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Emergency Power to Demolish a Building Properly Exercised

The Second Department determined the city properly exercised its emergency power to demolish plaintiff’s building due to exigent circumstances:

“A municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, contrary to the defendant’s contention, there exists a valid line of reasoning and permissible inferences by which the jury could have rationally concluded that the defendant’s determination that immediate demolition of the building was required in order to protect the public from imminent danger was arbitrary … . Rapps v City of New York, 2015 NY Slip Op 02743, 2nd Dept 4-1-15

 

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“Intrinsic” Versus “Extrinsic” Fraud as the Basis of a Motion to Open a Default Judgment/Lack of Standing Not a Jurisdictional Defect

In the context of a mortgage foreclosure, the defendant made a motion pursuant to CPLR 5015(a)(3) to open a default judgment.  The Second Department determined the motion was properly denied and explained the difference between allegations of “intrinsic” and “extrinsic” fraud as the basis of the motion.  The court noted that a lack of standing is not a jurisdictional defect:

The defendant alleged, pursuant to CPLR 5015(a)(3), that the plaintiff committed “intrinsic fraud,” by submitting fraudulent documents in support of its claim for a judgment of foreclosure and sale … . She did not allege “extrinsic fraud,” which is “a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter” … . Therefore, the defendant was required to show a reasonable excuse for her default … . However, she failed to offer any excuse for her default … . U.S. Bank, N.A. v Peters, 2015 NY Slip Op 02757, 2nd Dept 4-1-15

 

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Foreign Money Judgment Properly Enforced—Criteria Explained

The Second Department determined Supreme Court properly enforced a Canadian money judgment.  The court explained the relevant analytical criteria:

“Under CPLR article 53, a judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is final, conclusive and enforceable when rendered'” … . “[A] foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money'” … . “However, a foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law’ or (2) the foreign court did not have personal jurisdiction over the defendant'” … . “A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist” … .

The Ontario Superior Court of Justice is part of a judicial system that provides impartial tribunals and procedures compatible with due process of law … and, here, that court had a valid basis for exercising jurisdiction over the defendant, as the defendant purposefully transacted business in Ontario (see CPLR 5305[b]; CPLR 302[a][1]…). Moreover, CPLR 5305(a)(2) provides, in relevant part, that a foreign country judgment “shall not be refused recognition” by New York “for lack of personal jurisdiction if . . . the defendant voluntarily appeared” in the foreign court proceedings for purposes other than “contesting the jurisdiction of the court” over him or her. Although the plaintiff failed to establish that the defendant was properly served with process in the Canadian action …, the plaintiff nonetheless demonstrated that the Ontario Superior Court of Justice had personal jurisdiction over the defendant, as the defendant “voluntarily appeared” in the Canadian action (CPLR 5305[a][2]…) and “did more than [it] had to do to preserve a jurisdictional objection” … .  Gemstar Can., Inc. v George A. Fuller Co., Inc., 2015 NY Slip Op 02726, 2nd Dept 4-1-15

 

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Concise Description of the Application of the DeBour Street-Encounter Criteria Leading to the Seizure of a Weapon

The Second Department, in finding the seizure of a gun from the defendant proper, provided a concise application of the DeBour street encounter factors:

The arresting officer testified that he saw, from a distance of “[l]ess than a foot” away, “what looked to be” “two to three inches” of “the butt of a firearm” that was “pulling down” the defendant’s rear pants pocket. These observations gave the officer an objective, credible reason to approach the defendant … . Upon seeing the officer, the defendant immediately turned sideways to obscure his rear pants pockets from the officer’s view, giving the officer a “founded suspicion that criminal activity [was] afoot,” justifying greater intrusion to conduct an inquiry … . At that point, when the defendant lowered his hands in the direction of his waist area, the officer had reason to suspect that he was in danger of physical injury and was authorized to conduct a protective frisk (see CPL 140.50[3]…). Probable cause for the defendant’s arrest arose after the officer grabbed the defendant’s hands for his own safety and, upon “wrestling” with the defendant, saw that the item in the defendant’s back pocket was, in fact, a firearm … . Thus, the record establishes that the officer’s conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed … . Moreover, given the legality of the officer’s actions, the defendant’s claim that his post-arrest statement to police should be suppressed as the product of an illegal search or seizure is without merit… . People v Owens, 2015 NY Slip Op 02790, 2nd Dept 4-1-15

 

Sentencing Court Must Place on the Record Its Reasons for Denying Youthful Offender Status

The Second Department noted that the sentencing court must always place on the record its reasons for denying youthful offender status to an eligible youth:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … .

Here, the Supreme Court failed to adequately place on the record its reasons for denying the defendant youthful offender status. Under these circumstances, we vacate the defendant’s sentence, and remit the matter to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment. People v Stevens, 2015 NY Slip Op 02794, 2nd Dept 4-1-15

 

Court’s Failure to Share Entire Contents of Note from Jury Constituted a Mode of Proceedings Error Requiring Reversal

The Second Department determined the trial court’s failure to share the entire contents of a note from the jury was a mode of proceedings error requiring reversal:

CPL 310.30 requires that trial courts give notice to the People and the defense before responding to a note from a deliberating jury … . A court’s ” core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request—in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'” … . Meaningful notice means notice of the “actual specific content of the jurors’ request” …, and “a court must read a jury note verbatim’ so that the parties have the opportunity to accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response'” … .

“Although not every violation of CPL 310.30 is immune from normal preservation principles, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error,” which does not require preservation … .

Here, the trial court’s failure to share the entire contents of a substantive note from the jury constituted a mode of proceedings error requiring reversal … . People v Cotton, 2015 NY Slip Op 02780, 2nd Dept 4-1-15

 

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CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA) Criteria for Downward Departure Explained (Not Met Here)

The Second Department, in finding the defendant was not entitled to a downward departure to reduce his risk assessment, explained the downward departure criteria:

There is a three-step process to be followed in determining whether a downward departure is appropriate … . “At the first step, the court must decide whether the . . . mitigating circumstances alleged by [the defendant] are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines. At the second step, the court must decide whether the [defendant] has adduced sufficient evidence to meet [his or her] burden of proof in establishing that the alleged . . . mitigating circumstances actually exist in the case at hand . . . . [A]t the third step, the court must exercise its discretion by weighing the . . . mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an [over-assessment] of the defendant’s dangerousness and risk of sexual recidivism” … .

Upon our application of the standards set forth in People v Gillotti (23 NY2d 841), the record does not demonstrate the appellant’s entitlement to a downward departure … . The appellant failed to prove, by a preponderance of the evidence …, the existence of any mitigating circumstance “of a kind or to a degree not adequately taken into account by the guidelines” … . People v Stewart, 2015 NY Slip Op 02741, 2nd Dept 4-1-15

 

Court’s Power to Review Dismissal for Academic Reasons Explained

The Second Department upheld the dismissal of a student’s petition challenging her expulsion from a college nursing program for academic reasons.  The Second Department explained its limited review powers in this context:

Unlike disciplinary measures taken against a student, institutional assessments of a student’s academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators … . Thus, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations … . Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute… . Here, the petitioner’s professors at the College made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course designated as Nursing 204. There is no evidence in the record that the professors’ evaluations were made in bad faith or were arbitrary and capricious or irrational. Nor is there any evidence of a violation of the New York or United States Constitution, or any statute … . Matter of Zanelli v Rich, 2015 NY Slip Op 02775, 2nd Dept 4-1-15

 

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City Immune from Liability for Actions of Police Engaged in a Governmental Function–No Special Relationship with Plaintiff

The Second Department determined the police officers were engaged in a governmental function and there was no special relationship between the city and the plaintiff. The city was therefore immune from liability.  Plaintiff called the police when he saw someone (Moran) enter a residence.  When the police arrived plaintiff accompanied them to the residence.  Moran ran from the house and punched plaintiff. Plaintiff’s lawsuit alleged the police failed to protect him:

…[T]he officers’ conduct during the incident constituted a governmental function … . “Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created” … . Therefore, the City cannot be held liable unless there existed a special relationship between it and the plaintiff … . “The elements of this special relationship are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Here, the City made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that no such special relationship existed which would give rise to a duty of care to the plaintiff individually … . The evidence submitted by the City demonstrated that the police officers were performing their general duty to the public at large by responding to a call regarding a completed crime, and in the course of the investigation, made no promises to the plaintiff, in word or action, that gave rise to an affirmative duty of care running to the plaintiff personally. In opposition, the plaintiff failed to raise a triable issue of fact. Philip v Moran, 2015 NY Slip Op 02742, 2nd Dept 4-1-15

 

Exclusions from Uninsured Motorist Coverage in Pennsylvania Policy Unenforceable in New York

The Second Department determined the exclusions from uninsured motorist coverage in a Pennsylvania policy violated New York public policy and the insurer was obligated to provide $300,000 of uninsured motorist coverage:

“[I]nsurance policies, like all contracts, should be enforced according to their terms unless they are prohibited by public policy, statute or rule” … . “If an attempted exclusion is not permitted by law, the insurer’s liability under the policy cannot be limited” … . Here, the exclusions contained in the uninsured motorist coverage endorsement of Progressive’s Pennsylvania policy are not permitted by New York law. “Insurance Law § 3420(f)(1) requires that every automobile insurance policy contain an uninsured motor vehicle endorsement. Neither that statute nor any regulations applicable to it mentions any exclusions” … . Since the exclusions are “without the approval or protection of the law” …, they should not be given effect … .

Since we have determined that the underlying exclusions are invalid, and the policy does not contain a term expressly limiting coverage to the statutory minimum, no such limitation will be read into the policy … . Consequently, Progressive’s policy must be read as affording uninsured motorist coverage up to its stated limit of $300,000. Braithewaite v Progressive Cas. Ins. Co., 2015 NY Slip Op 02717, 2nd Dept 4-1-15

 

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