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Application to Vacate Default Judgment in Tax Foreclosure Proceeding Governed by Two-Year Statute of Limitations (Under the Facts, the One-Month Statute Did Not Apply)/Deed Purporting to Transfer Property from Religious Organization Invalid for Failure to Comply with the Religious Corporation Law/Notice of Tax Foreclosure Sufficient Even Though Actual Owner Not Notified

The Third Department determined petitioner’s application to set aside a tax foreclosure judgment was timely, but determined the application was properly denied because the notice of the foreclosure proceeding was adequate, even though petitioner, the actual owner of the property, was not notified. Petitioner, a religious organization, had transferred the property by deed to Forbes, a minister, in 1985. Forbes paid property taxes for several years, but when the payments ceased the county moved to foreclose, naming Forbes as the owner. It turned out that the deed to Forbes was invalid because the transfer did not comply with the Religious Corporation Law. The actual owner, petitioner, was not notified of the foreclosure proceedings. In affirming the judgment of foreclosure, the court discussed the appropriate statute of limitations under the facts, the property-transfer requirements of the Religious Corporation Law, and the tax-foreclosure notice requirements:

Initially, Supreme Court erred in determining that petitioner’s application was untimely. Unlike a motion to vacate a default judgment in a tax foreclosure proceeding, which “may not be brought later than one month after entry of the judgment” (RPTL 1131…), a person or entity challenging the validity of a deed transferred in connection with a tax foreclosure proceeding faces a two-year statute of limitations (see RPTL 1137…). As petitioner was not a party to the foreclosure proceeding and now seeks to set aside the judgment on the basis that respondent failed to provide notice to the rightful owner, the application was timely (see RPTL 1137).The 1985 deed to Forbes was invalid. A religious corporation shall not sell “any of its real property without applying for and obtaining leave of the court” pursuant to N-PCL 511 (Religious Corporations Law § 12 [1]…). Under N-PCL 511 (b), the Attorney General must be notified before any sale may be finalized. Petitioner did not seek court approval in 1985 or thereafter (see Religious Corporations Law § 12 [1], [9]), nor was the Attorney General notified of the transfer of the property. Where court approval is not obtained for the transfer of real property from a religious corporation, the conveyance is invalid … . Accordingly, the 1985 deed was invalid and Forbes should not have had any legal right to the property. * * *When determining the reasonableness of the taxing authority’s attempts to provide notice to interested parties, the court may take into account the conduct of such parties … Here, petitioner indicated that it intended to convey the property to Forbes – its then-minister – in 1985 and was only unsuccessful due to their lack of legal knowledge. Additionally, petitioner did not take any action against Forbes to regain title, despite the deed having been filed for nearly 27 years at the time the foreclosure proceeding was commenced. Under the circumstances, including respondent’s provision of proper statutory notice to the owner of record, respondent complied with due process and satisfied its obligation of searching for interested parties, and petitioner has not demonstrated that any additional steps or more exhaustive search was required here… . Matter of City of Hudson…, 516690, 3rd Dept 2-27-14

 

Court Has Common-Law “Interest of Justice” Authority to Modify Its Own Order and/or a Stipulation Entered Into During Litigation

In affirming Supreme Court’s modifying its own order in the interest of justice, the Third Department explained the common law power to do so.  The order concerned the terms of a stipulation entered into during litigation:

A court has the common-law authority to, in its discretion, grant relief from a judgment or order in the interest of justice, considering “‘the facts of the particular case, the equities affecting each party and others affected by the judgment or order, and the grounds for the requested relief'” … . Even if the stipulation had not merged into an order of the court, the court has the “discretionary power to relieve parties from the consequences of a stipulation effected during litigation” … . Here, Supreme Court correctly noted that it had the authority to modify its own order. Hodge v Development at Helderberg Meadows LLC, 517046, 3rd Dept 2-27-14

 

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Attorney Was an “Employee,” Not an Independent Contractor, for Puposes of the State and Local Employees’ Retirement System

The Third Department reversed the Comptroller’s ruling that petitioner, an attorney, was not an employee of the school district for purposes of benefits provided by the New York State and Local Employees’ Retirement System:

…”[W]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship” … . “Rather, such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means” … . In other words, “over-all control is sufficient to establish the employee relationship where [professional] work is concerned” … . Upon our review, we fail to find substantial evidence to support the Comptroller’s determination that petitioner was an independent contractor and not an employee of the school district.Here, the school district’s former superintendent, who worked with petitioner for nearly four decades, testified that during his tenure he supervised all staff at the school district, including petitioner. Matter of Brothman v DiNapoli, 517032, 3rd Dept 2-20-14

 

Revocation of Day-Care License “Shocking to One’s Sense of Fairness”

The Third Department determined revocation of petitioner’s day-care license was too severe a penalty for a situation in which two children were left unsupervised for 20 to 30 minutes. The children, ages 11 and 13, had a cell phone and were never in any imminent danger of harm:

Although petitioner violated a regulation, the penalty of revocation is too disproportionate to this isolated violation that was the result of extenuating circumstances. An administrative penalty “must be upheld unless it is ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness'” …, “thus constituting an abuse of discretion as a matter of law” … , * * *Based on the children’s ages and their possession of a cell phone that they used to contact petitioner, the children were not put in danger by this incident, despite the potential danger that existed from children being left unsupervised …. . Although the regulation makes clear that it is not appropriate to leave children unsupervised (see 18 NYCRR 417.8 [a]), petitioner did not violate the regulation intentionally, as she had established a plan for the supervision of the children in her absence, and the violation occurred as “the result of extenuating circumstances”… . Matter of Lewis v NYS Office of Children and Family Services, 516650, 3rd Dept 2-20-14

 

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Criteria for Interpreting Ambiguous Terms in Separation Agreement

The Third Department explained how ambiguity in the terms of a separation agreement is to be handled by the courts:

Ambiguity in a separation agreement is resolved, as with any contract, by determining the parties’ intent from within the instrument’s four corners, if possible, and otherwise from extrinsic evidence … . In doing so, “[t]he court is not limited to the literal language of the agreement, but should also include a consideration of whatever may be reasonably implied from that literal language”… . Matter of Apjohn v Lubinski, 516326, 3rd Dept 2-20-14

 

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Limited Role of Courts in Determining Applications to Stay Arbitration (Re: a Collective Bargaining Agreement [CBA]) Explained

The Third Department determined the petition to stay arbitration in a teacher-tenure matter should have been denied. In so finding, the Third Department explained the limited role of the courts in determining applications to stay arbitration:

The court’s role in determining applications to stay arbitration is limited and, as relevant here, requires a determination of whether the parties have agreed to arbitrate the dispute at issue … .Inasmuch as respondent has asserted a violation of the evaluation procedures agreed to by the parties as part of the CBA, there is a rational relationship between the subject of the grievance and the CBA … . The question of whether petitioner violated these procedures “goes to the merits of the grievance, not to its arbitrability” … . “[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the[] parties'” … . Matter of Brunswick Central School District …, 517060, 3rd Dept 2-20-14

 

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Questioning of Defendant Did Not Constitute “Custodial Interrogation”

The Third Department determined County Court should not have suppressed defendant’s statements as the product of custodial interrogation. The police investigation had led to defendant’s IP address being associated with accessing child pornography on the Internet. The investigator went to defendant’s place of employment and asked the defendant to accompany him to the police station, which the defendant agreed to do:

The testimony … revealed that defendant was brought to a room at the police station where he was interviewed for a total of no more than 30 minutes. During the brief period that preceded the Miranda warnings, defendant was not handcuffed or restrained in any manner and the investigators did not do anything to convey that defendant was not free to leave … . Moreover, the two questions that preceded the Miranda warnings – the first asked defendant for his address and the second inquired into defendant’s Internet service – were investigatory, as opposed to accusatory. Considering the totality of the circumstances, and in light of County Court’s determinations that [the interrogating officer] was “frank, candid, and trustworthy and [that] his testimony had the general force and flavor of credibility,” we find that the People met their burden of establishing beyond a reasonable doubt that defendant’s pre-Miranda statements were not the product of a custodial interrogation… . People v Henry, 106048, 3rd Dept 2-20-14

 

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Presentation of Evidence of an Uncharged Offense Without Seeking a Ruling on Its Admissibility in Advance Deprived Defendant of a Fair Trial

The Third Department determined the presentation of evidence of an uncharged sexual offense deprived defendant of a fair trial. Without seeking a ruling in advance, and without presenting an argument why the evidence was relevant to anything other than criminal propensity, the prosecutor presented evidence alleging defendant’s sexual misconduct involving a child other than the victim in the charged offense. In ordering a new trial, the Third Department explained:

It is beyond dispute that evidence of a defendant’s uncharged crimes or prior bad acts cannot be admitted solely for the purpose of proving criminal propensity … . Rather, “evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” …, and the trial court further determines that the probative value of such evidence outweighs its prejudicial effect … . Here, the record does not reflect that the People sought any sort of ruling from County Court regarding the admissibility of defendant’s uncharged crime/prior bad act before eliciting such testimony from the victim’s mother on their case-in-chief …, nor does the record reveal that the People made any attempt to “identify some issue, other than mere criminal propensity, to which the evidence [was] relevant”… . People v Brown, 105062, 3rd Dept 2-20-14

 

Family Court Improperly Delegated Its Responsibility to Set the Terms of Father’s Supervised Visitation

The Third Department determined Family Court improperly relinquished its authority to dictate the terms of father’s supervised visitation to the petitioner (grandmother):

…[W]e find merit to the father’s contention that Family Court erred in granting visitation subject to conditions of supervision set at the sole discretion of petitioner. Family Court is required to determine the issue of visitation in accord with the best interests of the children and fashion a schedule that permits a noncustodial parent to have frequent and regular access … . In doing so, the court may not delegate its authority to make such decisions to a party … . Here, in light of the father’s apparent history of domestic violence and failure to submit to a substance abuse screen, the court did not err in requiring that the father be subject to supervised visitation.However, inasmuch as the court granted complete authority to petitioner to determine the father’s access to the children and under what conditions that access may occur, the court impermissibly abdicated its responsibility to ensure that the father has regular and meaningful visitation with the children and, therefore, the matter must be remitted for a hearing and redetermination in this regard… . Matter of Aida B v Alfredo C, 515713, 3rd Dept 2-20-14

 

Review of Stipulated Custody Arrangement Warranted by Change of Circumstances/Seriousness of Mother’s Alcohol-Related Behavior Increased

The Third Department reversed Supreme Court finding that a change in mother’s alcohol-related behavior warranted a review of the custody arrangement set out in a stipulation:

When parties enter into stipulations resolving custody issues, those stipulations will not be modified unless there is a sufficient change in circumstances since the time of the stipulation, and unless modification of the custody arrangement is in the best interests of the child[]” … . Here, although the father admittedly was aware of the mother’s issues with alcohol at the time that he agreed to share custody with her, evidence of the mother’s continuing and escalating problems in this regard, coupled with her subsequent alcohol-related arrests and the indicated child protective services reports, “was sufficient to constitute a change in circumstances requiring a review of the existing custody arrangement in order to determine whether [such arrangement] continued to be in the child’s best interests” … . Accordingly, Supreme Court should have undertaken a best interests analysis. Matter of Kiernan v Kiernan, 515662, 3rd Dept 2-20-14

 

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