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GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, COLLOQUY DID NOT INFORM DEFENDANT OF ALL THE RIGHTS SHE WAS GIVING UP (THIRD DEPT).

The Third Department, reversing County Court and vacating defendant’s guilty plea, over a two-justice concurrence and a dissent, exercised its interest of justice appellate jurisdiction because defendant was not fully informed of the rights she was giving up by entering a guilty plea. The concurrence argued that the potential consequences of the relief granted by an appellate court should not be part of the equation in exercising the interest of justice jurisdiction. The majority noted that defendant had already served her sentence and will now face the original charges. The dissent argued this was not an appropriate case for invoking the interest of justice appellate jurisdiction:

In a notably brief plea colloquy, County Court advised defendant that, by pleading guilty, she would forever relinquish “the right to go to trial, the right to testify, to call witnesses, [and to] cross-examine the People’s witness[es].” There was no discussion of the privilege against self-incrimination or the right to be tried by a jury, nor was there any inquiry into whether defendant had conferred with counsel and understood the constitutional rights that she was automatically waiving by pleading guilty … . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . As this record contains no such showing, the guilty plea is invalid … . People v Glover, 2019 NY Slip Op 05587, Third Dept 7-11-19

 

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PURCHASER OF A MARINA DEMONSTRATED THE PRIOR OWNER OBTAINED TITLE TO THE DISPUTED LAKE BOTTOM RIGHTS BY ADVERSE POSSESSION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff, the purchaser of a marina, had demonstrated the prior owner of the marina had obtained ownership of the disputed lake bottom rights by adverse possession:

… [P]laintiff submitted, among other things, the affidavit of Donald Duso Jr., the grandson of [the prior owner]  and a current mechanic for plaintiff, the affidavit of Michael Damp, a member of plaintiff, and an aerial map depicting, among other things, the location of the moorings and floating dock within the claimed area. According to Donald Duso, he personally assisted with the installation of approximately 20 moorings and anchors in the claimed area between the early 1970s and 2005 … . From 1970 to 1975, six moorings were initially installed in the claimed area, which were specifically placed to create the “outer bounds or perimeter of the mooring field.”…  As the marina’s business grew, additional moorings were installed such that, by 2005, there were approximately 20 active moorings available for rent, with all but three or four of the moorings located within the claimed area. Each year, the marina seasonally rented the moorings to boat owners between April and October (hereinafter the boating season) and only those who paid the requisite rental fee were permitted to access or use the moorings. Since the early 1980s, the 14 to 20 active moorings in the claimed area were regularly maintained during the boating season, mooring anchors, ropes and balls were repaired as necessary, and the mooring field was kept clear of debris. Although the nature of this lake bottom property makes it inherently impractical to erect an enclosure (see RPAPL former 522), the perimeter of the mooring field and, in turn, the location of the claimed area were easily discernible based upon the visibility of the mooring balls attached to each mooring anchor, and became even more apparent when boats were actively moored thereto. LS Mar., LLC v Acme of Saranac, LLC, 2019 NY Slip Op 05617, Third Dept 7-11-19

 

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THE DENIAL OF DEFENDANT’S MOTION TO LIMIT THE EXPERT TESTIMONY PLAINTIFF COULD OFFER AT TRIAL DID NOT LIMIT THE ISSUES TO BE TRIED; THEREFORE ANY APPEAL MUST AWAIT THE CONCLUSION OF THE TRIAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined defendant doctor could not appeal the denial of defendant’s motion to limit the expert testimony which plaintiff could offer at trial in this medical malpractice action. The motion court’s ruling did not limit the issues to be tried. Therefore an appeal must be brought after trial:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Here, Supreme Court’s decision merely permits the infant to offer various testimony of his expert witnesses and does not limit the scope of issues to be tried … . Therefore, appellate review of the court’s ruling “must await the conclusion of a trial so that the relevance of the proffered evidence, and the effect of [the court’s] ruling with respect thereto, can be assessed in the context of the record as a whole” … . Accordingly, this appeal must be dismissed … . C.H. v Dolkart, 2019 NY Slip Op 05614, Third Dept 7-11-19

 

PLAINTIFF’S ACTION AGAINST DEFENDANT FOR LETTING PLAINTIFF USE A SCISSORS LIFT SURVIVED SUMMARY JUDGMENT; PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY ENTRUSTED THE LIFT TO HIM, KNOWING HE DID NOT KNOW HOW TO OPERATE IT; PLAINTIFF WAS INJURED WHEN THE LIFT TIPPED OVER AND PLAINTIFF FELL 25 FEET (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant building contractor negligently entrusted a scissors lift to plaintiff, who was injured when the lift tipped over:

Given the testimony regarding plaintiff’s alleged lack of experience operating the subject scissor lift, the alleged observations by defendant’s employees of plaintiff’s operation thereof, Reagles’ [defendant’s project superintendent’s] assumption as to plaintiff’s level of training and his subsequent knowledge that an employee of defendant was allegedly made aware, prior to the accident, that plaintiff was not familiar with and/or trained in the use and operation of the scissor lift, we find that defendant failed to meet its prima facie burden of establishing the absence of a triable issue of fact, specifically as to whether defendant knew or should have known that plaintiff lacked the requisite training and experience necessary to safely operate the subject scissor lift at the time it was entrusted to him, rendering his subsequent use thereof unreasonably dangerous … . Moreover, the issue of proximate cause is generally more appropriately resolved by the trier of fact … . Further, although it is undisputed that plaintiff was the sole operator of the scissor lift, we find a question of fact also exists as to whether plaintiff’s injuries were a foreseeable result of defendant’s negligent entrustment of the lift to plaintiff … . Hull v The Pike Co., 2019 NY Slip Op 05611, Third Dept 7-11-19

 

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SPECIAL PROSECUTOR DID NOT HAVE THE AUTHORITY TO PROSECUTE A CRIMINAL OFFENSE ON BEHALF OF THE JUSTICE CENTER FOR PROTECTION OF PEOPLE WITH SPECIAL NEEDS; THE DISTRICT ATTORNEY DID NOT KNOWINGLY CONSENT AND DID NOT MAINTAIN CONTROL OVER THE PROSECUTION; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, determined that the special prosecutor did not have the authority to prosecute a substance abuse counselor who allegedly sexually abused a 16-year-old patient. The special prosecutor was from the Justice Center for Protection of People with Special Needs. Because the special prosecutor did not have have the knowing and express consent to the prosecution by the district attorney, the indictment was dismissed:

In 2012, the Legislature enacted the Protection of People with Special Needs Act (Executive Law § 550 et seq.) to protect individuals “who are vulnerable because of their reliance on professional caregivers to help them overcome physical, cognitive and other challenges” … by creating a new state agency, the Justice Center, and mandating, among other things, that it employ a special prosecutor appointed by the Governor (hereinafter the Special Prosecutor) to investigate and prosecute criminal offenses involving abuse and neglect of vulnerable persons by employees of specified types of facilities and service agencies … . Although the Act specifically authorizes the Special Prosecutor to “exercise all the powers and perform all the duties in respect of such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform”… , it also prohibits the Special Prosecutor from “interfer[ing] with the ability of district attorneys at any time to receive complaints, investigate and prosecute any suspected abuse or neglect” … . …

… [T]here is no constitutional support for the Legislature’s attempt to provide for “the gubernatorial appointment of a non-elected special prosecutor, independent of the [d]istrict [a]ttorneys and with unfettered prosecutorial power” … . …

We turn … to consideration of whether the Albany County District Attorney validly consented to prosecution of defendant by the Special Prosecutor. … [T]he District Attorney did not exercise his essential prosecutorial power to determine whether defendant should be prosecuted but, rather, merely acquiesced in the prosecution by the Special Prosecutor, whom he mistakenly believed already possessed the independent power to prosecute defendant. Second, the District Attorney failed to expressly retain ultimate responsibility for defendant’s prosecution … . People v Hodgdon, 2019 NY Slip Op 05596, Third Dept 7-11-19

 

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EVIDENCE PROPERLY ADMITTED AT TRIAL PURSUANT TO THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE, THE SEARCH WARRANT WAS EXECUTED AT AND THE EVIDENCE WAS SEIZED FROM THE SARATOGA COUNTY PUBLIC DEFENDER’S OFFICE (THIRD DEPT).

The Third Department, in affirming defendant’s predatory sexual assault against a child and child pornography convictions, noted that evidence was seized from the Saratoga County Public Defender’s Office and the evidence was admissible at trial pursuant to the crime-fraud exception to the attorney-client privilege. The facts are not described in any detail:

Defendant … contends that County Court improperly denied his motion to suppress items seized from the Saratoga County Public Defender’s office * * *.  … [U]pon review of the search warrant application and accompanying sworn statements, we conclude that County Court properly determined that there was probable cause to issue the warrant … . With respect to defendant’s claim of attorney-client privilege, we find that the crime-fraud exception applied because there was reasonable cause to believe that the items seized pursuant to the search warrant constituted physical evidence of a crime and that their delivery to counsel was for the purpose of concealing evidence, not for seeking legal advice … . People v Gannon, 2019 NY Slip Op 05591, Third Dept 7-11-19

 

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THE PEOPLE DID NOT DEMONSTRATE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH; THE RECORD SUPPORTED COUNTY COURT’S CONCLUSION THE INVENTORY SEARCH WAS A ‘PRETEXT’ FOR A SEARCH FOR INCRIMINATING EVIDENCE (THIRD DEPT).

The Third Department, in this appeal by the People, determined that the search of defendant’s vehicle was not a valid inventory search and the related suppression motion was properly granted:

Although not fatal to the establishment of a valid inventory search … , the People did not admit the relevant tow and impound policy into evidence. The People also failed to ask any substantive questions of the deputy sheriff to establish that the policy was sufficiently standardized, that it was reasonable and that the deputy sheriff followed it in this case. The deputy sheriff only vaguely stated that he conducted the inventory search, radioed for a tow truck and completed the vehicle impound inventory report in accordance with the policy. Further, although the deputy sheriff filled out the impound inventory report, which indicates that the inventory search began at 9:55 a.m., he testified that the search began prior to that time and did not provide any explanation for the discrepancy. Moreover, there was contradictory testimony as to where the deputy sheriff found defendant’s wallet — inside the vehicle or on defendant’s person. Significantly, if defendant’s wallet was inside the vehicle, as the deputy sheriff testified that it was, then the deputy sheriff allegedly took the wallet out of the vehicle but did not include it in the vehicle impound inventory report. In short, the People did not establish the circumstances under which searching the wallet and the closed trunk was justified under the policy … .

… [T]he record supports County Court’s conclusion that the alleged inventory search was a “pretext” to locate incriminating evidence. People v Espinoza, 2019 NY Slip Op 05592, Third Dept 7-11-19

 

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ARTICLE 78 ACTION SEEKING TO PROHIBIT THE TRIAL JUDGE IN A CRIMINAL CASE FROM EXCLUDING TESTIMONY AS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE DISMISSED AS INAPPROPRIATE; MATTER CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department determined the Article 78 proceeding brought by the district attorney against the trial judge in a criminal case seeking prohibition should have been dismissed. The trial judge had ruled that the conversations between an attorney and the defendant at the scene of the crime were protected by attorney-client privilege. The Article 78 action sought to prohibit the trial judge from adhering to that ruling. At the time of this Article 78 proceeding the criminal trial was over and defendant had been convicted. The matter was considered as an exception to the mootness doctrine:

Prohibition is an extraordinary remedy and, in cases involving the exercise of judicial authority, “is available only where there is a clear legal right, and then only when a court . . . acts or threatens to act either without jurisdiction or in excess of its authorized powers” … . Respondent had jurisdiction over the criminal action against Mercer … and was empowered to preclude Doyle from testifying about matters protected by the attorney-client privilege … . Petitioner’s core complaint is that respondent erred in determining the scope of that privilege, and she may be correct … . Nevertheless, “prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” … . To allow review of such matters would have an array of negative impacts, encouraging gamesmanship, “erect[ing] an additional avenue of judicial scrutiny in a collateral proceeding and . . . frustrat[ing] the statutory or even constitutional limits on review” … . Thus, inasmuch as petitioner does not point to “an unlawful use or abuse of the entire action or proceeding,” but rather “an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding,” prohibition will not lie … . Matter of Heggen v Sise, 2019 NY Slip Op 05620, Third Dept 7-10-19

 

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SUPREME COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT FINDING THAT THE VALUE OF COMMON AREAS OF A DEVELOPMENT OWNED AND MAINTAINED BY PETITIONER HOMEOWNERS’ ASSOCIATION WAS ZERO FOR PROPERTY TAX PURPOSES BECAUSE OF ENCUMBRANCES AND RESTRICTIONS, QUESTIONS OF FACT ABOUT THE VALUE OF THE COMMON AREAS HAD BEEN RAISED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined questions of fact precluded summary judgment finding that the value of the common areas of a development owned and maintained by petitioner homeowners’ association was zero because of encumbrances and restrictions on the property. Petitioner sought a reduction of the tax assessments pursuant to Real Property Tax Law (RPTL)  article 7. The town and the village had assessed the value of the common areas in the millions of dollars:

… [T]he declaration of protective covenants purports to impose a servitude upon the common area parcels in the nature of an easement or covenant that runs with the land; however, petitioner’s bylaws specifically state that individual lot owners “shall have a license to use the [c]ommon [a]reas.” To the extent that the corresponding deeds to the individual lot owners recite that each conveyance was made subject to both the declaration of protective covenants and petitioner’s bylaws, we now reiterate that “[s]uch a conflict in terminology does not lend itself to summary relief” … . …

… [P]etitioner failed to demonstrate, as a matter of law, that the assessed property values of the individual lot owners within the development already include an enhanced value or premium sufficient to cover or offset the value of petitioner’s common area parcels. …

Nor did petitioner sufficiently establish that the subject common area parcels have zero or only nominal value. Indeed, “[i]t is possible that a parcel is so interwoven with a dominant estate that it has no extrinsic value that is available for tax purposes. If, however, it is shown that a servient parcel[, i.e., the common area parcels,] has substantial value, the land can be taxed despite its relationship to a dominant estate owned by a member of a community development” … . Matter of The Assn. of Prop. Owners of Sleepy Hollow Lake, Inc. v McBride, 2019 NY Slip Op 05371, Third Dept 7-3-19

 

SPECIAL FUND IS LIABLE FOR DEATH BENEFITS WHERE THE CLAIM WAS TRANSFERED TO THE SPECIAL FUND BEFORE THE FUND WAS CLOSED IN 2014 AND THE CLAIMANT DIED AFTER THE FUND WAS CLOSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that the Special Fund remained liable for death benefits if the matter had been transferred to the Special Fund before the 2014 closure of the fund. Here the asbestosis case was transferred to the Special Fund in 2011 and the claimant died in 2017:

… [T]he imposition of liability on the Special Fund in this case is not precluded by the statutory amendment [closing the Special Fund], given that liability was transferred to the Special Fund in December 2011, well before the January 1, 2014 closure date. The record does not indicate any violation of the plain language of the statutory sentence at issue. Indeed, the record does not contain a copy of any application by the employer for transfer of liability of a claim to the Special Fund, nor any indication that such an application was filed after January 1, 2014. Thus, the record does not support a finding of a violation of the statute prohibiting the Board from accepting, after the cut-off date, any application by an employer or carrier for transfer of liability of a claim to the Special Fund (see Workers’ Compensation Law § 25-a [1-a]).

This conclusion is supported by our decision in Matter of Misquitta v Getty Petroleum (150 AD3d 1363[2017]), which involved a factual situation similar to that presented here. In Misquitta, the decedent had an established workers’ compensation claim that had been transferred to the Special Fund prior to his death and, after his death, his widow filed a claim for workers’ compensation death benefits. While acknowledging that the consequential death claim was separate and distinct from the decedent’s original claim, this Court ruled that “where . . . liability for a claim has already been transferred from the carrier to the Special Fund and the employee thereafter dies for reasons causally related to the original claim, the Special Fund remains liable for the claim for death benefits” … . Matter of Verneau v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 05369, Third Dept 7-3-19

 

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