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Statutory Three-Year Moratorium on Seeking a Lower Tax Assessment Applies to New Owner of the Property

The Second Department, in a full-fledged opinion by Justice Dillon, determined that the three-year moratorium on tax certiorari proceedings following a reduced assessment applied to a subsequent purchaser of the land. The seller of the land successfully won a reduced assessment of the land due to chemical contamination.  The purchaser of the land then sought a further reduction, based upon a much lower appraisal of the value of the land, within the three-year statutory moratorium period:

Central to this appeal is the language, purpose, and legislative intent of RPTL 727(1), which states, in relevant part, that

“where an assessment being reviewed pursuant to this article is found to be unlawful, unequal, excessive or misclassified by final court order or judgment, the assessed valuation so determined shall not be changed for such property for the next three succeeding assessment rolls prepared on the basis of the three taxable status dates next occurring on or after the taxable status date of the most recent assessment under review in the proceeding subject to such final order or judgment” (RPTL 727[1]). * * *

What distinguishes these matters from many tax certiorari proceedings is the change in the property’s ownership … . RPTL 727(2) sets forth certain circumstances under which property assessments may be challenged despite the three-year moratorium, mainly involving revaluations of all properties on a municipal entity’s assessment rolls, physical changes to the property, zoning changes, and other recognized exceptions not relevant here (see RPTL 727[2][a-I]…). These recognized exceptions address situations where changes in circumstances defeat the statute’s purpose of locking in judicially settled assessments to maintain the status quo, because the changed circumstances themselves upset the status quo … .

A change in a property’s ownership is not listed in the statute as an exception to the three-year moratorium of RPTL 727(1). Under the doctrine of expressio unius est exclusio alterius, the presence of exceptions in RPTL 727(2), without inclusion of a property sale exception among them, must be inferentially construed as the Legislature’s intent not to except from the three-year moratorium circumstances where property is sold to a new owner… . Matter of ELT Harriman, LLC v Assessor of Town of Woodbury, 2015 NY Slip Op 03356, 2nd Dept 4-22-15

 

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Hospital Employees, Working With a Non-Employee Attending Physician, Were Not Independently Negligent and Were Not Asked to Follow Orders Which Were Contrary to Normal Practice—Summary Judgment Dismissing Complaint Against Hospital Should Have Been Granted

The Second Department determined defendant hospital (Good Samaritan) was entitled to summary judgment dismissing the complaint. The hospital was not concurrently liable re: conduct of a non-employee attending physician (Schneider) because there was no showing hospital employees acted negligently independently or followed orders made by the attending physician which were contrary to normal practice:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence” … . “However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” … . Here, the evidence submitted by Good Samaritan established, prima facie, that there were no independent acts of medical judgment on the part of Good Samaritan or its employees apart from following the orders of Schneider, who was the plaintiff’s private attending physician. Nor were Schneider’s orders contraindicated by normal practice, such that ordinary prudence required inquiry into the correctness of those orders. Tomeo v Beccia, 2015 NY Slip Op 03350, 2nd Dept 4-22-15

 

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Admissions In Hospital Records Which Contradicted Plaintiff’s Trial Testimony Properly Admitted/Seat Belt Defense Should Not Have Been Submitted to the Jury—Insufficient Foundation/”Missing Witness” Jury-Instruction Request Not Supported by a Showing the Testimony Would Be “Material” and “Noncumulative”

The Second Department determined the plaintiff’s admission, contained in the hospital records, that he was not wearing a seat belt at the time of the collision was properly admitted at trial.  Although the statement was not relevant to diagnosis or treatment, it was admissible because it contradicted plaintiff’s trial testimony (plaintiff testified he was wearing a seat belt at the time of the accident). However, Supreme Court should not have submitted the seat belt defense to the jury because there was no foundational testimony explaining precisely how wearing a seat belt would have minimized plaintiff’s injuries.  The Second Department also noted plaintiff’s request for a missing witness jury instruction was properly denied because there was no showing the witness would have provided material, noncumulative testimony:

A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule only if the entry is germane to the diagnosis or treatment of the patient … . However, if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is “evidence connecting the party to the entry” … . At trial, the plaintiff testified that he was using a seat belt at the time of the accident. The hospital records containing the challenged entries clearly indicated that the plaintiff was the source of the information contained therein … . Accordingly, the challenged entries were properly admitted into evidence.

Although the Supreme Court properly declined to redact the hospital record as requested by the plaintiff, the court nonetheless erred in submitting the seat belt defense to the jury, since the defendants failed to demonstrate, by competent evidence, that the plaintiff’s injuries would have been minimized had he been wearing a seat belt at the time of the accident … . At trial, both of the plaintiff’s treating physicians testified in general terms that use of a seat belt can reduce the risk of injury. This evidence was insufficient to satisfy the defendants’ burden of proof … . Robles v Polytemp, Inc., 2015 NY Slip Op 03341, 2nd Dept 4-22-15

 

 

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Failure to Give the “Missing Witness” Jury Instruction Required Reversal of Defense Verdict—Criteria Explained

The Second Department reversed a defense verdict in a slip and fall case. Chinsamy, the owner and operator of the defendant business which abutted the sidewalk where plaintiff slipped and fell, did not testify at trial.  He had given a deposition about his knowledge of the condition of the sidewalk, which was read to the jury by plaintiff’s counsel.  Plaintiff’s request for the missing witness jury instruction should not have been denied.  Plaintiff was entitled to the instruction even though Chinsamy’s deposition testimony was placed in evidence. The court explained the relevant “missing witness charge” criteria:

A missing witness charge “instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party’s version of events. . . The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control’ of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party” … .

Under the circumstances, and considering Chinsamy’s unexplained failure to appear and testify at trial, the Supreme Court should have granted the plaintiff’s request for a missing witness charge … . In this regard, we note that the plaintiff’s use of Chinsamy’s deposition testimony does not constitute a waiver of her right to request a missing witness charge… . Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308, 2nd Dept 4-22-15

 

Action for a Declaratory Judgment Must Be Based Upon a Concrete Dispute, Not the Mere Possibility of Prejudice—Complaint Properly Dismissed

In finding that the action for a declaratory judgment was properly dismissed, the Second Department explained that a declaratory judgment must be based upon a concrete dispute and may not be based upon merely hypothetical prejudice to the plaintiff.  Without a concrete dispute, the action seeks an impermissible advisory opinion:

An action for a declaratory judgment must be supported by the existence of a justiciable controversy (see CPLR 3001…). There must be a genuine, concrete dispute between adverse parties, not merely the possibility of hypothetical, contingent, or remote prejudice to the plaintiff … .

Contrary to the plaintiff’s contention, it failed to allege the existence of a justiciable controversy in this case, relying instead upon a hypothetical injury which would be contingent upon the occurrence of events which may or may not come to pass at some point in the future. Accordingly, the plaintiff sought an impermissible advisory opinion, and the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint … . Premier Restorations of N.Y. Corp. v New York State Dept. of Motor Vehicles, 2015 NY Slip Op 03339, 2nd Dept 4-22-15

 

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Insurer Did Not Demonstrate, as a Matter of Law, the Denials of Claims Were Timely and Properly Mailed—Summary Judgment In Favor of Insurer Should Not Have Been Granted

Supreme Court granted plaintiff insurer’s motion for summary judgment, declaring that the plaintiff was not obligated to pay no-fault claims submitted by the defendant because the defendant was unable to verify the validity of the claims. The Second Department reversed, finding that the plaintiff did not demonstrate, as a matter of law, that the denials had been timely and properly mailed to the defendant. The relevant proof requirements were described:

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” … . ” The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” … . However, in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a denial of claim is always properly addressed and mailed … . “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” … .

Here, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the denial of claim forms to the defendant. The affidavit of Joseph M. Andre … asserted that … all items were mailed through an automated system, and explained how documents were identified. However, Andre did not state, in his affidavit, how the envelopes were addressed so as to ensure that the address was correct or whether the envelope was addressed by the automated system or by an employee. He also did not state how and when the envelopes, once sealed, weighed, and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier or messenger service to be delivered. Therefore, Andre’s affidavit was insufficient to establish, as a matter of law, that the denial of claim forms were timely and properly mailed to the defendant… . Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 2015 NY Slip Op 03340, 2nd Dept 4-22-15

 

Under the Facts, Family Court Should Not Have Terminated Father’s Parental Rights—No Showing that Termination Would Increase Likelihood of Adoption

The Second Department determined Family Court should not have terminated father’s parental rights. Father had made progress in strengthening his bond with his children and there was no showing terminating his rights would increase the likelihood of adoption:

The record indicates that the father made sufficient progress toward strengthening his relationship with the subject children … . Furthermore, the older child is residing at a residential treatment center for children with emotional and behavioral issues, and there is no indication that he has any prospects for foster placement or adoption. Although the younger child resides with a foster family, the foster parents have indicated that they do not wish to adopt him out of concern that they could not handle him. Thus, on this record, there is no indication that termination of the father’s parental rights would increase the subject children’s opportunities for adoptive placement … .

Under these circumstances, the Family Court’s termination of the father’s parental rights was not in the best interests of the children and, instead, the court should have suspended judgment for one year… . Matter of Javon J. (Antoine J.), 2015 NY Slip Op 03363, 2nd Dept 4-22-15

 

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Court’s Review Powers Re: a Zoning Board’s Interpretation of an Ordinance Explained—Reviewing Court Need Not Defer to the Board’s Ruling on a Purely Legal Issue/Here Zoning Board Properly Interpreted the Ordinance—Criteria Explained

Reversing Supreme Court, the Second Department determined the Zoning Board of Appeals (ZBA) had properly found that a “tire sales and automotive repair” business was a “conditional use,” not a “permitted use,” within the meaning of the Village Code. A “conditional use” requires a conditional use permit and site plan approval.  The court explained its review powers in this context and the statutory interpretation criteria it applied. The reviewing court need not defer to the agency’s ruling on a purely legal question (here the meaning of the applicable code provisions). The ordinance must be read as a whole and no language should be rendered superfluous:

” In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion'” … . “[Z]oning restrictions, being in derogation of common-law property rights, should be strictly construed, and any ambiguities are to be resolved in favor of the property owner” … .

A zoning board’s interpretation of its zoning ordinance is generally entitled to great deference … . However, where, as here, “the issue involves pure legal interpretation of statutory terms, deference is not required” … . Pursuant to our independent review of the law, we conclude that the ZBA’s determination complied with applicable legal principles … .

Under the Zoning Code, uses permitted as of right (hereinafter permitted uses) and conditional uses are set forth in accompanying zoning schedules. The uses listed in column A of the applicable schedules “are permitted by right,” while the uses listed in column C “are permitted only on approval of the Planning Board, and are conditioned to [sic] special requirements that may be imposed to ensure compatibility with neighboring uses” (Code of the Village of Monroe § 200-15[B]). Zoning Schedule I-F is applicable to the GB District. The permitted uses enumerated in column A of the Table of Use Requirements of Zoning Schedule I-F include, among others, “retail sales” (Item 17) and “repair service, including automotive” (Item 16). However, column C lists “tire sales and service” (Item 4) among the conditional uses. Section 200-3 of the Code of the Village of Monroe provides that “[i]n the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control” … .

“A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance” … . Matter of Robert E. Havell Revocable Trust v Zoning Bd. of Appeals of Vil. of Monroe, 2015 NY Slip Op 03369, 2nd Dept 4-22-15

 

Providing 9000 Documents Without Indicating the Specific Discovery Demands to Which the Documents Related Was Improper

The Second Department determined Supreme Court upheld the Court Referee’s determination that the plaintiff’s response to discovery demands were not adequate.  Plaintiffs had provided a flash drive with 9000 documents and without any indication which of the documents related to the various demands.  The Court Referee ordered the plaintiffs to “provide their discovery responses in a manner that allows the defendants ‘to know and understand’ which documents apply to their separate discovery demands.” H.P.S. Mgt. Co., Inc. v St. Paul Surplus Lines Ins. Co., 2015 NY Slip Op 03320, 2nd Dept 4-22-15

 

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Under Powers Reserved to the Town by an 1818 Law, the Town Cannot Regulate Shoreline Dune Reconstruction and Erosion Control Undertaken by a Village within the Town

The Second Department, reversing Supreme Court, determined laws enacted in the early 1800’s prohibited the Town of Southampton from regulating shoreline activities such as dune restoration and erosion control undertaken by the Village (located within the Town):

The language of the 1818 Law “only relates to the use of the beach or shore, by taking seaweed from it and carting or transporting to and from or landing property on such shore” and “makes no reference to the management or regulation of the lands constituting the beach or shore . . . , but merely provides for the [Town’s] management and regulation of the waters, fisheries, and taking of seaweed and the productions of the waters” … . Accordingly, the Village was entitled to a judgment declaring, inter alia, that the [Town has] no lawful governmental or regulatory power to grant or deny permits in connection with (i) the placement and grading of sand and earth, and (ii) the development, construction, maintenance, and use of structures and lands located anywhere upon the ocean beaches situated within the boundaries of the Village. Semlear v Incorporated Vil. of Quogue, 2015 NY Slip Op 03345, 2nd Dept 4-22-15

 

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