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Failure to Make Timely Motion to Dismiss Based Upon Improper Service Constituted a Waiver of the Jurisdictional Defense

The Third Department determined defendant’s (O’Neill’s) jurisdictional defense based on improper service was waived by the failure to move for judgment on that ground within 60 days:

Plaintiff did not effectuate proper substituted service on O’Neill because she failed to mail a copy of the pleadings to O’Neill after the process server left a copy with the president of Hafner Valuation at O’Neill’s place of business (see CPLR 308 [2]). Despite the error in service and defendants having raised it in their answer,O’Neill waived his objection on this ground by failing to move for judgment on that basis within 60 days of serving the answer (see CPLR 3211 [e]…).  Sutton v Hafner Valuation Group Inc, 516779, 3rd Dept 3-6-14

 

Question of Fact Whether Driver’s Gesture to Turn Was Proximate Cause of Collision

The Third Department determined there was a question of fact about whether defendant driver’s (Slawiendski’s) gesture indicating a second defendant driver (Shaut) could make a left turn in front of him was the proximate cause of plaintiff’s collision with the turning car:

…[T]he duty of a driver to act reasonably in signaling to another driver that he or she will yield the rightof-way or that the other driver may safely proceed is owed not just to the driver being signaled, but also to other motorists and passengers … . Here, there is evidence that Slawienski acted unreasonably based upon his testimony that he failed to check for traffic in his rear or side view mirrors before signaling to Shaut.  However, a signaling driver is liable only when the gesture is a proximate cause of a subsequent collision – an inquiry that “depends on whether the recipient of the gesture relied on it as an indication that the path was safe and clear” … . Proximate cause is generally a factual issue for a jury to resolve … . Here, Shaut testified that he relied on Slawienski’s signal in deciding to make the turn and would not have done so if not for the gesture; further, Slawienski testified that Shaut did not stop as he crossed into plaintiff’s lane, suggesting that Shaut relied on the gesture to indicate that the lane was clear. However, Shaut testified that he knew that he was separately obliged to check the safety of plaintiff’s lane; he stated that he slowed or stopped his vehicle before entering plaintiff’s lane to look for oncoming traffic, but did not see the motorcycle until after the collision. This evidence neither establishes as a matter of law that Shaut fully relied upon Slawienski’s gesture nor that his decision to proceed into plaintiff’s lane was entirely independent … . Thus, there are factual issues for the jury regarding the degree of Shaut’s reliance on Slawienski’s gesture, whether Shaut independently checked the safety of plaintiff’s lane, and if he did, whether the check was a superseding act severing the causal link between the gesture and the collision… . Nasadoski v Shaut, 516374, 3rd Dept 3-6-14

 

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Mistakes Leading to Miscalculation of Defendant’s Sentence Privileged

The Third Department determined plaintiff's false imprisonment action against the state was properly dismissed.  Although there were errors resuliting in the erroneous calculation of defendant's sentence, the erroneous actions were privileged:

In order to state a claim for false imprisonment or unlawful confinement, claimant was required to demonstrate 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 … . As there is no dispute as to the first three elements, we are left to consider whether defendant's confinement of claimant indeed was privileged.

As the Court of Appeals recently reiterated, “[a] detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction” … .Here, regardless of the validity of the sentence actually imposed, the asserted ambiguity in the sentence and commitment order or the reasonableness of [Department of Correctional Services'] interpretation thereof, there is no question that the sentencing court had jurisdiction over claimant, and the record does not otherwise suggest that the underlying process was defective. Accordingly, we are satisfied that defendant met its burden of demonstrating that its detention of claimant was privileged. * * *

Although DOCS' determination, which was predicated upon its analysis of the relevant sentencing statutes and claimant's criminal history, proved to be erroneous, that error in judgment neither negates nor defeats defendant's claim of privilege … . Simply put, DOCS – in treating claimant's sentence as running consecutively to his prior undischarged term of imprisonment – acted in excess of its jurisdiction, not in the complete absence of jurisdiction, and its conduct therefore was privileged … . Hudson v State of New York, 516333, 3rd Dept 5-6-14

 

“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

 

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