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Claimant Not Entitled to Benefits For Time Spent Working Out of House 

After claimant was laid off, he operated a business [Hatch Ventures] periodically out of his home.  The Third Department determined the claimant was not eligible for unemployment insurance benefits for the days he operated his business but that “recoverable overpayment and forfeiture penalty” should not be imposed because claimant did not make a willful misrepresentation with respect to his home business:

A claimant is not entitled to receive unemployment insurance benefits during the time that he or she  is not  totally unemployed (see Labor Law § 591 [1]).It has  been  held that a claimant who undertakes activities on behalf of an ongoing business is not considered to be totally unemployed even if those activities are minimal  or the business is not  profitable ….   The issue of total unemployment is a factual question for the Board, and  its determination will be  upheld  if supported by  substantial evidence….   Here, claimant admittedly performed various activities on behalf of Hatch Ventures, made business-related expenditures and received income from product sales. Notably, he  indicated that, from  June 1, 2011  until June  30, 2011, he  performed  such  activities three days  a  week  for one  hour  each  day  and  that, after July 1, 2011, he performed them one day per week for three hours.  Matter of Lewis [Copmmissioner of Labor], 515345, 3rd Dept, 5-16-13

 

 

Defendant’s Papers Deemed Insufficient to Trigger Need for Suppression Hearing

The Third Department determined the defendant’s motion papers did not demonstrate the need for a suppression hearing:

Because defendant failed to allege sufficient facts to justify a hearing, County Court did not err in summarily denying defendant’s motion for a Mapp hearing…. Motion papers seeking suppression of evidence “must state the ground or grounds of the motion and must contain sworn allegations of fact . . . supporting such grounds” (CPL 710.60 [1]).A hearing is not automatic; a court may summarily deny the motion if the papers do not allege a legal basis for suppression  or if the factual allegations do not as a matter of law support any alleged ground (see CPL 710.60 [3];…) “[F]actual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and [the] defendant’s access to information”….  Here, defendant made his motion after he was supplied with the search warrant application, supporting documents and return, as well as discovery. He had resolved the other criminal charges that precipitated the warrant application, providing him with information related to the situation surrounding the application. In these circumstances, defendant’s bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing …   Accordingly, the court properly determined that a hearing was not necessary to decide the motion. People v Vanness, 103553, 3rd Dept, 5-16-13

 

Proper Procedure for Resentencing Under Drug Law Reform Act Explained

The Third Department explained the proper procedure for resentencing under the Drug Law Reform Act as follows:

The Drug Law Reform Act establishes a specific procedural course that was not followed here. Upon  finding a  defendant eligible for resentencing, the court must  issue a  written interlocutory order informing the defendant of the term of imprisonment  it intends to impose, setting forth findings of fact and the reasons underlying the proposed resentence, and advising the defendant  that, unless he or she withdraws  the application or appeals from the interlocutory order, the court will vacate the original sentence and impose the proposed resentence (see L 2004, ch 738, § 23).County  Court’s failure to proceed  in this manner deprived defendant of the opportunity to carefully consider his options, including the taking of an  appeal  from  the interlocutory order.  People v Minor, 104880, 3rd Dept, 5-16-13

 

 

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Gang Affiliation and Prior Drug Offenses Admissible Under Molineux in Murder Case/Motion to Suppress Statement Made When Questioning Continued After Defendant Stated He Did Not Want to Answer Any More Questions Should Have Been Granted

The Third Department determined evidence of defendant’s gang affiliation and uncharged drug offenses were admissible in defendant’s murder trial under Molineux.  In addition, the Third Department determined defendant’s statements made after he said he didn’t want to answer any more questions should have been suppressed.  [The Third Department rejected the People’s argument that the suppression issue was decided in a prior prosecution and the doctrine of collateral estoppel should apply.] With respect to the Molineux and “right to remain silent” issues, the Court wrote:

“Generally speaking, 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” … . Here, defendant’s drug-related activities and purported gang membership provided necessary background information, explained how [the other parties] and defendant knew one another (as well as why defendant’s acquaintances went along with his plan to rob the weed spot[where the murder took place]) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant’s awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” … .

The case law makes clear that “[a] defendant’s invocation of the right to remain silent must be scrupulously honored” … once the right is asserted in an “unequivocal and unqualified” fashion … Whether  a defendant’s  request in this regard is “unequivocal is a mixed question of law and fact that must be determined with reference to  the  circumstances surrounding  the  request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .  People v Johnson, 104081, 3rd Dept, 5-16-13

SUPPRESSION, SUPPRESS

 

No Cause of Action Based Upon “Vicious Propensities” When Plaintiff Knocked Down by Playful Dog

In determining summary judgment should have been granted to the defendant dog owners, the Third Department explained the defendants had demonstrated they had no prior knowledge of the dog’s vicious propensities.  The plaintiff was injured when defendant’s dog [Delilah] bumped into her while running in play, activity the Third Department determined was “normal canine behavior” which could not be considered a vicious propensity:

It is well established that “‘the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities'” …. As the movants, it was defendants’ burden to establish that they had no prior knowledge that Delilah had any vicious propensities …. Notably, a vicious propensity does not  necessarily have  to be  “dangerous  or ferocious” but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long  as “‘such proclivity results in the injury giving rise to the lawsuit'” .   Nonetheless, “normal canine behavior” is insufficient to establish a vicious propensity ….  Bloom v Van Lenten, 515606, 3rd Dept, 5-16-13

 

Adverse Possession Not Demonstrated

In reversing the adverse-possession ruling in favor of the plaintiffs, because the proof showed only non-exclusive, sporadic and incomplete use of the land, the Third Department wrote:

…[W]e conclude that plaintiffs’ vague testimony did not establish by clear and convincing evidence that they ever cultivated and improved the entire .17 acre of the disputed area, or that they usually cultivated and improved even a small portion of the disputed area for the full 10-year requisite time period. That is, the minimal and sporadic use that was demonstrated is insufficient, as a matter of law, to constitute the requisite cultivation or improvement …. Further, in light of Powell’s testimony that he cared for the disputed area for defendants, plaintiffs cannot establish the “exclusivity” element, which requires a showing that “the adverse possessor . . . alone care[d] for or improve[d] the disputed property as if it were his/her own”….  Robbins v Schiff, 514749, 3rd Dept, 5-9-13

 

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Investigatory Powers of NYS Commission on Public Integrity Explained​

The investigatory powers of the NYS Commission on Public Integrity were at the heart of this case.  The Commission was investigating allegations the petitioner (the Chief Executive Officer of the State University of New York Research Foundation) provided a job to the daughter of a prominent politician for which she was not qualified and did little work.  During the course of the investigation the Commission issued a Notice of Reasonable Cause (NORC) to the petitioner alleging a violation of Public Officers Law 74 (3) and requiring, by subpoena, the petitioner to provide testimony.  The petitioner argued that the commission’s power to issue a subpoena, under the controlling statutes and regulations, ended upon the issuance of the NORC.  In rejecting that argument, and accepting the Commission’s contrary argument that its power to investigate continued after the issuance of an NORC, the Third Department wrote:

Notably, the Commission’s interpretation of its regulation is consistent with the overall purpose and spirit of Executive Law § 94, which is to “strengthen the public’s trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and  fair and just resolution of all matters” (19 NYCRR 941.1…).   Following the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations.  Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute. Conversely, to interpret the regulation as precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.  In the Matter of O’Connor v Ginsberg…, 514200, 3rd Dept, 5-9-13

 

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Public Access Easement to Recreation Area Granted; Public Hearing Not Required

In a full-fledged opinion by Justice Stein, the Third Department upheld the grant of a petition pursuant to the Eminent Domain Procedure Law (EDPL) to acquire a public access easement over private land abutting a recreation area on land owned by a hydroelectric facility. The condemnation proceeding was triggered when the owner of the private property abutting the recreation area blocked roads which for years had provided public access to the recreation area. In a lengthy and detailed opinion, the Third Department explained the applicable procedures pursuant to the EDPL and why statutory exemptions to the public hearing requirement of the EDPL applied in this case.  In the Matter of Eagle Creek Land Resources, LLC, et al v Woodstone Lake Development, LLC, 514046, 3rd Dept, 5-9-13

 

Presumption of Validity of Property Tax Assessment Rebutted

In affirming Supreme Court’s determination that petitioner’s Adirondack land had been over-valued for property tax purposes, the Third Department thoroughly examined the appraisal techniques employed and explained the review process as follows:

…[W]e  find that petitioner rebutted the presumption of validity of the disputed tax assessments, by presenting a detailed competent appraisal by a qualified appraiser, based upon accepted appraisal techniques, which constituted substantial evidence of overvaluation and presented a genuine dispute concerning valuation … .  Upon  review of Supreme  Court’s determination that petitioner met its burden of establishing, by a preponderance of the evidence, that parcels one  and  two  had  been  overvalued, we “weigh the entire record” … and  “review the trial court’s finding to determine whether it is supported by or against the weight of the evidence” … .Valuation of assessed property presents the court with a factual question…, and this Court   will defer to the trial court’s decision “unless such  finding is based upon [an] erroneous theory of law or [an] erroneous ruling in the admission or exclusion of evidence, or unless it appears that the court . . . has failed to give to conflicting evidence the relative weight which it should have and thus has arrived at a value which is excessive or inadequate” … . Matter of Adirondack Mountain Reserve v Board of Assessors of the Town of North Hudson, et al, 515190, 3rd Dept, 5-9-13

 

No Standing to Bring Judicial Dissolution Action; Could Not Demonstrate 50% Ownership​

In upholding Supreme Court’s determination that the petitioner did not have standing to bring the judicial dissolution action because 50% ownership of the corporation stock (by the petitioner) was not demonstrated, the Third Department explained the relevant review process:

As  the  party  seeking  judicial dissolution of the corporation, petitioner bore the burden of demonstrating by a preponderance of the evidence his standing to seek such relief based on  his ownership of at least one half of the votes of all of Sunburst’s  outstanding  shares  (see  Business  Corporation  Law§ 1104 [a]…).Our review of Supreme Court’s determination, made after a hearing, “is not limited to whether [its] findings were supported by credible evidence; rather, if it appears that a finding different from that of Supreme Court is not unreasonable, we must weigh the probative force of the conflicting evidence and the relative strength of conflicting inferences that may  be drawn, and grant judgment as warranted” …. However, deference is given to the trial court’s credibility determinations, as that court “had the advantage of observing the witnesses firsthand and was in a better position to assess the evidence and weigh credibility” … .  Matter of Dissolution of Sunburst Associates, Inc v Vilardi, 515011, 3rd Dept, 5-9-13

 

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