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Violation of a Local Law Did Not Demonstrate a Horse Pen Constituted a Private Per Se Nuisance

The Third Department determined summary judgment was properly denied for a nuisance cause of action.  The fact that a horse pen was 100 feet from a home, and was therefore in violation of a local law requiring a distance of 500 feet, did not demonstrate per se nuisance:

The per se nuisance claim is based upon the undisputed location of plaintiffs’ horse pen about 100 feet from defendants’ home, in alleged violation of a local law that requires such pens to be separated from dwellings by at least 500 feet (see Local Law No. 1 [2010] of Village of Valley Falls § 9).  We disagree with defendants that the declaration in the local law that such a violation is a “nuisance” (see Local Law No. 1 [2010] of Village of Valley Falls § 7) is sufficient, without more, to establish their claim of nuisance per se….  A showing that the pen is unlawful excuses defendants only from proving that plaintiffs’ actions were negligent or intentional; the other elements of a nuisance cause of action must still be shown … .  A private nuisance claim requires a showing of “intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property” … . Defendants did not prove entitlement to summary judgment on the per se nuisance claim, as they relied exclusively on the alleged local law violation and offered no proof that the horse pen’s placement caused a substantial or unreasonable interference – and notably, such determinations “ordinarily turn[] on questions of fact”… . Overocker v Madigan, 516957, 3rd Dept 1-9-14

 

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In Order for Family Court to Review a Support Magistrate’s Order, Specific Objections Must Have Been Made to Preserve the Issues Raised in Family Court

The Third Department determined that Family Court’s order must be vacated because it was based upon issues not raised in objections to the Support Magistrate’s order.  Because Family Court acts as an appellate court with respect to orders by the Support Magistrate, any errors must be preserved by objections:

…”[A]n order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires specific objections for issues to be preserved” … .  The issues noted by the court were not included in the father’s objections …. Matter of Porter v D’Amano. 516522, 3rd Dept 1-9-14

 

Waiver of Indictment and Guilty Plea Invalid—Superior Court Information Charged a Greater Offense than that Charged in the Original Misdemeanor Information

The Third Department determined defendant’s conviction must be reversed because the superior court information to which defendant pled guilty charged a greater offense (conspiracy fourth degree) than was charged in the misdemeanor complaint (criminal solicitation fourth degree).  In addition, because the defendant’s guilty plea to another offense (criminal sexual act first degree) was induced by the court’s promise of a lesser sentence to run concurrently with the overturned conspiracy sentence, the sexual act plea must be vacated.  With respect to the invalid superior court information, the court wrote:

In New York, felony charges must be prosecuted by indictment, unless a defendant “held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, . . . waive[s] indictment by a grand jury and consent[s] to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see CPL 195.10 [1]).  Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “‘greater offense[], which [has] additional aggravating elements'” … .  This is precisely what occurred here.  The misdemeanor complaint charged defendant with criminal solicitation in the fourth degree and the superior court information impermissibly charged the greater offense of conspiracy in the fourth degree.  Inasmuch as the improper inclusion of a greater offense is a jurisdictional infirmity …, notwithstanding defendant’s appeal waiver and plea, we must reverse his conviction of conspiracy in the fourth degree and dismiss the superior court information… . People v Price, 2014 NY Slip Op 00140 [113 AD3d 883] 3rd Dept 1-9-14

 

Post-Readiness Delay Ran Out Speedy Trial Clock

The Third Department determined defendant’s indictment must be dismissed because of the People’s post-readiness delay.  There were seven days left on the speedy trial clock when the People obtained a superseding indictment. The People requested an adjournment.  The record did not demonstrate the length of the requested adjournment, so the People were charged with the actual length of the adjournment, which was more than seven days:

…[W]here the People have requested an adjournment, “it is the People’s burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged” … .  The People failed to discharge that burden here.  The calendar call at which the adjournment was granted was not transcribed and, although the People are only chargeable with the length of the adjournment actually requested … – as opposed to the length of the adjournment ultimately granted – the record does not establish the length of the adjournment requested by the People. Accordingly, we have no choice but to charge the People with the entire 21 days occasioned by the adjournment, which brings them beyond the seven days remaining on the speedy trial clock… . People v Miller, 104500, 3rd Dept 1-9-14

 

Proof of Indemnification Agreement Insufficient

The Third Department determined the employer did not demonstrate that the contractor hired by the employer had agreed to indemnify the employer for damages related to the injury of the contractor’s employee:

Workers’ Compensation Law § 11 precludes third-party indemnification claims against employers unless the claim is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the . . . person asserting the cause of action for the type of loss suffered” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .  “Whether the parties did in fact have such an agreement involves a two-part inquiry.  First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of [Workers’ Compensation Law §] 11… . Trombley v Socha…, 516943, 3rd Dept 1-9-14

 

Question of Fact Whether Wife of Decedent Had Abandoned Decedent

The Third Department determined that a question of fact had been raised about whether decedent’s wife had abandoned decedent such that she should be disqualified as surviving spouse:

A person may be disqualified from inheriting from his or her deceased spouse where the surviving “spouse abandoned the deceased spouse, and such abandonment continued until the time of death” (EPTL 5-1.2 [a] [5]).  The party asserting abandonment bears the burden of establishing that the surviving spouse departed from the marital abode and that such departure was both “unjustified and without the consent of the other spouse” ,,, .  In determining whether one spouse has abandoned the other, a court employs the same standards as are applied in the context of an action for a separation or divorce based on abandonment … . Matter of Yengle…, 516840, 3rd Dept 1-9-14

 

Growling and Baring Teeth Insufficient to Raise Question of Fact About a Dog’s Vicious Propensities

The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities:

No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities … . Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint.   Gervais v Laino, 2013 NY Slip Op 08819, 1st Dept 12-31-13

 

Homeowner Did Not Create Dangerous Condition (Wet Leaves on a Slope)/Condition Was Open and Obvious (No Duty to Warn)

The Third Department affirmed the grant of summary judgment to the defendants homeowners in a slip and fall case.  Plaintiff, who was following the homeowner as they walked around the house counting windows, slipped on a slope adjacent to the house which was covered with wet leaves.  The court determined defendants did not create the hazardous condition and had no duty to warn of the condition:

“Generally, landowners both owe a duty to exercise reasonable care in maintaining their property in a reasonably safe condition and have a duty to warn of a latent, dangerous condition of which the landowner is or should be aware” … . However, the landowner’s duty to warn “does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” … .  As the movants, defendants were required to “make a prima facie showing of entitlement to judgment as a matter of law” … .

Defendants satisfied their threshold burden, as the moving parties, by establishing … that they exercised reasonable care by maintaining the premises year round and in a seasonally appropriate manner, and that they did not create the condition, which occurred as a result of natural seasonal changes.  Notably, plaintiff’s fall did not occur on a pathway, walkway or driveway but, rather, on the surface of the ground along the side of the house on the unaltered natural contour of the land in an area that was exposed to the elements; it was not foreseeable that someone would traverse on this obviously slippery terrain so as to impose an obligation on the owners to take precautions such as clearing the ground area of leaves and debris … .

Moreover, defendants’ proof established that the slippery condition of the leaf and debris-covered natural, unimproved downward slope was an open and obvious hazard, as opposed to a latent or concealed one, in that the danger “could not be overlooked by any observer reasonably using his or her ordinary senses”…. . Freeese v Bedford, 516863, 3rd Dept 12-26-13

 

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No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases

The Third Department determined summary judgment was properly granted to defendants in a lead-paint exposure case.  Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling paint in the apartment:

To raise a triable issue of constructive notice, plaintiff was required to show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment. Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants’ awareness that paint was peeling in the apartment.  Cunningham v Keehfus, 516733, 3rd Dept 12-26-13

The Third Department affirmed the same result in another lead-paint exposure case:

Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in the basement apartment, had the right to enter the apartment to make repairs, and did so.  However, he testified that he “didn’t know anything about lead poisoning” before the October 1990 inspection, did not remember peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the building before he purchased it.   This testimony was sufficient to establish on a prima facie basis that defendant did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish triable issues of fact… .

…[T]he record includes no evidence that the prior owner told defendant about the building’s previous lead problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his education and reading skills were limited – was sophisticated in the ownership and maintenance of rental properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues … Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd Dept 12-26-13

 

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Imprisonment and Prosecution Based Upon the Violation of an Administratively Imposed Period of Post Release Supervision Gave Rise to Valid False Imprisonment and Malicious Prosecution Causes of Action Against the State

In a lengthy and thorough opinion by Justice Spain, the Third Department determined that the claimant, who was imprisoned and prosecuted based upon an administratively imposed “post release supervision” (PRS) violation, was entitled to summary judgment on his false imprisonment cause of action and had stated a cause of action for malicious prosecution.  The claimant was held in custody and prosecuted after the Court of Appeals had ruled that only the sentencing court can impose a term of post release supervision (Garner v NYS Dept of Correctional Services, 10 NY3d 358 [2008]):

…[C]aimant sufficiently alleged that his confinement was not privileged and it was defendant’s burden to establish that its confinement of claimant after Garner was privileged; defendant failed in the Court of Claims to produce a Division of Parole arrest warrant or a court order so as to demonstrate their validity or that the arrest or confinement of claimant was privileged … .   Further, to clarify, claimant does not challenge his arrest prior to Garner but, rather, premises his claims on his continued detention and reincarceration – after Garner – for a parole violation based upon an administrativelyimposed PRS term that Garner clearly held was invalid, i.e., he raises a claim for false imprisonment and not for false arrest. * * *

…[D]efendant does not have immunity for the actions of its parole officials.  To be sure, inherently discretionary parole decisions of government officials have been recognized to be quasi-judicial decisions entitled to absolute immunity … .  “Where, however, the official has stepped outside the scope of his [or her] authority and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are . . . quasi-judicial in nature” … .  That is, “[t]here is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter.  The former is privileged, the latter is not”… . * * *

We similarly conclude that claimant stated a cause of action for malicious prosecution.  To make out a claim for malicious prosecution, claimant must establish: “(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” …. .  … On the second prong, claimant need not “demonstrate innocence” of the parole violation in order to satisfy that favorable termination prong; rather, claimant can satisfy it by showing that “there can be no further prosecution of the [alleged parole violation]” … .  We believe it self evident, under the facts here and despite the lack of state law on point, that defendant could not, after Sparber and Garner, ever lawfully prosecute claimant on a parole violation that occurred before those decisions, where the PRS in effect at the time of the alleged violation was imposed by DOCS and was, as such, a nullity… Moulton v State of New York, 515096, 3rd Dept 12-26-13

 

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