The Third Department reviewed an eminent domain proceeding for gas-line easements and determined that the appraisal relied upon by the trial court did not include a sufficient explanation of the valuation methods employed to allow substantive cross-examination. Because the other appraisal offered at trial was rejected by the trial court, the case was remanded. Matter of Acquisition of Easements … v Porto Bagel, Inc, 514583, 3rd Dept, 5-2-13
The question before the Third Department was whether petitioner’s limited liability company, which was a Qualified Empire Zone Enterprise (QEZE) and therefore was entitled to claim credit for “eligible real property taxes,” could also claim credit for a “downtown improvement tax.” The issue was whether the “downtown improvement tax” was an “eligible real property tax.” After extensive analysis of the meaning of “tax” in this context, the Third Department, in a full-fledged opinion by Justice McCarthy, determined it was not: “By long-standing precedent, statutory relief from real property ‘taxation’ . . . was held not to apply to taxes imposed for special benefits, typically in the form of special ad valorem levies or special assessments” … . Matter of Piccolo v NYS Tax Appeals Tribunal, 513539, 3rd Dept, 5-2-13
In a case which raised the same “tax versus ad valorem levy” issue in the QEZE context, the Third Department determined Sanitary District charges were not “taxes” entitled to credit. Matter of Stevenson v NYS Tax Appeals Tribunal, 513540, 3rd Dept, 5-2-13
In another case with the same QEZE “tax versus ad valorem levy” issue, the Third Department determined that “Downtown Special Assessment District Charges” were not “taxes” entitled to credit. Matter of Herrick v NYS Tax Appeals Tribunal, 513541, 3rd Dept, 5-2-13
In affirming the grant of sole custody to the mother (in the face of a voluntary agreement of joint custody) because the parties’ relationship had deteriorated, the Third Department wrote:
Initially, “[w]here a voluntary agreement of joint custody is entered into, it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child]…, and “an order entered on consent, without a plenary hearing, is entitled to less weight” ….”[A] sufficient change [in] circumstances can be established where . . . the relationship between joint custodial parents deteriorates ‘to the point where they simply cannot work together in a cooperative fashion for the good of their children'” … . Matter of Youngs v Olsen, 514669, 3rd Dept, 5-2-13
In upholding the grant of summary judgment in a neglect proceeding based upon a prior “derivative neglect” determination (based upon drug abuse) with respect to other children in another county, the Third Department wrote:
“Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists” …. We note that “evidence of abuse of one child will not, in and of itself, establish a prima facie case of derivative neglect or abuse of another” … . Rather, a prima facie case of “‘[d]erivative 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'” … . * * * Here, the prior neglect determination was proximate in time– the order reflecting respondent’s consent to a finding of neglect based upon excessive drug use was entered in January 2012, and petitioner moved for summary judgment in this proceeding less than one month later. Matter of Alyssa WW … v Cortland County DSS, 514585, 3rd Dept, 5-2-13
This case was remitted to the Third Department after the Court of Appeals determined the issue whether the Son of Sam Law (allowing the victims of crimes to seek compensation from the perpetrator) superseded Retirement and Social Security Law 110, which protects pension payments from creditors, had not been preserved for review. The Third Department made it clear that it believes the Son of Sam Law does supersede the Retirement and Social Security Law, but the court was prohibited from addressing the subject due to the procedural posture of the case. Matter of NYS Office of Victim Services v Raucci, 513039, 3rd Dept, 5-2-13
The Third Department affirmed the dismissal of a complaint by an inmate suing the Department of Corrections for wrongful confinement (after the annulment of a disciplinary determination) on immunity grounds: “[A]ctions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, [defendant] has absolute immunity for those actions”… .Loret v State of New York, 514609, 3rd Dept, 5-2-13
In this case a stove that was not secured to the wall with a bracket tipped over as children either stood or jumped on the oven door. One of the children was killed. One of the many issues in the case was whether the contractor who installed the stove without the bracket was liable to the surviving child. In upholding the denial of the contractor’s motion for summary judgment, the Third Department explained when a contractual relationship can give rise to tort liability to a third party:
Defendant contends that, since he performed work as a contractor for the rental agent, he owed no duty to the surviving child and, thus, his motion for summary judgment in this regard should have been granted. “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” …. The three limited exceptions to this general rule include: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties[;] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” …. Care must be taken in the application of the exceptions so that they do not “swallow up the general rule” …, and determining whether a duty exists is “a question of law for the courts” …. Kelley…v Schneck…, 515645, 3rd Dept, 5-2-13
ESPINAL
Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified the dismissal of the lead-paint-injury complaint. The Third Department explained:
“[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” ….To establish constructive notice in the context of a lead paint case, the plaintiff must 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” … . Hines v Double D and S Realty Management Corp, 515635, 3rd Dept, 5-2-13
In reversing Family Court’s grant of visitation rights to the children’s grandmother (more than what the mother wanted to allow), the Third Department wrote:
Where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation with their grandchildren where, as a threshold matter, they can establish circumstances in which “equity would see fit to intervene,” i.e., that equitable circumstances exist (Domestic Relations Law § 72 [1]…). * * * Upon our review of the testimony, we conclude that petitioner did not establish equitable circumstances that justify according her standing to force the mother to accept visitation outside parameters within which she is comfortable as a fit and responsible parent … . “[C]ourts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one” … Matter of Hill v Juhase, 514036, 3rd Dept, 4-25-13
Family Court granted a motion by social services to be relieved of its obligation to make further reasonable efforts to return the child to the father. The child was in foster care after a neglect proceeding against the mother. In holding that the motion was properly brought and granted, even though a finding of neglect had been made only against the mother, the Third Department wrote:
A social services agency may move to be relieved of its obligation to undertake reasonable efforts to return a child to his or her home “[i]n conjunction with, or at any time subsequent to, the filing of” an abuse or neglect petition (Family Ct Act § 1039-b [a]). Here, while a neglect petition was filed solely against the mother, contrary to the father’s contention, nothing in Family Ct Act § 1039-b limits its scope to the respondent(s) named in the underlying petition. Moreover, to infer such a limitation would undercut the purpose of the statute, which was intended to promote the health and safety of the child by expediting permanency planning… . Matter of Jayden QQ., 513777, 3rd Dept, 4-25-13
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