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Cotenant’s Exclusive Possession and Payment of Taxes and Maintenance Costs, Standing Alone, Are Not Enough to Establish Adverse Possession As Against a Cotenant/Criteria for Ouster of Cotenant Not Met

The Third Department determined that the motion to dismiss for failure to state a cause of action was properly granted. A cotenant who had resided at the property, maintained the property, and paid the taxes for over two decades, brought an action seeking exclusive ownership based upon ouster of defendant cotenant and/or adverse possession. Neither the complaint nor plaintiff’s submissions established the statutory criteria for ouster or adverse possession (Real Property Actions and Proceedings Law [RPAPL] 541) . There was no unequivocal expression by the possessory cotenant that the property was being adversely possessed, and the inclusion of the defendant cotenant’s name on a property insurance policy belied adverse possession. The court noted that exclusive possession and payment of maintenance expenses by a cotenant, standing alone, do not establish adverse possession:

The law that would have provided … plaintiff a valid legal claim with regard to the underlying property dispute is RPAPL 541, which provides that, “[w]here the relation of tenants in common has existed, the occupancy of one tenant . . . is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises . . . has claimed to hold adversely to the other. But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, . . . or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his [or her] cotenant.” It is well settled that, “absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may be said to acquire full title by adverse possession” … .

We reject plaintiff’s contention that she and Lindine ever ousted defendant or defendant’s parents from the property. An ouster will not be deemed to have occurred unless the possessory cotenant, either through words or actions, unequivocally expresses to the nonpossessory cotenant that the property is being adversely possessed … . * * *

Plaintiff alternatively contends that, even if no ouster has been established, she and Lindine adversely possessed the property, given their exclusive use of it for more than two decades (see RPAPL 541). In support of this argument, plaintiff emphasizes that she and Lindine paid all taxes and expenses for the property, and made all necessary repairs to its structural improvements. Defendant never visited the property during the years that plaintiff and Lindine lived there permanently and defendant’s parents, it is claimed, only did so twice. Even accepting these allegations as true, “exclusive possession and the payment of maintenance expenses by a [possessory] cotenant are[, standing alone,] insufficient to establish a claim of right for purposes of adverse possession as against a cotenant” … . Lindine v Iasenza, 2015 NY Slip Op 06275, 3rd Dept 7-23-15

 

Criteria for Common Law or Implied Indemnification Explained

In affirming Supreme Court’s denial of summary judgment to the defendants in a construction-accident case, the Third Department clearly explained the criteria for common law or implied indemnification.  In a nutshell, any negligence by the party seeking indemnification for payments made to the injured party on behalf of a negligent tortfeasor will preclude recovery. Common law or implied indemnification applies only to parties who are liable vicariously without fault:

“The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine” … . Accordingly, in order “[t]o establish a claim for common-law indemnification, the party seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability, but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the cause of the accident” … . Hackert v Emmanuel Cong. United Church of Christ, 2015 NY Slip Op 06192, 3rd Dept 7-16-15

 

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Landlord With Notice of a Tenant’s Dog’s Vicious Propensities May Be Liable to the Injured Plaintiff

In finding that there were questions of fact precluding summary judgment in a dog-bite case, the Third Department noted that a landlord with notice of a dog’s vicious propensities can be liable to the injured plaintiff:

“A landlord may be liable for the attack by a dog kept by a tenant if the landlord has actual or constructive knowledge of the animal’s vicious propensities and maintains sufficient control over the premises to require the animal to be removed or confined” … . Defendant was empowered to require the [tenants] to remove the animal and, indeed, its site manager testified that he took steps to do so once he learned of the dog’s existence in September 2012. Rodgers v Horizons At Monticello, LLP, 2015 NY Slip Op 06189, 3rd Dept 7-16-15

 

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Question of Fact Whether Negligent Supervision Was the Proximate Cause of the Injuries Plaintiff’s Son Suffered in an Attack by Another Student–the School Was Aware of Prior Assaultive Behavior by the Attacker and the School Was Aware of Recent Threats of Violence (Against Plaintiff’s Son) by the Attacker—The Court Noted that, In a Summary Judgment Motion, the Evidence Is Viewed in the Light Most Favorable to the Nonmovant

The Third Department determined questions of fact precluded summary judgment in favor of defendant high school in a negligent supervision case. Plaintiff’s son, LaValley, was assaulted by another student, Breyette, after plaintiff had alerted school officials about threats of violence made by Breyette against her son. Breyette had a history of assaultive behavior for which he was suspended in middle school. LaValley was punched 37 times in the school cafeteria in close proximity to a teacher who did not intervene and who was not aware of the conflict between the two students. The Third Department noted that, in determining a summary judgment motion, the evidence is viewed in the light most favorable to the nonmovant:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Where a fellow student intentionally injures another, the duty is breached if the school had actual or constructive notice of the conduct that caused the injury such that the acts of the fellow student could have been reasonably anticipated … . The adequacy of supervision and proximate cause are generally issues of fact for the jury … .

Viewing the evidence in the light most favorable to plaintiff as the nonmovant …, we note that Breyette had a history of assaultive behavior, including a previous assault against LaValley in middle school that resulted in Breyette’s out-of-school suspension. There is also evidence that, within the month prior to the assault, Breyette specifically threatened violence against LaValley, and plaintiff testified that she immediately informed the high school principal about this threat. Plaintiff also testified that she brought up the conflict between LaValley and Breyette during a meeting with the principal and her son’s teachers. Although the principal acknowledged that plaintiff had informed him about the conflict and he testified that he spoke to Breyette about it, Breyette denied that the principal had spoken to him prior to the attack. The attack itself occurred in the school cafeteria, in close proximity to a teacher who had not been notified of the threat or the conflict between the two students. According to Breyette, he calmly approached LaValley, called his name to get his attention and proceeded to punch him in the head 37 times without any adult intervention. He did not stop until another student intervened. In light of this evidence, we agree with Supreme Court that factual issues exist with respect to the adequacy of defendants’ supervision and whether the lack of adequate supervision was a proximate cause of LaValley’s injuries … . LaValley v Northeastern Clinton Cent. Sch. Dist., 2015 NY Slip Op 06187, 3rd Dept 7-16-15

 

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Conversion of Water to Steam and Steam to Water Did Not Constitute a Manufacturing Process—Therefore Petitioner Was Not Entitled to Manufacturing Tax Credits in Connection with the Operation of Its “Boiling Water” Nuclear Power Facilities—The Certification Prerequisite for Pollution Tax Credits Is Not Preempted by Federal Law which Regulates the Construction and Operation of Nuclear Power Facilities

The Third Department, in a full-fledged opinion by Justice Garry, determined that petitioner, the owner of two nuclear power plants, was not entitled to manufacturing tax credits or pollution tax credits under the Tax Law. The production of electricity is specifically excluded from the range of “manufacturing” for which manufacturing credits are available. The petitioner argued that the water which is turned into steam and then back into water (to operate the turbines) constituted a manufacturing process within the meaning of the Tax Law. The Third Department disagreed, describing the process as recycling, not manufacturing. The pollution tax credits are available only to facilities certified by the Department of Environmental Conservation as compliant with state environmental, public health and sanitary rules. Petitioner’s facilities were not so certified. The Third Department determined that the state certification requirement was not preempted by federal law, which exclusively regulates the construction and operation of nuclear power facilities, because tax credits do not regulate the construction or operation of such facilities. Petitioner was not, therefore, entitled to pollution tax credits. With regard to the manufacturing tax credits, the court explained:

Manufacturing is defined as “the process of working raw materials into wares suitable for use or which gives new shapes, new quality or new combinations to matter which already has gone through some artificial process by the use of machinery . . . and other similar equipment” (Tax Law former § 210 [12] [b] [ii] [A]), and “‘processing’ speaks to an industrial activity related to manufacturing” … . Here, the water that is converted to steam by petitioner’s assets is then converted back to its original form as water and then to steam again in an ongoing, continuous cycle that makes no permanent change in the water and yields no final product. This is more akin to recycling than to manufacturing. On these facts, we cannot find it irrational for the Tribunal to conclude that the claimed assets were not principally engaged in producing any tangible property other than electricity … . Petitioner has neither established that its interpretation of the governing statute is the only reasonable construction nor that the Tribunal’s interpretation was “irrational or unreasonable”…  and, thus, has not shown that the Tribunal’s determination that it is ineligible for the manufacturing tax credits should be reversed.  Matter of Constellation Nuclear Power Plants LLC v Tax Appeals Trib. of the State of N.Y., 2015 NY Slip Op 06183, 3rd Dept 7-16-15

 

Ruling that Subject Child Could Not Visit Father in the Presence of Father’s Other Children Is Against Established Policy and Was Not Supported by an Adequate Record—Matter Sent Back for Development of Evidence

Although the custody modification awarding sole custody to mother was upheld by the Third Department, the court was troubled by the requirement that father’s other children could not be present during father’s parenting time with the subject child.  The restriction goes against the general policy that bonds with siblings should be strengthened and the record was not sufficient to warrant the ruling.  The matter was sent back for further development of the evidence:

… [T]here is a dearth of record evidence supporting the provision limiting all parenting time with the father to periods when the child’s older half siblings are not present. Considering the father’s testimony upon cross-examination admitting to some prior unspecified incidents apparently involving the corporal punishment of his older children, meaningful support was not wholly lacking. These prior incidents had resulted in the imposition of supervised visitation with the older children. However, there was no evidence produced to clarify or explain any detail or establish any of the circumstances underlying these admissions. No documents or other proof or testimony was offered or entered. The father testified that the restrictions that had previously been imposed had expired at the time of the hearing. Nothing more was revealed, and the underlying facts were left wholly undeveloped.

Despite the argument by the attorney for the child that limiting the father’s time with this child to periods when the half siblings are not present will protect the child by allowing the father to focus on the child exclusively, the provision is troubling. The law strongly favors the development and encouragement of sibling bonds … . The father’s apparent history of inappropriate corporal punishment certainly raises issues of significant concern. Nonetheless, the issue is too poorly developed in the record to support the argument advanced by the attorney for the child.  Matter of Demers v McLear, 2015 NY Slip Op 06178, 3rd Dept 7-16-15

 

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Concurrent Inclusory Counts Dismissed and Sentences Vacated—Defense Counsel’s Failure to Request that the Greater and Lesser Counts Be Submitted to the Jury in the Alternative, Although a Clear-Cut Error, Did Not Deprive the Defendant of Meaningful Representation

The Third Department determined defendant was entitled to dismissal of the inclusory concurrent counts and the vacation of the sentences imposed thereon, but was not entitled to reversal based upon defense counsel’s failure to request the that the inclusory concurrent counts be presented to the jury in the alternative (conviction on the greater count is deemed a dismissal of every lesser count).  Although the omission was clear-cut error on defense counsel’s part, the error did not deprive defendant of effective assistance:

…. [T]he two counts of criminal possession of a controlled substance in the seventh degree are inclusory concurrent counts of criminal possession of a controlled substance in the third degree … . “When inclusory counts are submitted for consideration, they must be submitted in the alternative since a conviction on the greater count is deemed a dismissal of every lesser count” … . Therefore, defendant’s misdemeanor convictions of criminal possession of a controlled substance in the seventh degree must be reversed and the concurrent, one-year sentences vacated … .

We are not persuaded, however, that defense counsel’s failure to request an alternative charge on these counts “elevates this case to the level of one of those rare cases where a single lapse can constitute ineffective assistance of counsel” … . Although counsel erred on a clear-cut issue …, such an error must be viewed in the context of the entire representation, particularly in light of the other charges that defendant faced. Most importantly here, counsel’s error appears to arise from his failure to properly consider the misdemeanor charges of criminal possession of a controlled substance in the seventh degree. While defendant was certainly entitled to representation on those charges, defendant had previously been convicted of a felony drug offense and faced felony charges of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Given the vastly disparate potential outcomes related to the felony and misdemeanor offenses with which defendant was charged, particularly in light of his prior felony drug conviction …, and absent any proof that counsel’s failure was greater than that of failing to properly attend to the misdemeanor charges, we do not find that defendant was deprived of meaningful representation … . People v Vanguilder, 2015 NY Slip Op 06175, 3rd Dept 7-16-15

 

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Two-Part Inquiry for Determining Whether a Dispute is Arbitrable Under a Collective Bargaining Agreement Clearly Explained and Applied

The Third Department determined the dispute between teachers and the board of education (concerning the board’s hiring of a teacher from an outside agency without posting the position as required by the collective bargaining agreement [CBA]) was arbitrable. The court first determined a provision of the Education Law, which allowed hiring from an outside agency, did not erect a policy/statutory barrier to hiring in accordance with the procedures in the CBA. The statute merely allowed the board to hire from an outside agency, but the statute did not preclude the board from using the hiring process agreed to in the CBA. The Third Department then went on to hold there was a reasonable relationship between the subject of the dispute and the general subject matter of the CBA. the only factors a court can look at to determine arbitrability.  The responsibility for any further inquiry and analysis then passed to the arbitrator:

Petitioner contends that arbitration of the subject matter of the dispute is barred by Education Law § 3602-e and public policy. Determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry, the first issue being “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . “[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute” … .

Under the statutory scheme at issue, a “pre[]kindergarten program plan” is defined as a plan “designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies” (Education Law § 3602-e [1] [d] …). Petitioner’s argument rests upon Education Law § 3602-e (5) (d), which states that “[n]otwithstanding any other provision of law, [a] school district[] shall be authorized to enter any contractual or other arrangements necessary to implement the district’s prekindergarten plan.” Contrary to petitioner’s contention, this language does not suggest a legislative intent that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services. A more natural reading of Education Law § 3602-e supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA … . * * *

Having found that there is no public policy prohibition, we turn to the second part of the threshold inquiry — that is, whether the parties agreed to submit the subject matter of the dispute to arbitration … . In considering this issue, we must only ascertain if “there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” … . Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 2015 NY Slip Op 06190, 3rd Dept 7-16-15

 

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Defense Counsel’s Failure to Investigate the Victim’s Medical Condition (Which Would Have Allowed More Effective Cross-Examination of the People’s Expert and the Victim), Failure to Object to Testimony Which May Have Been More Prejudicial than Probative (and which Clearly Required a Jury Instruction Limiting Its Use), and Failure to Object to Improper Comments Made by the Prosecutor, Deprived Defendant of Effective Assistance of Counsel

In a sexual abuse case based entirely on the victim’s testimony (alleging anal intercourse), the Third Department determined defense counsel’s failure to investigate the nature of the victim’s bleeding disorder (which could have called into question the prosecution’s expert’s opinion that victims of sexual abuse, like the victim here, often show no signs of injury), the failure to object to the testimony of the defendant’s spouse alleging his preference for anal intercourse (the prejudicial effect may well have outweighed the probative value—at the very least a limiting instruction should have been requested as to the jury’s limited use of such evidence), and the failure to object to improper comments made by the prosecutor in summation (appealing to jurors’ sympathy, exhorting the jurors to fight for the victim), required reversal and a new trial:

Had counsel sought to inform himself about the victim’s VWD [bleeding disorder] diagnosis, he likely would have become aware of medical experts such as Howard Snyder, a board-certified doctor of emergency medicine who submitted an affidavit in support of defendant’s postconviction motion. Snyder averred that “[t]he presence of VWD [in the victim] would have made the presence of bruising or bleeding during forceful, non-consensual anal intercourse more likely than in [a] patient without VWD.”Undoubtedly, expert testimony similar to Snyder’s would have done much to increase the significance of the SANE [sexual assault nurse examiner] report’s lack of physical findings and would have provided a powerful basis for cross-examination to counter the damaging effects of the SANE’s opinion testimony.

Counsel’s failings were magnified by the fact that the People’s only direct evidence of defendant’s guilt was the victim’s testimony, making counsel’s efforts to undermine her credibility of paramount importance. Indeed, there were no other witnesses to the alleged sexual assaults and no DNA evidence was recovered. In similar situations, the Second Circuit, applying New York law, has repeatedly held that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the vagaries of abuse indicia is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation” (Eze v Senkowski, 321 F3d 110, 129 [2d Cir 2003] …). Thus, the record establishes that, without any justification, counsel prejudiced defendant by “s[itting] on his hands, confident that his client would be acquitted” rather than “consult[ing with] and be[ing] prepared to call an expert” … , whose testimony then would have been “available [to] assist[] the jury in its determination” … .

Counsel’s conduct further fell below our standard of meaningful representation because he failed to object to, and request a limiting instruction to guide the jury in assessing, the testimony of defendant’s former spouse regarding defendant’s sexual preferences. Counsel sat mute while the witness testified that, upon reading the victim’s statement to police, it struck her that it contained details “only someone who had been intimate with [defendant] would know,” including what she then proceeded to describe as defendant’s preference for anal intercourse during their consensual sexual relationship [. We do not think that counsel’s failure to object to this testimony can be excused on the ground that such an objection had “little or no chance of success” … . “Not all relevant evidence is admissible as of right. . . . Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side” … .

In our view, a legitimate question exists as to whether the prejudicial effect of the former spouse’s testimony regarding defendant’s sexual preferences substantially outweighed its probative value, especially considering that she testified that she and defendant had not been sexually active for several years prior to the alleged assaults on the victim. Supreme Court should have had the opportunity to consider this question and make an appropriate ruling in the exercise of its discretion. The court would have done so, but for counsel’s inexplicable failure to object. In the event that the court had determined this testimony to be admissible, counsel could then have requested a limiting instruction, as the lack thereof would “permit[] the jurors to perhaps consider [the former spouse’s statements] as proof of defendant’s propensity” to engage in the sexual acts charged here … . * * *

Finally, we note with disapproval certain remarks made by the prosecutor during summation, to which counsel did not object. The prosecutor improperly attempted to appeal to the jury’s sympathy by asking the jurors to consider how they would have felt if they “were in [the victim’s] shoes” … . The prosecutor also exhorted the jurors to advocate for the victim during deliberations by using the phrase “you fight for her” … . While counsel’s failure to object to these remarks does not, in and of itself, amount to ineffective assistance of counsel, it further illustrates counsel’s representation, the cumulative effect of which deprived defendant of meaningful representation, especially “where, as here, the determination of guilt . . . hinged on sharp issues of credibility” … . People v Cassala, 2015 NY Slip Op 06176, 3rd Dept 7-16-15

Custody Properly Awarded to Non-Parents—Criteria Explained

The Second Department affirmed Family Court’s award of custody to non-parents, explaining the relevant criteria:

In a custody proceeding between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances … . The burden is on the nonparent to prove the existence of extraordinary circumstances … . Where extraordinary circumstances are found to exist, the court must then consider the best interests of the child in awarding custody … .

Here, the Family Court properly determined that the nonparent petitioners, Yasmin Culberson and Walter Culberson, sustained their burden of demonstrating extraordinary circumstances based upon, inter alia, the mother’s prolonged separation from the subject child and lack of significant involvement in the child’s life for a period of time, the mother’s failure to contribute to the child’s financial support, and the strong emotional bond between the child and the nonparent petitioners … . Moreover, the Family Court’s determination that an award of custody to the nonparent petitioners would be in the best interests of the child is supported by a sound and substantial basis in the record … . Matter of Culberson v Fisher, 2015 NY Slip Op 06144, 2nd Dept 7-15-15

The Third Department determined grandmother demonstrated extraordinary circumstance justifying the award of custody to her with visiting rights for the parents. The court explained the relevant analytical criteria:

“It is well settled that a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” … . “The burden of proving such extraordinary circumstances rests with the nonparent seeking custody and, if established, the controlling consideration in determining custody is the best interests of the child” … . Proof regarding extraordinary circumstances may include, among other things, that “the parent has neglected ‘to maintain substantial, repeated and continuous contact with’ the child[] or make plans for [her] future” …. . Matter of Yandon v Boisvert, 2015 NY Slip Op 06177, 3rd Dept 7-16-15

 

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