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“Mail Watch” Should Not Have Been Authorized/Determination Based on Contents of Inmate’s Mail Annulled

The Third Department annulled at determination which resulted from the interception of the inmate’s mail, finding that the “mail watch” authorization was invalid:

A superintendent of a correctional facility may authorize a mail watch only where “there is a reason to believe that the provisions of any department directive, rule or regulation have been violated, that any applicable state or[f]ederal law has been violated, or that such mail threatens the safety, security, or good order of a facility or the safety or well being of any person” (7 NYCRR 720.3 [e] [1]). Where a mail watch has been authorized, such authorization must “set forth the specific facts forming the basis for the action” (7 NYCRR 720.3 [e] [1]). Here, the Superintendent’s authorization failed to set forth any facts upon which its issuance was based, stating only that it was based upon a request of a deputy superintendent “to investigate activity that may jeopardize the safety and security of the facility.” Inasmuch as the authorization was not in compliance with the applicable regulation, it was invalid and the resulting mail watch was not properly authorized … . Mena v Fischer, 516758, 3rd Dept 3-6-14

 

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Suit by Beneficiaries to Recoup Estate Property, Alleging Breach of Fiduciary Duty by Executor, Allowed to Go Forward

The Third Department determined the beneficiaries of an estate had stated a cause of action to recoup property for an estate (the role of the executor).  The complaint alleged misappropriation of decedent’s assets and included a cause of action against the executor (DiMaggio) for breach of fiduciary duty:

Initially, we note that, absent extraordinary circumstances, beneficiaries of an estate generally do not have a right to bring an action seeking to recoup property for the estate since that role belongs to the executor … . However, such extraordinary circumstances may be implicated where the executor is allegedly directly involved in purported egregious conduct and self-dealing that negatively impacts the potential assets of the estate … . When asserting conduct involving fraud or undue influence, the complaint must set forth in detail the circumstances constituting the wrong (see CPLR 3016 [b]…). .

Plaintiffs’ amended complaint sets forth a series of purported acts by defendants occurring during the last two years of decedent’s life when she was allegedly suffering from cancer and depression. Among other things, defendants allegedly induced decedent to give DiMaggio power of attorney by telling decedent that she would retain control over her accounts, but then used the power of attorney to withdraw funds, modify ownership interest, and change beneficiaries on accounts. Plaintiffs contend that defendants convinced decedent to cash about $360,000 in United States savings bonds by informing her it was illegal to continue to hold the bonds and that the government would take all her money. Most of that money was moved into a trust that defendants allegedly falsely informed decedent would benefit her descendants when proceeds of the trust actually went to defendants and their families. Plaintiffs further assert thatDiMaggio, who was substituted for decedent’s daughter as executor when decedent executed a new will in 2007, neglected to make an effort to recover funds inappropriately diverted from the estate. Lewis v DiMaggio…, 516811, 3rd Dept 3-6-14

 

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Use of Church Property Sufficient to Maintain Tax-Exempt Status

The Third Department determined the City (respondents) did not demonstrate church-owned property was no longer used for religious purposes.  Therefore the City could not revoke the tax-exempt status of the property:

Although the burden of proof in tax exemption matters ordinarily lies with the party seeking an exemption, a municipality seeking to withdraw an existing exemption bears the burden of proving that the real property in question has become subject to taxation … . Here, although it is undisputed that petitioners continue to be organized exclusively for tax-exempt religious purposes, respondents contend that their properties are not entitled to tax exemptions because they are no longer “used primarily for the furtherance of [religious] purposes” … . To meet their burden in this regard, respondents contend that statements made by the Diocese establish that the properties no longer function as churches, that regular worship services and religious activities that were formerly conducted on the properties now take place elsewhere, and that the parcels are now investment properties being marketed for sale for the non-exempt purpose of generating income.

… Petitioners … submitted affidavits from church officials stating that both properties continue to be used for religious services conducted to serve the spiritual needs of the parish faithful, in the form of monthly morning prayers on one of the properties and periodic prayer services that include scripture readings and communion services on the other.  Contrary to respondents’ contention that such occasional or periodic use cannot be deemed to be primary,”[i]t is the actual or physical use of the property” that determines whether it is exempt from real property taxation … . Here, the record reveals that petitioners’ only actual or physical use of their properties is for religious purposes. Absent any showing by respondents that the properties are used for anything other than the religious purposes for which petitioners were organized, the mere fact that this use is now less frequent does not alter the properties’ tax-exempt status … . The record also includes a letter from a Diocese official to the Assessor averring that the properties are used to store religious artifacts and fixtures. Matter of St Williams Church of Troy…, v Dimitriadis…, 516532, 3rd Dept 3-6-14

 

Insurance Company Could Not Rely On Plaintiff’s Personal Injury Action to Recoup What It Paid Out on a Related Property Damage Claim—Not a Valid Subrogation Vehicle

The Third Department determined an insurance company’s (Erie’s) attempt to rely on plaintiff’s personal injury complaint as the basis of its subrogation claim for property damage was properly dismissed.  The insured’s house exploded due to a gas leak.  Next to the insured’s house was a garage owned by the insured.  Erie paid $50,000 for damage to the garage.  The Erie attempted to rely on the insured’s personal injury action to recoup the money paid out for the property damage:

“Subrogation is an equitable doctrine that allows an insurer to stand in the shoes of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse” … . To that end, an insurer seeking to enforce its right of subrogation generally has two options – “the insurer can bring an independent action against the wrongdoer in the name of its insured, the subrogor, or seek to intervene in an existing action between the insured and the wrongdoer” … . Neither path was pursued by Erie here; rather, Erie sought to use plaintiffs’ personal injury complaint “as a vehicle to assert [its] subrogation theory against . . . defendants.”As Supreme Court aptly observed, the principal flaw inErie’s methodology is that although plaintiffs’ complaint indeed recites that plaintiffs’ home exploded as a result of the natural gas leak, that pleading makes absolutely no reference to the property damage sustained to Pete’s Garage, nor does it “plead or otherwise spell out that damages are being sought for [the] property damage/loss” sustained thereto.  Although this Court has limited an insurer’s right to intervene in certain circumstances …, such circumstances are not present here.  Peterson v NYS Electric and Gas Corporation…, 516423, 3rd Dept 3-6-14

 

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Failure to Allege that But for the Legal Malpractice the Causes of Action Would Have Succeeded Required Dismissal

The Third Department determined plaintiff did not make out a prima facie case of legal malpractice because there was no allegation the causes of action would have been successful but for the alleged malpractice:

…[D]efendants correctly argue that Supreme Court should have granted their motion to dismiss the legal malpractice claim. It is well established that, “[i]n order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” … . Here, although the complaint is replete with allegations of [the attorney’s] alleged failures to use reasonable and ordinary skill in connection with both of plaintiff’s underlying claims, it contains no allegation that, but for these alleged failures, plaintiff would have been successful on either claim. Therefore, even if we accept the allegations as true and liberally construe the complaint to allege negligent representation by [the attorney] …, the allegations are insufficient to make out a prima facie case of legal malpractice… . Hyman v Schwartz, 516728, 3rd Dept 2-27-14

 

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Criteria for Interpreting a Settlement Agreement Which Is Incorporated But Not Merged Into the Judgment of Divorce

In finding that a settlement agreement was not ambiguous and had been complied with by the mother, the Third Department explained the status of a separation agreement which is incorporated but not merged into a judgment of divorce:

A settlement agreement that is incorporated into, but not merged with, a judgment of divorce remains an independent contract, binding on the parties and subject to the rules of contract interpretation … . “Where the language of the agreement is clear, the court must determine the intent of the parties by examining the agreement itself” … .”Whether language is ambiguous is a matter of law to be determined by the court, and in rendering this determination a court may not add or excise terms, nor distort the meaning of those used” … . Matter of Drake v Drake, 516960, 3rd Dept 2-27-14

 

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Statements to Police Officer by Victim at the Scene Were “Nontestimonial” and Were Admissible as Excited Utterances

The Third Department determined a police officer’s testimony about what the assault victim, Stokes, said at the scene and a video of the officer’s encounter with the victim did not violate the defendant’s right to confront witnesses because the admitted statements were “nontestimonial” and “excited utterances.” Stokes had died before the trial:

The officer testified that Stokes said that she had been hit in the head with a bat, described her assailant, and said that he was in a nearby community center. The officer further testified that police then began looking for defendant. The video reveals that the officer encountered Stokes immediately upon arriving at the scene. She was bleeding profusely from her head and complaining of dizziness. The officer asked Stokes about her assailant’s location, description and name, where the attack had occurred, and whether there were other victims, promptly relaying her answers to other police officers and emergency medical personnel who were dispatched to locate and assist Moore and pursue defendant. After the first few minutes, the officer asked no further questions about the incident, concentrating instead on attempting to calm Stokes as she became increasingly agitated and apprehensive about, among other things, the fact that defendant had not been found. County Court correctly determined that the statements by Stokes were admissible as excited utterances … . Further, we find no constitutional violation. The video reveals that the officer’s primary purpose in questioning Stokes was “to enable the police to meet an ongoing emergency and apprehend the perpetrator, not to provide evidence for later prosecution,” and Crawford [541 US 36} does not preclude such nontestimonial statements…. People v Anderson, 105060, 3rd Dept 2-27-14

 

Mother’s Failure to Seek Medical Care for Child Coupled With Mother’s Mental Illness Supported Neglect Finding

The Third Department determined Family Court’s neglect finding was supported by evidence mother did not seek needed dental and medical care for her child and suffered from psychological problems which created an imminent risk of harm to the child:

To establish neglect, a petitioner must demonstrate, by a preponderance of the evidence, that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to the failure of the parent or caretaker to exercise a minimum degree of care (see Family Ct Act §§ 1012 [f] [i]…). In determining the minimum degree of care, courts must objectively evaluate parental behavior in terms of whether “a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing” … . On this basis, a failure to provide adequate medical care and/or follow through with necessary medical treatment constitutes neglect… . * * *”While evidence of mental illness, alone, does not support a finding of neglect, such evidence may be part of a neglect determination when the proof further demonstrates that a respondent’s condition creates an imminent risk of physical, mental or emotional harm to a child”… . Matter of Josephine BB …, 516132, 3rd Dept 2-27-14

 

Summary Judgment Finding Derivative Neglect Should Not Have Been Granted

The Third Department determined Family Court should not have granted summary judgment finding derivative neglect. Despite the recent finding of neglect of three other children (by consent), there were questions of fact about whether the conditions leading to the previous neglect determination were being addressed:

Family Court erred in granting summary judgment because triable issues of fact remain. Summary judgment is rarely used in Family Court proceedings, and is only appropriate when no triable issue of fact exists … . While proof that respondent previously neglected three other children was admissible on the issue of whether he neglected Karm’ny (see Family Ct Act § 1046 [a] [i]), such proof alone typically is not sufficient to establish derivative neglect … . “Derivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent’s care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist” … . The prior neglect determination here occurred less than three months before the instant petition was filed, sufficiently proximate so as to give rise to an inference that the conditions leading to such determination still existed … . Despite that inference, the testimony from the Family Ct Act § 1028 hearing raised questions of fact regarding whether respondent was appropriately dealing with those conditions… . Matter of Karm’ny…, 516250, 3rd Dept 2-27-14

 

Questions of Fact About Defamatory Meaning and Malice Re: Statements Concerning a Public Figure

The Third Department determined plaintiff, a public figure, had raised questions of fact about whether defamatory advertisements were done with malice:

Plaintiff was a public figure … and, as such, he must prove by clear and convincing evidence that defendant made a false statement with actual malice … . Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including whether the allegedly defamatory words have a precise meaning that is readily understood, whether the statement can be proven as true or false, and whether the context and surrounding circumstances would indicate that the comment is an opinion … . Further, summary judgment dismissing a defamation action may be avoided where the statement is a “‘mixed opinion’ implying a basis in undisclosed fact” or “‘pure opinion’ that accuses the plaintiff of engaging in criminal conduct”… .Since defendant’s statement includes both a strong inference that he knows undisclosed facts that support his assertion that plaintiff engaged in “numerous unscrupulous dealings” when he previously was Town Supervisor and includes an example that indicated possible unlawful abuse of that office, we agree with Supreme Court that the statements are sufficiently susceptible to a defamatory meaning to avoid summary judgment … . Moreover, defendant essentially acknowledged at his deposition that he had no basis for some of his accusations, and when this proof is viewed most favorably to the nonmovant, there is adequate evidence in the record to raise a triable issue of fact regarding whether defendant acted with actual malice… . Baker v Galusha, 517125, 3rd Dept 2-27-14

 

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