further, the express terms of the proposed lease provided that it could not be modified “except by a writing subscribed by both parties” (emphasis added), and the lease amendment expressly contemplated that it would be effective when “last executed by the parties.” Since the lease amendment was integral to the final agreement between the parties, and the proposed lease and lease amendment together constituted the entirety of the parties’ understanding of their obligations, the County established, prima facie, that the County Executive’s determination not to execute the lease amendment rendered the proposed lease unenforceable because there was no meeting of the minds between the parties … . County of Nassau v Grand Baldwin Assoc., L.P., 2015 NY Slip Op 04445, 2nd Dept 5-27-15

 

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Upward Departure Proper In Light of Felony Conviction Not Considered in the Risk Assessment–Criteria for Upward Departure Explained In Some Detail

The Second Department determined County Court properly departed (upward) from the presumptive risk level based upon a felony conviction which pre-dated the sexual offenses considered in the risk assessment. The Second Department explained in some detail the criteria for an upward departure:

A court is permitted to depart from the presumptive risk level if “special circumstances” warrant departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). An upward departure is permitted only if the court concludes “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (id. at 4…). In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a multi-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the existence of that aggravating factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart … . People v Williams, 2015 NY Slip Op 04465, 2nd Dept 5-27-15

 

Grandparents Did Not Have Standing to Bring a Petition for Visitation

The Second Department determined Family Court properly dismissed the grandparents’ petition for visitation with the grandchildren without a hearing. Family Court properly determined the grandparents did not have standing to bring the petition because no triable issues of fact were raised in the submitted papers. The standing question is determined by applying equitable principles re: the nature of the grandparents’ relationship with the children and the nature and basis of the parents’ objection to visitation:

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” … . “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” … .

“In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72[1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” … . Additionally, the court must consider ” the nature and basis of the parents’ objection to visitation'” … . “A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers” … .

Here, the Family Court properly denied the grandparents’ petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents … . Matter of Moskowitz v Moskowitz, 2015 NY Slip Op 04490, 2nd Dept 5-27-15

 

Tractor-Trailer Veered Into Oncoming Lane Striking Bus/Emergency Doctrine Required Dismissal of Complaint Against Bus Company and Driver as a Matter of Law/Lessor of Trailer Protected Against Vicarious Liability by Graves Amendment/Negligent Entrustment Cause of Action Against Lessor of Trailer Dismissed as a Matter of Law (No Special Knowledge Use of Trailer by Lessee Would Render It Unreasonably Dangerous)

A tractor trailer suddenly veered into oncoming traffic and struck a bus owned by one of the defendants, Schoolman.  The Second Department determined the emergency doctrine precluded, as a matter of law, the suit against the bus company and the driver of the bus (Zimmardi). The court also determined the company which leased the trailer, EMH,  was protected from vicarious liability by the Graves Amendment, and was not liable, as a matter of law, under a negligent entrustment theory. The leasing company had no special knowledge of a use of the trailer by the lessee that would render the use of the trailer unreasonably dangerous:

Here, Schoolman established its prima facie entitlement to judgment as a matter of law dismissing the complaints … by demonstrating that its driver, Zimmardi, was faced with an emergency situation not of his own making when the truck suddenly veered into his lane of traffic, and that he acted reasonably in the context of that emergency … . * * *

EMH established its prima facie entitlement to judgment as a matter of law in connection with the vicarious liability causes of action by demonstrating, prima facie, that the Graves Amendment (49 USC § 30106) applied to shield it from liability for the plaintiffs’ injuries by virtue of its status as a commercial lessor of motor vehicles that was free from negligence in maintaining the subject vehicle (see Castillo v Amjack Leasing Corp., 84 AD3d 1297, 1297-1298; Graham v Dunkley, 50 AD3d 55, 57-58). Further, EMH established its prima facie entitlement to judgment as a matter of law dismissing the negligent entrustment causes of action insofar as asserted against it by demonstrating that it did not possess special knowledge concerning a characteristic or condition … that rendered the use of the leased vehicle … unreasonably dangerous … . Pacelli v Intruck Leasing Corp, 2015 NY Slip Op 04292, 2nd Dept 5-20-15

 

Question of Fact Whether Embankment Near a Stream Was an “Open and Obvious” Dangerous Condition at 3 a.m.

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants (property owners).  Plaintiff, who had been invited onto the property, fell off an embankment near a stream and fractured his ankle.  Plaintiff was among a group who had gathered around a bonfire in an area which had been used for that purpose by defendants.  The fall took place at 3 a.m.  The Second Department determined there was a question of fact whether the dangerous condition was open and obvious (because it was dark):

“A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . “The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff’s presence on the property” …. “Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain” … .

However, a landowner does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous … . Moreover, the question “of whether a condition is hidden or open and obvious is generally for the finder of fact to determine” …, although, in a proper case, a condition may be found open and obvious as a matter of law. Nonetheless, whether a condition is open and obvious “cannot be divorced from the surrounding circumstances,” and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured … . Barone v Risi, 2015 NY Slip Op 04265, 2nd Dept 5-20-15

 

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Release Null and Void Under the General Obligations Law–Plaintiff Paid a Fee to Participate in the Basketball Game In Which He Was Injured

Plaintiff paid a fee to participate in a basketball league and signed a release of liability.  He was injured during a game when his hand went through the glass of a door behind a basketball hoop. The defendants sought permission to amend their answer to assert the defense of release and Supreme Court allowed the amendment. The Second Department determined the motion for leave to amend the answer should have been denied because the affirmative defense was “patently devoid of merit.” General Obligations Law 5-326 nullifies any such release where the owner or operator of a sports facility charges a fee for use of the facility. Falzone v City of New York, 2015 NY Slip Op 04273, 2nd Dept 5-20-15

[General Obligations Law 5-326 provides: “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”]

 

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Foreign Corporation’s Sole Residence for Venue Purposes Is the County Designated In Its Filed Application to Conduct Business in New York State

In the context of a dispute over proper venue, the Second Department determined that plaintiff foreign corporation’s sole residence in New York State is the county designated in its application for authority to conduct business in New York State as filed with the State. Therefore plaintiff’s bringing the action in Nassau County, where it alleged its principal place of business is located, as opposed to New York County, the county designated in its filed application, was improper:

…[T]he law is clear that “[f]or purposes of venue, the sole residence of a foreign corporation is the county in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York” …, regardless of where it transacts business or maintains its actual principal office (see CPLR 503[c]; Business Corporation Law § 102[a][10]…). We note that, since the plaintiff’s response to the defendants’ demand to change venue failed to set forth factual averments that were prima facie sufficient to show that its designation of Nassau County for trial of the action was proper, the defendants were authorized to notice their motion to change venue to be heard in Saratoga County (see CPLR 511[b]…). Further, the defendants are not responsible for the delay occasioned by the denial of their motion by the Supreme Court, Saratoga County.

In view of the foregoing circumstances, the Supreme Court should have granted the defendants’ motion to change the venue of the action from Nassau County to Saratoga County, despite the fact that an order granting class certification had already been issued in the action. American Bldrs. & Contrs. Supply Co., Inc. v Capitaland Home Improvement Showroom, LLC, 2015 NY Slip Op 04262, 2nd Dept 5-20-15

 

Restrictive Covenant Was Part of a Common Development Scheme and Was Enforceable by All Property Owners In the Subdivision

The Second Department determined a restrictive covenant requiring that one parcel in a subdivision remain undeveloped was enforceable by property owners in the subdivision. The covenant was part of a common development scheme created for the benefit of all property owners. The covenant stated that the parcel “shall be maintained . . . in perpetuity as open space preserving same in its present natural condition and not permitting or causing thereon any construction, improvements or alterations of the existing natural state of the premises. This restriction shall run with the land in perpetuity.”  Defendants were seeking to build an access road across the parcel.  The Second Department explained: . “The law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them … . Courts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence … . However, where proved by clear and convincing evidence, they are to be enforced pursuant to their clear meaning…”. [internal quotations omitted] Fader v Taconic Tract Dev., LLC, 2015 NY Slip Op 04272, 2nd Dept 5-20-15

 

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