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THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT.

The Third Department determined the intent of the decedent was to support a particular local (Oneonta) Catholic school with a charitable gift. The school had closed in 2011. The trustee wanted to distribute the gift equally to the two other named beneficiaries of the trust. Respondents, St. Mary’s Roman Catholic Church, New York and Roman Catholic Diocese of Albany, New York, which operated the closed school, argued the gift should be made to them. The court looked at the nature of the trust as a whole and determined the intent of the gift was to benefit the particular school which closed, not the larger Roman Catholic church generally:

The gift to the school was “charitable in nature and, for cy pres relief [to be appropriate], it was further necessary that the instrument[] establishing the gift[] revealed a general charitable intent and that circumstances had changed rendering impracticable or impossible strict compliance with the terms of the gift instrument[]”… . Strict compliance with the terms of the trust agreement was impossible due to the closure of the school. We accordingly turn to whether the evidence evinces a general charitable intent on the part of decedent, defined “as a desire to give to charity generally, rather than merely to give to a particular object or institution” … . In answering that question, we will read the trust agreement in its entirety and afford its words “their ordinary and natural meaning” … .

Turning to that agreement, all of the institutions to which decedent made gifts are in the City of Oneonta, Otsego County, suggesting an intent to limit her largesse to organizations in that area. When viewed in that context, a direction to distribute part of the residuary trust corpus “to the [school at] 5588 State Route 7, Oneonta, New York 13820” indicates a desire to support a school at that location rather than religious education projects in general. This reading is bolstered by the silence of the trust agreement as to decedent’s Catholic faith and the absence of gifts to the parish or other Roman Catholic institutions. Matter of Gurney, 2017 NY Slip Op 05902, 3rd Dept 7-27-17

TRUSTS AND ESTATES (CY PRES, THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)/CY PRES (THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)/CHARITABLE GIFTS (TRUSTS, CY PRES, THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)

RECORD DID NOT DEMONSTRATE PETITIONER KNOWINGLY WAIVED HIS RIGHT TO BE PRESENT AT THE HEARING, DETERMINATION ANNULLED AND EXPUNGED 3RD DEPT.

The Third Department annulled and expunged the misbehavior determination because the record did not reflect the petitioner’s knowing and intelligent waiver of his right to be present at the hearing:

“[A]n inmate has a fundamental right to be present at his or her disciplinary hearing and, in order for an inmate to make a knowing, voluntary and intelligent waiver of that right, he or she must be informed of that right and of the consequences of failing to appear at the hearing” … . Here, while there was testimony at the continuation of the hearing that the correction officers assigned to transport petitioner advised him that the hearing would continue in his absence, a videotape of the interaction between petitioner and the officers that resulted in his refusal to attend the hearing reveals no such advisement. Notably, the correction officer did not elaborate on the reason for petitioner’s refusal, and the Hearing Officer did not inquire … . Although the record also contains a written form, signed by one of the correction officers assigned to transport petitioner to the hearing, attesting to the fact that petitioner was aware of the consequences of his refusal, petitioner did not sign the form and there is no indication on the form or anywhere else in the record as to the steps taken to either “ascertain the legitimacy of petitioner’s refusal or to inform him of . . . the consequences of his failure to [attend]” …  to assert that petitioner forfeited his right to be present is unavailing because the hearing was not nearing completion at the time of the refusal. In light of the foregoing, we cannot conclude that petitioner knowingly, intelligently and voluntarily relinquished his right to attend the hearing … . Matter of Micolo v Annucci, 2017 NY Slip Op 05893, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (RECORD DID NOT DEMONSTRATE PETITIONER KNOWINGLY WAIVED HIS RIGHT TO BE PRESENT AT THE HEARING, DETERMINATION ANNULLED AND EXPUNGED 3RD DEPT)

QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT.

The Third Department determined plaintiff had raised a question of fact about a nonnegligent explanation for his colliding with the rear of defendant’s car. Plaintiff was riding a motorcycle when the car in front of him (driven by Daunais) suddenly swerved to the left and plaintiff struck the defendant’s car, which was in front of Daunais. Daunais alleged the defendant suddenly stopped dead in the road and Daunais swerved to the left to avoid colliding with defendant:

It is undisputed that defendant has satisfied his initial summary judgment burden inasmuch as “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle” … . The burden therefore shifted to plaintiff to demonstrate a nonnegligent explanation for the collision … . As relevant here, “[e]vidence that the vehicle which was rear-ended came to a sudden and abrupt stop will defeat summary judgment” … .

Although defendant contends that he was attempting to turn into a driveway when plaintiff rear-ended him and that he had appropriately slowed his vehicle and activated his turn signal prior to turning, Daunais contradicted him, testifying that defendant “stopped dead in the road.” Daunais averred that he then “took a chance” and swerved left into the oncoming traffic lane to avoid colliding with defendant’s vehicle. Plaintiff explained that he was unable to do the same because another motorcyclist was by then blocking him from safely veering to the left. Other motorcyclists traveling with plaintiff also testified that they observed Daunais’ van swerve into the oncoming traffic lane to reveal defendant’s vehicle stopped in the road. This proof, when viewed “in the light most favorable to plaintiff and affording him the benefit of every favorable inference”… , demonstrates a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision … . Bell v Brown, 2017 NY Slip Op 05898, 3rd Dept 7-27-17

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR-END COLLISION, QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)/TRAFFIC ACCIDENTS (REAR-END COLLISION, QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)/REAR-END COLLISION (QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)

THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s evidence of lost earnings was insufficient to support his claim for no-fault benefits. The insurer’s motion for summary judgment should, therefore, have been granted. The dissenters argued that there was enough evidence of lost earnings to raise a question of fact:

… {The potential employer’s and] plaintiff’s subjective beliefs about the financial health of the parts business and/or their subjective beliefs about plaintiff’s skills are immaterial to the resolution of whether it is reasonable to project that the parts business would have employed plaintiff at a salary of $2,000 a week. In contrast, the uncontradicted evidence that the parts business was failing, that it had not made any efforts to acquire or open an automobile repair shop, and that, even if it had, plaintiff had a demonstrated history of being unable to run a profitable automobile repair shop all bear on the reasonableness of such a projection. That material evidence established as a matter of law that the projection that plaintiff would have received $2,000 a week from the parts business is unreasonable … . Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911, 3rd Dept 7-27-17

INSURANCE LAW (NO-FAULT, LOST EARNINGS, THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT)/NO-FAULT BENEFITS (LOST EARNINGS,  THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT)

RAISED FIST DID NOT SUPPORT AN INTERFERENCE-WITH-AN-EMPLOYEE CHARGE 3RD DEPT.

The Third Department determined a raised fist was sufficient to support the “creating a disturbance” charge, but not the “interference with an employee” charge:

… [A]s to the charge of interfering with an employee, while the evidence establishes that prison staff were alarmed by petitioner’s gesture resulting in additional staff reporting to the mess hall, we agree with petitioner that these facts, standing alone, do not constitute substantial evidence to support the finding that petitioner “physically or verbally obstruct[ed] or interfere[d] with an employee,” and, therefore, the determination should be annulled to that extent… . While the normal duties of the prison staff were presumably interrupted or redirected when they responded to the incident in the mess hall, this, in our view, is not the type of conduct that the at-issue rule was designed to prevent … . Matter of Taylor v Lee, 2017 NY Slip Op 05903, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (RAISED FIST DID NOT SUPPORT AN INTERFERENCE-WITH-AN-EMPLOYEE CHARGE 3RD DEPT)

ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT.

The Third Department, over a two-justice dissent, determined the contraband-possession charge was supported by sufficient evidence. The petitioner had a small package of a leafy green substance which tested negative for marijuana. The supervisor who seized the substance, after the test had been done, alleged it was synthetic marijuana. Because all of the substance was used up in the marijuana test, no further tests were possible. The dissent argued the proof was insufficient because the supervisor did not describe the nature of his experience which led to his conclusion the substance was contraband:

As for the … charge of possessing contraband, “an inmate shall not possess any item unless it has been specifically authorized” … . Given petitioner’s concessions and the supervisor’s representations in the misbehavior report that his identification was based upon his prior training and experience, we find that the item contained in the tobacco pouch was adequately identified as synthetic marihuana and, therefore, the determination that it was unauthorized contraband is supported by substantial evidence … . * * ​

FROM THE DISSENT:

The supervisor who identified the substance as synthetic marihuana offered no details regarding his training or experience, nor any explanation of how they qualified him to make such an identification. Indeed, he did not testify, so the Hearing Officer was left to rely on a vague and conclusory statement included in a misbehavior report and repeated in a memorandum. Moreover, the quantity of the substance recovered apparently allowed for only one drug test, and the record indicates that the substance was tested to discover whether it was marihuana. If the supervisor actually had the ability to identify synthetic marihuana and had, in fact, so identified the substance taken from petitioner when the supervisor viewed it before the testing was conducted, there is no explanation as to why he would thereafter have his subordinate use the entirety of the substance in a test for marihuana, which would not indicate a positive or a negative result for synthetic marihuana … . Thus, the record contains no evidence that the supervisor was qualified to identify synthetic marihuana, but does contain evidence that leads to an inference that he had, initially, incorrectly identified the substance as marihuana. The Hearing Officer should not have relied on the supervisor’s second guess as to the nature of the substance, supported by nothing other than his own vague and self-serving statement regarding his training and experience. Matter of King v Venettozzi, 2017 NY Slip Op 05899, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (CONTRABAND, ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT)/CONTRABAND (DISCIPLINARY HEARINGS, INMATES, ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT)

CPLR 5003-A, WHICH MANDATES PROMPT PAYMENT OF A SETTLEMENT TO THE PLAINTIFF, DOES NOT APPLY TO PAYMENTS TO THIRD PARTIES REQUIRED BY THE SETTLEMENT AGREEMENT 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Peters, determined CPLR 5003-a, which requires the prompt payment of a settlement to the plaintiff, does not apply to payments owed to a third-party, even though the settlement agreement requires that the third party be paid. Here the settlement agreement required defendant to pay a Worker’s Compensation lien:

… [W]e conclude that CPLR 5003-a applies only to the nonpayment of settlement monies owed directly to a settling plaintiff pursuant to a settlement agreement. This construction is not only in accord with the plain language of the prompt payment mandate itself, but is also supported by the language of the statutory enforcement mechanism set forth in subdivision (e). CPLR 5003-a (e), the teeth that effectuate subdivision (a)’s prompt payment directive, authorizes an “unpaid plaintiff” to enter judgment inclusive of interest, costs and disbursements against the nonpaying settling defendant … . Simply put, plaintiff here is not “unpaid” — all sums required to be paid to him pursuant to the parties’ settlement agreement (i.e., $3.25 million) were paid by defendant within the statutorily-prescribed 21-day time period. Had the Legislature intended to extend the reach of CPLR 5003-a to a settling defendant’s failure to promptly pay all valuable consideration due a settling plaintiff pursuant to the parties’ settlement agreement, it could have easily said so. It did not, and “‘a court cannot amend a statute by inserting words that are not there'” … . Ronkese v Tilcon N.Y., Inc., 2017 NY Slip Op 05905, 3rd Dept 7-27-17

CIVIL PROCEDURE (SETTLEMENTS, CPLR 5003-A, WHICH MANDATES PROMPT PAYMENT OF A SETTLEMENT TO THE PLAINTIFF, DOES NOT APPLY TO PAYMENTS TO THIRD PARTIES REQUIRED BY THE SETTLEMENT AGREEMENT 3RD DEPT)/SETTLEMENTS (CPLR 5003-A, WHICH MANDATES PROMPT PAYMENT OF A SETTLEMENT TO THE PLAINTIFF, DOES NOT APPLY TO PAYMENTS TO THIRD PARTIES REQUIRED BY THE SETTLEMENT AGREEMENT 3RD DEPT)

DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT.

The Third Department, over a strong dissent, determined the denial of youthful offender status was not an abuse of discretion. Defendant lost both parents, dropped out of school after having been a successful student and admitted to college, became addicted to drugs, and was targeted and victimized by persons who moved into his home. He had never before committed a crime. He pled guilty to seven burglaries which took place in the space of two weeks:

Defendant contends that County Court abused its discretion in denying him youthful offender status and that the sentence imposed was harsh and excessive. “[T]he decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court’s discretion and, absent a clear abuse of that discretion, its decision will not be disturbed” … . Upon our review of the record, we are unpersuaded that County Court abused its discretion in denying defendant’s application for youthful offender status … . In making its determination, County Court considered numerous mitigating circumstances, including, among other things, defendant’s youth, his lack of a criminal record or prior acts of violence, his cooperation with authorities, his familial history and his expressed remorse for his conduct … .. Nevertheless, based upon the seriousness of the charges for which defendant was convicted and the fact that he willingly participated in seven separate and distinct residential burglaries over a two-week period, we perceive no abuse of discretion in County Court’s ultimate decision to deny defendant youthful offender status … . Nor do we find any extraordinary circumstances or an abuse of discretion that would warrant a reduction of his sentence … . People v Strong, 2017 NY Slip Op 05876, 3rd Dept 7-27-17

CRIMINAL LAW (YOUTHFUL OFFENDER, DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT)/SENTENCING (YOUTHFUL OFFENDER, DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT)/YOUTHFUL OFFENDER (DESPITE THE TRAGIC CIRCUMSTANCES WHICH PRECEDED DEFENDANT’S CRIMINAL OFFENSES, COUNTY COURT DID NOT ABUSE ITS DISCRETION IN DENYING YOUTHFUL OFFENDER STATUS 3RD DEPT)

NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT DIFFERENT TIMES, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT.

The Third Department, reversing County Court, determined the People did not demonstrate the two sexual offenses to which defendant pled guilty occurred at different times, therefore consecutive sentences should not have been imposed. The Third Department explained that only the accusatory instrument to which defendant pled (here a superior court information) and the plea allocution can be considered in this context.  To the extent that a prior ruling suggested admissions in a pre-sentence report and victim statements could be considered to determine the facts of the offenses, that ruling is no longer to be followed:

Pursuant to Penal Law § 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” … . Thus, “to determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” … . “[E]ven if the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the acts or omissions committed by [the] defendant were separate and distinct acts” … . * * *

… [B]oth counts in the superior court information alleged that the acts occurred during the same time frame (between July 1, 2012 and July 31, 2012), neither count contained allegations about the specific acts constituting the crime, and there is no bill of particulars narrowing the specific type of sexual contact or sexual conduct alleged under either count … . Likewise, the plea allocution did not include admissions or particularity as to the acts committed that qualify as sexual contact or oral sexual conduct … . Given that the term “sexual contact” is broad enough to include all forms of “oral sexual conduct” … , the actus reus element could be the same for both offenses, that is, the same act could satisfy both crimes. As no specific date and time for each crime were alleged in the superior court information or plea allocution, and neither included underlying facts or alleged acts that were separate and distinct, consecutive sentences were not authorized … . People v Mangarillo, 2017 NY Slip Op 05872, 3rd Dept 7-27-17

CRIMINAL LAW (SENTENCING, NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT THE SAME TIME, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT)/SENTENCING (NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT THE SAME TIME, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT)

HOMEOWNERS’ REBUTTED THE PRESUMPTION THAT THE TAX ASSESSMENT OF THEIR PROPERTY WAS VALID 3RD DEPT.

The Third Department determined petitioners, who had recently purchased the property for $103,000, had rebutted the presumption that the tax assessment of over $156,000 was valid:

Here, petitioners presented the affidavit of the associate real estate broker who had been engaged to sell the subject property, together with their own affidavits describing the underlying transactions. From June 2011 through May 2013, the subject property had been continuously, publicly and widely advertised for sale on a multiple listing service throughout the Capital Region. Flyers were distributed at the broker’s office and during open houses and showings. By May 2012, there had been more than 30 unsuccessful showings of the subject property, which prompted the initial reduction of the sale price to $110,000 in June 2012. Petitioners toured the property with the broker during an open house thereafter, and then met with the broker in May 2013 to execute their purchase offer. Two weeks later, respondents prepared their estimate of the market value of the subject property, which was significantly higher than the purchase price.

Supreme Court held that one can “scarcely envision a better indicator of value than the price established within two weeks of the assessed valuation date in an arm’s[ ]length sale of a property that was publicly listed for sale for a period of two years.” We agree, finding that petitioners’ evidence was certainly adequate to rebut the presumption of validity and also to meet their burden upon the summary judgment motion… . Respondents offered no evidence that suggests or reveals that the arm’s length transaction by which petitioners purchased the subject property was in any manner abnormal. Review of the record reveals that the reduction in the asking price was the natural product of the failure to sell the subject property for a period of two years, and respondents’ assertions to the contrary are mere speculation. Respondents further rely upon the affidavit of a licensed real estate appraiser, who explains that he arrived at the property valuation by using the comparable sales method. However, as this appraiser was unable to inspect the interior or exterior of the subject property, his report merely averaged the sales prices of similar nearby homes; he “was unable to make reliable adjustments to the comparable sales,” as the method requires … . As further adjustments in the valuation might be required, he concluded that “[his] analysis is subject to change.”

Respondents’ submissions thus failed to provide a “fair and realistic value” of the subject property … and were conclusory and speculative, such that they were insufficient to defeat summary judgment … . Matter of Weslowski v Assessor of The City of Schenectady, 2017 NY Slip Op 05784, 3rd Dept 7-20-17

REAL PROPERTY TAX LAW (HOMEOWNERS’ REBUTTED THE PRESUMPTION THAT THE TAX ASSESSMENT OF THEIR PROPERTY WAS VALID 3RD DEPT)

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