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Allowing the Prosecutor to Tell the Jury in Summation that the Person Who Provided the Police with a Tip Must Have Identified the Defendant as the Perpetrator Was Reversible Error—The Prosecutor Effectively Told the Jury Another “Witness” Had Identified the Defendant, But that “Witness” Did Not Testify and Could Not, Therefore, Be Cross-Examined

The Second Department reversed defendant’s conviction because the prosecutor, in summation, had improperly been allowed to tell the jury that the person who provided the police with a tip must have identified the defendant as the perpetrator.  Because the person who provided the tip did not testify, the defendant was effectively deprived of the opportunity to cross-examine a “witness against him:”

During summation, the prosecutor strongly implied that whoever had provided the tip had implicated the defendant: “Someone calls 577-TIPS . . . . [The detective] gets this information and where does he go? 82-01 Rockaway Beach Boulevard, make a left out of the elevator. I’m looking for a guy named Rick who lives on the sixth floor. Ricardo Benitez.” After defense counsel’s objection to this remark was overruled, the prosecutor continued: “Gave Detective Lopez the following address. 82-01 Rockaway Beach Boulevard, 6B. Rick. Ladies and gentlemen, I introduce you to Rick.” Defense counsel again objected, but the Supreme Court again overruled the objection.

The only purpose of the prosecutor’s improper comments was to suggest to the jury, in this one-witness identification case, that the complainant was not the only person who had implicated the defendant in the commission of the robbery (see People v Mendez, 22 AD3d 688, 689). Moreover, in overruling defense counsel’s objections, the Supreme Court “legitimized” the prosecutor’s improper remarks (People v Lloyd, 115 AD3d 766, 769). The defendant, of course, was given no opportunity to cross-examine the unnamed witness who had allegedly provided the tip … . The evidence against the defendant was not overwhelming, so there is no basis for the application of harmless error analysis … . To the extent that the defendant failed to preserve the claim by specific objection, we reach the issue in the exercise of our interest of justice jurisdiction, and reverse the judgment … . People v Benitez, 2014 NY Slip Op 05890, 2nd Dept 8-20-14

 

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Town Not Liable for Negligently Picking Up Personal Items from Driveway During Garbage Collection—Garbage Collection Is a Ministerial Function—No Special Relationship with Plaintiff

The Second Department determined the town was not liable for picking up items plaintiff had placed in his driveway to dry out after a storm.  The items were picked up as “bulk garbage” prior to the date bulk-garbage collection was slated to begin:

Garbage collection is considered a governmental function … . A municipality cannot be held liable for negligence in the performance of discretionary acts, but can be held liable for negligence in the performance of ministerial acts, if there is a special relationship between the plaintiff and the defendant … . The difference between ministerial or discretionary acts is described thusly: ” discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'”… . Garbage collection falls within the definition of a ministerial function.

A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following elements: ” (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'” … . No facts were alleged indicating that the defendants undertook an affirmative duty to act on behalf of the plaintiff. Therefore, no basis was alleged to impose liability upon the defendants, based on the negligent destruction of property. Katz v Town of Clarkstown NY, NY Slip Op 05843, 2nd Dept 8-20-14 

 

Denial of “Defective” No-Fault Claim (on Form UB-40) Was of No Effect—Failure to Respond Within 30 Days to a Subsequent “Correct” Claim (on Form NF-5) Precluded Insurer from Raising Defenses to the Claim

The Second Department determined the insurer’s denial of a defective claim was of no effect and the insurer’s failure to respond to the valid claim within 30 days precluded raising defenses to the claim:

[The insurer] contends that the 30-day period commenced when it received the Form UB-04 in December 2011, that it timely requested verification of the claim, and that, after it received the medical records, it timely denied the claim in January 2012. [the hospital] could not commence the 30-day clock anew by submitting the same claim several months later … .

We conclude that the Supreme Court erred in denying [the hospital’s] motion for summary judgment on the complaint and in granting [the insurer’s] cross motion for summary judgment dismissing the complaint. Under our decision in Sound Shore [106 AD3d 157], the 30-day period for [the insurer] to pay or deny the claim did not begin to run until March 26, 2012, when [the hospital] submitted the Form NF-5, which contained the information needed. Because [the insurer] did not pay or deny the claim within 30 days thereafter, it was precluded from raising defenses. In other words, the defective “claim” submitted in December 2011 did not start the 30-day clock, so [the insurer’s] denial in January 2012 was of no effect … . Mount Sinai Hosp v New York Cent Mut Fire Ins Co, 2014 NY Slip Op 05779, 2nd Dept 8-13-14

 

Mistaken Classification of Property Resulting In a Much Too Large Tax Bill Was a “Clerical Error” Which Could Be Corrected by the City Department of Finance—No Need for Property Owner to Commence a Tax Certiorari Proceeding

The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined that the petitioner could challenge a mistaken classification of his property (which resulted in a property tax more than $40,000 too high) through an Article 78 proceeding finding that a tax certiorari proceeding under the Real Property Tax Law (RPTL) was not the exclusive vehicle for the challenge.  The Article 78 proceeding was timely, a tax certiorari proceeding would not have been timely.  The mistake was deemed a “clerical error” which could have been corrected by the NYC Department of Finance (DOF) pursuant to City Administrative Code sectionn 11-206:

We agree with the petitioner that the DOF’s determination, at the very least, suggests that it misapprehended both the relief sought by the petitioner as well as its authority to grant the relief actually requested. Administrative Code § 11-206 vests the DOF with the discretion to correct tax assessments that are erroneous due to a clerical error or to an error of description; the DOF’s authority is not limited to transcription errors or arithmetical errors. Moreover, contrary to the DOF’s representation in the letter dated March 24, 2011, the authority to correct such an error pursuant to Administrative Code § 11-206 does not lie with the Tax Commissioner or the judiciary. Therefore, the Supreme Court erred in granting the respondents’ motion pursuant to CPLR 3211(a)(5) and (7) to dismiss the petition on the grounds that it fails to state a cause of action and that the proceeding was time-barred. Matter of Better World Real Estate Group v New York City Dept of Fin, 2014 NY Slip Op 05786, 2nd Dept 8-13-14

 

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Failure to Move to Sever Unrelated Counts of Indictment Constituted Ineffective Assistance of Counsel

The Second Department determined defense counsel’s failure to move to sever unrelated counts of the indictment constituted ineffective assistance of counsel:

In this case, based solely on the complainant’s identification, the defendant and his codefendant were charged with robbery in the first degree and robbery in the second degree in connection with a robbery that occurred on November 6, 2005. The same indictment also separately charged the defendant with four drug offenses and resisting arrest, stemming from his arrest at his mother’s home on January 16, 2006, despite the fact that the drug and resisting arrest charges had no connection to the November 6, 2005, robbery. Defense counsel failed to make an on-the-record pretrial motion to sever the robbery charges from the other charges and did not raise the issue at trial, and the defendant was tried on all counts in the indictment. * * *

As a result of defense counsel’s error, the same jury that heard evidence regarding the robbery also heard voluminous evidence concerning the defendant’s arrest and the large quantity of drugs found in his mother’s home. Consequently, the jury could have inferred that the robbery at issue was committed for a drug-related purpose, and it is probable that the improper joinder tainted the jury’s evaluation of the separate, unrelated incidents … . Under the circumstances presented here, the defendant was deprived of the effective assistance of counsel, based on defense counsel’s failure to make a proper pretrial motion to sever the charges of robbery from the drug charges. People v Hall, 2014 NY Slip Op 05802, 2nd Dept 8-13-14

 

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Insufficient Proof of an Agreement to Assume a Mortgage at the Time Deed Transferred

The Second Department determined that the writings were insufficient to demonstrate the grantee agreed to assume a mortgage at the time the deed was transferred:

General Obligations Law § 5-705 provides, in relevant part, that “[n]o grantee of real property shall be liable upon any indebtedness secured by a mortgage” unless, “simultaneously with the conveyance,” the grantee executes a writing before a notary agreeing to assume and pay the mortgage debt. Here, it is clear from the allegations in the complaint and attached exhibits that the defendants did not execute a notarized written agreement to assume the mortgage allegedly held by the plaintiff at the time the properties were conveyed … . Thus, General Obligations Law § 5-705 bars the plaintiff from recovering on the theory that the defendants agreed to assume his existing mortgage on the properties as alleged in the complaint. Furthermore, [recovery] is also barred by the statute of frauds because an agreement to answer for the debt of another must be in writing (see General Obligations Law § 5-701[a][2]). Contrary to the plaintiff’s contention, the various writings attached to the complaint, taken together, were insufficient to memorialize the existence of an agreement … . Dahan v Weiss, 2014 NY Slip Op 05767, 2nd Dept 8-13-14

 

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The Requirements of Certificates of Conformity and Authenticity (Re: the Admissibility of Out-of-State Affidavits) Explained

The Second Department, in a full-fledged opinion by Justice Dillon, reversed Supreme Court finding that an out-of-state affidavit re: the assignment of a note and mortgage was in admissible form and could therefore be considered in support of plaintiff’s summary judgment motion.  The court explained that, because the document was notarized, no “certificate of authentication” was needed, and the “certificate of conformity” which was provided was adequate under New York law:

Here, the affidavit of Josh Mills was necessary for the plaintiff to establish the assignment to it of the subject mortgage and note and the defendants’ default in payment. The primary issue on this appeal is whether Mills’s out-of-state affidavit was sworn to and conformed in a manner rendering it admissible in this state under CPLR 2309(c). * * *

The “certificate” required by CPLR 2309(c), commonly referred to in case law as a “certificate of conformity,” must contain language attesting that the oath administered in the foreign state was taken in accordance with the laws of that jurisdiction or the law of New York (see Real Property Law § 299-a[1]). A “certificate of conformity” is separate and distinct from a “certificate of authentication,” which attests to the oathgiver’s authority under the foreign jurisdiction to administer oaths … .  * * *

A combined reading of CPLR 2309(c) and Real Property Law §§ 299 and 311(5) leads to the inescapable conclusion that where, as here, a document is acknowledged by a foreign state notary, a separate “certificate of authentication” is not required to attest to the notary’s authority to administer oaths … .  * * *

Nevertheless, CPLR 2309(c) requires that even when a notary is the foreign acknowledging officer, there must still be a “certificate of conformity” to assure that the oath was administered in a manner consistent with either the laws of New York or of the foreign state. In other words, a certificate of conformity is required whenever an oath is acknowledged in writing outside of New York by a non-New York notary, and the document is proffered for use in New York litigation. * * *

Here, the Supreme Court erred in concluding that the Mills affidavit was not accompanied by a certificate of conformity, as the “Uniform, All Purpose Certificate of Acknowledgment,” appended to the Mills affidavit, substantially conformed with the template requirement of Real Property Law § 309-b and constituted a certificate of conformity. * * * Midfirst Bank v Agho, 2014 NY Slip OP 05778, 2nd Dept 8-13-14

 

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Drug Treatment and Drug Testing Facilities Do Not Have a Duty to Provide the Test Results With a Disclaimer Indicating the Tests Were Done According to “Clinical,” Not “Forensic,” Standards—Here the “Clinical” Results Were Disseminated and Used In Court Proceedings

The Second Department, in a full-fledged opinion by Justice Skelos, with a concurring memorandum, determined that a substance abuse treatment facility (Daytop) and a drug testing laboratory (Bendiner) could not be liable for damages stemming from the dissemination of the results of drug tests (affecting Family Court and Drug Court proceedings).  The plaintiffs did not claim that the testing procedures were flawed or that the test results were false.  Rather, they claimed that, because the tests were done for “clinical,” not “forensic,” purposes, the results should have included a disclaimer indicating that they should not be used in court proceedings.  The Second Department refused to extend the duty owed to the plaintiffs by the defendants beyond the duty to ensure accurate test results:

Landon (91 AD3d 79, aff’d 22 NY3d 1) makes clear that there is a duty running from a drug testing laboratory to the subject of a drug test despite the lack of a contractual relationship between those parties. Further, it cannot be gainsaid that Daytop owes some duty of reasonable care to individuals it treats. The question presented here, as to both defendants, concerns the proper scope of that duty. More particularly, the question is whether the defendants’ duty of reasonable care includes the duty to label or place a disclaimer on a report, so as to indicate that the results are to be used only for clinical purposes. * * *

We conclude … that Bendiner did not have a duty to the plaintiffs to label its drug test results with a disclaimer, and that Daytop, when reporting the results to the drug treatment courts, did not have a duty to the plaintiffs to provide a disclaimer indicating that the positive test results were to be used for clinical purposes only.  Braverman v Bendiner & Schlesinger Inc, 2014 NY Slip Op 05618, 2nd Dept 8-6-14

 

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Criteria Re: Counties’ and Foster Care Agencies’ Liability for the Acts of Foster Parents Explained

In dismissing a complaint against a foster care agency based upon the alleged failure of the foster parent to seek medical care for the foster child, the Second Department explained the relevant law:

Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers … .

However, counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home … . In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant’s injuries … . In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated … . Keizer v SCO Family of Servs, 2014 NY Slip Op 06630, 2nd Dept 8-6-14

 

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Failure to Submit Management Agreement Required Dismissal of Property Managing Agent’s Motion for Summary Judgment in a Slip and Fall Case—the Terms of the Agreement Determine the Agent’s Liability

The Second Department determined that the property managing agent, in a slip and fall case, did not eliminate all triable issues of fact concerning liability for plaintiff’s fall on black ice because it did not submit a copy of the managing agreement with its motion for summary judgment:

As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property … . A duty of care on the part of a managing agent may arise where there is a comprehensive and exclusive management agreement between the agent and the owner that displaces the owner’s duty to safely maintain the premises … . Here, in moving for summary judgment, the … defendants failed to submit a copy of the written management agreement. Consequently, they failed to establish, prima facie, that the managing agent owed no duty of care to the plaintiff … . Calabro v Harbour at Blue Point Home Owners Assn Inc, 2014 NY Slip Op 05620, 2nd Dept 8-6-14

 

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