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Village Ordinance Prohibiting Crematory Not Preempted by State Law Under Either Express or Conflict Preemption Criteria

The Second Department determined that the Not-for-Profit Corporation Law, which includes “crematory” in the definition of cemetery, did not pre-empt a village ordinance prohibiting the construction of a crematory in petitioner’s cemetery.  Both express preemption and conflict preemption were addressed by the court:

The Supreme Court correctly determined that Not-for-Profit Corporation Law article 15 did not preempt any attempt at local regulation of cemeteries under the doctrine of “field preemption.” That doctrine “applies under any of three different scenarios. First, an express statement in the state statute explicitly avers that it preempts all local laws on the same subject matter. Second, a declaration of state policy evinces the intent of the Legislature to preempt local laws on the same subject matter. And third, the Legislature’s enactment of a comprehensive and detailed regulatory scheme in an area in controversy is deemed to demonstrate an intent to preempt local laws” … . * * *

Thus, although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent (see N-PCL 1501…). Finally, the regulatory scheme under Not-for-Profit Corporation Law article 15 does not evince the Legislature’s desire to preempt the local zoning law … . Accordingly, the Not-for-Profit Corporation Law did not preempt the field of cemetery regulation.

The Supreme Court properly determined that Not-for-Profit Corporation Law § 1502(d) does not invalidate the Village’s more restrictive definition of “cemetery” under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code’s definition of “cemetery,” which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of “cemetery” are addressed to differing purposes, they are not in direct conflict … . Matter of Oakwood Cemetery v Village/Town of Mount Kisco, 2014 NY Slip Op 01616, 2nd Dept 3-12-14

 

Family Court Improperly Conditioned Future Visitation Upon Enrollment in a Drug Testing Program and Improperly Delegated Its Authority to Control Father’s Visitation to Mother

The Second Department noted that Family Court could not condition father’s future visitation upon enrollment in a drug testing program.  Family Court could only make participating in the drug testing program a component of a current visitation order.  In addition Family Court improperly delegated its control of father’s visitation to mother:

…”[A] court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” … . Thus, the Family Court erred in conditioning the father’s visitation upon his enrollment in a random drug testing program at a medical facility, and should have instead directed the father to enroll in such a program as a component of visitation. Moreover, by authorizing the mother to suspend visitation upon the father’s failure to provide proof of his prescription, the Family Court improperly delegated its responsibility to determine whether and when visitation rights should be suspended … . Matter of Welch v Taylor, 2014 NY Slip Op 01619, 2nd Dept 3-12-14

 

Father Estopped from Moving to Vacate Order of Filiation Entered Upon Consent Despite “Somewhat Limited” Parent-Child Relationship

The Second Department determined father was estopped from challenging an order of filiation even though there was evidence the parent-child relationship was “somewhat limited:”

Here, the order of filiation was entered approximately 10 years prior to the instant petition, and the father had been paying child support during that time. In addition, the father sought, and was granted, visitation with the subject child, which he exercised, although sporadically. The father attended some of the child’s school functions and parent-teacher conferences, had telephone contact with the child, and saw the child on some of her birthdays. The child, who was 15 years old at the time the father’s petition was filed, was acquainted with some of the father’s family members, considered the father to be her father, and had never known any other father. Under these circumstances, the Family Court properly invoked the doctrine of equitable estoppel to preclude the father’s challenge to the order of filiation …, and “the evidence indicating that the parent-child relationship was somewhat limited did not preclude the application of [that] doctrine” … . Matter of Shawn H v Kimberly F, 2014 NY Slip Op 01610, 2nd Dept 3-12-14

 

Question of Fact Whether Owner of Servient State Had Duty to Maintain Easement in Safe Condition/Easement Used for Servient-Estate-Owner’s Own Purposes

The Second Department explained when the owner of a servient estate has a duty to maintain an easement in a safe condition:

While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures …, such an owner may be required to perform maintenance functions where it makes use of the easement for its own purposes and that use does not interfere with the legitimate activities of the holder of the dominant estate … . Under those circumstances, the owner of the servient estate may retain its duty as a landowner to maintain the portion of its premises that is subject to the easement in a reasonably safe condition, provided that such maintenance subjects the owner of the servient estate to no unusual hazards and requires no special expertise … .

Here, the Supreme Court correctly determined that the appellants failed to establish their prima facie entitlement to judgment as a matter of law, since their submissions revealed the existence of a triable issue of fact as to whether they have used the portion of the property that is subject to the easements for their own purposes by creating and maintaining a private, for-profit parking lot upon that portion of the property. Kleyner v City of New York, 2014 NY Slip Op 01584, 2nd Dept 3-12-14

 

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Police Pursuit Not Justified by Defendant’s “Grabbing of his Waistband Area” or Subsequent Flight/Gun Suppressed

The Second Department affirmed the suppression of a weapon.  After seeing the defendant “grab… his waistband area” the police approached and the defendant ran, ultimately discarding a gun.  The pursuit was not justified by what the police saw prior to the defendant’s flight:

A suspect’s “flight alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” … . However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … .Under the circumstances of this case, the defendant’s “grabb[ing]” of his “waistband area” in such a way that it “[s]eemed” to the detectives that the defendant “had a bulge or something heavy that he was holding on the outside of his garments,” did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s having made eye contact with the detectives and his flight from the detectives … . As the detectives’ pursuit of the defendant was unlawful, and the defendant’s disposal of the weapon during the pursuit was precipitated by the illegality and was not attenuated from it …, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to suppress the weapon. People v Haynes, 2014 NY Slip Op 01462, 2nd Dept 3-5-14

 

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Testimony of Defense Expert About Reliability of Eyewitness Identifications Properly Precluded/Criteria for Such Testimony Explained

The Second Department determined Supreme Court appropriately denied the defendant’s request to present expert testimony about the reliability of eyewitness identifications because there was sufficient corroborating identification evidence.  The court explained the relevant criteria:

Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” … . Here, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony, including, inter alia, independent identifications by two witnesses other than the three complainants, surveillance videos, and the defendant’s incriminatory statements to police officers … . People v Rhodes, 2014 NY Slip Op 01469, 2nd Dept 3-5-14

 

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Delay In Retaining Expert Did Not Warrant Preclusion of Expert’s Testimony

The Second Department determined Supreme Court should not have precluded plaintiff’s expert from testifying based upon the timing of the retaining of the expert and the serving of his expert information.  There was no evidence the delay was intentional or willful,  and no showing of prejudice to the opposing party:

CPLR 3101(d)(1)(i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,’ unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” … . Here, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful. Furthermore, any potential prejudice to the defendants was ameliorated by a two-month adjournment of the retrial agreed to by the parties … . Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiff’s expert from testifying at the retrial … . Burbige v Siben & Ferber, 2014 NY Slip Op 01426, 2nd Dept 3-5-14

 

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Question of Fact Whether Deed Procured by Fraud and Whether Mortgagee Had Notice of the Potential Fraud

The Second Department determined a question of fact had been raised about whether a property transfer was procured by fraud.  If so, the deed and the related mortgage would be void with respect to the mortgagee/incumbrancer (Wells Fargo).  There was evidence the mortgagee was on notice about the possible fraud and there was evidence of fraud in the factum:

Real Property Law § 266 protects the “title of a purchaser or incumbrancer for a valuable consideration, unless it appears that he [or she] had previous notice of the fraudulent intent of his [or her] immediate grantor, or of the fraud rendering void the title of such grantor.” Thus, a mortgagee is not protected in its title if it had previous notice of potential fraud by the immediate seller, or knowledge of facts which put it on inquiry notice as to the existence of a right in potential conflict with its own … . A mortgagee has a duty to inquire when it is aware of facts that would lead a reasonable, prudent lender to inquire into the circumstances of the transaction at issue … . A mortgagee who fails to make such an inquiry is not a bona fide incumbrancer for value … . Here, Wells Fargo’s submissions contain information regarding the plaintiff’s possession of the property that put it on inquiry notice as to the plaintiff’s potential right to the property … . Thus, Wells Fargo failed to establish its prima facie entitlement to judgment as a matter of law on the issue of whether it lacked notice of a potential fraud … . Real Property Law § 266 also does not protect a bona fide incumbrancer for value where there has been fraud in the factum, as the deed is void and conveys no title … . Such a conveyance conveys nothing, and a subsequent bona fide incumbrancer for value receives nothing … . Here, Wells Fargo failed to establish its prima facie entitlement to judgment as a matter of law on the issue of whether the subject deeds are void ab initio on the ground of fraud in the factum … . Williams v Mentore, 2014 NY Slip Op 01449, 2nd Dept 3-5-14

 

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New York Court Properly Declined to Exercise Jurisdiction Over Child Custody and Visitation Matters Due to Child’s Substantial Contacts with California

The Second Department determined Supreme Court had properly found that California, rather than New York, was the appropriate forum for determining child custody and visitation matters:

A court of this State which has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) may decline to exercise jurisdiction if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum (see Domestic Relations Law § 76-f[1]…). The factors to be considered in making this determination include the length of time the subject child has resided outside the state, any agreement between the parties as to which state should assume jurisdiction, the nature and location of the evidence required to resolve the pending litigation, the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence, and the familiarity of the court of each state with the facts and issues in the pending litigation (see Domestic Relations Law § 76-f[2]…). “Particularly relevant to the jurisdictional determination is whether the forum in which the litigation is to proceed has optimum access to relevant evidence” … . “Maximum rather than minimum contacts with the State are required” … . Greenfield v Greenfield, 2014 NY Slip Op 01434, 2nd Dept 3-5-14

 

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Defendant Entitled to Hearing on Motion to Vacate His Conviction (by Guilty Plea) Based Upon Defense Counsel’s Alleged Failure to Inform Him of the Risk of Deporatation

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant presented sufficient evidence to warrant a hearing about whether his attorney’s alleged failure to inform him that his guilty plea could result in deportation constituted ineffective assistance of counse under Padilla v Kentucky, 559 US 356.  The court explained the analytical criteria:

“In order to prevail on a claim that, prior to deciding whether to plead guilty, a defendant was deprived of the right to the effective assistance of counsel under the United States Constitution, he or she must meet the two-part standard set forth in Strickland v Washington … . “Under the first prong of that standard, the defendant must show that counsel’s representation fell below an objective standard of reasonableness'” … . “The second prong focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process'” … . * * *

In Padilla, the Supreme Court held that the Sixth Amendment to the United States Constitution requires an attorney for a criminal defendant to provide advice to the defendant about the risk of deportation which will arise as a result of a plea of guilty … . Thus, in those cases in which Padilla is applicable, “where an attorney fails to advise a criminal defendant, or misadvises the defendant, regarding clear removal consequences of a plea of guilty, his or her representation falls below an objective standard of reasonableness” … . * * *

“To satisfy the second prong of the Strickland standard, also known as the prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … . “In the context of a Padilla claim, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances'” … . Under the particular circumstances of this case, the defendant established, sufficiently to warrant an evidentiary hearing, that a decision to reject the plea bargain would have been rational.  People v Varenga, 2014 NY Slip Op 01472, 2nd Dept 3-5-14

 

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