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Question of Fact About Whether ATV Driven with Owner’s Permission Based Upon Owner’s Restrictions on Use of the ATV

The Third Department determined a question of fact had been raised about whether an all terrain vehicle (ATV) was being operated with the owner’s consent at the time of a collision (a requirement for vicarious liability–Vehicle and Traffic Law 2411).  The owner claimed only his grandson had permission to operate the ATV and operation of the ATV on a public highway was not permitted by him.  The accident occurred when the ATV was driven by someone other than the owner’s grandson (with the grandson’s permission) on a public highway.  The grandson was driving an ATV which had just been damaged in an accident and they were using the public highway to return to the off-road trails:

Although [the owner] and his grandson both confirm that the restrictions regarding where the ATV could be operated had been imposed, when the “the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury” … . Here, the testimony of [the owner] is self-interested and his grandson–who is not a party–has no interest of his own in contradicting his grandfather’s position. Under these circumstances, we are persuaded that the grandson’s alleged directions and assurances to [the driver of the ATV] could imply, when viewed in the light most favorable to plaintiffs, [the owner’s] restrictions were flexible and had been lifted under the circumstances. Accordingly, the issue of implied permission should be determined by a jury … .

Sepsi v Watson, 2015 NY Slip Op 00414, 3rd Dept 1-15-15

 

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Only Out-of-Pocket Damages Allowed in Fraud Action (Re: a Real Estate Purchase Agreement)

The Third Department affirmed a judgment in favor of the plaintiffs stemming in large part from the fraudulent representation (re: a property information sheet) that a septic system, which failed, was “new.” The court noted the out-of-pocket rule for damages based upon fraud (lost profits/rents, etc. not recoverable):

[D]efendants’ realtor prepared a property information sheet — to be given to prospective buyers — bearing the notation, “Septic system totally new — le[a]ch field totally replaced — new 5000 gallon holding tank,” as well as the general qualification that “all information [was] deemed reliable but not guaranteed.” …[P]laintiffs … entered into a purchase and sale contract for the property. The contract, which reflected a purchase price of $545,000 and indicated that the buildings on the premises would be sold “as is,” also contained a waivable septic system contingency. Plaintiffs ultimately did not avail themselves of this contingency–a decision purportedly based, in part, upon plaintiffs’ belief that the property contained a new septic system. * * *

…[T]he case law makes clear that where, as here, a cause of action for fraud has been asserted, “[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong or what is known as the ‘out-of-pocket’ rule. . . . Damages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained. Under the out-of-pocket rule, there can be no recovery of profits which would have been realized in the absence of fraud” … . Revell v Guido, 2015 NY Slip Op 00411, 3rd Dept 1-15-15

 

Children’s Attorney Entitled to Cross-Examine Petitioner’s Witnesses Despite Taking a Position Similar to Petitioner’s

The Third Department determined the children’s attorney was entitled to ask leading questions in the cross-examination of petitioner’s witnesses, even though the the attorney for the children had taken a position similar to petitioner’s.  The similar positions did not convert petitioner’s witnesses to witnesses for the children:

…[W]e reject respondent’s contention that Family Court erred by denying her request to require the attorney for the children to cross-examine petitioner’s witnesses before respondent’s cross-examination, or by permitting the attorney for the children to ask leading questions during cross-examination. Both of these claims are premised on respondent’s incorrect view that petitioner’s witnesses effectively became witnesses for the attorney for the children when she agreed with petitioner’s position. The duty of an attorney for the child is to represent the child and advocate for his or her position (see Family Ct Act § 241…). Contrary to respondent’s claim, the fact that here the exercise of this duty resulted in a position similar to that of petitioner did not effectively convert the two parties into one entity. Accordingly, the attorney for the children was entitled to ask leading questions while cross-examining petitioner’s witnesses (see Jerome Prince, Richardson on Evidence § 6-230 at 376 [Farrell 11th ed 1995]). Matter of Aniya L, 2015 NY Slip Op 00410, 3rd Dept 1-15-15

 

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Waterway Bordered by Private Land Deemed “Navigable-in-Fact”—Owners of the Land Cannot Prohibit Public Use of the Waterway

The Third Department, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that a waterway bordered by private land in the Adirondacks was “navigable-in-fact” and the owners of the land (plaintiffs) bordering the waterway could not prohibit public use of the waterway.  The waterway was deemed “navigable-in-fact” even though a portion of it consisted of rapids which required canoeists to carry their canoes on a privately-owned path along the rapids:

Pursuant to the common law, a waterway on private property that is not navigable-in-fact is owned by the adjacent landowners, but a waterway that is navigable-in-fact “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” … . The State cannot alienate the right of the public to travel on a navigable-in-fact waterway by transferring title in its bed and banks to a private owner … . As riparian owners never obtain ownership interests in the waters of navigable-in-fact waterways, a judicial determination that the public has the right of navigation does not result in a taking for public use without compensation … . Accordingly, the import of a judicial determination that a waterway is navigable-in-fact is that it has always been open to the public in that character, even though the riparian owners may not have believed it to be, and no trespass was committed by a traveler who navigated upon it before a court ruled upon its navigability. * * *

…[W]here, as here, the State has no sovereign or proprietary ownership interest in the land and the waterway in question passes through private property, its navigability-in-fact is determined by a common law examination of “evidence of [the waterway’s] actual practical use or evidence of capacity for practical use” … . Historically, this analysis turned on whether the waterway had the capacity to be used for commercial transportation; the public was deemed to have the right to travel on “every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks” … . More recently, the Court of Appeals clarified that commercial use is not the only relevant factor, and that a waterway’s capacity for recreational use is also significant in determining its navigability. “[W]hile the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel” … . The Court of Appeals stated that this holding neither altered nor enlarged the applicable common-law analysis and was “in line with the traditional test of navigability, that is, whether a river has a practical utility for trade or travel” … .

Accordingly, the Waterway’s navigability-in-fact must be determined based upon its utility for travel or trade as revealed by the testimony, affidavits, maps, photographs, historical records and other evidence in the voluminous record. * * *

The Waterway’s narrow, shallow character does not preclude such a finding, as a stream that can carry only small boats may nevertheless be navigable-in-fact … . Likewise, neither the portage around the relatively short Mud Pond rapids nor the presence in the Waterway of other incidental obstacles such as beaver dams and fallen trees renders the Waterway nonnavigable, as “occasional natural obstructions do not destroy the navigability of a [waterway]” … . On the contrary, the presence of such occasional obstructions in a navigable-in-fact waterway gives rise to a public right to circumvent them by “mak[ing] use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands” … . Friends of Thayer Lake LLC v Brown, 2015 NY Slip Op 00420, 3rd Dept 1-15-15

 

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Claimant’s Imprisonment for a Month After His Release Date Was Not Privileged

The Third Department affirmed the Court of Claims, finding that claimant’s confinement was not privileged.  Claimant had completed his sentence at the time of sentencing but he was held for a month:

…[I]n order to succeed on a claim of false imprisonment or unlawful confinement, claimant was required to show “that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged”… . The first three elements have undoubtedly been satisfied and, accordingly, the question distills to whether claimant’s confinement by DOCCS [Department of Corrections and Community Supervision] was privileged. The facts leading up to his detention are not in dispute and, after reviewing them, we agree with the Court of Claims that the confinement was not privileged.

Claimant was sentenced to a prison term as the result of his conviction and, “where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged” … . That being said, DOCCS was “‘conclusively bound’ by the terms of the sentence and commitment order,” which unambiguously directed that claimant be released after 1½ years of confinement … . DOCCS continued to confine claimant after that period had ended and, given the absence of any order that required it to do so, its actions were not privileged … . Miller v State of New York, 2015 NY Slip Op 00408, 3rd Dept 1-15-15

 

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Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

The Third Department determined the police properly made a warrantless entry of the apartment where defendant [Anderson] was staying based upon the consent of a “lease enforcement officer” who believed the apartment was occupied by “squatters.”  The motion to suppress the weapon found near the defendant was, therefore, properly denied:

…John Downey, a lease enforcement officer, informed a police detective that he believed that Anderson’s apartment was vacant and that tenants frequently abandoned their units in the apartment building without providing notice. Downey further explained that he was authorized to enter apartments in order to ensure that they are secure and not occupied by squatters. Downey averred that he provided law enforcement officers with a key to the apartment because he was concerned that someone other than Anderson may have been staying there. When law enforcement arrived at the apartment and knocked on the door, there was no response and no noise was detected from inside the residence. Although it became obvious to the officers, after having entered the apartment, that it was not vacant, inasmuch as an objective view of the evidence adequately demonstrated that the police reasonably relied in good faith upon Downey’s apparent authority to allow entry into the apartment, County Court properly found that the warrantless entry –and resulting seizure of the gun that was in plain view–was not illegal… . People v Edwards, 2015 NY Slip Op 3rd Dept 1-15-15

 

Failure to Strictly Comply with the Service Instructions in the Court’s Order to Show Cause (Which Included Service by E-Mail and Text Message) Required Dismissal of the Petitions

The Third Department determined the failure to comply with the service instructions in Family Court’s order to show cause required the dismissal of the petitions:

Strict compliance with court-directed methods of service is necessary in order for the court to obtain personal jurisdiction over a respondent/defendant … . Here, petitioner’s counsel drafted and presented Family Court with a proposed order directing service pursuant to CPLR 308 (5). Specifically, the order required that the amended orders to show cause and petitions be served on two attorneys who had represented respondent in unrelated litigation and, further, that substituted service be completed as follows:

“2. By serving [respondent] at [two known] email addresses [and] by including with such emails copies of the [p]etitions, this [o]rder, and the [o]rders to show cause filed by [p]etitioner in support of the [p]etitions, in PDF format, each of such emails to be sent on or before April 28, 2014; and

3. By sending [respondent] an SMS/text message at [a known] subscriber number . . . advising her of the pendency of the two above-captioned proceedings and advising her to access her email addresses as set forth in paragraph 2 herein, to review this [o]rder and the contents of the attached PDF files and to contact her attorneys . . . for copies of the [o]rders to show cause and [p]etitions upon whom these papers have been served on her behalf, said text to be sent on or before April 28, 2014.”

Despite the fact that petitioner’s counsel created the terms upon which substituted service of process would be deemed sufficient, the record demonstrates that petitioner’s compliance with such terms was lacking. As to the email requirement, petitioner’s affidavit of service states that respondent was served on April 28, 2014 via two separate email addresses, as per Family Court’s order, and that both emails were returned as undeliverable. While neither dictates of due process nor Family Court’s order required proof that respondent actually received notice of the proceedings … , we observe that the affidavit of email service fails to state that the documents were, in fact, delivered to respondent in a PDF format.

Of greater concern, however, is the manner in which petitioner conducted service by text message. As to that particular mode of delivery, petitioner’s process server averred that, on April 28, 2014, he sent respondent a text message stating that “[p]aternity and custody petitions have been filed by [petitioner] regarding [the child]. Your court date in [Family Court] is May 21, 2014 at 9AM. Your failure to appear may result in a custody order and default. Contact [respondent’s attorneys] for copies of these documents.” Having neglected to state in the text message, as expressly required in Family Court’s order, that respondent should access her email accounts to review the documents that had been served in a PDF format by email and that the text message was being sent by virtue of Family Court’s order, we agree with Family Court’s determination that such substituted service was insufficient to confer personal jurisdiction over respondent … . Matter of Keith X v Kristin Y, 2015 NY Slip Op 00429, 3rd Dept 1-15-15

 

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Exceptions to “Exhaustion of Administrative Remedies” Requirement Not Applicable—“Futility” and “Irreparable Harm” Not Demonstrated

The Third Department determined that petitioner (a nursing home) could not, via an Article 78 proceeding, involve the courts to contest the Department of Health’s (DOH’s) calculation of Medicaid reimbursement rates because petitioner did not first exhaust every available administrative remedy.  The exceptions to the exhaustion requirement, futility and irreparable harm, did not apply:

It is well settled that an administrative agency’s determination must be challenged through every available administrative remedy before it can be challenged in the courts … . The narrow exceptions to this requirement include, as relevant here, where an administrative challenge would be futile or the petitioner can demonstrate irreparable harm … . Neither exception has been demonstrated. Matter of Schenectady Nursing & Rehabilitation Ctr LLC, v Shah, 2015 NY Slip Op 00425, 3rd Dept 1-15-15

 

 

Proof Insufficient to Demonstrate Will Drafted and Signed a Few Days Before Death Reflected Decedent’s Intentions

The Third Department affirmed Surrogate’s Court’s denial of the admission of a will to probate.  The will was drafted and signed a few days before decedent’s death and changed the disposition of property.  The court described the proof necessary to authenticate a will and determined the proof was insufficient to link the most recent will to decedent’s intentions:

“In order for a will to be duly executed and attested in New York, the testator must sign the document at the end; the testator must sign or acknowledge the signature in the presence of the attesting witnesses; the testator must declare to each of the attesting witnesses that the instrument is his or her will; and there must be two attesting witnesses who shall, within 30 days, attest the testator’s signature and, at the request of the testator, sign their names and affix their residence addresses” (…see EPTL 3-2.1). Before admitting a will to probate, Surrogate’s Court must be satisfied that the will has been validly executed (see SCPA 1408 [1]…), “that the mind of the testator accompanied the act, and that the instrument executed speaks his [or her] language and really expresses his [or her] will” … . The proponent of a will bears the burden of proving its validity by a preponderance of the evidence … . * * *

In light of the uncertainty surrounding the drafting and execution of this will, we decline to disturb the decree of Surrogate’s Court denying admission of the will to probate … . Matter of Walker, 2015 NY Slip Op 00271, 3rd Dept 1-8-15

 

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Restrictive Covenants in Homeowners’ Association’s Declaration Do Not Apply to Land Along a Road Which Had Been Dedicated by the Association to the Town

The Third Department determined a homeowners’ association (HPHA) could not restrict the placement of a political sign on property along a road which had been dedicated to the town.  Because there was no evidence the HPHA reserved the right to regulate signs on the strip of land transferred to the town, the HPHA had no authority to prohibit the placement of a sign on the land:

Respondents contend that, although Hudson Pointe, Inc. dedicated land to the Town for the purpose of maintaining the roads within the development, such dedication was subject to the restrictive covenants contained in HPHA’s Declaration. Thus, according to respondents, although petitioners’ political signs were located on Town property, HPHA maintained the authority to enforce its sign restriction on this public land. Generally, the process of dedication is “of the nature of a gift by a private owner to the public” …, and dedication requires, among other things, “absolute relinquishment to public use by the owner” …. Thus, a town may acquire a road in fee through dedication “when there has been a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act [by public authorities] adopting the highway . . . coupled with a showing that the road was kept in repair or taken in charge by public authorities” (…see Highway Law § 171///).

While the record is devoid of evidence of the Town’s acceptance of ownership of the roads within the development, the parties do not dispute that the land in question is owned by the Town through dedication. The 1997 deed conveying certain property within the development from Hudson Pointe, Inc. to the Town, contained in the record, does not explicitly reserve to HPHA or Hudson Pointe, Inc. any interest in the conveyed property. In the absence of such reservation, respondents lack the authority to enforce HPHA’s sign restriction on Town land as a matter of law … . Matter of Jasinski v Hudson Pointe Homeowners Assn Inc, 2015 NY Slip OP 00274, 3rd Dept 1-8-15

 

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