Appellate Division Review: April 2017

First Department

Condominiums. A man’s home is his castle—except if he lives in a condominium, the First Department concluded in Heywood Condominium v. Wozencraft, 2017 N.Y. Slip Op. 00257 (1st Dept. Jan. 12, 2017), affirming the eviction of a condominium unit owner for failure to pay common charges and rent. The defendant purchased a Manhattan condominium in 2006 and shortly thereafter ceased paying common charges based on alleged deprivation of certain services. As a result, in 2013, the condominium board recorded a lien of $211,178 for unpaid common charges, late charges and legal fees. The board commenced an action to foreclose the lien and to appoint a receiver to collect the rent. The lower court sided with the board and directed defendant to pay a fair market rent of $6,500 per month for use and occupancy. After defendant failed to pay, the receiver moved for a writ of assistance ejecting defendant from the unit, which the lower court granted. In a unanimous opinion authored by Justice Peter Tom, the First Department concluded that defendant was properly ordered to pay “rent” for the unit he owned and affirmed the eviction admittedly “a rare occurrence.” The court relied on Real Property Law §339-aa’s provision that in a lien foreclosure action, “the unit owner shall be required to pay a reasonable rental for the unit for any period prior to sale pursuant to judgment of foreclosure and sale.” Both that provision and the condominium by-laws also authorized the appointment of a receiver to collect reasonable rent. When the rent was not paid, the receiver was duly authorized by court order to eject the defendant.

Title to Property. When you buy a Jeff Koons painting you should probably keep the receipt, but don’t assume it establishes your ownership of the artwork. In Anonymous v. Anonymous, 2017 N.Y. Slip Op. 02613 (1st Dept. April 4, 2017), the First Department addressed “the appropriate method of determining ownership of valuable works of art” and concluded that “[t]itle to personalty cannot be determined by relying solely upon an invoice.” The parties in this matrimonial action entered into a prenuptial agreement providing that any property “hereafter … acquired” by one party remained that party’s separate property. During their marriage, the parties jointly acquired certain art. The husband successfully argued to the lower court, however, that he had acquired other artwork solely in his name and that his title should be determined solely based on the invoices. The First Department reversed. In an opinion authored by Justice Troy K. Webber, the court explained that the purpose of an invoice is to identify the goods or services sold and the price, not to identify the titled owner. Moreover, information on invoices is potentially unreliable. For example, the court pointed to inconsistencies between invoices, account records at the auction house, and shipping records. As a result, the lower court erred in failing to consider “all the facts and circumstances of the acquisition and indicia of ownership.”

Second Department

Statute of Limitations. C.P.L.R. §205(a) is a statute-of-limitations “savings provision”—or grace period—that provides an additional six months to recommence a prior action that has been dismissed on certain grounds. The provision only applies when “the plaintiff, or if the plaintiff dies … his or her executor or administrator,” recommences the suit. What happens where a foreclosure action is filed by the original note- and mortgage-holder, but the note and mortgage are later assigned to a different party? In Wells Fargo Bank, N.A. v. Eitani, 2017 N.Y. Slip Op. 01015 (2d Dep’t Feb. 8, 2017), the Second Department held that the assignee of the note and mortgage qualifies as “the plaintiff” and may recommence the action. In 2005, the defendant defaulted on his mortgage note, and the original holder brought a foreclosure action. Defendant failed to answer the complaint and then assigned the deed, and the original holder assigned the note and mortgage to Wells Fargo. The action was subsequently dismissed as abandoned. Wells Fargo re-filed the action three months later, and the Supreme Court denied defendant’s motion to dismiss the action as barred by the six-year statute of limitations. In an opinion authored by Justice Joseph J. Maltese, a majority of the Second Department panel affirmed. The majority distinguished the Court of Appeals’ decision in Reliance Ins. Co. v PolyVision, 9 N.Y.3d 52 (2007), which held that the parent company of the original plaintiff could not avail itself of the savings provision, on the grounds that Reliance turned on the lack of identity of interests between the parent and subsidiary. By contrast, Wells Fargo held the exact same interests as the original holder in the foreclosure action, and therefore could be considered “the plaintiff” for purposes of C.P.L.R. §205(a).

Actual Innocence. A criminal defendant’s guilty plea does not constitute an absolute bar to maintaining an “actual innocence” claim under to Criminal Procedure Law §440.10(1)(h), the Second Department concluded in People v. Tiger, 2017 N.Y. Slip Op 01575 (2d Dep’t March 1, 2017).The defendant, a licensed practical nurse, was indicted for recklessly failing to check the bathwater temperature for the severely disabled child she was caring for, which allegedly resulted in the child suffering third-degree burns. The defendant pled guilty, but two years later moved to vacate the conviction on the grounds of actual innocence and ineffective assistance of counsel because medical evidence established the child’s injuries were caused by an adverse reaction to medication. The lower court denied defendant’s motion without a hearing. In a unanimous opinion by Presiding Justice John P. Leventhal, the Second Department reversed, noting that “not every claim [is] forfeited by a plea of guilty.” Rather, “rights of a constitutional dimension that go to the heart of the criminal justice process” may survive a guilty plea. Because “the conviction of an actually innocent person violates elementary fairness [and] runs afoul of the Due Process Clause of the New York Constitution,” the defendant’s guilty plea was not an absolute bar to an actual innocence claim.

Third Department

Evidence. Lawyers had better remember the rules of evidence when dealing with a witness in a criminal trial who develops amnesia on the stand, the Third Department teaches in People v. Gaston, 2017 N.Y. Slip Op. 01411 (3d Dept. Feb. 23, 2017). During the defendant’s trial for drug possession, prosecutors called a witness who was expected to testify that the defendant was his heroin supplier and that the apartment where police recovered heroin was used by the defendant as his stash. On the stand, however, the witness testified that he did not know the defendant, never bought drugs from him, and did not recall ever being at the apartment. Over defendant’s objection, prosecutors questioned the witness about his prior, inconsistent statements that “defendant frequently went to the apartment to bag heroin and cocaine for sale.” The Third Department held that permitting this impeachment testimony was erroneous and that defendant was entitled to a new trial. Writing for the unanimous panel, Justice Eugene P. Devine explained that evidence of a prior inconsistent statement is inadmissible under C.P.L. §60.35 where the witness’s testimony does not tend to disprove the position of the party who called the witness and elicited the testimony. Because the witness here merely claimed not to know the defendant, the court concluded, the testimony “did not affirmatively ‘contradict or disprove’ evidence presented” by the People.

Fourth Department

Police Supervision. Citizen Review Board of the City of Syracuse v. Syracuse Police Department, 2017 N.Y. Slip Op. 02181 (4th Dept. March 24, 2017), presented issues of first impression in the Department: whether plaintiff had the capacity and standing to sue the police department it was charged with reviewing. The Fourth Department concluded that it did. Plaintiff was tasked by the Syracuse City Council to review complaints against the Police Department and, within 60 days, conduct an investigation, hold a hearing if appropriate, and issue findings and recommendations to the police chief. The chief was required to report back what sanctions were imposed, or the reasons if none were imposed. Plaintiff was then required to publish a report regarding the number and type of complaints and their disposition. After receiving four findings from plaintiff in October 2015, the chief refused to consider plaintiff’s recommendations or report whether any sanctions were imposed on the grounds that plaintiff’s findings were not submitted within 60 days. Plaintiff brought a hybrid Article 78 proceeding, and defendants’ motion to dismiss for lack of capacity and standing was denied. In a unanimous opinion by Justice John M. Curran, the court affirmed. The court found that plaintiff’s subpoena power and obligation to handle complaints against police officers implied the power to sue: “It is squarely within the CRB’s ‘zone of interest’ to take action to obtain compliance with the ordinance.” Moreover, because “the CRB cannot perform its legislative mandate without the Chief of Police’s compliance with [his] corresponding legislative mandate,” plaintiff established a particularized injury giving it standing to sue.

Reprinted with permission from the April 20, 2017 edition of the New York Law Journal ©2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com, or visit almreprints.com.