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Doctrine of “Practical Location” (to Determine Boundary Line) Explained

In affirming Supreme Court’s determination of the location of a boundary line, the Third Department explained the doctrine of “practical location” which is used when the description of the land in deeds is inadequate:

As a general proposition, “[d]eeds and surveys indicate boundary lines by various descriptive elements or ‘calls’ which consist mainly of monuments, courses and distances, adjacent lands and area or quantity” … . Here, however, … our review confirms — that the subject deeds contain no specific bearings or directional calls and set forth only the vaguest description of the intended boundary line between the land originally conveyed to plaintiff and Laight. Indeed, [a surveyor] opined that the deeds in question were “so bad” that a boundary line could not be established absent either a boundary line agreement, which the parties apparently were unable to forge, or judicial intervention … . To that end, where a dispute exists as to the location of a boundary line, “the intent of the parties existing at the time of the original conveyance of the disputed property controls” … . Pursuant to the doctrine of practical location, “the practical location of a boundary line and an acquiescence of the parties therein for a period of more than [the statutory period governing adverse possession] is conclusive of the location of the boundary line” … . “[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled” … . Gibbs v Porath, 2014 NY Slip Op 07030, 3rd Dept 10-16-14

In another case, the Third Department found the “practical location” doctrine inapplicable.  Kennedy v Nimons, 2014 NY Slip Op 07036, 3rd Dept 10-16-14

 

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Evidence Did Not “Utterly Refute” Plaintiff’s Allegation He Had No Notice Individual Defendant Was Acting as an Agent for a Disclosed Corporate Principal—Motion to Dismiss Action Against Individual Defendant Pursuant to CPLR 3211 Should Not Have Been Granted

The Third Department determined Supreme Court should not have granted individual defendant’s (Valentino’s) motion to dismiss pursuant to CPLR 3211 because the evidence did not “utterly refute” plaintiff’s claim he had no notice Valentino was acting as an agent of a disclosed corporate principal when a building contract was executed:

“It is well settled that an individual who signs a contract as an agent for an entity will be held personally liable on the contract if the agency relationship is not disclosed” … . Whether or not a principal is disclosed depends upon whether, at the time of the underlying transaction, the other party to the contract had notice that the agent was acting for a principal and knew of the principal’s identity … .

Here, the contract identified J & J Enterprises as the builder, but there is no reference in the contract or in the accompanying specifications sheet to the status of J & J Enterprises as the trade name of a corporation or to Valentino’s status as an officer or representative of any such corporation.  Winer v Valentino, 2014 NY Slip Op 07050, 3rd Dept 10-16-14

 

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People Did Not Meet Their Burden of Demonstrating Developmentally Disabled Respondent, Who Had Been In the Care and Custody of the OPWDD Since His Acquittal of a Criminal Charge By Reason of Mental Disease or Defect, Was “Mentally Ill”—Respondent’s Release Was Appropriate

Respondent is mildly developmentally disabled and was committed to the care and custody of the Office for People with Developmental Disabilities (OPWDD) after acquittal of a criminal charge by reason of mental disease or defect.  The Third Department determined Supreme Court properly ruled respondent could be released to a supervised intermediate care facility subject compliance with a service plan.  The court determined the People did not meet their burden of proving respondent met the relevant statutory definition of “mentally ill,” i.e., the definition which applies to the developmentally disabled:

If the court finds that a person committed pursuant to CPL 330.20 does not have a dangerous mental disorder but is mentally ill, that person must be confined in a nonsecure facility (see CPL 330.20 [12]…). If the court finds that the person is no longer mentally ill, it must release the person with an order of conditions (see CPL 330.20 [12]…). For purposes of CPL 330.20, a person with a developmental disability is considered “mentally ill” if he or she “is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the . . . developmentally disabled under the jurisdiction of [OPWDD]” (CPL 330.20 [1] [d]). The DA had the burden to prove by a preponderance of the evidence that respondent met the statutory definition of a “mentally ill” person (see CPL 330.20 [12]…]). * * *

…[T]he statute provides a different definition of “mentally ill” for individuals who have developmental disabilities in addition to one or more diagnosed mental disorders (see CPL 330.20 [1] [d]). For those individuals with developmental disabilities, the statute does not require that their judgment be so impaired by a mental illness that they are “unable to understand the need for such care and treatment” (CPL 330.20 [1] [d]); this makes sense, as such inability could be related to developmental disabilities as opposed to mental illness. Even if that additional factor applied here, however, respondent acknowledged in his testimony that he needed constant supervision, indicating that he understood the need for care and treatment. While the DA’s expert disagreed that respondent had any such understanding, Supreme Court found respondent credible and did not rely on that expert’s testimony. Thus, even under the definition of mentally ill that applies to individuals without developmental disabilities, the DA did not meet his burden. Matter of Arto ZZ, 2014 NY Slip Op 07053, 3rd Dept 10-16-14

 

Conspiracy Indictment Which Does Not Charge an Overt Act is Jurisdictionally Defective

The Third Department reversed defendant’s conviction and dismissed a conspiracy indictment as jurisdictionally defective because the indictment failed to charge the commission of an overt act in furtherance of the conspiracy:

In early October 2010, defendant — then serving a sentence in the Otsego County jail on a contempt conviction stemming from various violations of an order of protection in favor of his ex-girlfriend, Jeanette Hamm — allegedly told a fellow prisoner that he desired to have Hamm murdered. Defendant’s block-mate discussed the matter with prison officials, and the Otsego County Sheriff’s Department began an investigation. As part of the investigation, an undercover police officer posing as a potential assassin talked with defendant on the phone and met with him at the jail. Defendant was arrested shortly thereafter and charged by indictment with the crime of conspiracy in the second degree. * * *

As the People concede, the indictment is jurisdictionally defective and must be dismissed inasmuch as it failed to charge the commission of an overt act in furtherance of the conspiracy as required by Penal Law § 105.20 … . People v Grays, 2014 NY Slip Op 07017, 3rd Dept 10-16-14

 

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Court-Ordered Blood Test Results Should Have Been Suppressed Because the Application Failed to Indicate the Application Was Based Upon Hearsay/Elements of Reckless Driving Explained

The Third Department vacated defendant’s conviction for aggravated driving while intoxicated because the application for a court-ordered blood test did not indicate that it was based on hearsay.  In addition, the court, in affirming the defendant’s conviction for reckless driving, explained the elements of that offense. The defendant, who had stopped drinking a few hours before the accident, moved into the oncoming lane and struck the victim’s car head-on (the victim died):

Although an application for a court-ordered blood test may contain hearsay and double hearsay statements that satisfy the Aguilar-Spinelli test, the application must disclose that it is supported by hearsay and identify the source or sources of the hearsay” … . Here, the investigator based the application on information provided to him from other officers that defendant had made oral admissions at the scene to operating the vehicle and consuming alcohol, had a reading of .12% blood alcohol content on the Alco-Sensor test and refused to take a chemical test. The failure to reveal the hearsay nature of the information improperly deprived County Court of the opportunity to determine the reliability of the information for itself as a neutral, detached arbiter … . Accordingly, the motion to suppress the blood test results should have been granted and, in the absence of those results, the conviction for aggravated driving while intoxicated must be vacated … .

As for the charge of reckless driving, it is defined as driving “in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway” … . “More than mere negligence is required, and the term has been held to mean ‘the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences'” … . “Determining whether conduct rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road” … .

Here, the investigator who reconstructed the accident testified that defendant crossed the center line and collided driver-side “headlight to [driver-side] headlight” with the oncoming vehicle. The passenger in the other vehicle testified that the victim observed defendant in their lane and, although the victim attempted to move over as far as possible to avoid the accident, defendant was almost entirely in their lane at the time of the collision. Defendant admitted that she had been drinking, and the arresting officer testified that she had glassy eyes, slurred speech and the odor of alcohol. The officer concluded, based on his experience and observations, that defendant was intoxicated. People v Earley, 2014 NY Slip Op 07022, 3rd Dept 10-16-14

 

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Notice of Increases in Water and Sewer Charges Was Sufficient If Not Ideal/Discrepancies in Water and Sewer Charges Did Not Violate Equal Protection Clause

The Third Department determined that the hearing and notice requirements for increased water and sewer charges had been met by the village, and any discrepancies among the water and sewer charges did not violate the equal protection clause because they were not the result of conscious, intentional discrimination:

… [W]e agree with plaintiff that, inasmuch as Local Law Nos. 4 and 5 (re: modification of water and sewer charges) appear on their face to be self-executing, hearing and notice requirements nonetheless apply. This is so because the local laws at issue neither substantially adhere to state law (see Village Law § 20-2000; General Municipal Law § 452) nor specify an intent to change or supercede the requirements of said laws … . As such, they remain subject to the notice requirements of state law.

…Supreme Court properly determined that adequate notice had been provided. In determining the adequacy of public notice required for the enactment of a local law, a court may look at whether or not such notice is “deceptive, misleading [or] framed to give a false concept of the text or intent of the local law” … . “Although technical compliance with the [notice requirements of Municipal Home Rule Law § 20] is not essential to the validity of a municipal enactment[, where] the noncompliance . . . goes to the substance of those provisions and thwarts their legislative purpose,” the resulting law may be invalid … .

Defendant historically modifies its water and sewer rates as part of its annual budget review process … . In this regard, each spring, defendant publishes a notice in the Gouverneur Tribune stating that a budget hearing will be held … . While the published notice only sets forth the details of the hearing, attendees are given copies of the budget which, if applicable, indicates any increases. Moreover, copies of defendant’s tentative budget are made available for public inspection in advance of the hearing. While the better practice may be for defendant to specifically include proposed water and sewer rate changes in its published notice, under these circumstances, we agree with Supreme Court that the lack of specificity does not render the notice provided insufficient. * * *

When setting sewer or water rates based on a user unit system where a municipality can only approximate customer usage, the municipality is not required to establish “‘exact congruence between the cost of the services provided and the rates charged'” … . Rather, while such rates must be rational, discrepancies and disproportionate costs to certain properties are permitted in the interest of administrative flexibility … . YNGH LLC v Village of Gouverneur, 2014 NY Slip Op 07051, 3rd Dept 10-16-14

 

Elements of Florida “Theft” Statute and New York Larceny Statutes Are Different—Florida Conviction Cannot Serve as a Predicate Felony in New York

The Third Department, using its “interest of justice” review power, determined defendant’s Florida conviction could not serve as a predicate felony in New York because the relevant Florida statute included an element not included in the relevant New York statute:

Here, the information contained with the second felony offender notice indicates that, in 2001, defendant was convicted in Florida of a felony “theft” in the third degree (see Fla Stat Ann § 812.014). Under the applicable Florida penal statute, it is a crime to “knowingly obtain[] or use[], or endeavor[] to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property . . . [or a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property” (Fla Stat Ann § 812.014 [1] [a], [b] [emphasis added]). In comparison, New York’s larceny statutes do not contain analogous language with regard to mere temporary deprivations or appropriations (see Penal Law §§ 155.00 [3], [4]; 155.05 [1]…). Thus, the Florida crime undoubtedly contains an element that is not included in New York’s larceny offenses and, as a result, the Florida conviction is not sufficiently analogous to a New York felony to serve as a predicate felony for purposes of Penal Law § 70.06 … . People v Parker, 2014 NY Slip Op 07021, 3rd Dept 10-16-14

 

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Out-of-Possession Landlord Not Liable Based Upon Right to Enter Premises to Make Repairs But May Be Liable as the Creator of the Dangerous Condition

In a case stemming from a fall from an allegedly defective ladder that was installed to gain access to a loft, the Third Department determined that an out-of-possession landlord was not liable based on a contractual reservation of the right to enter the premises to make repairs, but a question of fact had been raised about whether the out-of-possession landlord created the dangerous condition:

…[D]efendants were entitled to summary judgment as to the question of whether they were liable for plaintiff’s injuries based upon the provision in the lease retaining their right to enter the premises to make repairs. While a landlord who retains the right to enter the leased property to make repairs may be liable to injuries to third parties …, “only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord” … . Here, plaintiff’s expert opined that the condition of the ladder violated regulations found in the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1), the New York State Building Code and the Property Maintenance Code of New York. However, inasmuch as a violation of a regulation is insufficient to impose liability on an out-of-possession landlord pursuant to a reserved right to enter the premises …, plaintiff failed to raise a triable issue of fact.

We reach a different conclusion, however, as to whether defendants created the dangerous condition. Liability to a lessee’s employee for personal injuries may attach if the out-of-possession landlord affirmatively created the dangerous condition … . Although the former tenant hired an architect to design the plans for the premises, including the loft area and access ladder, defendants contracted and paid for the construction. Further, the record reflects that defendants took an active role in the construction project. Defendants and the tenant agreed to make changes to the architectural plans in order to cut costs, including changes to the design of the loft. While the architectural plan called for the ladder to be “mechanically fasten[ed] to surface of floor slab and at top edge to wood platform,” plaintiff’s expert opined, based upon his inspection of the site of the alleged accident, that the right stringer of the ladder was secured by three screws to an adjacent wall, not to the wood platform, and that the left stringer was not secured to the upper landing at all. Further, there was no evidence that the ladder was secured to the floor slab. Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition … . Boice v PCK Dev Co LLC, 2014 NY Slip Op 07042, 3rd Dept 10-16-14

 

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Although Title Had Not Yet Formally Passed to the Driver/Owner, the Vehicle Was Covered as a “Newly Acquired” Vehicle Under the Terms of the Policy

The Third Department reversed Supreme Court and held that the insurer could not disclaim coverage of a 1987 Dodge driven by Porter under the terms of the policy.  Porter was driving the vehicle before receiving the title documents from the seller, Elmore:

We consider first whether coverage extended to the 1987 Dodge under the provision for “[a] private passenger auto newly acquired by you.” [The insurer] contended, and Supreme Court held, that this provision did not apply because Porter had not yet received title or registered the Dodge under the Uniform Vehicle Certificate of Title Act (see Vehicle and Traffic Law art 46). The term “newly acquired” is not defined in the policy and, importantly, it is not limited by the policy to completed transactions that were done in full compliance with the Certificate of Title Act. Ownership of a motor vehicle generally passes “when the parties intend that it pass” … .

Here, it is undisputed that, during the month before the accident, Porter had disposed of his 1994 Chevrolet truck and, shortly thereafter, replaced it by trading his ATV (which he had recently purchased for $1,000) to Elmore for the 1987 Dodge. Although Elmore apparently indicated to Porter after the accident that the Dodge was actually owned by his girlfriend’s father, there was no indication that Elmore did not have authority from the owner to make the transaction. At the time of the transaction, Elmore took possession of the ATV and likewise Porter took absolute possession and control of the Dodge, including all of the keys. According to Porter, the trade was final and permanent. Porter testified that Elmore was about to produce documents so he could register the Dodge, but the accident occurred the day before Elmore was going to give him the documents. Nonetheless, upon taking physical possession of the Dodge, Porter had placed the plates from his junked truck on the Dodge and began using it to drive to work. Under the circumstances and considering the pertinent policy language in light of “the reasonable expectations of the average insured” …, the 1987 Dodge fell within the meaning of replacement auto newly acquired by Porter at the time of the accident and, accordingly, was covered under plaintiff’s policy. Nationwide Ins Co of Am v Porter, 2014 NY Slip Op 07029, 3rd Dept 10-16-14

 

Election Law Which Restricts Where Certain Candidates’ Names May Appear on the Ballot (Election Law 7-104 (4) (c)) Declared Constitutional

The Third Department determined that Election Law 7-104 (4) (c) was not unconstitutional as applied to petitioners, candidates for state office nominated by the Stop Common Core Party:

Petitioners commenced this proceeding seeking a declaration that Election Law § 7-104 (4) (c) is unconstitutional as applied to them because it violates their rights to freedom of speech and association guaranteed by the 1st and 14th Amendments of the US Constitution. Although petitioners did not dispute that respondents complied with section 7-104 (4) (c), they asserted that strict enforcement of that provision creates a patch-worked and illogical ballot that promotes voter confusion, makes it more difficult for Stop Common Core Party supporters to locate petitioners, and impinges upon petitioners’ right to associate and express themselves as a party slate of candidates who share common ideals. Petitioners further sought to compel respondents to place their names on the Stop Common Core Party line … . * * *

[In overruling the line of cases relied upon by the petitioners, the] Court [of Appeals] …  stated that the prior version of the statute — which is not meaningfully distinct from the present version before us (see Election Law former § 248) — “is clear and constitutional” … . Addressing its prior cases … which found a strict application of the statute to be unfair and prejudicial in cases similar to this one, the Court stated that “‘[u]nfair and prejudicial’ must mean something beyond detriment or inconvenience since the Legislature itself has said that fairness calls for the prohibition of a third column” to candidates nominated by independent bodies when those candidates already appear on the ballot as the nominees of two or more major parties (Matter of Battista v Power, 16 NY2d at 201). The Court clarified that “[t]he kind of unfairness and prejudice which would make the section unconstitutional as to a particular group must be of such character as to deprive that group of proper representation on the voting machine or otherwise make it practically impossible for the members of that group to vote as such” (id.).

In our view, Matter of Battista v Power (supra) is controlling, particularly after the Court of Appeals expressly indicated that it had overruled the last of the prior, inconsistent line of cases …. Under Battista, Election Law § 7-104 (4) (c) is not unconstitutional as applied to petitioners—their names appear twice on the ballot in separate major party lines and the ballot further designates them as candidates of the Stop Common Core Party, albeit in a less prominent fashion than they seek … . Matter of Cahill v Kellner, 2014 NY Slip Op 06886, 3rd Dept 10-10-14

 

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