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​ALTHOUGH A PURPOSE OF THE WATERSHED CORPORATION WAS TO ENSURE CLEAN DRINKING WATER FOR NEW YORK CITY; OTHER PURPOSES INCLUDED FOSTERING DEVELOPMENT; THEREFORE THE UPSTATE PROPERTY OWNED BY THE CORPORATION WAS NOT ENTITLED TO A CHARITABLE OR PUBLIC USE TAX EXEMPTION PURSUANT TO REAL PROPERTY TAX LAW 420-A (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the upstate property owned by the Catskill Watershed Corporation (petitioner) was not entitled to a charitable or public purpose exemption from the town’s property tax. Although a purpose of the corporation was to ensure clean drinking water for New York City, the fact that the purposes included economic development precluded the charitable or public purpose tax exemption pursuant to Real Property Tax Law (RPTL) 420-a:

… [P]etitioner’s certificate of incorporation expressly provides that it is formed for, among other things, “the exclusively charitable or public purposes of . . . aiding that part of the . . . [community in the Watershed] by attracting new commerce and industry to such area and by encouraging the development of, or retention of, commerce and industry in such area, and lessening the burdens of government and acting in the public interest.” These near-identical reasons were rejected by the Court of Appeals, which acknowledged that, even though a property may very well provide a laudable “public benefit,” where the overall use is “to further economic development and lessen the burdens of government, [such use] cannot be deemed ‘charitable’ within the meaning of section 420-a (1) (a)” … . Nor do we find convincing petitioner’s federal tax-exempt status, as “evidence of an organization’s section 501 (c) (3) status, by itself, does not create a presumption that the entity is entitled to a tax exemption under [RPTL 420-a]” — particularly given that the “IRS’s definition of what constitutes an exempt ‘charitable purpose’ is exceedingly broad” … . Matter of Catskill Watershed Corp. v Assessor of the Town of Middletown, 2023 NY Slip Op 03055, Third Dept 6-8-23

Practice Point: Even if a purpose of a corporation is to benefit the public (here the protection of drinking water), where other purposes are designed to foster development, the property owned by the corporation is not entitled to a charitable or public purpose exemption from property tax pursuant to RPTL 420-a.

 

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MOTHER’S PETITION FOR PERMISSION TO RELOCATE TO FLORIDA WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for permission to relocate to Florida with the children should have been granted:

“Taken as a whole, the mother’s testimony demonstrated . . . that the mother’s reasons for wanting to relocate were familial and economic and that the proposed relocation would likely enhance the lives of the mother and the child[ren] economically and emotionally” … . * * *

Although we recognize the importance of an ongoing relationship between the father and the children, the … proof reflects that the mother is, by far, the more involved parent and the primary caregiver, that the lives of the mother and the children would be enhanced by the relocation to Florida, that the children want to make that move, and that the mother is willing to facilitate significant visitation between the children and the father if it occurs. As such, Family Court’s determination denying the mother’s relocation request is not supported by a sound and substantial basis in the record … . Matter of Amber GG. v Eric HH., 2023 NY Slip Op 03059, Third Dept 6-8-23

Practice Point: Mother demonstrated she was the more involved parent and that she and her children would be better off financially and emotionally if she moved near her relatives in Florida. She further demonstrated she is willing to facilitate significant visitation with father. Her petition to relocate should have been granted.

 

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IN THIS MURDER TRIAL, THE PROSECUTOR REPEATEDLY BROUGHT UP UNCHARGED CRIMES WHICH WERE NOT MENTIONED IN THE PRETRIAL SANDOVAL PROCEEDINGS; THE JUDGE DID NOT INTERVENE; THE DEFENSE DID NOT OBJECT; CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s murder and weapons convictions, determined prosecutorial misconduct and the judge’s failure to intervene (there were no defense objections) required a new trial. The prosecutor repeatedly mentioned uncharged crimes which were not brought up in the Sandoval proceedings:

During their direct case, however, the People elicited testimony from three different witnesses about a prior bad act that had not been included in their Sandoval/Molineux proffer.  * * *

The prosecutor asked defendant whether the incident, which had occurred approximately a decade earlier, involved him shooting a rifle toward another person. Defendant denied this, and he was then questioned as to whether he tried to reload the rifle but was stopped by bystanders, which he also denied. The prosecutor then asked, “is that how you handle your confrontations, you grab a gun and just fire away?” The prosecutor continued the questioning in this vein by asking defendant whether it was “[k]ind of like . . . … [when] you just fired a warning shot out the window, correct?” The prosecutor subsequently cross-examined defendant relative to the incident involving him shooting someone off a motorcycle — which … was not included in the People’s Sandoval/Molineux motion. … [T]he prosecutor inquired as to whether defendant had stated in a recorded jail call that another inmate had urinated in his bed and that, if he caught who did it, he would stab that person in the neck with a pencil. * * *

… [T]he magnitude of the prosecutor’s misconduct was the fact that County Court made no effort to intervene or otherwise attempt to minimize or alleviate the prejudice being caused to defendant…. . People v Nellis, 2023 NY Slip Op 03046, Third Dept 5-8-23

Practice Point: Although the convictions were not against the weight of the evidence, prosecutorial misconduct and the judge’s failure to intervene warranted a new trial. The prosecutor repeatedly brought up uncharged crimes which were not ruled upon in the Sandoval proceedings.

 

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THE PROOF FATHER NEGLECTED THE CHILD WAS PRIMARILY BASED UPON HIS INCARCERATION, WHICH WAS NOT SUFFICIENT (THIRD DEPT).

The Third Department, reversing Family Court, over a concurrence, determined the proof respondent father neglected the child was insufficient. The neglect finding appeared to be primarily based upon father’s incarceration:

We note that a determination of whether respondent neglected the child was complicated by the fact that no DNA analysis was performed to establish paternity until late 2020, over a year after the child’s birth. * * *

At the fact-finding hearing, … most of the proof upon which petitioner relied was … hearsay. Although no objections were raised, the caseworker testified to the mother’s statements regarding paternity and to respondent’s mother’s statements. In the end, petitioner’s proof failed to establish how respondent’s plan to have his mother care for the child fell below the “minimum degree of care” or how it impaired the child or placed him in imminent danger of becoming impaired … . Petitioner’s proof seemed to be predicated solely on respondent’s incarceration, which cannot alone form the basis for a neglect finding … . Due to the accumulation of errors by petitioner, and the insufficiency of its proof, we find that petitioner failed to establish that respondent neglected the subject child … . Matter of Elijah AA. (Alexander AA.), 2023 NY Slip Op 02812, Third Dept 5-25-23

Practice Point: Here the proof father neglected the child was insufficient. Despite father’s request, a paternity test was not performed for more than a year after the child’s birth. Once father was incarcerated two months before the child’s birth, his mother refused to help out with care for the child, but father was not so informed. Neglect cannot be based solely on father’s incarceration.

 

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THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender and remitting the matter for a hearing. determined the People did not submit evidence demonstrating when defendant was incarcerated such that the 10-year look-back period for the prior felony conviction could be calculated. The court noted that the issue need not be preserved for appeal:

… [D]efendant contends that he was not properly sentenced as a second felony offender. … [D]efendant was not required to preserve such a claim where, as here, the purported illegality is plain “from the face of the appellate record” … . … [W]e agree with defendant that the record reflects that his April 11, 2011 sentence on his predicate felony conviction was imposed more than 10 years before the commission of the instant offense, which occurred on July 6, 2021 … , and the People failed to meet their burden of showing that the 10-year look-back period was tolled by any periods of incarceration … . At sentencing, defendant admitted to the prior offense, but the People’s predicate felony statement did not set forth defendant’s dates of incarceration … . Since the record fails to disclose the legality of sentencing defendant as a second felony offender, the matter must be remitted for a hearing on this issue and resentencing … . People v McCall, 2023 NY Slip Op 02719, Third Dept 5-18-23

Practice Point: Here the People’s failure to submit proof of defendant’s prior incarceration made it impossible to determine whether the 10-year look-back period for a prior felony was tolled. Defendant’s sentence as a second felony offender was vacated and the matter was remitted for a hearing and resentencing.

 

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THE OFFICE OF RENEWABLE ENERGY SITING (ORES) CONDUCTED A PROPER REVIEW BEFORE ISSUING THE CHALLENGED REGULATIONS CONCERNING THE SITING OF MAJOR RENEWABLE ENERGY FACILITIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the Office of Renewable Energy Siting (ORES) had conducted a proper review before issuing regulations concerning the siting of major renewable energy facilities. The opinion is far too detailed to fairly summarize here:

… [P]etitioners — who include numerous municipalities, municipal corporations and private entities — commenced the instant combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, seeking, among other things, to annul the regulations and direct ORES to engage in a proper SEQRA [State Environmental Quality Review Act] review. Specifically, petitioners alleged that, among other things, ORES: (1) mischaracterized the action as an unlisted action rather than a type I action; (2) failed to take a hard look at the environmental consequences of the regulations; (3) violated the home rule provision of the NY Constitution; and (4) violated the express terms of Executive Law § 94-c. * * *

… [W]e agree with petitioners’ threshold argument that ORES misclassified this action as unlisted, rather than type I. … … [T]he promulgation of the regulations should have been classified as a type I action that would carry the presumption of requiring preparation of an EIS [Environment Impact Statement] … . However, “a misclassification does not always lead to the annulment of the negative declaration if the lead agency conducts the equivalent of a type I review notwithstanding the misclassification” … , and, notably, “a type I action does not, per se, necessitate the filing of an EIS” … . * * *

A review of the vast record reveals that ORES took a thorough and hard look at the potential negative environmental impacts associated with the proposed regulations. Matter of Town of Copake v New York State Off. of Renewable Energy Siting, 2023 NY Slip Op 02721, Third Dept 5-18-23

Practice Point: The newly created Office of Renewable Energy Siting conducted a proper review before issuing the challenged regulations concerning the siting of major renewable energy facilities.

 

ALTHOUGH INJURY IN A TRAFFIC ACCIDENT ON THE WAY TO WORK IS USUALLY NOT COVERED BY WORKERS’ COMPENSATION, HERE THE “SPECIAL ERRAND” EXCEPTION APPLIED BECAUSE CLAIMANT, A POLICE OFFICER, WAS ENGAGED IN AN INVESTIGATION AND ON HIS WAY TO PICK UP A POLICE VEHICLE WHEN THE ACCIDENT OCCURRED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the “special errand” exception applied and claimant, who was injured on his way to the police precinct after being called to investigate a grand larceny, was entitled to Workers’ Compensation benefits. Although injury on the way to work is usually not covered, here claimant had already coordinated an investigation into the grand larceny and was on his way to pick up his police vehicle at the time of the traffic accident:

At the hearing, there was testimony from the employer’s witness that claimant’s shift and overtime pay did not begin until claimant arrived at the police station and checked out a police vehicle. Even if true, however, these facts are not dispositive of whether the special errand exception applies. Irrespective of when claimant’s overtime pay began, the record reflects that claimant was contacted at 4:15 a.m., at which time claimant began his command and coordination of the criminal investigation of the grand larceny. It was at this point that claimant was engaged in a special errand, as he was then required to report to work early in order to pick up a police vehicle so that he could proceed directly to the crime scene in that vehicle. Although claimant testified that he traveled to the police station along his “usual geographical” route, the work-related activity that claimant was encouraged/required by his employer to do and performed for the employer’s benefit upon being called in early while on standby required claimant to “alter[ ] the usual . . . temporal scheme of travel, thereby altering the risks to which [claimant was] usually exposed during normal travel” (Matter of Neacosia v New York Power Auth., 85 NY2d at 479 …). The Board identified the correct standard articulated by the Court of Appeals but misapplied the special errand exception by overlooking the altered temporal scheme of claimant’s travel and significance of the work-related activity performed by claimant for the employer’s benefit upon being contacted by the employer while on standby … . Matter of Serrata v Suffolk County Police Dept., 2023 NY Slip Op 02725, Third Dept 5-18-23

Practice Point: Injury in a traffic accident on the way to work is not covered by Workers’ Compensation. Here, however,, the “special errand” exception applied because claimant, a police officer, was engaged in an ongoing investigation and was driving to the precinct to pick up his police vehicle when the accident occurred.

 

THE EVIDENCE SUPPORTED A CAUSAL CONNECTION BETWEEN THE STRESS CAUSED BY INTERACTION WITH CLAIMANT’S SUPERVISOR AND CLAIMANT’S HEART ATTACK (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the evidence supported a causal relationship between the stress caused by interaction with claimant’s supervisor and the subsequent heart attack:

We agree with claimant’s contention that the Board’s decision is not supported by substantial evidence as its finding that claimant did not sustain a physical injury is inconsistent with the medical evidence as well as its own finding that claimant sustained a myocardial infarction. The sole medical evidence presented was that from Leslie Parikh, a cardiologist who treated claimant at the emergency room. Parikh testified unequivocally that claimant was diagnosed as suffering a myocardial infarction based upon the elevated troponin levels in claimant’s blood, which was consistent with a stress event on the heart, and opined that the heart attack was causally-related to claimant’s interaction with her supervisor at work. Based on this uncontroverted evidence, the Board, in fact, found that claimant suffered a myocardial infarction causally-related to work.

The Board, nevertheless, found that claimant did not sustain a physical injury, characterizing the incident as claimant having been “in mild emotional distress and . . . experience[ing] a stress event.” …  This is contrary to the unrefuted and unequivocal medical evidence and diagnosis that claimant suffered a myocardial infarction. Matter of DiMeo v Trinity Health Corp., 2023 NY Slip Op 02731, Third Dept 5-18-23

Practice Point: The treating physician determined claimants’ heart attack was caused by stress from interaction with claimant’s supervisor. Claimant was entitled to Worders’ Compensation benefits.

 

THE COUNTY DID NOT SUBMIT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPTL 1125 IN THIS PROPERTY TAX FORECLOSURE CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the county (petitioner) in this real property tax foreclosure case did not demonstrate the respondent received notice of the foreclosure as required by RPTL 1125 and a recent Court of Appeals ruling:

In James B. Nutter & Co. v County of Saratoga (__ NY3d ___, 2023 NY Slip Op 01469 [2023], revg 195 AD3d 1359 [3d Dept 2021]), the Court ruled that RPTL 1125 (1) (b) (i) contains no presumption of service and that “an interested party may create a factual issue as to whether the taxing authority has complied with the requirements of RPTL 1125 (1) (b) . . . despite the taxing authority’s submission of the ‘affidavit[s] of mailing’ mandated by [RPTL] 1125 (3) (a) and evidence that no mailings were returned” (id. at *3). Here, petitioner’s attorney avers in support of its motion for summary judgment that “affidavits documenting compliance with all RPTL requirements for this proceeding have been publicly filed with the [c]ounty [c]lerk as a part of the judgment roll therein; and, assuming without conceding, that any noticing defects as to [a]nswerants occurred, by service of an [a]nswer therein [a]nswerants concedes actual notice of the pendency of this proceeding and its applicability to the above said parcel, thereby as a matter of law obviating any such defects.” Although RPTL 1125 (1) (b) “contains no requirement of actual notice and evidence of the failure to receive notice is, by itself, insufficient to demonstrate noncompliance” (id.), this generic language failed to affirmatively establish compliance with the statutory mailing requirements as it failed to establish that the notice of foreclosure was mailed to respondent’s actual mailing address or the last address listed in petitioner’s records and that the records had been searched to verify that the mailings to respondent were not returned … . Matter of County of Albany (Johnson), 2023 NY Slip Op 02564, Third Dept 5-11-23

Practice Point: Here the county failed to prove strict compliance with the notice requirements of RPTL 1125 precluding summary judgment in this real property tax foreclosure case.

 

DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED PRIOR TO FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DEFECTIVE CONDITION (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined defendant building owner, 797 Broadway, did not demonstrate it did not have constructive notice of the alleged loose elevator threshold plate over which plaintiff slipped and fell:

… 797 Broadway submitted the sworn affidavit of David Fallati, who … acted as the property manager for the building. Fallati stated that he visited the building twice a week, “including the time period of the alleged incident.” According to Fallati, he did not observe, or receive complaints about, any tripping hazards near the elevator threshold area where the accident occurred. We find that this proof was insufficient to establish that 797 Broadway lacked constructive notice of the condition of the threshold plate. Unlike trip-and-fall cases where the specific area in question was inspected on the date of the accident … . Fallati’s vague affidavit, in which he only stated generally that his inspections occurred twice per week, did not indicate when he had last inspected the elevator threshold area prior to plaintiff’s fall. Thus, the Fallati affidavit failed to eliminate all factual questions “as to whether the alleged dangerous condition . . . existed for a sufficient period of time prior to plaintiff’s fall to permit [797 Broadway] to discover it and take remedial action” … . Lloyd v 797 Broadway Group, LLC, 2023 NY Slip Op 02573, Third Dept 5-11-23

Practice Point: Without sufficient proof when the area of the slip and fall was last inspected the defendant cannot demonstrate a lack of constructive notice of the condition.

 

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