url
stringlengths 54
59
| text
stringlengths 0
3.85M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/5901714/
|
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated October 12, 2011, as denied his motion to reject the report of a Judicial Hearing Officer (Feldman, J.H.O.), dated July 19, 2011, made after a hearing, granted the respective cross motions of the mother and the child to confirm that report, and thereupon granted the mother’s cross petition for sole custody of the subject child.
Ordered that the order is affirmed insofar as appealed from, with costs to the mother.
The Family Court properly denied the father’s motion to reject, and properly granted the respective cross motions of the mother and the child to confirm, the report of a Judicial Hearing Officer which, among other things, recommended granting the mother’s cross petition for sole custody of the subject child. A Judicial Hearing Officer’s report should be confirmed when the findings are substantially supported by the record, and the Judicial Hearing Officer has clearly defined the issues and resolved matters of credibility (see Matter of Taub v Taub, 94 AD3d 901 [2012]; Breidbart v Wiesenthal, 44 AD3d 982, 984 *974[2007]). A custody determination depends to a great extent on the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties (see Matter of Crivelli v Tolento, 100 AD3d 884 [2012]; Matter of Gilmartin v Abbas, 60 AD3d 1058 [2009]; Matter of Brian S. v Stephanie P., 34 AD3d 685 [2006]). After a complete evidentiary hearing, the Judicial Hearing Officer found that an award of sole custody to the mother was in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). This finding was supported by a sound and substantial basis in the record.
Moreover, the father’s contentions that the Judicial Hearing Officer was biased against him and deprived him of a fair hearing are without merit (see Matter of Solovay v Solovay, 94 AD3d 898 [2012]; Matter of Zeman v Knibbs, 86 AD3d 578 [2011]).
Accordingly, the Family Court properly confirmed the Judicial Hearing Officer’s report, and the recommendation contained therein to grant the mother’s cross petition for an award of sole custody of the parties’ child (see Matter of Smalls v Bayne, 64 AD3d 783 [2009]; Matter of Awan v Awan, 63 AD3d 733 [2009]; Matter of Oates v Wilson, 46 AD3d 904 [2007]). Balkin, J.P., Lott, Austin and Sgroi, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901715/
|
—Appeal by the defendant from three judgments of the County Court, Westchester County (Braatz, J.), all rendered February 7, 1985, convicting him of criminal possession of a controlled substance in the fourth degree under indictment Number 83-01616-01; criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree under indictment Number 83-01620-01; and criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts) under indictment Number 83-01630-01, upon jury verdicts, and imposing sentences.
Ordered that the judgments are affirmed.
After the defendant was arrested for possession of cocaine, an undercover operation was initiated during which the defendant sold cocaine to an undercover police officer on three separate occasions. At trial, the defendant raised the affirmative defense of entrapment.
We find that the trial court delivered a balanced charge to the jury and did not err in failing to instruct the jury that the police witnesses were interested as a matter of law. "It is proper for a trial court to charge that a defendant is an interested witness (see, People v Ochs, 3 NY2d 54, 56; People v Stokes, 117 AD2d 693, 694), provided the court also indicates that the prosecution’s witnesses may be interested [as the court charged herein] (see, People v Reyes, 118 AD2d 666; People v Astol, 118 AD2d 578; People v Brabham, 77 AD2d 626; People v Srbu, 51 AD2d 978)” (People v Suarez, 125 AD2d 350, Iv denied 69 NY2d 750; see, People v Melvin, 128 AD2d 647). The determination of whether a witness is interested in the outcome of a case is ordinarily a question of fact for the jury’s determination (People v Gerdvine, 210 NY 184; People v Suarez, supra; People v Reyes, 118 AD2d 666, Iv denied 67 NY2d 1056; People v Srbu, 51 AD2d 978).
Moreover, since defense counsel failed to object to that portion of the charge in which the Trial Judge instructed the jury as to the defendant’s burden of proving his affirmative defense of entrapment, the issue of law raised by him with respect thereto has not been preserved for our review (CPL 470.05 [2]; People v Thomas, 50 NY2d 467; People v Mincione, *660131 AD2d 600, Iv denied 70 NY2d 715; People v Giles, 87 AD2d 636). In any event, we find the defendant’s contention as to the impropriety of the charge as given to be without merit (People v Laietta, 30 NY2d 68, cert denied 407 US 923; People v Forsman, 128 AD2d 635). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901716/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered January 23, 1985, convicting him of murder in the second degree, attempted murder in the second degree, assault in the first degree (two counts), robbery in the first degree, grand larceny in the third degree, and grand larceny in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, his guilt was proven beyond a reasonable doubt by the testimony of numerous witnesses. The witnesses identified the defendant as the individual who committed these crimes. The jury heard the testimony of two fire department officials who testified that the defendant identified himself to them when he arrived at the scene of a fire at 157 Smith Street in a stolen newspaper delivery vehicle. The fire officials were told by the defendant, who represented himself as a Red Cross volunteer, that he would relocate the victims of the fire to a shelter. Several of the victims similarly testified regarding the defendant’s representations and further stated they accompanied him in the stolen vehicle. Each stabbing victim testified with respect to the circumstances in which he was attacked by the defendant with a knife. The assault victim who had $800 stolen from him by the defendant also testified regarding the facts of this larceny. One of these victims further explained how he observed the defendant stab and murder a third person. Further contributing to the finding of the defendant’s guilt were his written and videotaped confessions.
The hearing testimony of the detectives present indicates that the defendant voluntarily surrendered himself at police headquarters and, after being given Miranda warnings, discussed his participation in these crimes. Accordingly, the court properly ruled the confessions were secured voluntarily from the defendant (see, Matter of Kwok T, 43 NY2d 213; People v Yukl, 25 NY2d 585; People v Hall, 125 AD2d 698).
Finally, the trial court properly exercised its discretion in *661sentencing the defendant to three consecutive sentences for the murder, attempted murder and assault counts. These offenses were committed on separate individuals and, therefore, were distinct acts (see, People v Brathwaite, 63 NY2d 839; People v Golliver, 126 AD2d 668; Penal Law § 70.25 [2]). Mangano, J. P., Thompson, Bracken and Weinstein, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901717/
|
—Appeal by the defendant from a judgment of the County Court, Suffolk County (Seidell, J.), rendered August 4, 1983, convicting him of murder in the second degree and attempted robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Vaughn, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to enforce the terms of a cooperation agreement he entered into with the prosecution.
Ordered that the judgment is reversed, on the law and the facts, the aforementioned branch of the motion is granted, and the matter is remitted to the County Court, Suffolk County, for further proceedings consistent herewith.
While we agree with the hearing court’s findings concerning the existence and terms of the cooperation agreement between the defendant and an Assistant District Attorney, we conclude on this record that the defendant’s misrepresentation concerning the nature of the stains on his clothing was not so material as to justify the prosecution’s withdrawal from the agreement. Indeed, the evidence of the stains was of comparatively little consequence in light of the Assistant District Attorney’s promise to keep the cooperation agreement in effect even after learning of much more serious admissions by the defendant which demonstrated his extensive and knowing participation in the crime (see generally, People v McConnell, 49 NY2d 340; cf, United States v Calabrese, 645 F2d 1379, cert denied 451 US 1018). Moreover, we find that the defendant is entitled to the enforcement of the terms of the agreement in view of his extensive cooperation with the law enforcement authorities pursuant to and in reliance upon the agreement, as such cooperation required that he repeatedly incriminate himself and be exposed to danger while aiding in the police investigation of his codefendant (see, People v Danny G., 61 NY2d 169; People v McConnell, supra; Matter of Chaipis v State Liq. Auth., 44 NY2d 57; People v Argentine, 67 AD2d *662180). In view of the foregoing, we need not consider the defendant’s remaining contentions. Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901718/
|
—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Rubin, J.), rendered January 23, 1981, convicting him of absconding from temporary release in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant, an inmate at the Ossining Correctional Facility, failed to return to that facility after a two-day furlough on June 27, 1976, his scheduled return date. On June 28, 1976, an absconder’s warrant was issued for the defendant’s arrest. The defendant was not arrested on the warrant until January 10, 1980, when he was detained for shoplifting at a Brooklyn store.
During the 3 Vi-year period that the defendant remained at large, the warrant was referred to different authorities who, because of large caseloads and understaffing, failed to appre*663hend the defendant. In April 1979 the case was turned over to the New York State Police Violent Felony Warrant Squad. Despite an exhaustive search conducted by the investigator assigned to the defendant’s case, the defendant was not located until his arrest in 1980.
Although the defendant was arrested three times on unrelated charges while he was wanted on the warrant, on each occasion he used an alias. Fingerprint checks performed at the time of two of these arrests revealed his true identity but did not reveal an outstanding warrant. An indictment charging the defendant with absconding from temporary release was filed on July 3, 1980, six months after his arrest and four years after his unauthorized departure.
The defendant moved for dismissal of the indictment on the ground that he had been deprived of a speedy trial due to preindictment delay. A hearing was held, and the court denied the defendant’s motion, finding that all but six months of the delay was attributable to the defendant’s actions and that, therefore, he had not been denied his right to due process. We agree.
A claim of deprivation of a speedy trial due to a preindictment delay is governed by considerations of due process which generally requires a showing of actual prejudice before dismissal is warranted (see, People v Singer, 44 NY2d 241, 252). The Statute of Limitations is the primary safeguard against potential prejudice when there has been a delay in arresting or formally charging the defendant (United States v Marion, 404 US 307, 321-322). Although a lengthy and unjustifiable delay in commencing the prosecution may, in certain circumstances, require dismissal even though no actual prejudice is shown (see, People v Singer, supra; People v Staley, 41 NY2d 789), this is not such a case.
In the instant case, unlike People v Singer (supra) and People v Staley (supra), the defendant engaged in conduct intended to evade the authorities, and his efforts were successful. All but a small fraction of the delay is directly attributable to the defendant (see, People ex rel. Flores v Dalsheim, 66 AD2d 381, 387-389). Although the defendant was arrested on unrelated charges during his unauthorized absence from prison, the arresting authorities, for unknown reasons, did not learn of the warrant. Within the constraints of an overburdened and understaffed bureaucracy, diligent efforts were made to locate the defendant. The delay in this case, in the *664absence of any prejudice to the defendant, was insufficient to warrant dismissal of the indictment (see, People v Fuller, 57 NY2d 152, 159-160). The defendant, who was afforded a full and fair hearing on his motion to dismiss the indictment, offered no proof that he was prejudiced by the delay, either before or after his arrest. Accordingly, the Supreme Court’s denial of his motion was proper (see, People v Taranovich, 37 NY2d 442; People v Bryant, 65 AD2d 333, 339-340). Mollen, P. J., Thompson, Kunzeman and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129159/
|
Opinion by
Barker, J.
Present — Smith, P. J., Hardin and Barker, jj.
Judgment reversed, and new trial ordered, costs to abide event-
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129160/
|
Opinion by
Hardin, J.;
Smith, P. J., and Barker, J., concurred.
Order denying motion to dissolve injunction reversed, with ten dollars costs and disbursements, and injunction dissolved, with ten dollars costs.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901719/
|
In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Housing Authority, dated November 18, 2009, which adopted a recommendation of a hearing officer dated November 6, 2009, made after a hearing, denying the petitioner’s grievance challenging the denial of his request to succeed to the tenancy of his late mother’s apartment as a remaining family member, the New York City Housing Authority appeals from (1) a decision of the Supreme Court, Kings County (Jacobson, J.), dated July 8, 2011, and (2) a judgment of the same court entered October 27, 2011, which granted the petition and annulled the determination.
Ordered that the appeals are dismissed, without costs or disbursements, and the decision and the judgment are vacated; and it is further,
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.
Since the petition raises a question of whether the challenged *975determination is supported by substantial evidence, the Supreme Court should have transferred the proceeding to this Court (see CPLR 7804 [g]). Nevertheless, because the record is now before this Court, we will treat the matter as one initially transferred here and will review the administrative determination de novo (see Matter of Cortes v New York City Hous. Auth., 88 AD3d 996 [2011]; Matter of Blake v New York City Hous. Auth., 78 AD3d 1175 [2010]; Matter of Roman v New York City Hous. Auth., 63 AD3d 845, 846 [2009]).
There is substantial evidence in the record to support the determination of the New York City Housing Authority (hereinafter the NYCHA) that the petitioner never obtained written permission for permanent occupancy from the housing manager of the public housing development in which he lived with his mother in order to become a permanent member of his mother’s household (see Matter of Cortes v New York City Hous. Auth., 88 AD3d at 997; Matter of Roman v New York City Hous. Auth., 63 AD3d at 846; Matter of Hargrove v Van Dyke Hous., 63 AD3d 741, 742 [2009]; Matter of Torres v Hernandez, 55 AD3d 452, 452-453 [2008]). Accordingly, after his mother’s death, the petitioner could not succeed to the tenancy of her apartment as a remaining family member, and the NYCHA correctly denied his grievance. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901720/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Brennan, J.), rendered June 27, 1984, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence. By decision and order dated June 8, 1987, this court remitted the case to the Supreme Court, Queens County, to hear and report on the defendant’s application to withdraw his plea, and held the appeal in abeyance in the interim.
Ordered that the appeal is dismissed.
No hearing has been held because the defendant cannot be located. It appears that the defendant is not currently incarcerated or under parole supervision.
We agree with the report of the hearing court (Linakis, J.) that diligent efforts to locate the defendant have been made. All such efforts have been unsuccessful.
The effect of the defendant’s unexplained absence is that he is not available to obey the mandate of the court (cf, People v Howe, 32 NY2d 766; People v Jimenez, 97 AD2d 799). Therefore, the appeal is dismissed. Thompson, J. P., Lawrence, Kunzeman, Rubin and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901721/
|
In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Housing Authority, dated November 18, 2009, which adopted a recommendation of a hearing officer dated November 6, 2009, made after a hearing, denying the petitioner’s grievance challenging the denial of his request to succeed to the tenancy of his late mother’s apartment as a remaining family member, the New York City Housing Authority appeals from (1) a decision of the Supreme Court, Kings County (Jacobson, J.), dated July 8, 2011, and (2) a judgment of the same court entered October 27, 2011, which granted the petition and annulled the determination.
Ordered that the appeals are dismissed, without costs or disbursements, and the decision and the judgment are vacated; and it is further,
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.
Since the petition raises a question of whether the challenged *975determination is supported by substantial evidence, the Supreme Court should have transferred the proceeding to this Court (see CPLR 7804 [g]). Nevertheless, because the record is now before this Court, we will treat the matter as one initially transferred here and will review the administrative determination de novo (see Matter of Cortes v New York City Hous. Auth., 88 AD3d 996 [2011]; Matter of Blake v New York City Hous. Auth., 78 AD3d 1175 [2010]; Matter of Roman v New York City Hous. Auth., 63 AD3d 845, 846 [2009]).
There is substantial evidence in the record to support the determination of the New York City Housing Authority (hereinafter the NYCHA) that the petitioner never obtained written permission for permanent occupancy from the housing manager of the public housing development in which he lived with his mother in order to become a permanent member of his mother’s household (see Matter of Cortes v New York City Hous. Auth., 88 AD3d at 997; Matter of Roman v New York City Hous. Auth., 63 AD3d at 846; Matter of Hargrove v Van Dyke Hous., 63 AD3d 741, 742 [2009]; Matter of Torres v Hernandez, 55 AD3d 452, 452-453 [2008]). Accordingly, after his mother’s death, the petitioner could not succeed to the tenancy of her apartment as a remaining family member, and the NYCHA correctly denied his grievance. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901722/
|
—Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered January 8, 1986, convicting him of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.
The defendant’s conviction was based upon his purported sale of cocaine to undercover Detective Paul Marquardt.
At trial, the defendant claimed that he was "entrapped” into making the sale by a police informant, Christos Xanthoudakis, also known as Chris Dakis. He specifically testified that his first contact with Xanthoudakis was in April 1985 while Xanthoudakis, whose recall of specific dates was poor, claimed he had first contacted the defendant in May or June of 1985. The defendant further testified that between April and July, Xanthoudakis had regularly asked him to sell drugs, which invitations the defendant declined. Although the defendant admitted that he had purchased cocaine for his own use, he denied ever having the inclination to sell. It was his contention that his ultimate decision to assist Xanthoudakis in obtaining cocaine was the result of Xanthoudakis’s active inducement commencing in April. According to Xanthoudakis, he never importuned the defendant to sell cocaine, but it was the defendant who sought to sell him cocaine.
It is undisputed that at the time Xanthoudakis first met the defendant in 1985, Xanthoudakis was already an informant for the Drug Enforcement Administration (hereinafter DEA). Shortly after Xanthoudakis became an informant, he was introduced to Detective Marquardt, who was assigned to the DEA as part of a drug task force. Further, Marquardt ac*665knowledged that he knew of Xanthoudakis’s efforts to contact known narcotic dealers on Long Island. However, Marquardt claimed that it was not until mid-July of 1985 that Xanthoudakis specifically mentioned the defendant to him. At that time, Xanthoudakis told Marquardt that the defendant wanted to sell a kilo of cocaine. Marquardt then began working directly with Xanthoudakis on the drug deal which ultimately resulted in the defendant’s arrest.
The court charged the jury, in pertinent part, as follows:
"One. As a first element. The defendant must establish that he committed the crime, either sale or possession in this case, because he was actively induced and encouraged to do so by a public servant or by a person cooperating with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution.
"Now, the public servant in this case apparently was Officer Marquardt. And when and if Xanthoudakis became his informer, the acts of Xanthoudakis at that time became the acts of Marquardt because, in effect, he is the police agent then. What happened prior to that is not the responsibility of Marquardt. This defense is against the police not private individuals.”
Initially, we find that the defendant did not prove, as a matter of law, the affirmative defense of entrapment (see, Penal Law § 40.05), thereby entitling him to a dismissal of the indictment.
Nevertheless, we agree with the defendant’s contention that the trial court should have charged the jury, as the defendant had requested, that Xanthoudakis was a police agent from the moment he had become an informant for the DEA. By failing to so charge, the trial court removed from the jury’s consideration evidence of Xanthoudakis’s purported actions prior to the time Marquardt allegedly learned of the defendant’s existence. Once Xanthoudakis became an informant, he was actively involved with investigations designed to apprehend narcotics dealers. When the police make use of such an informant they cannot disown him and insist they are not responsible for his actions (see, Sherman v United States, 356 US 369, 373). Even if the police do not become involved in a particular investigation until the informant has had substantial contact with a suspect, they cannot claim "disassociation through ignorance” (see, Sherman v United States, supra, at 375) on the ground that they were unaware that the infor*666mant was allegedly actively seeking to induce the suspect to commit the crime. We therefore hold that Xanthoudakis was a "person acting in cooperation with a public servant” (see, Penal Law § 40.05), from the moment he became an informant and the jury should have been so charged. Since the charge as given improperly limited the jury’s consideration of relevant evidence of Xanthoudakis’s alleged conduct, a new trial is warranted.
In light of our determination, we find it appropriate to discuss one further contention raised by the defendant. The trial court admitted into evidence the tape of a July 24, 1985 telephone conversation between Detective Marquardt and the defendant. Detective Marquardt testified that he was the person who made the recording and that immediately after-wards he removed certain tabs from the cassette to prevent the tape from being altered. He also marked the cassette to indicate that this was the cassette on which he recorded the conversation. He further testified that the tape accurately represented the conversation, but during the recording a gap of 2 Vi minutes occurred because the suction cup which attached the phone to the recorder became disconnected and he failed to notice it. Contrary to defendant’s claim, the prosecutor did lay a proper foundation for the admission of the tape (see, People v Ely, 68 NY2d 520; People v McGee, 49 NY2d 48, 60, cert denied sub nom. Waters v New York, 446 US 942). The fact that there was a gap in the tape goes to the weight of the evidence, not its admissibility (see, People v McGee, supra, at 60). Mollen, P. J., Lawrence, Kunzeman and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901723/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Posner, J.), rendered August 15, 1983, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress certain identification testimony.
Ordered that the judgment is affirmed.
We find that the hearing court properly denied the defendant’s motion to suppress the in-court identification of the defendant by the complainant. The complainant testified that he had observed the defendant in his neighborhood on two *667separate occasions prior to the commission of the crime. Therefore, the hearing court correctly found that the complainant had an independent basis for his identification testimony and that the police display of a single photograph of the defendant was proper because it merely confirmed that the right person would be arrested (see, People v Kolomick, 132 AD2d 677; People v Hooper, 112 AD2d 317, 318).
The evidence, when viewed in a light most favorable to the People was sufficient as a matter of law to support the defendant’s conviction (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the defendant’s guilt was established beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
We have reviewed the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129161/
|
Opinion by
Smith, P. J".;
Hardin and Barker, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129163/
|
Motion for leave to appeal to the Court of Appeals granted.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822876/
|
Buchanan, J.,
delivered the opinion of the court.
Henry R. Hill, plaintiff, filed his motion for judgment against William James Moon, defendant, for damages for personal injuries suffered by the plaintiff when an automobile driven by the defendant collided with a pickup truck occupied by the plaintiff. The defendant filed a cross-claim for personal injuries sustained by him in the collision. A jury returned a verdict for the plaintiff in the sum of $40,000, and in plaintiff’s favor also on defendant’s cross-claim. The court entered judgments in accordance with the verdict and defendant has appealed.
Defendant made six assignments of error which he says in his brief present the principal questions: (1) whether as a matter of law defendant was guilty of any negligence which was a proximate cause of the accident, or whether plaintiff was guilty of negligence which proximately contributed to the accident; and (2) whether the court erred in refusing Instructions F and F-2, offered by the defendant.
The accident happened about 6:55 p.m., February 9, 1963, on U. S. Highway 60, about nine miles west of the town of Amherst, in Amherst county. The highway in that area ran generally east and west. Defendant was going west and driving a car owned by his brother, in which the brother, the brother’s wife and their small son were passengers. Hill, the plaintiff, a maintenance superintendent for the State Highway Department, lived in his home a short distance north of the highway. A gravel driveway led from his home into the highway and spread out to a width of 45 feet at its junction with the road.
Photographs of the scene of the accident were introduced and also a plat made by an engineer showing a section of the highway *439to the east and to the west of the Hill entrance. The hard surface of the highway was 20 feet wide with shoulders six feet wide, which widened on the north side to eight feet near plaintiff’s entrance and to twelve feet in the intersection. The engineer testified that from the entrance there was an unobstructed view of the road westward for a thousand feet. The road was straight for a distance of 625 feet west of the entrance, at which point there was a curve to the right of the traveler going west.
As the jury could have appraised the evidence, it disclosed the following facts:
Just before the accident the plaintiff got into his pickup truck expecting to drive east on Highway 60 to attend to his official duties. The turnaround in the driveway in front of his house was blocked by two other vehicles, and he backed down his driveway so his truck faced eastwardly and stopped within the driveway about parallel to the highway, with his right wheels four feet from the hard surface. Before he stopped backing he saw lights coming around the curve to the east and when he stopped the lights were 300 to 400 feet away, too close for him to try to cross and enter the eastbound lane. The lights of his truck were on low beam as he waited. As the approaching car came closer, he saw its lights begin to bounce as if the car were on rough surface, and then it hit him. When he was struck his truck was standing just where he stopped. He had not yet straightened his wheels to go forward and they were still turned as they were when he backed to face eastward. The shoulder of the road at that point was five feet wide, he thought, and his right wheels might have been a foot on the shoulder. Plaintiff’s truck was knocked thirty to fifty feet west by the force of the collision and defendant’s car was lodged against a tree at the west end of plaintiff’s driveway with its left wheels five to six feet north of the hard surface. On the ground opposite the right-hand door of the defendant’s car was a pint bottle of whiskey with a small quantity removed. There were two beer cans outside and two inside of the defendant’s car. There was an odor of alcohol on defendant’s breath some two hours later in the hospital.
The brakes on the defendant’s car had not been applied and within the driveway there was a ridge leading off from the hard surface and made by the left front wheel of the defendant’s car.
Defendant’s car had started leaving the hard surface 160 to 170 feet east of the point of collision and veered over into a ditch to its right, and when it reached the Hill entrance its right wheels were on the bank about twelve inches above the ditch.
*440There was no other traffic on the road. The weather was clear and the road was dry. Defendant testified that as he came around the curve east of the point of accident he was running between 45 and 50 miles an hour and had traveled fifteen or twenty car lengths on the straight stretch before he saw any lights, and then “all at once the lights hit me in the eyes — it was a glare, and I couldn’t see.” Yet, without applying his brakes or diminishing his speed, he drove off the hard surface to his right and struck the plaintiff’s truck as it was standing in the driveway. In the hospital some two hours after the accident the defendant told the trooper that when he came around the curve he saw the headlights of the truck, which appeared to be on bright and they blinded him; that he “thought they would go some place and he kept driving and blew his horn and flashed his headlights up and down.” He said nothing about applying his ¡brakes.
There was ample evidence to establish that the defendant was guilty of negligence which was a proximate cause of the very serious injuries and disfigurement suffered by the plaintiff. Greyhound Lines v. Brown, 203 Va. 950, 128 S.E. 2d 267; Allen v. Brooks, 203 Va. 357, 124 S.E. 2d 18; Unger, Adm'x v. Rackley, 205 Va. 520, 138 S.E. 2d 1.
The defendant argues that as a matter of law the plaintiff was guilty of negligence which was a proximate cause of the accident.
He says, first, that the plaintiff violated his common law duty to avoid the foreseeable accident. He argues that the plaintiff, instead of backing and turning as he did, could have turned before reaching the highway and have headed into the highway at right angles so that his lights would not have shone into the eyes of the defendant. But the jury could answer that the plaintiff’s lights were on low beam and turned so they did not shine in defendant’s eyes, and that no reasonable person would have foreseen that under the circumstances described the driver of an approaching vehicle would drive off the hard surface and strike a vehicle sitting still four feet away from the hard surface.
Defendant next contends that plaintiff was negligent as a matter of law because he stopped his truck in violation of § 46.1-248 of the Code. Paragraph (a) of that section provides that: “No vehicle shall be stopped in such manner as to impede or render dangerous the use of the highway by others, # Paragraph (b) provides that: “No vehicle shall be stopped except close to and parallel to the right-hand edge of the curb or roadway *
*441This section, we think, has reference to stopping on the traveled portion of the highway and is not applicable to the facts of this case. Paragraph (a) provides that it does not apply to stopping in an emergency resulting from accident or breakdown, but in that event the vehicle shall be removed from the “roadway” to the shoulder as soon as possible and removed from the shoulder without unnecessary delay; and Paragraph (b) refers to stopping on the “roadway.” Section 46.1-1 (10a) defines “roadway” as “That portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the shoulder *
Next, defendant argues that plaintiff violated § 46.1-273 of the Code, which provides that when a vehicle is parked so that its headlights will glare into the eyes of the driver of a vehicle approaching upon a highway, the driver of the parked vehicle shall dim his lights. The plaintiff testified that he tested his lights before he started backing and then put them on dim and they stayed that way until the time of the collision. That issue was specifically submitted to the jury by an instruction given at the instance of the defendant.
Additionally defendant asserts that plaintiff violated § 46.1-223 of the Code, which provides that the driver of a vehicle entering a public highway from a private road, driveway, alley or building “shall stop immediately before entering such highway * * and, upon entering such highway * * shall yield the right of way to all vehicles approaching on such public highway * *.”
There was evidence that the right of way of Highway 60 at the point of accident was sixty feet wide and, therefore,, extended ten feet beyond the hard surface and four feet beyond the six-foot shoulder on the north side. Hence, the plaintiff’s driveway extended about four feet into the right of way. Defendant cites Hall, Adm'x v. Miles (1956), 197 Va. 644, 90 S.E. 2d 815, as defining “public highway” to mean “the whole surface, not merely the hard surface, or only the main traveled part of the highway,”* and argues that plaintiff thus backed into the highway without stopping and made “his turning movement prematurely before completely crossing the westbound lane and without yielding to the defendant the unobstructed use of the westbound lane.”
In the Hall case the defendant backed her car out of her driveway and ran over a child whom she did not see in the street. Between *442defendant’s property line on the street and the paved portion of the street was a ditch which was filled at the end of defendant’s driveway to allow passage. When defendant started backing, the rear of her car was estimated as being from four-tenths of a foot to ten feet from the street line. There was a verdict for the defendant, and plaintiff’s main contention was that the court erred in refusing two instructions which would have told the jury that if the rear of the defendant’s car was approximately ten feet from the ditch it was the duty of defendant to stop immediately before crossing the ditch onto the paved portion of the streét. We held that there was no error in refusing the two instructions; that the car was in a stopped position immediately before it entered the public highway, and “To start, stop and start again a vehicle about to enter a public highway, under such circumstances, is beyond the object of the statute. Nor do the statutes require a car to be brought to a stop within the boundary lines of a public highway before entering upon its hard surface. The words ‘public highway’ mean the whole surface, not merely the hard surface, or only the main traveled part of the highway.
“Moreover,, it was not shown that the failure of defendant to stop her car after she started to back was the proximate cause of the accident.”
Neither was it shown that the plaintiff’s failure to stop before he entered the outside limit of the right of way was a proximate cause of this accident. The court instructed the jury, at the behest of the defendant, that if the plaintiff was entering a public highway from a private driveway, it was his duty to stop immediately before entering and to yield the right of way to a vehicle lawfully approaching on the public highway, and if he failed to do so, and such failure solely caused or proximately contributed to the accident, the jury should find for the defendant. Plaintiff’s testimony was that he saw the defendant’s car coming beyond the curve and he yielded the right of way to the defendant and sat still in his truck with his lights on dim to await the passage of the approaching car. The jury were warranted in finding that the failure of the plaintiff to stop before entering the right of way was not a proximate cause of the collision. Hubbard v. Murray, 173 Va. 448, 3 S.E. 2d 397; Powell v. Virginian Ry. Co., 187 Va. 384, 46 S.E. 2d 429; Crist v. Fitzgerald, 189 Va. 109, 52 S.E. 2d 145; Richardson v. Lovvorn, 199 Va. 688, 101 S.E. 2d 511.
In Rue v. Wendland, 226 Minn. 449, 33 N.W. 2d 593, cited by defendant, a somewhat similar situation was involved and the court *443held that the evidence presented fact questions for the jury. The court there expressed the view that “An act or omission from which no injury should be anticipated is not negligent.”
Finally, defendant asserts that the court erred in refusing his Instructions F and F-2.
Instruction F would have told the jury that if the plaintiff stopped or parked his truck so that his headlights shone into the eyes of the defendant, then defendant had the right to assume that plaintiff would dim or low beam such lights “so that the glaring rays would not be projected into his eyes,” and that defendant had the right to proceed on that assumption until he knew or reasonably should have known otherwise.
If such an assumption could properly be relied on in any case, it is not applicable in this case. Defendant did not contend that he made or relied on such assumption. To the contrary, he testified that as he came around the curve at 45 to 50 miles an hour, and when he was between 75 and 100 feet away, all at once the lights hit him in the eyes and he could not see; and then, he said, he dimmed his lights and cut to the right, made an unsuccessful attempt to apply his brakes and hit plaintiff head on. Additionally, the court gave for defendant Instruction F-l, which told the jury it was plaintiff’s duty to use reasonable care not to stop his truck so as to impede or render dangerous the use of the highway by others; and also gave for defendant Instruction E, which informed the jury that if plaintiff stopped or parked his car so that his headlights shone into the eyes of the defendant, it was plaintiff’s duty to dim or low beam his lights so that glaring rays would not be projected into defendant’s eyes, and that if plaintiff failed to do so he was guilty of negligence. Instruction F was properly refused.
Instruction F-2 would have told the jury that it was plaintiff’s duty “not to stop his motor vehicle except close to and parallel to the right hand edge of the roadway,” and if he failed to do so he was guilty of negligence. Defendant argues that he was entitled to this instruction under § 46.1-248 (b), discussed above. That provision of the statute was not applicable to the facts of this case and it was not error to refuse the instruction.
The instructions given fully and fairly defined the rights and duties of the parties.
We find no reversible error and the judgment appealed from is accordingly
Affirmed.
Present Code § 46.1-1 (10), Acts 1958, ch. 541, defines “highway” as being “The entire width between the boundary lines of every way or place of whatever nature open to the use of the public for purposes of vehicular travel in this State, including the streets, alleys and publicly maintained parking lots in counties, cities and towns.”
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822877/
|
Spratley, J.,
delivered the opinion of the court.
*494This action was instituted by plaintiff, Linda Falwell Martin, an infant suing by her next friend, against Sammy Wallower, Jr., and Billy Ray Huffman for personal injuries sustained by the plaintiff while she was a guest passenger in an automobile driven by Wallower, which was in collision with an automobile operated by Huffman. Mrs. Martin charged Wallower with gross negligence, and Huffman with ordinary negligence.
On motion of plaintiff, a committee was appointed for Wallower, a convict in the State Penitentiary at the time of the institution of this proceeding. Code of Virginia, §§ 53-306-307, Repl. Vol. 1958. Responses, denying negligence, were filed by and for each of the defendants. There was a jury verdict on July 18, 1963, for Mrs. Martin against Wallower for $1,500.00, and in favor of Huffman.
Plaintiff moved the court to set aside the verdict as grossly inadequate. Wallower moved to set it aside on the grounds that it was contrary to the law and the evidence and for erroneous instruction of the jury. Upon consideration of the motion of both the plaintiff and defendant, the court, without assigning any specific reason, sustained them as to the finding against Wallower, and awarded a new trial as to him, and overruled the motions with respect to the finding in favor of Huffman, and entered judgment in favor of Huffman.
A new and second trial as to the liability of Wallower was held on September 19, 1963. There was a jury verdict for $22,500.00 in favor of Mrs. Martin against Wallower. Over the objection and exception of Wallower, judgment was entered according to the verdict. Wallower applied for and obtained this writ of error.
There is no material dispute as to the evidence. It was substantially the same in both trials. The main issues are whether the evidence was sufficient to establish that Wallower was guilty of gross negligence, and whether, in the second trial, the jury were properly instructed.
The evidence may be summarized as follows:
The plaintiff, Mrs. Martin, and Wallower left Lynchburg, Virginia, where they resided, on the evening of January 19, 1963, and went to Roanoke, Virginia, in an automobile with several friends. They arrived in Roanoke between 9:30 and 10:00 p. m., and went to a tavern where they drank “a couple of beers.” Mrs. Martin and Wallower left the tavern about 11:15 p. m. in a 1956 Ford automobile, owned by James Harris, and operated by Wallower, seeking an *495eating place. A short time thereafter, the vehicle, driven by Wallower and occupied by Mrs. Martin as his guest, collided with a 1956 Pontiac automobile operated by Billy Rae Huffman. Mrs. Martin sustained serious and permanent injuries.
The accident happened at a point near the center of the intersection of Campbell avenue and Thirteenth street, in the city of Roanoke. It was raining, the streets were wet, and the visibility was poor. There were no stop signs nor traffic lights controlling the intersection. Campbell avenue, 36 feet wide, runs generally east and west, and Thirteenth street, 26 feet wide, runs generally north and south. The streets, at the intersection, are level, and the surface is commonly called “black-top.” The speed limit, at that point, is 35 miles per hour. Wallower was headed east on Campbell avenue, and Huffman was headed north on Thirteenth street. Each approached the intersection at approximately the same time. At the southwest corner of the intersection, there is a transit bus garage and lot. The building on the lot is set 59 feet back from Thirteenth street and 67 feet back from Campbell avenue. The surface of the open lot is concrete, and there were no busses parked on it, at the time of the accident.
Huffman estimated that Wallower approached the intersection at a speed of about 50 miles per hour, without slowing down, putting on his brakes, or making any effort to yield the right-of-way to the vehicle on his right. Huffman said he was traveling on Thirteenth street at a speed of 15 to 20 miles per hour, getting ready to turn into Campbell avenue, when Wallower’s automobile struck his automobile broadside, near its left front door, in the center of the intersection, and knocked it 25 to 30 feet easterly on Campbell avenue. The collision occurred with such force that it knocked the seat out of the Huffman car, bent its frame against the transmission, and broke every glass in the car. Huffman was thrown clear of his automobile, and was found lying on the northeast corner of the intersection. No skid marks were found at the scene of the accident. The Pontiac automobile weighed 3600 pounds, while the Ford weighed 3100 pounds. Both were total losses.
Mrs. Martin testified that subsequent to the day of the accident, Wallower told her that he thought he was driving 40 or 45 miles per hour, when the collision occurred. Two other eyewitnesses, who were in a car following the Huffman automobile, testified that the Wallower automobile was going “fast,” or “pretty fast.”
A police officer who interviewed Wallower at the hospital im*496mediately after the accident, said that Wallower, who seemed then to be in a state of shock, stated that he did not know what had happened; that he did not see the other car until he was right on it; and that he did not know his speed, but estimated he was traveling about 25 miles an hour.
Wallower was not seriously injured. Although present at the trial, he did not testify.
The evidence, other than the statement of Wallower to the police officer, indicates that, on a rainy night and on a wet street, Wallower was exceeding the speed limit at the time of the accident; that he failed to keep a lookout which would have disclosed the car of Huffman on his right headed north on Thirteenth street; that he made no effort to stop his car, and failed to yield the right-of-way to Huffman.
It is often a difficult task to determine whether the facts and the reasonable inferences therefrom in a given case do or do not show gross negligence as a matter of law, or present an issue of fact for a jury under proper instructions. In many cases, we have said that: “ ‘Gross negligence is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another.’ Whether or not gross negligence has been proved depends on the facts and circumstances of each case. If the evidence is such that reasonable men should not differ as to the conclusions drawn from what has been proved, the question is one of law for the court; and conversely, if reasonable men may differ, then the question is one of fact for determination by a jury.” Barham v. Bank, 206 Va. 153, 155, 142 S. E. 2d 569, 571; Rigney v. Neauman, 203 Va. 822, 826, 127 S. E. 2d 403, 406; Fleming v. Bowman, 203 Va. 876, 879, 128 S. E. 2d 290; Bond v. Joyner, 205 Va. 292, 296, 136 S. E. 2d 903, 906; Smith, Ex’r v. Smith, 199 Va. 55, 97 S. E. 2d 907; Solterer v. Kiss, 193 Va. 695, 703, 70 S. E. 2d 329, 333; Finney v. Finney, 203 Va. 530, 533, 125 S. E. 2d 191; Kennedy v. McElroy, 195 Va. 1078, 1082, 81 S. E. 2d 436, 439. See also Ketchmark v. Lindauer, Adm'r, 198 Va. 42, 48, 92 S. E. 2d 286; Carroll v. Miller, 175 Va. 388, 9 S. E. 2d 322; and 13 Mich. Jur., Negligence, Section 5, page 511, 1965 Supp. and cases cited.
It is true, as the trial judge here said, that the evidence presents “a close question as to gross negligence, awfully close,” but it is still a question that must be resolved from the circumstances surrounding the accident, the testimony, and the reasonable inferences therefrom. *497When reasonable men may differ in that resolution, the issue must be left for the determination of a jury under correct instructions.
Upon the trial of the case, the court, over the objection of Wallower, gave instructions 2 and 3, which read as follows:
“No. 2. The Court instructs the jury that the defendant, Sammy Wallower, Jr., in the operation of the automobile, described in the evidence, owed to the plaintiff, Linda F. Martin, the legal duty to use slight care to perform or comply with each and all of the following duties:
“1. To drive the automobile so as not to exceed a reasonable speed under the circumstances and conditions then existing, and in no event to exceed a speed of 35 miles per hour;
“2. To keep a proper lookout for other vehicles using the highways so as to avoid colliding with the same;
“3. To yield the right of way to the motor vehicle which the defendant, Bill Rae Huffman, was driving.
“If you believe from a preponderance of the evidence that the defendant failed to exercise such care and such failure amounted to gross negligence and if you further believe from a preponderance of the evidence that such gross negligence, if any, was a proximate contributing cause of the plaintiff’s injuries, then you shall find a verdict in favor of the plaintiff.” (Emphasis added.)
“No. 3. The Court instructs the jury that where it was the duty of the defendant, Wallower, to use slight care to keep a proper lookout for the plaintiff it is his duty not only to keep such a lookout but to take advantage of what it discloses and if he fails to do so he is guilty of gross negligence as if he had failed to keep a lookout. Therefore, if you believe from a preponderence of the evidence that the defendant either failed to exercise slight care to keep such a proper lookout for the other motorist, Huffman, or failed to exercise slight care to take advantage of what such a lookout would or should have disclosed then he would be grossly negligent. And if you further believe from a preponderance of the evidence that such failure, if any, was a proximate cause of the collision you should find a verdict for the plaintiff.” (Emphasis added.)
In Barham v. Bank, supra, 206 Va., pages 156, 157, we condemned as “misleading and prejudicially erroneous” an instruction stating that the failure to exercise “slight care” in performance of certain duties was gross negligence.
What was said by Mr. Justice FAnson in that case applies here.
*498“ ‘Slight care’ includes also such care as careless or inattentive persons usually exercise, while gross negligence is carelessness manifestly and materially greater than want of common prudence. Defendant’s general duty was to exercise reasonable care; but she was liable to her guest passenger only if she was grossly negligent in failing to do so. Gross negligence is ‘that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another.’ ” 206 Va., supra, page 157.
In Finney v. Finney, supra, 203 Va., at page 533, Mr. Justice Buchanan said:
“The failure to be alert and observant and to operate an automobile skillfully and at low speed under all conditions may in some instances amount to lack of ordinary care; ‘but such lack of attention and diligence, or mere inadvertence, does not amount to wanton or reckless conduct, or constitute culpable [gross] negligence for which defendant would be responsible to an invited guest.’ ” (Citing cases.)
A mere failure to use “slight” care in driving at an excessive speed, in not observing a stop sign, or another vehicle, or momentarily driving on the left-hand side of the road, because of mere inadvertence, or temporary inattentiveness, does not necessarily constitute gross negligence. The conduct in question must be measured under the circumstances and conditions existing in which it occurs. Gross negligence is manifestly and materially a greater carelessness than want of common prudence, or the failure to exercise “slight” care.
Instructions 2 and 3 not only failed to clearly define the difference between ordinary and gross negligence, they contained no limitation, qualification, or guide to measure the degree of negligence, except the employment of the adjective “slight.” They were in conflict with other instructions given by the trial court defining gross negligence and were, therefore, misleading and confusing. In effect, they directed a verdict for the plaintiff.
We find no merit in the remaining assignments of error. For error in granting Instructions 2 and 3, the judgment complained of is reversed; the verdict is set aside; and the case remanded for a new trial.
Reversed and remanded,
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901726/
|
—In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Queens County (Chetta, J.), dated August 3, 1987, which dismissed the proceeding.
Ordered that the appeal is dismissed, without costs or disbursements.
Since the petitioner has conceded that he "is currently being held on a [new] Supreme Court securing order”, a decision on this appeal will not directly affect the rights of the parties. Thus, the issue raised is academic (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707; New York Pub. Interest Research Group v Regan, 91 AD2d 774, Iv denied 58 NY2d 610). This case does not, in our judgment, present a question that would warrant an exception to the mootness doctrine. Bracken, J. P., Brown, Weinstein and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901725/
|
Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent John Kase, an Acting Justice of the Supreme Court, Nassau County, “to hold a statutory evidentiary hearing ... to substantiate” the petitioner’s persistent violent felony offender adjudication in an underlying criminal action entitled People v Wynter, commenced in the County Court, Nassau County, under indictment No. 93053, and application by the petitioner for poor person relief.
Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,
Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.
The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, *97616 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Rivera, J.P., Chambers, Roman and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901727/
|
Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent John Kase, an Acting Justice of the Supreme Court, Nassau County, “to hold a statutory evidentiary hearing ... to substantiate” the petitioner’s persistent violent felony offender adjudication in an underlying criminal action entitled People v Wynter, commenced in the County Court, Nassau County, under indictment No. 93053, and application by the petitioner for poor person relief.
Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,
Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.
The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, *97616 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Rivera, J.P., Chambers, Roman and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901729/
|
—In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Zoning Board of Appeals of the Town of Putnam Valley, dated February 11, 1986, denying the petitioner’s application for a use variance, the appeal is from a judgment of the Supreme Court, Putnam County (Dickinson, J.), dated September 12, 1986, which dismissed the petition.
Ordered that the judgment is affirmed, with costs.
The petitioner Beverly Hills Cemetery Corporation owns 95.847 acres of land located within the Town of Putnam Valley, which land is dedicated solely for cemetery purposes. The petitioner has operated the land as a cemetery since its incorporation in 1930. The respondent town enacted certain zoning regulations in 1940, which provided, inter alia, that a cemetery was not a permitted use in any district of the town. However, Zoning Code § 66.34 also provided that a cemetery is a nonconforming use and that such a use in existence at the time of the passage of the ordinance may be continued subject to certain stated conditions.
In 1977 and 1983, the petitioner exchanged parcels of land totaling 6.821 acres with an adjoining landowner. The petitioner conveyed land that was inaccessible from the interior of the cemetery due to its terrain and was, therefore, not usable for cemetery purposes in return for land that could be so used. The conveyance was effectuated, under the Cemetery Law (see, Not-For-Profit Corporation Law art 15), by three separate judgments of the Supreme Court, Putnam County, which directed, inter alia, that the property received by the petitioner was to be dedicated to cemetery purposes from the time of its receipt. The petitioner, thereafter, made application to the Putnam County Legislature pursuant to Not-For-Profit Corporation Law § 1506 (c) for consent.
By letter dated August 12, 1985, the petitioner applied to the Zoning Board for an "area variance” to expand its noncon*670forming use of the property for the construction of mausoleum buildings on the lot. After considering the matter and holding public hearings, the Zoning Board denied the application by decision and order dated February 11, 1986, finding, inter alia, that the petitioner’s hardship was self-created due to its having knowingly acquired land for a use prohibited by the zoning regulations. The petitioner then commenced the instant proceeding for a judgment pursuant to CPLR article 78, inter alia, to review the respondent Zoning Board’s determination which denied the application for a use variance.
The petitioner contends that the zoning ordinance is unconstitutional as applied as it prevents the subject parcel of land from being used for cemetery purposes where the State has otherwise directed that the property may be used only for such purposes. However, the State law regarding cemetery regulation may not be said to preempt the local zoning law as neither Not-For-Profit Corporation Law article 15 nor the rules and regulations promulgated thereunder contains any language evincing such an intention. The subject law neither expressly nor impliedly prohibits the municipality from enacting a zoning ordinance relating to the construction of mausoleums. The petitioner has misconstrued the declaration of policy articulated in Not-For-Profit Corporation Law § 1501, which is designed not to protect cemetery owners but rather to prevent abuses by cemetery owners against the public.
Zoning ordinances are invested with "an exceedingly strong presumption of constitutionality” and place upon the petitioner the "very heavy burden of demonstrating beyond a reasonable doubt that the ordinance was violative of equal protection standards” (Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, 65, rearg denied 47 NY2d 1012). Contrary to the petitioner’s assertions, the subject ordinance does not prohibit the operation of a cemetery. Rather, it clearly provides that such a nonconforming use, existing at the time of the passage of the ordinance, may be continued.
We find that the respondents’ denial of the requested variance was supported by substantial evidence and was neither illegal, arbitrary nor an abuse of the Board’s discretion (see, Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Martirano v Zoning Bd. of Appeals, 87 AD2d 820, affd 57 NY2d 867). We note that the Zoning Board had indicated that only this particular application for a specific mausoleum complex has been denied based on its effect upon the character of the locality. The granting of subsequent *671applications with respect to proposed projects, which would not have so great an impact on the area, is not precluded. Mollen, P. J., Kunzeman, Eiber and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129165/
|
Motion to correct order denied, without costs.
Smith, P. J., not sitting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129166/
|
—Motion for leave to appeal to the Court of Appeals or for reargument denied in each case, without costs.
Smith, P. J., not sitting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129167/
|
Judgment and order.reversed and new trial ordered, costs to abide event. Opinion by
Hardin, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129171/
|
Motion for leave to appeal to the Court of Appeals denied.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901730/
|
—In an action tp recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated November 6, 1986, which (1) granted the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, and (2) denied the plaintiffs’ cross motion pursuant to CPLR 3126 to strike the defendants’ answer for failure to comply with a discovery order.
Ordered that the order is affirmed, with costs.
The plaintiff Anthony Bisignano, an auto shop teacher in a Staten Island high school, was injured when he tried to break up a fight between two students in his classroom. While one of the students was attempting to kick the other, he inadvertently kicked the teacher. The teacher sued the defendants on the theory that they negligently failed to protect him from the students by removing one or both of them from the school or by warning the teacher that the students had a hostile relationship and a propensity to fight one another.
The plaintiffs recognize, as they must, that absent a special duty to the injured teacher, liability may not be imposed upon a governmental entity for its breach of a duty owed generally to persons in the school system and members of the public (Vitale v City of New York, 60 NY2d 861, 863, rearg denied 61 NY2d 759; Glick v City of New York, 53 AD2d 528, affd 42 NY2d 831). The plaintiff teacher’s contention that his status as an employee of the defendants creates the requisite special duty is without merit. He was in the same position as every other school employee. There was no allegation that the defendants, by words or actions, affirmatively assumed a duty to act on his behalf (see, Cuffy v City of New York, 69 NY2d 255, 260, mot to amend remittitur dismissed 70 NY2d 667; Marilyn S. v City of New York, 134 AD2d 583).
Similarly unavailing is the plaintiffs’ claim that the defendants were negligent in their capacity as a landlord by placing the students in the same class thereby creating an unsafe workplace. The decision as to the assignment of the students was an educational determination which has no connection to the defendants’ function as a landlord (cf, Miller v State of New York, 62 NY2d 506). Accordingly, the Supreme Court, Richmond County, properly granted the defendants’ motion to *672dismiss the complaint for failure to state a cause of action. Since the complaint is dismissed, the plaintiffs’ cross motion has been rendered moot. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901732/
|
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Hinrichs, J.), rendered June 22, 2011, convicting her of manslaughter in the first degree, upon her plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he moves for leave to withdraw as counsel for the appellant.
Ordered that the motion of Robert C. Mitchell for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
Ordered that Steven A. Feldman, Esq., 626 RXR Plaza, West Tower, 6th Floor, Uniondale, N.Y., 11556, is assigned as counsel to perfect the appeal; and it is further,
Ordered that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the new assigned counsel; and it is further,
Ordered that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.
The brief submitted by assigned counsel on behalf of the appellant merely recites the underlying facts, and states a bare conclusion that, after reviewing the record, it is counsel’s opinion that there are no nonfrivolous issues to be raised on appeal (see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258 [2011]; see People v Foster, 90 AD3d 1070, 1071 [2011]). As such, the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256 [internal quotation marks omitted]; see People v Stokes, 95 NY2d 633, 636 [2001]; People v Sanders, 91 AD3d 798, 799 [2012]). Accordingly, we must assign new counsel to represent the appellant (see People v Poznanski, 97 AD3d 701, 702 [2012]; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).
*977In any event, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the County Court properly denied the appellant’s motion to strike or redact certain portions of the presentence investigation report (see People v Freeman, 67 AD3d 1202 [2009]; cf. People v Rudduck, 85 AD3d 1557 [2011]; People v Thomas, 2 AD3d 982 [2003]), and whether a valid waiver of the right to appeal precludes appellate review of this issue (see People v Seaberg, 74 NY2d 1, 9 [1989]). Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901733/
|
—In an action to recover damages for wrongful death and conscious pain and suffering, the defendant James M. Callichio appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Molloy, J.), dated June 23, 1986, as, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $335,000 ($35,000 representing damages for conscious pain and suffering and $300,000 representing damages for wrongful death), and the plaintiff cross-appeals from so much of the same judgment, as, upon a jury verdict, is in favor of the defendants Robert L. Thall, doing business as Thall Shell Service Station, and Wayne Puccio and against her.
Ordered that the judgment is modified, on the facts and as a matter of discretion, by reducing the principal sum awarded to the plaintiff to $35,000, representing damages for conscious pain and suffering and adding thereto a provision severing the plaintiff’s claim for damages for wrongful death and granting a new trial with respect to damages for wrongful death unless the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation signed by the plaintiff consenting to decrease the award of damages for wrongful death from the principal sum of $300,000 to the principal sum of $100,000, and to the entry of an amended judgment accordingly; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. The plaintiff’s time to serve and file a stipulation is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry. In the event the plaintiff so stipulates, then the judgment in her favor, as so reduced and amended, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
On the evening of June 15, 1980, at approximately 11:00 p.m., the plaintiff’s deceased, Janeen Coffey, then 16 years old, *674was in an automobile collision. Coffey was the passenger in a Volkswagen automobile, which was being operated by Daniel Duffy (not a party to this action). The Duffy vehicle was struck in the rear by a vehicle being driven by the defendant James Callichio. The decedent was partially ejected through the rear window of the Duffy vehicle and as a result thereof, she suffered serious head injuries, which caused her to subsequently lapse into a coma; she died three days after the accident.
Prior to the accident, on April 26, 1980, the Callichio vehicle, a 1969 Camaro, had been inspected by the defendant Wayne Puccio, in his capacity as a mechanic at the service station owned by the defendant Robert L. Thall, doing business as Thall Shell Service Station. The plaintiff’s claim against these defendants was based upon the allegation that the inspection was improperly done.
Upon the defendant Callichio’s appeal, he only challenges the amount of damages awarded to the plaintiff. With respect to the jury’s determination of damages for conscious pain and suffering, we find that the jury could have reasonably inferred from the evidence that the plaintiff’s decedent was conscious and suffered extensively for a period of about 15 to 20 minutes before she lapsed into a coma. In light of the severity of her injuries, including a crushed skull, it cannot be said that the award of $35,000 was excessive (see, Juiditta v Bethlehem Steel Corp., 75 AD2d 126, 138).
However, we do agree with the defendant Callichio that the jury’s finding of $300,000 for damages for wrongful death was clearly excessive. In view of the evidence that the decedent was a 16-year-old student, who did not contribute monetarily to her parents’ household, the verdict on the issue of damages for wrongful death should be reduced to $100,000 (see, Regan v Long Is. R. R. Co., 128 AD2d 511; Brookman v Public Serv. Tire Corp., 86 AD2d 591).
With respect to the plaintiff’s cross appeal, we find no basis for disturbing the jury’s verdict in favor of the defendants Thall and Puccio (see, Nicastro v Park, 113 AD2d 129, 134). The jury could have reasonably concluded that the defendant Puccio did not negligently inspect the Callichio vehicle. Further, the trial court’s charge as to the standard of conduct by which the actions of the defendants Puccio and Thall were to be evaluated was proper (see, Purcell v Doherty, 55 NY2d 985, rearg denied 56 NY2d 805; cf, Cumbo v Valente, 118 AD2d 679). Nor did the trial court err by precluding the plaintiff’s *675counsel from questioning his expert witness with regard to certain skid marks located at the accident. The plaintiffs expert was not qualified to testify with regard to accident reconstruction and additionally, there was no proof that the skid marks were made by any of the vehicles involved in the collision. Mangano, J. P., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901734/
|
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Hinrichs, J.), rendered June 22, 2011, convicting her of manslaughter in the first degree, upon her plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he moves for leave to withdraw as counsel for the appellant.
Ordered that the motion of Robert C. Mitchell for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
Ordered that Steven A. Feldman, Esq., 626 RXR Plaza, West Tower, 6th Floor, Uniondale, N.Y., 11556, is assigned as counsel to perfect the appeal; and it is further,
Ordered that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the new assigned counsel; and it is further,
Ordered that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.
The brief submitted by assigned counsel on behalf of the appellant merely recites the underlying facts, and states a bare conclusion that, after reviewing the record, it is counsel’s opinion that there are no nonfrivolous issues to be raised on appeal (see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258 [2011]; see People v Foster, 90 AD3d 1070, 1071 [2011]). As such, the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256 [internal quotation marks omitted]; see People v Stokes, 95 NY2d 633, 636 [2001]; People v Sanders, 91 AD3d 798, 799 [2012]). Accordingly, we must assign new counsel to represent the appellant (see People v Poznanski, 97 AD3d 701, 702 [2012]; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).
*977In any event, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the County Court properly denied the appellant’s motion to strike or redact certain portions of the presentence investigation report (see People v Freeman, 67 AD3d 1202 [2009]; cf. People v Rudduck, 85 AD3d 1557 [2011]; People v Thomas, 2 AD3d 982 [2003]), and whether a valid waiver of the right to appeal precludes appellate review of this issue (see People v Seaberg, 74 NY2d 1, 9 [1989]). Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901735/
|
—In an action, inter alia, for a judgment declaring the plaintiff to be the owner of certain real property by adverse possession, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (McCarthy, J.), dated August 11, 1986, which denied his motion to enforce a prior stipulation of the parties and (2) a judgment of the same court, entered November 26, 1986, which, upon granting the defendant’s motion to dismiss the complaint at the close of the plaintiffs case, is in favor of the defendant and against him.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendant’s motion to dismiss the complaint is denied, the order is vacated, the plaintiffs motion, inter alia, to enforce the stipulation of settlement entered into by the parties is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and determination consistent herewith; and it is further,
Ordered that the appellant is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of the direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
On March 15, 1982, the parties appeared in court for a pretrial conference of this case and entered into a written stipulation signed by both parties. The stipulation stated that the defendant
"grants to Jack Daniels [the plaintiff] the following easement:
"Right to pass over the northerly 30 feet (from a west-east direction) and a right to occupy the easterly 10 feet of the entire property, north to south from the right of way to Moriches Bay.
*676"The easement granted above will be more particularly defined by metes and bounds in accordance with the survey of Raynor & Marcks previously commissioned.
"Said easement shall be recorded, run with the land and inure to the benefit of any record owner of the land now owned by Jack Daniels”.
Thereafter, the defendant submitted a proposed easement which comported with the parties’ stipulation except for certain changes, including as to the northerly-southerly direction of the easement, that it ran for only 100 feet rather than from "the right of way to Moriches Bay” as stated in the stipulation. The parties ultimately agreed as to two of the changes proposed and in or about November 1982 again appeared in court for a conference and modified the easement to provide, inter alia, that the northerly-southerly direction of the easement would run along the westerly boundary of the plaintiffs property to a point "to the beginning of the sand”. The defendant commissioned a survey to determine the metes and bounds dimension of the northerly-southerly direction of the easement, which was obtained.
However, although the parties thereafter met on the property for the purpose of pacing this distance and agreeing on the metes and bounds definition of the northerly-southerly dimension at issue, a writing defining the easement granted by the defendant, as modified, in metes and bounds, was never finalized.
It is well settled that "[stipulations of settlement are favored by the courts and not lightly cast aside (see Matter of Galasso, 35 NY2d 319, 321) * * * Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (Matter of Frutiger, 29 NY2d 143, 149-150)” (Hallock v State of New York, 64 NY2d 224, 230).
Upon examining the record as a whole, we find that although certain aspects of the agreement were to be reduced to writing at a later date, the parties’ mutual manifestation of assent to the stipulation and the language of the stipulation itself demonstrates the unequivocal intention of the parties agreeing to the grant of the easement by the defendant to the plaintiff (see, Kraker v Roll, 100 AD2d 424, 436; Fuchs v Fuchs, 65 AD2d 595, 596). We also find no basis to relieve the defendant from the consequences of the stipulation. We note that in opposing the plaintiff’s motion to enforce the stipula*677tion, the defendant did not dispute the validity of the agreement, but stated that he stood "ready, willing and able to abide by the terms of the stipulation of settlement”. However, he opposed the plaintiffs motion solely on the ground that the plaintiff had apparently opposed the defendant’s intended use of his property, and he insisted that the plaintiff withdraw such opposition "in return” for the defendant’s performance of the settlement agreement.
Under these facts and circumstances, the plaintiffs motion, inter alia, to enforce the stipulation of settlement should have been granted. With respect to resolving the remaining controversy between the parties concerning the metes and bounds definition of the northerly-southerly direction of the easement, we direct that a hearing be held by the trial court on this matter. The sole issue to be determined by the court at that hearing is the metes and bounds definition of the northerly-southerly direction of the easement as agreed by the parties to run from the right-of-way, to the beginning of the sand along the westerly boundary of the plaintiffs property.
In light of our determination, we need not pass on the remaining contentions. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901736/
|
—In an action to recover damages for breach of contract and for equitable and injunctive relief, the defendants Fox Meadow Associates, National Lending Group, Inc., and Landsman, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brucia, J.), dated May 30, 1986, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as it is asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Eldon Realty, a licensed real estate broker, seeks enforcement of two commission agreements and an exclusive selling agency agreement, all allegedly executed on behalf of the defendant-appellant partnership Fox Meadow Associates, by its managing partner, the defendant Grand Perridine Development Corp., through its president and principal, the defendant Robert J. Meyer, and its vice-president, Philip Scolaro. In moving for summary judgment, the appellants contend that the alleged agreements are unenforceable as a matter of law.
*678The trial court properly denied that branch of the motion which was for summary judgment dismissing the complaint insofar as it is asserted against the appellants on the ground that there were multiple issues of fact which required a trial. We note at the outset that the appellants’ motion papers were served with the answer prior to any discovery. Among the triable issues are the following. First, issues of fact are raised as to the actual, implied or apparent authority of the defendant Grand Perridine Development Corp., acting through Meyer and Scolaro, to execute the agreements at issue on behalf of the defendant partnership Fox Meadow Associates. Second, ambiguities in the so-called "commission agreement” dated September 17, 1985, are susceptible of differing interpretations and the appellants have failed to sustain their burden on this motion to show, as a matter of law, that the defendant Fox Meadow Associates was not the entity to be bound by its name as signatory on that document, or on the "commission agreement” dated November 16, 1985, or on the "contract agreement” (see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290-291). Third, in light of documentary proof of partial payment of commissions, the appellants have failed to show, as a matter of law, that the alleged agreements were subject to a condition precedent implied from the "commission agreement” dated September 17, 1985 (see, Metropolitan Bank v Brennan, 48 AD2d 254, 256-257). Likewise, the appellants have failed to show as a matter of law that the alleged agreements are unenforceable on the basis of a failure of consideration (see, General Obligations Law §§ 5-1103, 5-1105). Finally, it cannot be said on this record that, as a matter of law, these agreements are unenforceable because they are tainted by a fourth agreement which the appellants claim shows breaches of fiduciary duties and illegality. Under the circumstances, the order should be affirmed insofar as appealed from. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901737/
|
In an action to recover damages for the alleged abduction by the defendant of the parties’ children, in which the defendant counterclaimed to recover damages for intentional infliction of emotional distress, the defendant appeals from an order of the Supreme Court, Kings County (Morton, J.), dated August 19, 1986, which granted the plaintiff’s motion to dismiss her counterclaims for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
*679The plaintiff Robert Eller and the defendant Hyala Eller were married in March 1965 and divorced in June 1971. A custody trial in the Family Court, Kings County, resulted in the granting of custody of the parties’ two infant sons to the plaintiff with weekly visitation rights to the defendant.
In February 1974 and May 1976 the defendant absconded with the children for long periods of time. After the children were returned to the plaintiff each time, the defendant subsequently sought and was granted certain visitation rights. In February 1979 the plaintiff commenced an action to recover damages arising out of the emotional pain and distress caused by the defendant’s abductions of the children. The defendant’s answer consisted of denials and defenses but set forth no counterclaims.
In July 1979 the defendant served an amended answer with counterclaims alleging emotional pain and suffering due to the plaintiff’s refusal to comply with Family Court visitation orders from November 1977 through June 1979. The defendant also claimed that in June 1979 the plaintiff moved to Israel taking the children with him and effectively deprived her of her visitation rights for the next seven years. After various defaults, dismissals and vacatur of defaults by both parties, the plaintiff, in June 1986 moved to dismiss the defendant’s counterclaims for failure to state a cognizable cause of action. That motion was granted upon a finding that an action for damages was not a remedy available to the defendant.
As the defendant’s claims were dismissed for failure to state a cause of action, this court’s review is limited to whether the defendant alleged any cause of action cognizable at law (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275; accord, 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506). Applying that standard, we find that the granting of the plaintiff’s motion was proper.
Strong policy considerations have been held to militate against allowing recovery for the intentional infliction of emotional distress in matters arising out of the interpersonal relationships in a matrimonial context (see, Weicker v Weicker, 22 NY2d 8, 11, rearg denied 22 NY2d 827; Baron v Jeffer, 98 AD2d 810). The defendant’s claim as a noncustodial parent for monetary damages based upon the deprivation of her visitation rights is of the type contemplated as being against that public policy (see, McGrady v Rosenbaum, 62 Misc 2d 182, affd 37 AD2d 917).
*680The defendant’s remedies against the plaintiff for violation of court-ordered visitation are more properly limited to the adequate remedies at law, viz., contempt, preclusion to challenge the order, enforcement of support provisions and a possible change of custody (see, McGrady v Rosenbaum, supra, at 188). Mangano, J. P., Thompson, Lawrence and Kunzeman, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901738/
|
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Suffolk County (Condon, J.), imposed July 23, 2010, on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d 248, 255 [2006]; People v Stanley, 99 AD3d 955 [2012]; cf. People v Maracle, 19 NY3d 925, 926 [2012]). Eng, P.J., Rivera, Leventhal and Hall, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901739/
|
—In an action for specific performance of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (I. Aronin, J.), dated May 2, 1986, which granted the defendant’s motion for summary judgment, dismissed the complaint, and directed the Clerk of the County of Kings to cancel the notice of pendency of action filed against the subject premises.
Ordered that the order is affirmed, with costs.
On November 13, 1984, the plaintiffs entered into a contract to purchase real property from the defendant. Page two of an attachment entitled “Rider to Contract of Sale” provides in pertinent part: “This contract is expressly conditional upon the purchaser obtaining a first mortgage loan (conventional-variable) in the sum of $90,000, payable in equal monthly installments of principal and interest over a period of 20-25 years, and bearing interest at the prevailing rate of interest on said loan on date of title closing. The purchaser agrees to make diligent application for said mortgage loan and to furnish complete and truthful information to the lending institution with reference to purchaser’s assets and other matters relating to purchaser’s credit. In the event the purchaser is unable to obtain a firm written bank commitment within 45 days from the date hereof, either party thereafter shall have the option of cancelling this contract by serving written notice upon the other, and the contract shall be deemed null and void upon the refund of the contract deposit.”
After learning that the plaintiffs did not obtain a firm written bank commitment within the specified period, on January 16, 1985, 19 days after the expiration of the 45-day period, the defendant’s attorney advised the plaintiffs’ attorney that the defendant elected to cancel the contract by virtue of the plaintiffs’ failure to obtain a firm written bank commitment. Enclosed in the letter was the plaintiffs’ contract deposit. The letter, sent by certified mail, was delivered on January 17, 1985.
*681On the same day the plaintiffs’ attorney sent a letter by certified mail to the defendant’s attorney advising that his clients were ready, willing and able to close the title without the mortgage.
In a letter dated February 18, 1985, the plaintiffs’ attorney informed the defendant’s attorney that the closing of title was set for February 26, 1985, at 10:00 a.m. in the purchasers’ attorney’s office.
Neither the defendant nor her attorney appeared at the closing.
The plaintiffs instituted an action for specific performance of the contract. The defendant moved for summary judgment which was granted. The court determined that the mortgage commitment clause was for the benefit of both parties and could not be waived by the plaintiffs alone.
We agree with the Supreme Court that the defendant properly exercised her right to cancel the contract and was entitled to judgment as a matter of law. The contract expressly grants either party the option of canceling the contract in the event that the plaintiffs fail to secure a firm written bank commitment within the specified time period. It is uncontroverted that the plaintiffs did not obtain the specified commitment within the allotted period. The defendant notified the plaintiffs in writing some 19 days after the expiration of the 45-day period and returned the plaintiffs’ contract deposit in accordance with her contractual obligations.
It is a fundamental tenet of contract law that a writing which clearly and unambiguously expresses the intention of the parties should not be modified by the court. This clause expresses the parties’ agreement that the mortgage loan commitment was of sufficient moment to each side to justify an escape in the event the purchaser could not obtain it. The clause constitutes a defense to the plaintiffs’ action for specific performance as a matter of law. Inasmuch as the plaintiffs have not raised any triable issues of fact, summary judgment in the defendant’s favor was properly granted (see, Castaldo v Dalmazio, 129 AD2d 548, Iv denied 70 NY2d 604; Ingber v Greco, 135 AD2d 597; Koo v Gross, 133 AD2d 613; Dale Mtge. Bankers Corp. v 877 Stewart Ave. Assocs., 133 AD2d 65, Iv denied 70 NY2d 612; Grossman v Perlman, 132 AD2d 522). Mollen, P. J., Thompson, Lawrence and Fiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129172/
|
Motion to dismiss appeal denied, with ten dollars costs.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901743/
|
—In an action to recover damages based upon the misappropriation and conversion of funds, the defendant appeals (1) from a judgment of the Supreme Court, Rockland County (Meehan, J.), entered May 29, 1986, which, upon a jury verdict, is in favor of the plaintiff and against her in the sum of $138,191.37; and (2) as limited by her brief, from so much of an order of the same court, dated July 16, 1986, as denied that branch of her motion which was to set aside the jury verdict on the issue of the court’s jurisdiction over her person.
Ordered that the judgment is affirmed and the order is affirmed insofar as appealed from, with one bill of costs.
In this action, the issue of whether the summons and complaint had been properly served upon the defendant was submitted to the jury immediately prior to the trial of the allegations in the complaint. We concur with the trial court’s statement in its decision denying that branch of the defendant’s motion which was to set aside the jury’s verdict on the jurisdictional issue, that "the jury was presented with facts at the trial which were sufficient for the jury to determine that the summons [and complaint were] appropriately affixed to the defendant’s door and that the process server exercised 'due diligence’ as is required by CPLR 308 (4) to utilize the 'nail and mail’ form of service”.
The defendant’s further claim that the trial court erred in its charge to the jury is without merit. The defendant had requested the trial court to specifically instruct the jury that the process server was required to make attempts at personal service at varying hours, such as the morning hours, if he was unsuccessful in the afternoon or evening hours. While the trial court declined to instruct the jury as requested, it sufficiently incorporated the defendant’s request in its charge by instructing the jury that the process server was required to attempt personal service at varying hours of the day and night.
Finally, we do not find that the summation remarks of the plaintiffs counsel warrant reversal. Mangano, J. P., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901744/
|
—In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Kings County (Spodek, J.), dated September 11, 1986, which, inter alia, granted the plaintiff wife a divorce, directed the defendant to pay the plaintiff maintenance in the sum of $65 per week for a period of 12 years, directed the sale of the marital home with the net proceeds to be divided equally between the parties, and directed that certain deductions be taken from the defendant’s share.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof which provided for maintenance for a period of 12 years and substituting therefor a provision awarding the plaintiff maintenance for a period of six years; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court, Kings County, should not have directed the defendant husband to pay maintenance for a period of 12 years. The plaintiff wife is relatively young, in good health, and, inasmuch as the defendant was awarded custody of the minor children, has no child-care responsibilities. She has three years of work experience as a part-time aide at a daycare center where she earns a net amount of $103 per week. A six-year maintenance award is adequate to provide the plaintiff with an opportunity to obtain full-time employment and, if necessary, further training so that she may become financially independent (see, Hillmann v Hillmann, 109 AD2d 777; Scheer v Scheer, 130 AD2d 479).
We also conclude that the Supreme Court properly directed an immediate sale of the marital home. The record establishes that the defendant had problems paying the mortgage and other household bills. Inasmuch as the parties had no substantial assets apart from the home, the court properly directed the defendant to pay the outstanding bills from his share of the net proceeds of the sale. Although the defendant is the custodial parent, his need to occupy the home was outweighed by both parties’ immediate need for their share of the proceeds (cf, Hillmann v Hillmann, supra).
We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901745/
|
—In a medical malpractice action, the defendant Warren Weber appeals from an order of the Supreme Court, Suffolk County (D’Amaro, J.), entered May 22, 1987, which denied his motion to vacate a prior order of the same court, dated January 11, 1985, which had granted the plaintiff’s motion to strike his answer for willful failure to comply with an order of disclosure.
Ordered that the order is affirmed, with costs.
The order which the defendant Warren Weber seeks to vacate struck his answer for failure to comply with an order of disclosure. Such an order is properly reviewable by direct appeal and not by motion to vacate a default pursuant to CPLR 5015 (a) (Pergamon Press v Tietze, 81 AD2d 831, Iv dismissed 54 NY2d 605; cf, Berlin v Schlotthauer, 117 AD2d 768). The appellant has already availed himself of such appellate review—albeit unsuccessfully—and may not now attempt to relitigate the issues decided therein (Perritt v Smithtown Gen. Hosp., 122 AD2d 256, Iv dismissed 68 NY2d 997). Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901746/
|
Appeal by the defendant from an amended judgment of the County Court, Suffolk County (R. Doyle, J.), rendered July 28, 2011, revoking a sentence of probation previously imposed by the same court, upon a finding that she had violated a condition thereof, upon her admission, and imposing a sentence of imprisonment upon her previous conviction of grand larceny in the fourth degree.
Ordered that the amended judgment is affirmed.
The defendant’s claim that she was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “ ‘mixed claim[ ]’ of ineffective assistance” (People v Maxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the rec*978ord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129173/
|
Judgment reversed and new trial ordered, costs to abide event. Opinion by
Barker, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129174/
|
Motion to dismiss appeal denied, with ten dollars costs.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129175/
|
Judgment of County Court reversed and that of the Justice affirmed. Opinion by
Hardin, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129176/
|
Judgmeht reversed and new trial ordered, eosts to abide event. Opinion by
"Barker, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129177/
|
Judgment in each case affirmed, with bill of costs in one case only, and disbursements in both. Opinion by
Barker, J.;
Smith, P. J., takes no part in the decision.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129178/
|
Judgment affirmed, with costs. Opinion by
Barker, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822887/
|
Gordon, J.,
delivered the opinion of the court.
Margaret B. Hale brought this action to recover disability payments under an accident policy issued to her by Aetna Life Insurance Company. She now has a judgment, entered in the circuit court on a jury verdict, in the amount sued for. We must decide whether the evidence, viewed most favorably to her, supports the verdict and judgment.
The primary question presented is whether the plaintiff’s disability is covered by the terms of the policy. So far as is here relevant, the policy insures the plaintiff “against loss resulting directly and independently of all other causes from bodily injuries . . . effected solely through accidental means”, and provides for disability payments “if such injuries, directly and independently of all other causes, shall . . . disable the Insured . . .”
The plaintiff’s first burden, then, was to prove that her bodily injuries were effected solely through accidental means. Gen. Acc. Corp. v. Murray, 120 Va. 115, 90 S. E. 620 (1916).
The plaintiff’s disability began on Sunday, December 9, 1962. For many years before that date, she had been employed as a registered nurse and had been apparently in excellent health. Since 1959, when she was employed by C. Davis Moore, Jr., M.D., a general practitioner in Wytheville, she had “never [been] sick for any reason”.
When the plaintiff left Dr. Moore’s office after work on Saturday, December 8, 1962, he noticed nothing unusual about her condition. The plaintiff had no recollection of what happened during the ensuing period of approximately two weeks.
In the early morning of December 9, the plaintiff’s son who lived with her, heard a crash. Upon investigation, he found his mother lying unconscious on the floor of the bathroom. She was lying on her right side, with her right arm behind her, her feet partly under the basin, and her head against the door jamb between the bathroom and the bedroom. The bathroom and bedroom lights were lit. A loose rug, several inches from his mother’s feet, “was scuffed up”; and a metal trash basket, near her back, was bent. The son covered her with a blanket and called Dr. Moore.
When Dr. Moore arrived, he found the plaintiff still unconscious, “moaning and groaning”. Upon examining her, he found her blood *842pressure “markedly elevated”. Her left pupil was dilated. Her left arm appeared “to be paralyzed, or what we called Flaccid”, but her right arm appeared to be normal. Dr. Moore noticed that the plaintiff had a bruise at the base of her skull, but he could not recall, when he testified, “which side it was on”. He described it as “sort of like a little bruise; it wasn’t actively bleeding and there wasn’t any blood squirting out of it or anything like that, it was just a little scrape.”
Dr. Moore concluded that the plaintiff “had had some sort of what we call intercranial or brain damage, and there was some question about whether she had had a stroke . . . She had signs very definitely that something serious was the matter with her as far as her brain went.” (1)
Shortly after Dr. Moore concluded his examination, the plaintiff had “a convulsion or fit”. Then, “seeing how sick she was and not having the proper facilities in town”, he sent her to St. Luke’s Hospital in Bluefield, West Virginia.
The tentative diagnosis at that Hospital, as shown by its records, was “? Subarachnoid Hemorrhage” or “? Subdural Hematoma, due to Trauma”.(2) According to the evidence, a subarachnoid hemorrhage is a discharge of blood in the arachnoid space, which is between the arachnoid and the next innermost membrane covering the brain; and a subdural hematoma, due to trauma is a localized collection of blood, formed at the point of impact, under the outermost membrane covering the brain, the dura.
On December 19, the plaintiff was moved to Bluefield Sanatorium, where a cerebral arteriogram was performed.(3) This test, a report of which was introduced in evidence while Dr. Moore was on the *843witness stand, disclosed an aneurysm on the plaintiff’s left carotid artery. Dr. Moore explained that an aneurysm is a weak portion of a blood vessel, which causes a “ballooning effect”. He stated that an aneurysm could rupture spontaneously, causing hemorrhage.
John D. Varner, M.D., a neurosurgeon,, examined the plaintiff on February 20, 1964 at the request of Aetna. On the basis of his examination and the records of St. Luke’s Hospital, which were available to him at that time, he concluded that an aneurysm on the plaintiff’s left internal carotid artery “had ruptured and caused her to fall”. This conclusion supported one of the tentative diagnoses made at St. Luke’s Hospital, a subarachnoid hemorrhage. Later, Dr. Varner received the report of the arteriogram, which confirmed his diagnosis.(4)
Drs. Moore and Varner agreed that an aneurysm is a congenital weakness. Dr. Varner expressed the opinion that the plaintiff’s aneurysm pre-existed her fall on December 9, 1962 and the hemorrhaging was not caused by her fall on that day, but “was a spontaneous thing”. Dr. Moore agreed that the rupture of an aneurysm would cause a person to fall. When that happens, he could not “say which occurred first, the fall or the rupture”.
Dr. Varner explained that a subdural hematoma, if present, would be disclosed by an arteriogram, and the plaintiff’s arteriogram did not show a hematoma. Dr. Moore did not express the opinion that the plaintiff had suffered a subdural hematoma. He expressed only the opinion that her condition could have been caused by trauma: when asked “. . . could her condition have been caused by a fall with a resulting bruise such as you observed on the base of her skull?” he answered “I would think so, yes, sir”.
We now turn to a consideration of the issue whether the plaintiff sustained the burden of proving that her injuries were effected solely through accidental means. In view of the jury verdict for the plaintiff, we must look to the evidence upon which she relies, rather than the evidence favorable to Aetna.
The plaintiff’s witness, Dr. Moore, admitted that she had an *844aneurysm; in fact, the existence of the aneurysm is shown without contradiction by the evidence. He admitted, moreover, that a fail would be caused by a ruptured aneurysm; and where a fall was accompanied by a ruptured aneurysm, he could not say whether the rupture occurred before or after the fall. So, whether we accept Dr. Varner’s opinion that the rupture preceded the fall, or Dr. Moore’s statement that he could not say which happened first, the plaintiff failed to bear the burden of proving that her injuries were caused by accidental means. Dr. Moore’s statement is fatal to the plaintiff’s case, since it left the order of the events to speculation.(5)
The plaintiff cannot recover, then, if her injuries were caused by a ruptured aneurysm. Does her evidence show any other cause, accidental or otherwise?
Dr. Moore concluded, from his examination of the plaintiff on December 9, only that she had undetermined intercranial or brain damage, possibly caused by a stroke. He recognized, of course, that the damage could have been caused organically or by trauma. Understandably, he formed no opinion as to the cause, but sent the plaintiff to St. Luke’s Hospital for diagnosis and treatment. The record does not indicate that Dr. Moore examined, the plaintiff after she was admitted to the Hospital.
Dr. Moore observed one mark on the plaintiff’s body during his examination on December 9, a bruise or “little scrape” at the base of her skull. His evidence furnishes no connecting link, however, between the bruise or scrape, apparently caused by the fall, and the plaintiff’s injuries. When he testified, he could not even recall whether the bruise was on the right or left side. At most, Dr. Moore said that a blow, with such a resultant bruise or scrape, “could” have caused the plaintiff’s condition. He ventured no opinion that the fall caused her injuries.
Gen. Acc. Corp. v. Murray, supra, involving an accident policy covering “bodily injuries effected directly and independently of all other causes through accident means”, is directly in point. In the Murray case, “the crucial question of fact presented . . . was whether the infection of erysipelas,, which resulted in the death of the assured, *845entered his body through the sores incident to smallpox or was caused by an accidental rubbing of his foot by his shoes”. (120 Va. at 125, 90 S.E. at 623) The medical evidence established that erysipelas results from an infection that enters the body through some break or abrasion of the skin. The assured had complained that his foot was “smarting” after wearing a relatively new pair of high top shoes, and the next evening a witness saw a “rubbed” place on the assured’s ankle. This Court held that even if the evidence had established that a sore resulted from wearing the shoes, the “rubbed” place observed by the plaintiff’s witness was not shown to be the opening through which the erysipelas germs had entered the assured’s body. Because the assured’s death was not shown to have been “effected . . . through accidental means”, the judgment against the insurer was reversed.
In the present case, the evidence of the plaintiff’s witness Dr. Moore does not show the fall caused damage to Mrs. Hale’s head that brought about the condition from which she now suffers. His evidence is not sufficient to sustain the plaintiff’s first burden, that of showing “accidental means” as the cause of her injuries.
Tire plaintiff apparently does not rely upon the tentative diagnoses made at St. Luke’s Hospital to prove that her injuries were caused by accidental means. In any event, these diagnoses did not supply the necessary proof, since they indicated that the plaintiff’s injuries might have been due to the fall (subdural hematoma, due to trauma) or might have been due to another cause (subarachnoid hemorrhage). Like Dr. Moore’s testimony, they could show at best that accidental means were equally probable as non-accidental means. And the plaintiff cannot recover if it was equally probable that the damage was caused by non-accidental means as by accidental means. See Gen. Acc. Corp. v. Murray, supra, 120 Va. at 126, 90 S.E. at 624.
The evidence, viewed most favorably to the plaintiff, is insufficient to support the jury’s finding that her injuries were effected through accidental means. This holding necessitates the setting aside of the judgment entered for her on the motion for judgment.
The only remaining question is whether Aetna should have judgment against the plaintiff on its counterclaim. Aetna asked judgment for $1,520 as reimbursement for sums voluntarily paid to the plaintiff under an alleged mutual mistake of fact. The voluntary payments included medical expenses of $500 and disability payments of $15 per week for the period beginning December 9, 1962 and ending March 28, 1964.
*846Aetna contends these payments were made on the basis of information furnished by the plaintiff’s son on her behalf. This information was set forth on two forms delivered to Aetna, a completed proof of loss form and a completed hospital insurance form. Aetna says the statements on these completed forms led it to believe the plaintiff had suffered a fall that caused, her disability. Further, Aetna contends it received no information indicating any other cause until receipt of Dr. Varner’s report in March 1964, after which the voluntary payments were discontinued. (The plaintiff subsequently brought this action to recover disability payments for a period beginning March 28, 1964.)
In its argument Aetna overlooks certain information set forth on the completed forms. The proof of loss form contains this statement: “Fell and hit right side of skull behind the ear this resulted in sub-arachnoid hemorrhage, that resulted in partial paralysis and double vision”. [Emphasis supplied] The following diagnoses, taken from the records of St. Luke’s Hospital, were set forth on the hospital insurance form: “? Subarachnoid Hemorrhage. 2. ? Subdural Hematoma, due to Trauma”. Obviously, the tentative diagnosis of a sub-arachnoid hemorrhage indicated that the cause of the plaintiff’s injuries might have been non-traumatic or non-accidental. In fact, Aetna has consistently maintained in this case the position that the plaintiff’s injuries were caused by a subarachnoid hemorrhage.
The jury was instructed that Aetna should prevail on its counterclaim if these voluntary payments “were made under a mistake of fact, under the reasonable belief that the loss resulted from an accident and [Aetna] later discovered that the loss was one for which the company was not liable under the terms of the policy”. This instruction having been offered by Aetna and the jury having returned a verdict for the plaintiff, the principles set forth in the instruction became the law of the case.
By this instruction, issue was joined on the question whether the voluntary payments were made “under the reasonable belief that the loss resulted from an accident”. In view of the information set forth on the proof of loss and hospital insurance forms received by Aetna, a jury question was presented whether Aetna was reasonable in its belief that the loss resulted from the accident. The verdict and judgment for the plaintiff on Aetna’s counterclaim therefore should not be disturbed.
The judgment entered below on the motion for judgment will be *847reversed and final judgment for Aetna Life Insurance Company thereon will be entered here, without disturbing the judgment for Margaret B. Hale on the counterclaim of Aetna Life Insurance Company.
Reversed in part, affirmed in part, and final judgment.
(1) Dr. Moore determined by the “Babinski sign” that both sides of the plaintiff’s brain were involved. Her reaction was abnormal when he scratched each of her feet, indicating that the damage was not confined to one side of the brain.
He did not say what he meant by “stroke” and the other doctor who testified did not use the term. “Stroke”, which apparently is not strictly a medical term, has been defined as “Any sudden attack of a disease such as a stroke of paralysis or apoplexy”. Malay, Medical Dictionary for Lawyers (3rd ed.) 649.
(2) These alternative diagnoses were the “Discharge Diagnoses” shown on the records of St. Luke’s Hospital, signed by C. M. Scott, M.D., who was identified as the plaintiff’s attending physician. He did not testify in this case.
(3) Dr. Moore explained that an arteriogram is a normal diagnostic procedure in a hospital, comprising the injection of dye into the blood vessels and the taking of x-rays to determine the location of damage to the vessels.
The records of-Bluefield Sanatorium diclose that E. L. Gage, M.D., was the plaintiff’s attending physician. The report of the arteriogram was signed by John A. Warden, M.D. Neither doctor testified in this case.
(4) The plaintiff argues that the jury was justified in rejecting Dr. Varner’s diagnosis, particularly since he admitted he could not explain why the plaintiff’s left arm was paralyzed as testified to by Dr. Moore and shown by hospital reports. (According to the uncontradicted evidence, brain or nerve damage on the left side of the head, which can be caused by hemorrhaging, should result in paralysis on the right side, rather than the left side, of the body.) But, as will be pointed out, the decision of this case turns upon the failure of the plaintiff to bear the burden of proof, whether or not Dr. Varner’s evidence on behalf of Aetna is rejected.
(5) On the basis of a notation made December 16, 1962 on the Hospital records “Patient [plaintiff] had gotten along fairly well until today when she developed a complete third nerve paralysis”, plaintiff’s counsel argues that the rupture of the aneurysm, if it happened, occurred seven days after the plaintiff’s admission to St. Lube’s Hospital. However, the conclusion that the rupture happened on December 16 is not supported by any medical testimony and can be reached only by speculation.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901747/
|
Appeal by the defendant from an amended judgment of the County Court, Suffolk County (R. Doyle, J.), rendered July 28, 2011, revoking a sentence of probation previously imposed by the same court, upon a finding that she had violated a condition thereof, upon her admission, and imposing a sentence of imprisonment upon her previous conviction of grand larceny in the fourth degree.
Ordered that the amended judgment is affirmed.
The defendant’s claim that she was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “ ‘mixed claim[ ]’ of ineffective assistance” (People v Maxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the rec*978ord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901748/
|
—In an action to recover for work, labor and services under a theory of quantum meruit, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Levitt, J.), dated August 21, 1986, as upon granting the defendants’ motions at the close of the plaintiff’s evidence and at the conclusion of the entire case, dismissed the complaint.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The parties to this action began negotiations regarding the plaintiff’s acquisition of 50% of the defendant companies in exchange for the plaintiff’s investment of $75,000 and his offer to guarantee accounts receivable financing for the defendants. Norma Recco, president of the defendant corporations, accepted the plaintiff’s offer to work for the defendants for six months while he evaluated the viability of such an investment. After seven months of unpaid employment the plaintiff began to draw a salary. When Recco indicated she was no longer interested in a partnership with the plaintiff, he left the defendants’ employ. It is undisputed that no written agreement was ever executed. The plaintiff instituted the current action seeking compensation under a theory of quan*687turn meruit for his services during the seven-month period he worked without compensation as well as for expenses he allegedly incurred on behalf of the business.
Recovery under a quantum meruit theory rests upon a narrow exception to the general rule that a party may not expect compensation for a benefit gratuitously conferred upon another. To succeed under this theory, the claimant must establish (1) that the services claimed were rendered in good faith, (2) an acceptance of these services by the person to whom they were rendered, (3) an expectation of compensation, and (4) the reasonable value of the services (Umscheid v Simnacher, 106 AD2d 380).
In the case at bar, the plaintiff cannot claim an expectation of compensation for his services as it was his expressed intention, agreed to by the defendants, that he would work for a six-month period without salary. Although he worked a seventh month for which he was not paid, an inference may be drawn that there was no expectation of payment for the seventh month, as he failed to request payment until Norma Recco stated she would not execute the agreement.
As no writing existed to render the defendants liable to the plaintiff, his only avenue of recovery would lie under a quasi contract. As defined by the Court of Appeals in Miller v Schloss (218 NY 400, 407): "A quasi or constructive contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. In truth it is not a contract or promise at all. It is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it, and which ex cequo et bono belongs to another. Duty, and not a promise or agreement or intention of the person sought to be charged, defines it. It is fictitiously deemed contractual, in order to fit the cause of action to the contractual remedy” (see also, Bradkin v Lever-ton, 26 NY2d 192).
A review of the record indicates that the plaintiff was unable to demonstrate how his services conferred a benefit on the defendants nor did he show that the defendants were unjustly enriched as the result of his labors. Although the plaintiff claimed to have generated new business, his entire offer of proof was limited to a vague statement that he had recruited a number of accounts. He could only identify two by name. One had declared bankruptcy and reneged on its obliga*688tions to the defendants and the plaintiff was unaware of the revenues generated by the other. The plaintiff testified that during preliminary negotiations he offered to invest $75,000 in the companies and guarantee $300,000 in accounts receivable financing; however, he conceded that no money was ever paid to the defendants nor were any written financing documents executed by him.
Although not addressed in his brief, the record reveals that the plaintiff’s expenses were never submitted to the defendants and were wholly unsubstantiated except for his bald assertion that he had traveled "about 7,500 miles” soliciting customers. The plaintiff’s own witness testified that he performed the accounting services solely to assist the plaintiff to assess the defendants’ profitability to aid the plaintiff in making a determination of whether or not he would invest in the businesses. Such personal and unsubstantiated expenses clearly cannot be attributed to the defendants. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901749/
|
—In an action to recover on a policy of insurance, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Martin, J.), entered June 5, 1986, which denied his motion to restore his action to the Trial Calendar, and (2) an order of the same court, dated July 23, 1986, which denied his motion for reargument of the prior motion, which was denominated by him as a motion for renewal and reargument of the prior motion.
Ordered that the appeal from the order dated July 23, 1986 is dismissed; and it is further,
Ordered that the order entered June 5, 1986 is reversed, on the law, the motion to restore is granted and the matter is remitted to the Supreme Court, Westchester County, for further proceedings, and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The plaintiff’s action for recovery on a policy of insurance was stricken from the Trial Calendar when his attorney was unavoidably delayed in reaching the court and thus was absent during the calendar call. The plaintiff’s timely motion to restore the action was denied, as was the plaintiff’s subsequent motion to "renew and reargue”.
The denial of the plaintiff’s motion to restore was an abuse of discretion. The plaintiff provided a satisfactory explanation of why his attorney missed the calendar call and stated that he was ready for trial. The plaintiff did not intend to abandon *689this action and the defendant suffered no prejudice (see, Kofman v Consolidated Edison Corp., 93 AD2d 831).
The motion which the plaintiff denominated as one to "renew and reargue” the motion to restore is most accurately characterized as a motion solely to reargue as no new matters were raised which were previously unknown (see, Mandy Pear v Duca Realty Corp., 81 AD2d 829). We have dismissed the appeal from the order denying the motion to reargue because such an order is not appealable (see, Matter of Tetro v Plain-view-Old Bethpage Cent. School Dist., 99 AD2d 814). Additionally, the reversal of the order made upon the plaintiff’s initial motion has rendered discussion of the plaintiff’s motion to reargue academic. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901751/
|
—In an action to recover damages for medical malpractice, the plaintiff appeals (1) from an order and judgment (one paper) of the Supreme Court, Kings County (Dowd, J.), dated March 4, 1986, which, upon granting the respondents’ motion for summary judgment dismissing the complaint, is in favor of the respondents and against her, and (2) as limited by her brief, from so much of an order of the same court, dated June 25, 1986, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order and judgment dated March 4, 1986 is dismissed, as that order and judgment was superseded by the order dated June 25, 1986, made upon reargument; and it is further,
Ordered that the order dated June 25, 1986 is reversed insofar as appealed from, on the law, the order and judgment dated March 4, 1986 is vacated, and the motion is denied; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The plaintiff’s claim is based on the alleged failure of the physicians at a medical facility operated under the auspices of the defendant Local 485 Health and Welfare Fund (hereinafter the Fund) to diagnose and treat fibroids of her uterus. The plaintiff alleged that because of a misdiagnosis made by the clinic physicians the fibroids grew larger, necessitating a complete hysterectomy. The plaintiff’s case is predicated upon a theory of apparent or ostensible agency pursuant to which she seeks to hold the Fund and Local 485 of the International Union of Electrical, Radio and Machine Workers (hereinafter Local 485) vicariously liable.
The plaintiff participated in the Fund’s employee benefit plan which offered medical benefits to members of Local 485. *691The Fund was created under the collective bargaining agreement between the Local and employers of the Local’s members. The Local encouraged its members to seek treatment and receive physical examinations at a medical clinic located in a building it owned and which housed its central offices. Dr. Feyvus Landman directed the operation of the clinic pursuant to a contract between himself and the Fund. The Fund’s principal means of promoting use of the facility was through its handbook entitled "Local 485 Health and Welfare Fund”. The handbook specifically referred to the clinic as the "Local 485 Diagnostic and Treatment Clinic” and the "Local 485 Medical Center”. It also contained various references to "[o]ur Treatment Center”, "our Medical Director”, "our Medical Center” and "the Fund’s Treatment Clinic”.
The Local and the Fund moved to dismiss the complaint on the ground that Dr. Landman was an independent contractor who leased office space from the Fund and directed the operation of the clinic and, thus, neither the Local nor the Fund could be held vicariously liable for his acts or the acts of any of the physicians he employed to staff the clinic. The Supreme Court granted the motion. We reverse.
The Court of Appeals first recognized in Hannon v SiegelCooper Co. (167 NY 244) the doctrine of apparent or ostensible agency (sometimes referred to as agency by estoppel or by holding out) as a predicate for malpractice liability. This doctrine provides, in sum, that a plaintiff has a right to expect not only that the person upon whom he or she relies for special services will hire skillful employees, but also that if the servant is guilty of any malpractice, the person upon whom the plaintiff relied in the first instance will be answerable therefor in damages (Hannon v Siegel-Cooper Co., supra, at 247; see also, Hill v St. Clare’s Hosp., 67 NY2d 72, 80). Patients seeking medical help and the plaintiffs seeking redress for alleged malpractice should not be bound by secret limitations contained in private contracts (see, Mduba v Benedictine Hosp., 52 AD2d 450, 453; Hannon v Siegel-Cooper Co., supra; see also, Lanza v Parkeast Hosp., 102 AD2d 741). Upon our review of the record before us, we find triable issues of fact concerning whether the Fund and/or the Local held themselves out as health care providers and whether they were therefore estopped on a theory of apparent agency from disclaiming liability arising from the malpractice of physicians working within the clinic operated under their name (see, Hill v St. Clare’s Hosp., supra; Barker v Saltzman, 124 AD2d 617; Lanza v Parkeast Hosp., supra).
*692We also find that whether Dr. Landman was an independent contractor may not be determined upon the instant record. "Whether a person is an 'employee’ or an 'independent contractor’ is an ultimate fact to be determined from the evidence itself. It may be called a conclusion to be drawn from the contract itself, the attitude of the parties toward each other, the nature of the work and all relevant circumstances” (Felice v St. Agnes Hosp., 65 AD2d 388, 396; see also, Nobel v Ambrosio, 120 AD2d 715, 716). The question of whether the Local and/or the Fund exercised sufficient control over the operation of the clinic and over Dr. Landman as its director to make them vicariously liable for the negligence of physicians practicing therein has not been sufficiently established to warrant the grant of summary judgment.
Lastly, we find the ruling of the Appellate Division, First Department, in the case of Mitts v H.I.P. of Greater N. Y. (104 AD2d 318), upon which the Supreme Court’s decision rested, to be inapposite on its facts. The reason given by the court in Mitts (supra) for holding that the defendant Health Insurance Plan of Greater New York (hereinafter H.I.P.) was not responsible for the malpractice of physicians in a certain medical group was that H.I.P. simply sold medical expense indemnity insurance and did not render medical service. Conversely, at bar, the record indicates that the Local and/or the Fund may have held themselves out as the provider of medical services and not just as a medical insurer. Thompson, J. P., Brown, Fiber and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/4140681/
|
136
/.
0wlcE OF THE ATTORNEY GENERAL 0F TEXAS
. .,
;. _~ AUSTIN , u
‘I
: Hr. c. J. iYllde
Couuty Auditor
Corpus Christi, TeAa&
~‘ ..
Dear Mr. Kilde:
;
$ ./‘,.
..~ . You requeet’ the 0
$: .letter of .September 22, 194
:_~ quote your letter as follow
ou ~advise us a8
to the status taxes for truck-
ing companlee operating in
Nueaeea Couqt uation wherein. .’
ny; which is
d Company, op-
-Nueces County exoluslvely,
ed .by the railroad com-
lso pioking up deliveries
nea of %Nueces County.
red .for personal proper-ty ‘.
alorem tax in Nueaes
tuation is the. various automobilas
beings operated by the Central Power
. ,’In thie case, there are a number
or vehicles’ throughout ‘several COWL-
Are.we to coneider only the
ng in Nueoes County,,or, shall we
consider all vehicles as being. aseeasab&e in Nueoee
Comty? Another iriatanoe, ia the Transport Company
of Texa8 whioh owns and operates a number of gasoline
trucks oarryiny, gasoline to ,mny of.the Army and.Navy
Camps throughout the oouhty, said oompauy being do--
mioiled in Hueoes County.~"
.*
: Replying to our request for additional information,
you stated in your letter of October 14, 1943:
. _-.
“Referring to your letter of September 30th,
Re: Opinion Request No. O-5632, please be advised
that the Transport Company of Texas is domioiled in
Muecea Ccuuty; the Southern Pacifio Transport Com-
psuy, X aaaune+,i’a donioiled in Houston as it ia a
subsidiary of the Southern Pacifio Railroad Couhty,~1
~however, thetrucks used by this conoern are houaed
and used entirely, to the beat of ‘my knowledge, in
Nuecea Couuty naking dellverlea of freight shipped
.over the Southern Paoifio Lines. I, also, ,believe
that all thr6e oompeniea are oorporetIona.*
We deem it desirable to treat these:corporatlons
!C:,separately. ?la, therefore, take ‘up the Southeyii Pacific Ttiana-
F . ,
County, as distinguished from the home office or domicile
of the corporation in Harris County.
As an abstract proposition of law, personal
property is taxable at the domicile of the owner, but where
the owner by h,ia own voluntary tact fixes a definite and
permanent aitus of personal property owned by him for
business purposes in another oounty other than his residence
or domicile, and we think that the 3outhern Pacifio Transport
‘Company has done that in this instance, thus aubjeotlng said
trucks to ad valorem taxes by Nueoea County. This rule is
vory well stated in tha case of John Rancook ~~utual Life
Inauranoe Co. v. Davis, (writ? of error denied) 162 S. W. (2d)
433, in the following language:
‘We overrule appellants osaignmenta of error
numbered 1, 8, 30, 31, 32, 37, 38 and 39, bottomed on
the propoa,ition that notes and other personal property
are legally taxable only at the domicile of the owner.
This is a correot statement of an abstract proposition
of law; but we fail to see how the same 1s here involved,
The notes have never been taxed in the State of Texas,
and no attempt is shown to have been made to tax the
3-9 The owner of the notes, at its ontioh oould
establish a situs for taxation of the notes n Waoo.
MoLennen County, in whioh event the makers of the notes,
by reason of the above quoted provisions of said deeds
of trust, would be obligeteU to pay the’taxea assessed
against the same.”
The Constitution of Texas, Article 8, Seotlon 11
provides as follows:
“All property, whether oyned by pereona or oorpora-
tions, shall be assessed for taxation, and the taxes paid
in the oountica where situated. . ,”
.Artiole 7153 of Vernon’s Annotated Civil Statutes
of 1925 provides as follows:
“All property, real and personal, except auoh es
is required to be listed and assessed otherwise, shall
be listed and assessed in the oounty where it is situated;
and all persons1 property, subject to taxation and
temporarily removed from tho State or oounty, shall
be listed and assessed in the oounty of the residenoe
of the owner theroof, or in the county whero the
principal office of suoh owner is <uated.”
The truoks referred to in your letter are obviously
tangible personal property.
We think the rule has been well settled in this
State ns to the oounty In which tangible personal propertjr
is subject to tsxntion. It is stated as olearly in our
opinion No. G-3702, from whfoh we quotd,as follows, as we
shall be able to restate it:
“The rule or law appllaable in Texas is, therefore,
thab tangible personal property is taxable in the oounty
of Bhe domialle of the owder Unless the property has
acquired a permanent fixed situs of Its own separate
and apart from that of the,aounty of the owner’s domi-
alle. Mere temporary absenoe from the aounty of the
owner’s aomlolle does not give tangible personal property
a taxable situs In another oounty end remove it from
taxation in suah county of the owner’p domicile. : . .
*However, in e aase where taxglble personal property
does aoquire a permanent sltus in a aountg other than
the oounty of the owner’s dcimloile in relation to the
tar year in question such property ‘is taxable la the
oounty where %he sane is actually looated. . . .”
The dlatino.tlon we have made is reoognlzed in the
6aae of Great Southern Life Insuranoe Co. v. City of Austin,
43 S.W. 778, (Supreme Court of Texa6, opinion by Chleif
ustloe Cureton) from which we quote as followsr
“It Is true that the aotual situs of oertaln classes
of visible and twible personal property, as well as
intangible property having similar oharacteristlas, as,
for example, money, State aa mun~oip+ bonds, airaulating
bank notes, and shares of stock in private corporations,
may have a situs for taxation where they are permanently
. m separate and apart from the domloile of the owner. *
’ .
.&ir. C. J. I'Xlae, page 5
Vie do not deeri it neaessary to lengthen thla
opinion by tho citation of auuulatlve authorities, and we
may well let It rest upon the ease of Great Southern Ll.fe
Insurance Company v. City of Austin, supra, by that enlnent
jurist, the late Chief Juatlae Cureton, but we note briefly
~a few other deoisions. In the case of City of Galveston
v. J. hi. Guffey Petroleum Company, (writ of errors refused)
113 8. W. 585, from whioh we quote as follows:
"The Legislature may, in oertaln lnstanoes, give
to property an artlflolal situs for the purposes of
taxation; but when the property is physloal in oharaater,
or of a nature that oan aaqulre an aotual situs, it must
under hour Constitution be taxed in the oounty where,
aotually situated or located. The finding of the court
Is to the effect that these vessels so taxed have an
actual sltus at Port Arthur, in the oounty ofmson,
and nre not and have never been wlth.ln waters looated
wlthlu the territorial jurlsdlation of the oity,of
Galveston.
."That vessels may aoqulre an aotual sltus is a
proposition too well settled to be questioned, .and
that the place of enrollment and registration Is not
oontrolllng, if the aotual situs 1s elsewhere. . . ~.W
(3mphasl.s added)
Uooley on Taxation, Vol. ~2, 4th edition, page 975,
Fli'~~..
; appears the following:
"The situa of tangfble personal&W perty, for
purposes of taxation may be where the oi ner is Uomlolled
but is not neoessarily a. Unlike IntangIble personal
property, it may aoqulra:a taxablesltua In the state
other than the one where the owner is &omIailed, merely
beoause It Is located there. Its taxable lsitus is
where It Is more or less permanently looated. regamess
of the domiolle of the owner.? (Emphasis added-
-
!7e must not be misled by the aonfusloqwhloh may
arise by the loose language used in some of the dealsions
with respect to the rule that prevails as to the taxation of
rolling stook of railroads in an effort to apply an analogy
in aonslderlng the taxability of truoks and buses ovned and
Mr. C. J. zilae, page 6
operated by corporations or individuals, This distinction
is apparent, and made so by Judge Leddy in the oase of Gulf’
c0+aa0 k s, F. RY. CO; v! Clty~ of Dallas, 3.6 s.‘;!. (al)
292, (Coraalsslonof. Appeals 1 in the following language, from
which we quote:
“The Legislature or1 inally (Aot Aug. 21 1876
(Laws 1879, o. 157,, 0 l.9)? subjected rolling &oak of
railway aompanias to taxation by aities and towns by
the apportionment method, and subsequently repealed
the same in the adoption of the Revised Statutes of
1879, and later, by the passage of the Aot of Alaroh 28,
1885 (Laws 1885, a. 631, expressly exempted railway
companies from the necessity of making rendition of its
rolling stock to Incorporated oitles and towns, We
think suah aatlon negatives the grant of authority to
the alty. of Dallas whloh is alaimed to exist In this
case to tax the rolling stock of a.rallway aompanp,
even thou& the same was situatad within the aity on
Sanuary 1st. and so remained for a definite tine.
“The Legislature no doubt concluded that it would
not be tho exercise of a sound poliay to subjeat rolling
stook of a railway company to taxation by oltles and,
towns. along their lines because of the oonfusion whioh
would result from efforts of different mun1alpalltles
to determine the sibus ,of suoh property due to its
transitory nature. While switch engines may have more
permanenoy in thelr~ looatlon than other rolling stock,
yet all locomotives belonging to a railway aompany
are of neoessitg a part of its rolling stook, the
looation of whloh Is subjeot to ,be changed from time
to time. The aitus of so muak of rolling aboak belonging
to railway companies was lndefl~nlte ,and unoertain that
the Legislaturewas justified in olaselng It all as a
unit for purposes of taxation, It unquestionably had
the authority to determine the situ5 of rolling stook
for purposes of municipal taxation. The faot that
isolated rolling stook might in some instonoee appear
to have a fixed location Is not sufflalent to Invalidate
the alasslfioatlon thus made.
*In the absenoe of .a statute defining the taxable
situs of this property otherwisegY it was only taxable
at the domlolle of the railway oompahy.” (Emphasis added)
.%, : Mr. C. J. Wilde, page 7
.
_i
ii
!.:$T,’ Briefly, Judge Leddy haa said:
1;::
,:
2~ ~. “The Legislature unqueetionably had the authority
\.~.
Ltr to determine the altus of rolling atook Por purposes
‘1, of muniolpal taxation, but having by legislative aotion
L!. exoepted railroad oompaniee frcm rendering any part of
i:*:I” their rolling atook to lnoorporated cities or towns
&-
.through whloh their lines may extend, thus preoludlng
;&c the olty of Dallas or any other munioipallty from taxing
>Y,,’ the rolling stook of railroads. This acxoeptlon is
L,~‘),.~_
;
I::
-.-,,. manliest by Artlole 7168, Revised Civil Statutes, whloh
provides:
::.-
‘I
z.7
i:‘+:
~7 WIAIL personal property of whatsoover kind or
.I:‘& oharaotsr, exoept the rollinS atook belonging to the
$,., company or in their possession in eaoh respaotlve oounty,
&i;~ listing and desorlblng the said personal property in the
same manner as is no# required of oltlzens of this State.‘*
‘g&:,
@ Aocordingly, we hold under the Taots submitted by
?.~~
J*,~ you that the truoks of the Southern Paolflo Transport Company
have aoqulrad a business situe in Nueoes County, thus subjeot-
ing them to ad viLl.orem taxes by said oounty.
Transport Company of Texas
According to the reoords of the Railroad Commission,
the above named oompany 1s lndlvldually owned and 1s domlolled
in Nueoes County. The general oommon law rulsethat the sltus
for taxation of personal property Is the domiolle or the owner
,‘:... ,applles to individuals as well as oorporatlons, unless a busl-
ness ,situs has been aoqulred elsewhere, and slnoe under the
facts submitted the truoks of the Transport Company of’ Texas
have not aoqulred a business situs outside of Nueoes County,
the domiolle of the owner we aooordingly hold that, iis::totthe
truoks of the Transport C&npany ot Texas, they are taxable in
Nueoes County,
,&’
y@; ,yT
Mr. C. J. Wilde, page 8
Central Power and Llp,ht Conpane
Records of the Secretary of State reveal that the
above named ooapany is a Massaohusetts oorporation, with its
prlnolpal office in Boston, Masaaohusetts, operntlng in
Texas under a permit. Its applloatlon Sor permission to
do business in this State, filed in 1936, states: “Buslne ss
~ln the State of Texas is to be transacted at Corpus Christi,,
Nueoes County, Texas, and all other oountlea in Texas. The
name of the manager or person in oharge of said Texas business
or agenoy will be %r. James 0. Kennedy, Corpus Christl, Texas,
714 Nixon Building. 1V
Article 8, Seotlon 11 of the Texas Constitution
provides as quoted above. Artiole 7153,, R. C. S. prbvldes:
“All proporty; real and personal, exoept suoh as is
required to b.e listed and assessed otherwise, shell be
listed and assessed in the oounty where it la situated;
and all personal propeirty, subjeot to taxation end ten-
.’ porarlly removed rrom the State or oounty, ehall be
listed and assessed in the county of the residence of
the owner thereof, or in the oounty where the prinoipal
offloe of such owner is e&tuated.*
In Guaranty Life Insuranoe Company v. City of Austin,
190 S. w. 189,Chlef Justloe Phillips; speaking for the Supreme
Court, said:
“This artiole olearly oontemplates that any property
classified as personal property by artlole 7505,and having
a oonorete form may aoquire a sltus distinct from the
plaoe of the owner’s residenoen provides that personal
property *temporarily removed from the state or oounty’
shall be taxed in the oounty of the owner’s residenoe.
This is a provision with reapeot only to personalI{r;c+rty
Ftemporarily removed from the county or state.’
no applleation to personal property whose removal is not
temporary, but whioh has aoquired a sltus in a different
oounty. If the removal from the oom-f the owner*s
reaidenoe be only temporary, it could not under the artlole
acquire a situs elsewhere; it Is to be regarded as still
*situatedV-%i?&e county of the owner’s residenoe and is
therefore taxable there. The artiole makes it plain,
a-* c. IT. ‘Zilde, page 9
’ havcve,r, that if the removal be not of a temporary
oharacter snd the property has aoqulred a situs in
a different county, it is taxable in suoh ay,
unless within the exoeption of the article and
therefore expressly made taxable elsewhere.”
The faot that person~al property of a foreign
corporotlon physicaLly located in this State is aubjeot
to taxation in this State appears to be well settled.
Texas Land and Cattle Co. v. City of Fort-Worth, 73 5. Yi.
(Zd) 860, error refused; Jesse French Piano and Organ Co.
~‘v.~Ci;; or Dallas, 61 S. ‘f!. 942, error refused; 40 Tex.
. .
From the foregoing it is apparent that under the
weight of authority, personal tangible property of a foreign
oorporaflon doing business in this State Is taxable’where
the property is aotually physically looated ~a& used in- the
business of the oor$osation, and where it has ItsTexas
olfloe and plaoe of business if its removal therefrombe
only of a temporary nature. Therefore, if the trucks of
the Central Power and Light Company operate from the garage
or storage base in aorpus Chrlsti, Nueoes County, Texas,
. upon a temporary basis, fromwhloh the operations initiate
and to whioh they return, in suoh way as not to acquire a
business situs elsewhere, said trucks are. aooordlngly taxable
in,~ Nueoes County. However, if any of the’ truoka and automo-
bilea of this oonoern are kept outside of Nueoes County upon
a permanent basis, as distinguished from a temporary,basls,
they would not be taxable in NueCes Cotity.
Yours very truly
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4139575/
|
616
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
ncnorable C18ode Imb.11
6ecretary or state
Aurtln, Tessa
lxmr Mr. Iirbell I Opinion NO. 647a9
net Conrtruatlow of
317, GeneraY Ap
Legiilatnrr, If
rotary of Mata
rerpoet to the
1ty to pay muOh
Questlonm:
‘{l),lr&ld this office be luthorixed to met
up a ner’plare to he domlfnated as ‘Farolc Super-
visor’ ?
,(2) Tould wa be authorized to ~87 ior his
wtrrioem at $220.00 per month prTabl@ out of our
fund at71 rd 'Se8soml llelp”?
gnnormble CYmudeIqbell - pap,e 2
The 8pproprl8tlen for theGeoret8ry of State Mpartment
or the Goner81 Appropri8tim Dill for 8t8te dep8rtmmtr pa8sed by
the 49th Leglmlmtnre aonkln8 the followlnr item, which 8re ln-
rolrrd In your Inquiry, to-witt
820. tloVontor’8 A88’t in Ch8rg8 of -role8 l - l -.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . c2.310.00 2,310.00*,
8nd
.33. Extra help, re88on81 l . s- l . . . . 3,4W.O0 3,460.0C.m
'low haro lxplolned to us in aOnVOr88tiO~8 rorpectint
the inquiry th8t It r88 not your purpa8e to lboli8h or Ignore the
pomltlon proridod tor in Item 30, but that if m88 your thought to
oppolnt mnother amployoo tm 8malrt Jn tho 88ao *ark during thr
period of nooesnity thmrofor, and to pay meb Other mplayoe, 88
indiuted in your lotter, out of Itom'33. There would bo no mt-
tempted 8ogmmqtation of the 8818r7 provided ior the Aariatant
noutloned in Ifma ‘20.
Itmm 80 do08 not Oreato, nor eenld the ApprOIWi8tiOn
Bill a nylVent OrO8fb , the Off108 or pO8itim
in O? ~OvamOr’~
Aanlrtmnt ln obargo o? P8rolr8, by that or any other name. It
is the solo funotlon of l 8pproprl8tlon b411 to 8ppropri8k
money8 for the ooapen88tion of employeea le@lly 8nd f8Ctu8lYy
nooamumry to the lfflalent opermtimn of the nep8Ftment. (See
our Opinion Ho* 63731, 08pf heredth).
I tu 33 ior ox tra lmaaon81 help i 8 8 tory broad and
general authority to your Dep8rtment , the mn'ly limltmtlonm bo-
lnr that, emeb voiitlonn being: 4~ the nature oi temrrerary emer-
prey needs w1t.h respOOt to dapwtnental 8ervfce# and the t.0tn7
mum 8?8llablO therefor,
rhaterer t.he n8turn of the 8errice, @r
the nwber of the 8arfrtavt emyiOyee8. There I* nn lefwl new--
nitr for the @rinpc to my 8ddltlmnl emylojee perfonnlnr the
uerrlees PI reesmal help any ptrtlculer dcrlmstlan. Fnr 2r-
COImtinF ?\lrpo8e+I it would he 8drlsabte, c!p'lPerher= FCCeRWY'.
to no this, honever, un tba t permnt. eoulr! be mude fret? the zr-
rroyrl8te fund. Thla 1s m tter crf dovartr?n tnl df roretjrv, lir I.-
ever.
In thb pneral ?rorl8lm8 included 1~ the fiep8rtPent81
AprrOprfmtiOm D311 8t pRr8fT83h 4. of 8UhReCtf0n (14) Of FLC-
tlen 2 lo the follorincr
ll8ttor8blO Clmado I rho1 1 - p8#0 3
lAddith lt8~
~p ~O~OO8’
c ODp 8BUtiW.
lh b r a
Ur7 ldditiONl ~lO~Oe# Otb@r than thO88 f.r
whloh 8~01f1~ UfOt'y •pPr@~8timB haV0 horoln
bO00 IdOr 019 ajthT0d BIB4 ON t0 b0 p8jd Ottt
OfOOlttis~t lPpt’Opri8tbmm, Urb OUP~O~OOO dl821
sot be pdd l 18r~r amount thau that p~%?lded in
th 0 ?8lu hl rP P ?OtiOh~1~~1.8
d f.r dRilOt )o-
Biti-• in 8UCb dO$WbOttt
Or •~OB~l, Bad the jn
wemt tboro SW no rlall8r podtiono witbls mob
depbrtrellt,thOn moh ldditiOm8~ rpfOy.88 ah811
not b@ pdd 8 18r$W 8Wlmt than that ptOTide4
?Ol’
li8l~lbr~dtiOll8 ItIOtbor dOp8~tlW~t# OP
l~C,t,tIi#8.
l l l.’
Cttder Artlol~ 43M at the ~erlmed Civil Et@tate#, tbr
aOTOmOr woald be 8uthorlsrd t0 8ppro+o 8 d~?iOi~O~ olbim for
the PBNnt Of 8088On81 ltt’m help et you? IP.$vwtrOnt, Vi thl&j
tb. 1iDIiktiWB Ot tb0 Appropriation Aot itwlf, Ot eourne @8~
80. o-s116, 8ddreBUd
OpiltiCItl t0 ~O?@lWOr 1. LB0 o'D8IliO')gOeD
quuito fully into tho whole matter l? doflr~ono~ ~8rr8nt8r 8md
We are hmttding pa0 horwl th 8 copy oi tbmt lpiai8n.
la Ojlttltnt *n* D-1333 thin Dep8rtnnt b8d before It
tho to1 lowing lnqulryt
‘Mb7 8 dep8rtnent hO8d omplo~ an 8ddttfOn8l eb-
p?oyoe and ~1800 hlr WI the rOgUl@P yrml~, WTlnp
hln 88lmry out of the contIn-t lpsraprl8tion, or
dne8 the omtinpent 8PP)r)prf8tion comrehwd II tew
por8ry or rn CfcerlencJ dtU8tfm muthar~rinr th@ CT-
ployment of 8fi~lt.im8l myloroan for PVC,! rI:rrnW?8?’
we lnr wer edt
gRarln~ &IO tamrb to the otmtext in which re
find the word, 8nd the 8poOifiO lUthWi88t~Im for
the UM of rueh lunda tor much pUrp8en# we 8re In-
peYlod to the 8~1clwninn t!?Bt the l.e~dnlItUrO *A8
rrrlr~whntartjslly thin: ‘la hnte nttn--ytol?, ar)
far an posslblrr, tc e3tlclyoto every Item nf PX-
pznhe, w)!lch nccc8sarilv \e fncurrsd in the r-Ten-
tlm of your dep0rtmcn t., Ohen se renllae tl-ot our
rtun0rablo Cl sun0 I shll - lvlee 4
judesat 80 tf~ !aUCh mmtterm lay he lnexmct, from
the rap7 nature of thinfar mnb me tbereforo appro-
pri8te to your Irspmrt~ent 8 mum af money ceaeral-
1y lralY8ble for operatin; expenses of your be-
p8Ptamnt* exoept 8s etheniae beeola mpOOlfjO8YYJ
limltod, Tao tab owe of those employmentm lnd
other lxpavrnemnot herein rp&0ifl0all7 pwTidsd
for, but rhJoh me7 naO~murl1~ bo required to
ma b Y
l 70~ Department proper17 to funotlon~'g
Ye trust thst what TO hare maid (Nttjcientlf nwswera
your FrObl em.
Ierr truly fours
ATTORK~ GENEPAL OPT-A6 I
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/6129180/
|
Order of Special Term reversed, report set aside, and a new hearing ordered before another referee, with ten dollars costs and disbursements.
Opinion by
Barker, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822891/
|
Buchanan, J.,
delivered the opinion of the court.
*946This is a suit in chancery for an injunction. It was brought by The Cavalier Poodle Club, an unincorporated association (Association) and The Cavalier Poodle Club of Tidewater, Virginia, Incorporated (Tidewater), “as their interest may appear,” against The Cavalier Poodle Club, (Corporation). The litigants will usually be referred to by the words in parentheses.
The bill, which was filed April 28, 1964, alleged that the Association had been in existence for a number of years; that its purpose was to further the advancement of poodles and to conduct dog shows under the rules of the American Kennel Club; that it had been active in the Norfolk area where its name was well recognized and respected; that at a meeting on January 31, 1963, the members of the Association discussed the advisability of incorporating as The Cavalier Poodle Club, but subsequently on March 13, 1963, some of the members of the Association formed a corporation and wrongfully took over the name The Cavalier Poodle Club, and when the Association attempted to obtain a charter in that name it was necessary for another name to be used and the charter was accordingly issued in the name “The Cavalier Poodle Club of Tidewater, Virginia, Incorporated.”
The bill further alleged that various poodle owners and enthusiasts have confused the Association and Tidewater with the Corporation to the injury of complainants, and they prayed for an injunction to restrain the Corporation from using the name “The Cavalier Poodle Club,” and requiring it to amend its charter to a name that would not be confusing with the names of camplainants.
The Corporation filed its answer and a cross-bill but afterwards withdrew the cross-bill. The court heard the complainants’ evidence ore tenus. After hearing the testimony of the last president and the last treasurer of the Association, the chancellor ruled that the Association was no longer in existence and should be dismissed as a party complainant, and that the only question remaining was whether Tidewater was entitled to an injunction. However, counsel for complainants stated that he desired to put in additional testimony and was allowed to do so. On completion of the testimony offered by complainants their bill was dismissed. They have appealed and assigned error to the action of the court in refusing the injunction prayed for and dismissing their bill.
From the evidence offered by the complainants these relevant facts appear:
In the early days of 1963 dissension arose in the Association. At *947a meeting of the board on January 31, 1963, three members of the Association were dropped for non-payment of dues, and therefore, the minutes stated, “no further action can be considered on the charges that were preferred.” At that meeting the advisability of incorporating was discussed. On February 25, 1963, the chairman and five members of the show committee wrote to Dr. Levin, then president of the Association, that the committee was suspending him from the privileges of the American Kennel Club for ninety days for reasons stated in the letter. At a special meeting of the Association on February 28, 1963, held in spite of disorder caused by twelve members whose names were listed in the minutes, the resignation of the vice-president and show chairman of the Association was accepted.
Following these occurrences three members of the Association applied for a charter for The Cavalier Poodle Club, the defendant, and the charter was accordingly issued on March 13, 1963. Later in the same month, on application of other members of the Association, a corporate charter was issued to The Cavalier Poodle Club of Tidewater, Virginia.
In January, 1963, the Association had a total of fifty-five members. Of these thirteen joined The Cavalier Poodle Club, the defendant corporation. Most of the remaining forty-two are members of Tidewater. Dr. Levin testified that “a lot” left the Association in disgust because of the bickering and fighting but that approximately forty joined Tidewater.
After the incorporation of Tidewater the former treasurer of the Association became the treasurer of Tidewater. She has since paid her dues to Tidewater and has paid none to the Association. All the members of her “group” went into Tidewater. She kept the treasurer’s book of the Association and now uses the same book for Tidewater. The bank account of the Association still has in it eighteen or nineteen dollars, but there has been no activity in the account since the fight in the Association. There has been no meeting of the Association since the spring of 1963. All the membership dues since 1963 have been deposited in the account of Tidewater.
After its incorporation Tidewater issued a publication called “Poodle Patter,” on the front page of which, under the heading “Notice” is a statement that The Cavalier Poodle Club was recently incorporated with a slight addition to the club name, which is “The Cavalier Poodle Club of Tidewater Va. Inc.” Then follow these statements:
*948“The Cavalier Poodle Club of Tidewater Virginia, Inc. is the only poodle club recognized by the Poodle Club of America and the American Kennel Club, in representing the poodle breeder, exhibitor and fancier in the entire Tidewater and surrounding area.
“The Cavalier Poodle Club of Tidewater Virginia, Inc. IS NOT CONNECTED WITH, IS NOT PART OF, IS NOT REPRESENTED BY, any other group or groups using a similar name or names as that of The Cavalier Poodle Club of Tidewater Virginia, Inc.”
The complainants argue that there has been no dissolution of the Association because its constitution and by-laws provide that “The Club may be dissolved at any time by the written consent of not less than 2/3 of the members” and that this has never been done. That is true, but as the trial court observed in that connection, “If those things that keep things in existence do not happen” then the thing is ended.
The constitution and by-laws of the Association also provided that there should be monthly meetings of the members; that no member should vote if his dues were unpaid for the current year; and that membership is automatically terminated if dues are not paid for ninety days after January 1.
If, as indicated by the evidence, there have been no meetings of the Association, no activity, no dues paid, no members, and no exercise of its functions or purposes, coupled with the public assertion by Tidewater that it is the only poodle club recognized by the national organization as representing the poodle breeders, etc., in the whole area, then the trial court was well warranted in holding that the Association has been abandoned and no longer exists. This finding, after an ore terms hearing, as we have many times said, is presumed to be correct, and is not to be set aside unless plainly wrong or without evidence to support it. Packard Norfolk, Inc. v. Miller, 198 Va. 557, 95 S.E.2d 207; Barnes v. Craig, 202 Va. 229, 117 S.E.2d 63; Wright & Hunt, Inc. v. Wright, 205 Va. 454, 137 S.E.2d 902.
In Colored Y.M.C.A. v. Central Y.M.C.A., 201 Va. 142, 109 S.E.2d 415, Colored YMCA had experienced financial difficulties and its members became members of the Hunton Branch of the YMCA, an affiliate of Central YMCA. A group of former members sought to revive Colored YMCA and to manage the affairs of Hunton Branch. Wé held it had no such right because the Colored YMCA, although it had not surrendered its charter, had in all other respects *949ceased to exist. See also 10 C.J.S., Beneficial Associations, § 20, p. 261.
Complainants place much reliance on the case of Grand Lodge I.B.P.O. Elks v. Grand Lodge I.B.P.O. Elks, 4 Cir., 50 F.2d 860. There the complainant, a New Jersey corporation, sued a Virginia corporation and certain individuals to enjoin them from using the name of the complainant. The individual defendants had attempted to secede from the Grand Lodge of the complainant and set up an independent order under practically the same name. It was held that “If the Virginia members were dissatisfied, they, of course, had a right to withdraw and organize a new order; but they had no right, if they did so, to adopt the name of the original order or to hold themselves out as a branch of that order.” In such case, it was said, where injury will result, courts of equity, at the suit of the injured parties, will restrain the further perpetration of the wrong. There, however, the complainant was an existing, functioning corporation and was being injured. Here the Association no longer exists, no injury can result to a non-existing association, and it has no standing to maintain this suit.
Similarly, in Miller v. Union of United Brewery, 187 Va. 889, 48 S.E.2d 252, the complainant union, which was held to be entitled to the assets involved as against the dissident members who had withdrawn and formed another union, had “never ceased to exist,” as the opinion pointed out.
Tidewater, the other complainant in the bill, likewise failed to establish its right to an injunction and the action of the court in dismissing the bill as to it was without error. Those members of the Association which left it and formed Tidewater had no exclusive right to use the name of the old Association as part of its corporate name.
In the case of I.F. & A.M. Masons v. Most Worshipful, etc., (Ky.), 318 S.W.2d 46, 76 A.L.R.2d 1386, Anno. 1396, the court, in upholding an injunction against the appellants, said that the lodge under which they claimed had died or ceased to operate, and they therefore had encountered one of the principles of the doctrine of unfair competition “that where a right to use a trade name is abandoned or forfeited, the first to reappropriate the name acquires priority. Nims, Unfair Competition and Trade-Marks, § 408; 10 C.J.S., Beneficial Associations, § 13; 87 C.J.S., Trade-Marks, etc., § 30.”
When the incorporators of Tidewater applied for its charter they *950learned that a charter had already been issued to The Cavalier Poodle Club, the defendant; so, as the complainants alleged in their bill, it was necessary “for another name to be used, and the name The Cavalier Poodle Club of Tidewater, Virginia, Incorporated was used.”
Section 13.1-6 (c) of the Code provides that the corporate name given to a corporation “Shall not be the same as, or confusingly similar to, the name of any corporation, whether issuing shares or not issuing shares, existing under the laws of this State *
Complainants in effect concede that the incorporators applied for a name that would not be confusingly similar to the name already given to the defendant by its charter. They could have chosen some other name if they had thought the name they chose might be confused with an existing name. Evidently the name so applied for and given was considered by the State Corporation Commission not to be confusingly similar. We held in Rosso and Mastracco v. Giant Food, 200 Va. 159, 104 S.E.2d 776, that “Confusion as to names is not shown by a mere casual misunderstanding, or mistaken ideas” and this statement was quoted with approval:
“ ‘It is not sufficient that some person might possibly be misled; but the similarity must be such that “any person, with such reasonable care and observation as the public generally are capable of using and may be expected to exercise, would mistake one for the other.’ ” International Trust Co. v. International Loan & Trust Co., 153 Mass. 271, 278, 26 N.E. 693, 695, 10 L.R.A. 758; Va. Baking Co. v. Sou. Biscuit Works, 111 Va. 227, 230, 68 S.E. 261, 262.
The defendant was first in time and hence first in right to use the name of the old Association; and in addition the evidence offered by the complainants did not establish a confusing similarity of names.
The decree appealed from is
Affirmed.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901753/
|
Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered September 19, 2011, convicting her of aggravated driving while intoxicated (two counts) and failing to keep right of the double yellow line, upon her plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which she moves for leave to withdraw as counsel for the defendant.
Ordered that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to *979withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738 [1967]; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v Paige, 54 AD2d 631 [1976]; cf. People v Gonzalez, 47 NY2d 606 [1979]). Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901754/
|
—In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Richmond County (Kuffner, J.), dated May 15, 1986, which granted the defendant’s motion to dismiss the complaint for lack of personal jurisdiction.
Ordered that the order and judgment is affirmed, with costs.
The defendant is a resort hotel on the island of St. Lucia in the Caribbean. The plaintiff, a resident of Staten Island, purchased a vacation package from Liberty Travel in Manhattan for a one-week stay at the hotel. On the fourth day of his visit, the plaintiff injured his leg during a boating accident. Upon returning to New York, he commenced an action against the defendant, claiming that it was negligent in the operation of the boat. The plaintiff subsequently commenced another lawsuit in St. Lucia to recover damages for the same injury.
*693As the basis for in personam jurisdiction over the defendant under CPLR 301, the plaintiff invokes the "doing business” doctrine. He argues that the aggregate of the defendant’s New York activities are sufficient to meet the "doing business” standard. We disagree. The record discloses that the defendant maintains no office, telephone, bank account or agent in New York. The business trips of the defendant’s general manager to New York to promote business in New York are only occasional. The mere periodic sending of corporate officers or employees into the State on corporate business is not enough to predicate a finding that a foreign corporate defendant is present for jurisdictional purposes (see, Meunier v Stebo, Inc., 38 AD2d 590).
In addition, while Liberty Travel and other independent travel agencies in New York may make reservations and accept payments on the defendant’s behalf, and thus provide services beyond "mere solicitation”, these limited services are not of such a nature and quality to subject the defendant to jurisdiction under CPLR 301 (see, Miller v Surf Props., 4 NY2d 475; Kramer v Hotel Los Monteros, 57 AD2d 756; cf., Gelfand v Tanner Motor Tours, 385 F2d 116, cert denied 390 US 996). In light of the constitutional limits to the exercise of in personam jurisdiction, we find that since the defendant hotel has done nothing more in New York than solicit business through independent agents, it is unfair to require it to defend a lawsuit in New York arising out of an accident in St. Lucia. Mangano, J. P., Bracken, Fiber and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901755/
|
—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven, dated August 25, 1986, denying the petitioner’s application for a variance which would permit construction of a one-family dwelling on a parcel of land having less than the 100-foot street frontage required by Brookhaven Town Code § 85-64, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Cannavo, J.), entered April 6, 1987, which dismissed the petition.
Ordered that the judgment is affirmed, with costs.
The petitioner failed to prove that she would suffer significant economic injury or practical difficulty if the application for the variance was denied (see, Matter of Cowan v Kern, 41 NY2d 591, rearg denied 42 NY2d 910; Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135, affd 67 NY2d 702). In *694determining whether financial hardships would be inflicted "the inquiry should properly focus upon the value of the parcel as presently zoned, rather than upon the value that the parcel would have if the variance were granted” (Matter of Cowan v Kern, supra, at 597). The petitioner did not adduce proof of the property’s economic value when the petitioner acquired it or its present economic value. Thus, there is no predicate which would support a finding of economic hardship (Matter of Cowan v Kern, supra, at 597; Matter of Craig v Zoning Bd. of Appeals, 41 NY2d 832). In any event, the respondent’s finding that there was no showing of practical difficulty and its consequent denial of the application have a rational basis and are based upon substantial evidence in the record; the denial was not arbitrary, illegal or an abuse of discretion (see, Human Dev. Servs. v Zoning Bd. of Appeals, supra). Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901756/
|
—In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (Spodek, J.), entered July 16, 1986, as directed (1) that he pay the defendant wife the sum of $50 per week for child support for each child of the marriage as well as two thirds of each child’s college tuition and boarding expenses until each child reaches the age of majority or is sooner emancipated, (2) that he pay to the defendant the sum of $120 per week for maintenance for a period of 10 years or until her remarriage, whichever is earlier, (3) that the defendant receive from the plaintiff, as he receives it, such portion of his supplemental pension as constitutes one half of a fraction, the numerator of which is the number of months during which the parties were married and the plaintiff was employed by his current employer, and the denominator of which is the total number of months of said employment, and (4) that the plaintiff pay to the defendant’s attorney the sum of $4,000 as counsel fees reasonably incurred in the defense of this action.
Ordered that the judgment is modified, on the law, by deleting all of the ninth decretal paragraph thereof except the provision directing that the defendant shall not receive any portion of the plaintiff’s railroad pension, and substituting therefor a provision that the plaintiff shall pay to the defendant, as he receives it, such portion of his supplemental pension, minus taxes, as constitutes one half of a fraction, the *695numerator of which is the number of months prior to the commencement of this action during which the parties were married and the plaintiff was employed by his current employer, and the denominator of which is the number of months of said employment; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
. We find that the court erred in determining the defendant’s distributive share of the plaintiff’s supplemental pension. Although pension benefits belonging to either spouse attributable to employment during the marriage are properly considered marital property subject to equitable distribution, the marital property consists exclusively of that portion of the benefits which has accrued during the marriage and prior to the commencement of the divorce action (see, Domestic Relations Law § 236 [B] [1] [c]; Majauskas v Majauskas, 61 NY2d 481, 485-486; Damiano v Damiano, 94 AD2d 132, 139). The defendant is entitled to an equitable share only of so much of the subject benefits as constitutes marital property. The court also failed to take into account the plaintiff’s tax liability with respect to the receipt of pension benefits (see, Majauskas v Majauskas, supra; Tereszkiewicz v Tereszkiewicz, 128 AD2d 605, 606). Accordingly, we modify the judgment, taking these factors into consideration.
The plaintiff’s remaining contentions pertaining to the awards of maintenance, counsel fees, and child support are without merit. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901757/
|
—In a matrimonial action in which the parties were divorced by judgment dated April 12, 1983, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Fierro, J.), entered August 26, 1986, as (1) denied that branch of his motion which was to vacate a money judgment of the same court, dated April 14, 1986, for alleged child support arrears which was entered following an inquest, (2) denied that branch of his motion which was to vacate the judgment of divorce, and to set aside a separation agreement dated March 11, 1983, inter alia, based on fraud, duress, overreaching and incompetent legal representation, and (3) denied that branch of his motion which was for an interim award of counsel fees.
Ordered that the order is modified, on the law, by deleting therefrom the provision which denied that branch of the *696defendant’s motion which was for vacatur of the judgment dated April 14, 1986, and by substituting therefor a provision granting that branch of the defendant’s motion and directing that a new inquest be held, wherein the amount of the defendant’s arrears for child support shall be recomputed, and a new judgment be entered against the defendant for child support arrears only; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The separation agreement executed by the parties on March 11, 1983 provided, inter alia, (1) that the defendant was to pay child support in the amount of $175 a week and (2) the defendant would be allowed visitation rights. The agreement also provided that it was to merge in, and not survive, any divorce judgment to be entered subsequent thereto. A divorce judgment based on the defendant’s abandonment of the plaintiff was entered, and contained only one provision directing the defendant to pay a sum of money, i.e., a provision directing that the defendant pay the $175 a week in child support.
In November 1985 the plaintiff moved, by order to show cause, pursuant to Domestic Relations Law § 244, for an order directing the entry of a judgment for "arrears due under the Separation Agreement and the Judgment of Divorce”. Upon the defendant’s default in both answering the plaintiffs order to show cause and in appearing for an inquest ordered by the court, a judgment in the principal amount of $45,563.53 was entered on April 14, 1986. The record strongly suggests that the judgment’s principal sum of $45,563.53 included not only arrears for child support, but also, as defendant alleges, arrears for "contract rights * * * not contained in the Judgment of Divorce”.
In his motion, inter alia, to vacate the default judgment of April 14, 1986, the defendant argued that he had a meritorious defense with regard to that portion of the judgment dated April 14, 1986 which was for child support arrears, i.e., the plaintiffs alleged failure to allow him visitation with the children. In addition, the defendant argued that the judgment was improper to the extent that it included an amount representing arrears for contractual obligations not contained in the divorce judgment.
The plaintiffs alleged failure to afford the defendant his visitation rights does not constitute, under the circumstances present herein, a meritorious defense to the plaintiffs application for a money judgment under Domestic Relations Law § 244. Under Domestic Relations Law § 244, as it existed at *697the time of the plaintiffs application, the court could reduce or annul child support arrears if the party who had defaulted in his child support obligations could show good cause for having failed to affirmatively seek relief from the judgment or order before the arrears accrued (Morris v Morris, 118 AD2d 837). The defendant’s moving papers do not demonstrate good cause for his failure in this regard (Morris v Morris, supra). It should be noted that in August 1986 Domestic Relations Law § 244 was amended so as to eliminate this defense with respect to child support arrears.
However, the defendant is correct in his argument that the judgment of April 14, 1986 was improper to the extent that it may have included an amount representing arrears for contractual obligations not contained in the judgment of divorce. The Court of Appeals has held that an application pursuant to Domestic Relations Law § 244 can only be made to enforce a provision in a divorce judgment which expressly provides that a sum of money be paid (Baker v Baker, 66 NY2d 649; Baratta v Baratta, 122 AD2d 3). Moreover, the record indicates that the defendant’s default at the inquest may have been the result of a misunderstanding between him and plaintiffs counsel as well as the fact that defendant was then acting pro se. Accordingly, and in view of the liberal policy with respect to vacating defaults in matrimonial actions (Antonovich v Antonovich, 84 AD2d 799), the inquest held on March 11, 1986 and the judgment dated April 14, 1986 are vacated, and the matter is remitted to the Supreme Court, Suffolk County, for a new inquest, wherein the defendant’s child support arrears are to be recomputed, and a new judgment reflecting those child support arrears only, is then to be entered.
We have examined the defendant’s remaining arguments and find them to be without merit (see, Bettino v Bettino, 112 AD2d 181; Gruber v Gruber, 43 AD2d 917). Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901758/
|
Appeals by the defendant from two judgments of the Supreme Court, Suffolk County (R. Doyle, J.), both rendered May 26, 2010, convicting him, upon a jury verdict, of (1) attempted assault in the second degree as a hate crime under indictment No. 236-09, and (2) manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and attempted assault in the second degree as a hate crime (two counts), under indictment No. 3032-08, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant was convicted of several crimes charged in *980connection with three separate attacks upon Hispanic men occurring on two separate dates, November 3, 2008, and November 8, 2008. During the course of the third incident, the defendant stabbed Marcelo Lucero, causing his death. After a joint trial of the charges, the defendant was convicted of attempted assault in the second degree as a hate crime under indictment No. 236-09, in connection with the incident of November 3, 2008, and manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and attempted assault in the second degree as a hate crime (two counts), under indictment No. 3032-08, in connection with the incidents of November 8, 2008.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of the crimes charged beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Hartman, 64 AD3d 1002 [2009]; People v Chowdhury, 22 AD3d 596, 597 [2005]; People v Stoby, 4 AD3d 766 [2004]; People v Kenward, 266 AD2d 155 [1999]).
The indictments against the defendant were properly joined for trial, inter alia, on the ground that proof of each offense was material and admissible as evidence in chief of the other offenses (see CPL 200.20 [2]; People v Latimer, 24 AD3d 807 [2005]). Further, evidence of uncharged crimes committed by the defendant and his codefendants, and prior statements or acts of animosity or hostility, were properly admitted under the circumstances of this case, to complete the narrative of the events, provide background material, and as evidence of motive or state of mind with respect to the crimes charged (see People v Till, 87 NY2d 835, 837 [1995]; People v Morris, 89 AD3d 1112, 1113 [2011], lv granted 19 NY3d 964 [2012]; People v Mena, 71 AD3d 475, 476 [2010]; People v Alas, 44 AD3d 534 [2007]).
The trial court providently exercised its discretion in precluding the defendant from presenting, for impeachment purposes, extrinsic evidence of a prosecution witness’s prior statements to law enforcement officials, which omitted references to epithets *981against Hispanics (see People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]). The witness did not deny making those statements; rather, he explained the discrepancies by claiming that his statements to the police were made in the early hours of the morning, just after he was notified of the death of his friend. Therefore, the admission of extrinsic evidence of these prior statements would have been cumulative (cf. People v Washington, 51 NY2d 214, 221 [1980]; Jerome Prince, Richardson on Evidence § 6-411 at 406 [Farrell 11th ed 1995]).
The defendant contends that the trial court improperly denied his request to instruct the jury with respect to criminally negligent homicide as a lesser-included offense of manslaughter in the first degree as a hate crime. The trial court granted his alternate request to instruct the jury with respect to the lesser-included offense of manslaughter in the second degree, but the jury convicted the defendant of manslaughter in the first degree as a hate crime, as charged in the indictment. Therefore, review of the trial court’s refusal to charge the remote lesser-included offense of criminally negligent homicide is foreclosed (see People v Green, 5 NY3d 538, 545 [2005]; People v Boettcher, 69 NY2d 174, 180 [1987]; People v McGeachy, 74 AD3d 989 [2010]; People v McLeod, 38 AD3d 798, 799 [2007]; People v McMurry, 30 AD3d 444 [2006]). Further, by convicting the defendant of manslaughter in the first degree as a hate crime, the jury found that the defendant intended to inflict serious physical injury on the victim Marcelo Lucero (see Penal Law § 125.20 [1]). Therefore, the trial court’s refusal to instruct the jury with respect to gang assault in the second degree as a lesser-included offense of gang assault in the first degree (see Penal Law §§ 120.06, 120.07) also does not warrant reversal (see People v Rodriguez, 16 NY3d 341, 346 [2011]; People v Ribowsky, 77 NY2d 284, 292 [1991]; People v Albino, 65 NY2d 843 [1985]; People v Degondea, 269 AD2d 243, 245 [2000]).
During deliberations, the jury specifically requested to hear the “cross-examination of Detective John McLeer.” After consulting with counsel for the parties, the trial court properly denied the defense counsel’s request for a reading of additional testimony, since the court had no obligation “to direct the reading of testimony beyond that requested” (People v Murray, 258 AD2d 936, 937 [1999]; see People v Almodovar, 62 NY2d 126, 132 [1984]).
The defendant’s remaining contentions are without merit. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/4127669/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 16, 2014
The Honorable Rene 0. Oliveira Opinion No. GA-1066
Chair, Committee on Business & Industry
Texas House of Representatives Re: Whether a Type B economic development
Post Office Box 2910 corporation may use sales tax funds to hire an
Austin, Texas 78768-2910 independent contractor for the purpose of
developing a comprehensive plan for future
development of the city (RQ-1174-GA)
Dear Representative Oliveira:
You ask whether a Type B economic development corporation may use sales tax funds to
hire an independent contractor for the purpose of developing a comprehensive plan for the future
development of a city. 1 You explain that the envisioned comprehensive plan would be "a long-
range development tool for the municipality that would include provisions on land use, economic
development, transportation, and public facilities, in accordance with section 213.002 of the
Local Government Code." Request Letter at 2; see TEX. Loc. Gov'T CODE ANN. §§ 213.001-
.005 (West 2008) (providing for municipal comprehensive plans). You indicate that the
"comprehensive plan would be used by the corporation and the city to coordinate and guide them
in the selection and establishment of development regulations and economic development
projects and in making decisions about growth and development." Request Letter at 2; see Bd. of
Adjustment of City of San Antonio v. Leon, 621 S.W.2d 431, 436 (Tex. Civ. App.-San Antonio
1981, no writ) (describing comprehensive plan as one "designed to control and direct the use and
development of property in the municipality"). You state that the city's administration requested
that the economic development corporation fund the cost of hiring an independent contractor to
prepare and produce this comprehensive plan. Request Letter at 2. You ask for an opinion
"regarding whether this expense is a qualified project that the ... [e]conomic [d]evelopment
[c]orporation may fund from its available 4B sales tax revenues." Id. The question of whether a
particular expenditure is authorized by the statute is one that involves fact issues and cannot be
resolved by an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-1050 (2014) at 2.
1
See Letter from Honorable Rene 0. Oliveira, Chair, House Comm. on Bus. & Indus., to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (Dec. 20, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Rene 0. Oliveira - Page 2 (GA-1066)
Instead, it is a matter in the first instance for the corporation's board of directors. See id.
Assuming the proposed expenditure otherwise complies with the other statutory requirements,
we advise you generally on the use of Type B sales tax proceeds?
Formerly known as a Type 4B economic development corporation due to initial
authorization in article 5190.6 section 4B of the Revised Civil Statutes, a Type B economic
development corporation is now primarily governed by chapter 505 of the Local Government
Code. See TEX. Loc. Gov'T CoDE ANN.§§ 505.001-.355 (West Supp. 2013) (governing Type B
corporations), id. § 501.002(16) (defining Type B corporations as those governed by chapter
505). Under section 505.302, a Type B corporation may use its economic development sales and
use tax proceeds to pay the costs of authorized projects. !d. § 505.302(1); see id. § 501.152
(pertaining to "costs" associated with projects). The different types of authorized projects are
enumerated in chapters 505 and 501. See id. §§ 505.151 (defining project to include the
definition of project in chapter 501 ), 50 1.002(13) (defining "project" by reference to subchapter
C, chapter 501); see also id. §§ 505.151-.161 (subchapter D, chapter 505, identifying authorized
projects);§§ 501.101-.108 (subchapter C, chapter 501, identifying authorized projects).
Generally, chapters 501 and 505 define projects in terms of "land, buildings, equipment,
facilities, . . . targeted infrastructure, and improvements." See id. § 501.101; see also id.
§ 505.151 (referring to "land, buildings, equipment, facilities, ... and improvements"). An
expenditure for the service of preparing a comprehensive plan is not a direct expenditure for
land, buildings, equipment, facilities, targeted infrastructure and improvements and thus may not
constitute a project as contemplated by these definitions. However, a few provisions in chapters
501 and 505 expressly identify a project to include an "expenditure." !d. §§ 501.101, .103, .104,
.105, 505.157(b), .158(a)-{b). Most of these provisions involve an expenditure for projects with
a specific focus not relevant in the context of the preparation of a comprehensive development
plan or not applicable to the city at issue. See id. §§ 501.104 ("Projects Related to Certain
Military Bases or Missions"); 501.105 ("Career Center Projects Outside of Junior College
District"); 505.157 ("Projects Related to Business Enterprises in Landlocked Communities");
505.158 ("Projects Related to Business Development in Certain Small Municipalities").
Two provisions, sections 501.101 and 501.103, potentially apply to the expenditure about
which you ask. Under section 501.101, a project includes an expenditure that satisfies two
requirements. The first is that the expenditure must be "for the creation or retention of primary
jobs. " 3 !d. § 501.101 (1 ). The second is that the expenditure must be found by the economic
2
The authority of a development corporation may be limited by any resolution creating the corporation or
any ballot language restricting the use of Type B tax proceeds. See TEX. Loc. GOV'T CODE ANN. §§ 505.251 (West
Supp. 2013) (providing for election to create development corporation), 505.160 (pertaining to election required for
particular project).
3
"Primary jobs" is defined in section 501.002(12) and refers to a job included in the "North American
Industry Classification System (NAICS)." TEX. LOC. GOV'T CODE ANN. § 50 1.002( l2)(A)(ii) (West Supp. 20 13).
The Honorable Rene 0. Oliveira - Page 3 (GA-1066)
development corporation's board "to be required or suitable for the development, retention, or
expansion of' a list of twelve types of centers and facilities. !d. § 501.101 (2) (identifying
manufacturing and industrial facilities, research and development facilities, military facilities,
transportation facilities, disposal, recycling and pollution facilities, distribution, warehouse, job
training facilities, and corporate headquarters facilities). A municipal comprehensive plan could
impact a municipality's economy, but to qualify as an authorized project it must directly relate to
the creation or retention of primary jobs as measured by the standards in section 501.101(1)-(2).
Section 501.103 relates to expenditures that are "found by the board of directors to be
required or suitable for infrastructure necessary to promote or develop new or expanded business
enterprises, limited to: (1) streets and roads, rail spurs, water and sewer utilities, electric utilities,
or gas utilities, drainage, site improvements; and . . . ; (2) telecommunications and Internet
improvements .... " I d. § 501.103. The limiting language in section 501.1 03 indicates this is an
exclusive list. See Peterson v. Calvert, 473 S.W.2d 314, 317 (Tex. Civ. App.-Austin 1971, writ
ref' d) ("The specification of one particular class excludes all other classes."); cf Pro Path Servs.,
L.L.P v. Koch, 192 S.W.3d 667, 670-71 (Tex. App.-Dallas 2006, pet. denied) (discussing
noninclusive nature of statutory language "including"). An expenditure for a comprehensive
plan that does not fall precisely within the contours of section 501.103 is not an authorized
project under that section.
As noted previously, the question of whether a particular expenditure is authorized by
the statute is one that we cannot resolve. See supra page 1. Here, it is particularly appropriate
for this office to refrain from providing a definitive answer given the fact that potentially relevant
statutes require specific findings from the economic development corporation's board. See TEX.
Loc. Gov'T CODE ANN. §§ 501.101(2), .103(1)-(2) (West Supp. 2013). In the event the
corporation's board makes the required findings, any judicial review would utilize an abuse of
discretion standard. Cf Pearce v. City of Round Rock, 78 S.W.3d 642, 646-47 (Tex. App.-
Austin 2002, pet. denied) (utilizing abuse of discretion standard to review decision of city's
development review board).
The Honorable Rene 0. Oliveira - Page 4 (GA-1066)
SUMMARY
To the extent an expenditure of Type B sales tax proceeds
for the services involved in the preparation of a municipal
comprehensive plan by an independent contractor is within the
scope of sections 501.101 or 501.103 of the Local Government
Code, it may be an authorized project under the statute. It is,
however, for the board of directors of the economic development
corporation to determine, in the first instance and subject to
judicial. review, whether an expenditure is authorized under the
statute.
EG -ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/6129182/
|
Order reversed, without costs, and without prejudice to any subsequent proceeding or suit. (In the Matter of Douglass v. Cuykendall, as Receiver, etc., followed.)
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8076596/
|
No opinion. Judgment unanimously affirmed, with costs.
|
01-03-2023
|
09-09-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901759/
|
—In an action for a divorce and ancillary relief, the defendant husband appeals from an order of the Supreme Court, Nassau County (Burstein, J.), dated October 28, 1986, which granted the plaintiff wife’s motion for leave to serve a supplemental summons and amended complaint to add Lament Solomon and Andrew Solomon, the defendant’s adult sons, as party defendants.
Ordered that the order is affirmed, with costs.
CPLR 1001 and 1003 afford the courts wide latitude in the *698addition or deletion of parties (see, Schmidt v Schmidt, 99 AD2d 775). In this regard, the court may on its own motion and at any stage of the litigation determine that there is a nonjoinder of necessary parties (see, Matter of Lezette v Board of Educ., 35 NY2d 272, 282; Schmidt v Schmidt, supra). The plaintiff has alleged that the defendant transferred marital assets to his now deceased father, Morris Solomon, and to his sons Lamont and Andrew Solomon. It is further alleged that Lamont and Andrew are the sole distributees under the estate of Morris Solomon. We believe the trial court properly exercised its discretion in granting leave to the plaintiff to add Lamont and Andrew as party defendants as they were alleged third-party transferees of marital property (see, Schmidt v Schmidt, supra; Deleno v Deleno, 61 AD2d 788, Iv denied 45 NY2d 708; see also, Petrie v Petrie, 126 AD2d 951; Lemke v Lemke, 115 AD2d 1006).
The defendant argues that a determination of whether certain assets within the estate of Morris Solomon constitute marital property is properly within the jurisdiction of the Surrogate’s Court, rather than the Supreme Court. We disagree. The Surrogate’s Court is a court of limited jurisdiction which has the power to entertain matters "relating to the affairs of decedents” (NY Const, art VI, § 12 [d]; SCPA 201 [3]). Independent claims involving controversies between living persons do not lie within the power of the Surrogate’s Court (see, Matter of Lainez, 79 AD2d 78, 80, affd 55 NY2d 657; Matter of Jemzura, 65 AD2d 656, ajfd 52 NY2d 1067). Here, the plaintiff’s claims are asserted against the defendant not as the executor of the estate of Morris Solomon but are against him in his individual capacity. Furthermore, the plaintiff is seeking a divorce in addition to a distribution of marital property and support. These claims do not affect or relate to the affairs of the decedent or the administration of his estate and, therefore, the Surrogate’s Court does not have the power to adjudicate those claims (cf, Matter of Piccione, 57 NY2d 278, 289-291). Thompson, J. P., Brown, Fiber and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901760/
|
Appeals by the defendant from two judgments of the Supreme Court, Suffolk County (R. Doyle, J.), both rendered May 26, 2010, convicting him, upon a jury verdict, of (1) attempted assault in the second degree as a hate crime under indictment No. 236-09, and (2) manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and attempted assault in the second degree as a hate crime (two counts), under indictment No. 3032-08, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant was convicted of several crimes charged in *980connection with three separate attacks upon Hispanic men occurring on two separate dates, November 3, 2008, and November 8, 2008. During the course of the third incident, the defendant stabbed Marcelo Lucero, causing his death. After a joint trial of the charges, the defendant was convicted of attempted assault in the second degree as a hate crime under indictment No. 236-09, in connection with the incident of November 3, 2008, and manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and attempted assault in the second degree as a hate crime (two counts), under indictment No. 3032-08, in connection with the incidents of November 8, 2008.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of the crimes charged beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Hartman, 64 AD3d 1002 [2009]; People v Chowdhury, 22 AD3d 596, 597 [2005]; People v Stoby, 4 AD3d 766 [2004]; People v Kenward, 266 AD2d 155 [1999]).
The indictments against the defendant were properly joined for trial, inter alia, on the ground that proof of each offense was material and admissible as evidence in chief of the other offenses (see CPL 200.20 [2]; People v Latimer, 24 AD3d 807 [2005]). Further, evidence of uncharged crimes committed by the defendant and his codefendants, and prior statements or acts of animosity or hostility, were properly admitted under the circumstances of this case, to complete the narrative of the events, provide background material, and as evidence of motive or state of mind with respect to the crimes charged (see People v Till, 87 NY2d 835, 837 [1995]; People v Morris, 89 AD3d 1112, 1113 [2011], lv granted 19 NY3d 964 [2012]; People v Mena, 71 AD3d 475, 476 [2010]; People v Alas, 44 AD3d 534 [2007]).
The trial court providently exercised its discretion in precluding the defendant from presenting, for impeachment purposes, extrinsic evidence of a prosecution witness’s prior statements to law enforcement officials, which omitted references to epithets *981against Hispanics (see People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]). The witness did not deny making those statements; rather, he explained the discrepancies by claiming that his statements to the police were made in the early hours of the morning, just after he was notified of the death of his friend. Therefore, the admission of extrinsic evidence of these prior statements would have been cumulative (cf. People v Washington, 51 NY2d 214, 221 [1980]; Jerome Prince, Richardson on Evidence § 6-411 at 406 [Farrell 11th ed 1995]).
The defendant contends that the trial court improperly denied his request to instruct the jury with respect to criminally negligent homicide as a lesser-included offense of manslaughter in the first degree as a hate crime. The trial court granted his alternate request to instruct the jury with respect to the lesser-included offense of manslaughter in the second degree, but the jury convicted the defendant of manslaughter in the first degree as a hate crime, as charged in the indictment. Therefore, review of the trial court’s refusal to charge the remote lesser-included offense of criminally negligent homicide is foreclosed (see People v Green, 5 NY3d 538, 545 [2005]; People v Boettcher, 69 NY2d 174, 180 [1987]; People v McGeachy, 74 AD3d 989 [2010]; People v McLeod, 38 AD3d 798, 799 [2007]; People v McMurry, 30 AD3d 444 [2006]). Further, by convicting the defendant of manslaughter in the first degree as a hate crime, the jury found that the defendant intended to inflict serious physical injury on the victim Marcelo Lucero (see Penal Law § 125.20 [1]). Therefore, the trial court’s refusal to instruct the jury with respect to gang assault in the second degree as a lesser-included offense of gang assault in the first degree (see Penal Law §§ 120.06, 120.07) also does not warrant reversal (see People v Rodriguez, 16 NY3d 341, 346 [2011]; People v Ribowsky, 77 NY2d 284, 292 [1991]; People v Albino, 65 NY2d 843 [1985]; People v Degondea, 269 AD2d 243, 245 [2000]).
During deliberations, the jury specifically requested to hear the “cross-examination of Detective John McLeer.” After consulting with counsel for the parties, the trial court properly denied the defense counsel’s request for a reading of additional testimony, since the court had no obligation “to direct the reading of testimony beyond that requested” (People v Murray, 258 AD2d 936, 937 [1999]; see People v Almodovar, 62 NY2d 126, 132 [1984]).
The defendant’s remaining contentions are without merit. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901761/
|
—In an action for an accounting and to recover damages for unjust enrichment, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered June 22, 1987, as granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).
*699Ordered that the order is affirmed insofar as appealed from, with costs.
The issues presented herein were previously decided by this court in Stone v Solarbrite, Inc. (128 AD2d 696). Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901763/
|
—In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Orange County (Ritter, J.), entered July 28, 1986, which granted the defendant John Fitzgerald’s motion to vacate a judgment of foreclosure and to set aside the sale of the property.
Ordered that the order is affirmed, with costs.
The court did not err in concluding that the plaintiff West-side Federal Savings & Loan Association of New York City (hereinafter Westside Federal) lacked the capacity to commence this lawsuit. It is undisputed, insofar as the record is concerned, that prior to the commencement of the subject lawsuit, Westside Federal had been merged with, and completely absorbed by, another banking institution and thereby ceased to exist as an independent jural entity. As this court has observed, "[o]nce such a merger has been effected, the absorbed corporation immediately ceases to exist as a separate entity, and may no longer be a named party in litigation” (Sheldon v Kimberly-Clark Corp., 105 AD2d 273, 276).
In light of the foregoing, the order appealed from should be affirmed. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901764/
|
—In consolidated proceedings pursuant to Real Property Tax Law article 7 to review assessments of certain real property, the petitioners appeal from a judgment of the Supreme Court, Queens County (Kassoff, J.), dated August 23, 1982, which dismissed their petitions and confirmed the assessments.
Ordered that the judgment is affirmed, with costs.
As a general rule, an actual sale at arm’s length, if recent and not explained as extraordinary, is the best evidence of value for tax assessment purposes because it is directly reflective of the property’s market value and does not require the court to engage in speculation (Matter of Southern Westchester Assocs. v Assessor of City of Yonkers, 122 AD2d 212). However, the circumstances surrounding the two recent sales of the subject property justify the trial court’s conclusion that those sales are of little or no probative value (see, Matter of Rice v Srogi, 70 AD2d 764; Matter of Montague Assocs. v Boy land, 19 AD2d 742).
In addition, the court did not err in placing little weight on the petitioners’ expert’s appraisal, as the appraisal report contained inconsistent and unexplained conclusions which were not supported by the facts, figures and calculations relied upon to reach those conclusions (see, 22 NYCRR 202.59 [g] [2]; Matter of Johnson v Town of Haverstraw, 133 AD2d 86). Thus, the petitioners failed to meet their burden of proving by substantial evidence that the assessments were excessive (see, Matter of Adirondack Mountain Reserve v Board of Assessors, 99 AD2d 600, affd 64 NY2d 727; Mobil Oil Corp. v Tax Commn., 60 AD2d 910). Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/4534492/
|
05/14/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 11, 2019 Session
SANDRA ANN PIPPIN v. CHRISTINA MICHELLE PIPPIN
Appeal from the General Sessions Court for Wilson County
No. 2018-CV-2, 18-AD-242 John Thomas Gwin, Judge
___________________________________
No. M2018-00376-COA-R3-CV
___________________________________
The non-biological parent of a child born by artificial insemination to a woman with
whom the non-biological parent had maintained a long term relationship and who had
lived with the child, holding herself out as one of the child’s parents, filed a petition to
establish her parentage of the child and to set a parenting schedule; the petition was
dismissed on the basis that she lacked standing; the trial court also awarded the petitioner
visitation with the child. Upon our review, we affirm the dismissal of the petition and
vacate the order setting visitation.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed in Part and Vacated in Part; Case Remanded
RICHARD H. DINKINS, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER, J., joined. ANDY D. BENNETT, J., filed a dissenting opinion.
Abby R. Rubenfeld, Nashville, Tennessee, for the appellant, Sandra Pippin
Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Christina Pippin
Tiffany D. Hagar, Lebanon, Tennessee, Guardian ad Litem
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
This appeal involves a petition for parentage that was dismissed pursuant to Rule
12.02 of the Tennessee Rules of Civil Procedure. A child (“Child”) was born in
November 2011 through artificial insemination after his biological mother, Christina
Pippin, and her partner, Sandra Pippin, made the mutual decision to have a child and to
have Christina carry the baby. Child was raised by both Christina and Sandra together as
what Sandra characterizes as “equal parents” until December 2016, when the couple
ended their 9 1/2 year relationship. Though Christina legally changed her last name to
that of Sandra’s in the spring of 2011 when she was pregnant with Child, the couple
never married. When they ended their relationship, Sandra moved out of the parties’
home along with her son (“J.”), whom she had adopted prior to beginning the relationship
with Christina.
On January 4, 2018, Sandra filed a petition in the Wilson County General Sessions
Court, Family Court Division,1 seeking to establish what she called “de facto parentage”
of Child and to set a schedule to allow her to have parenting time with him. Among other
things, the petition alleged:
10. . . .
d. In 2009, the parties began discussing adding another child to their
family, which they also discussed with their extended families and
friends, based on their mutual intent and commitment to have and
raise another child together as equal parents;
e. In late 2010/early 2011, the parties executed a sworn Domestic
Partner Affidavit to verify that they were a family, together
supporting each other and both children, which allowed Respondent
and both children to be added to Petitioner’s employee health plan;
f. Because same sex marriage was not yet legal throughout the
country, including in Tennessee, the parties discussed that their
relationship and their commitment to each other and their family was
just as strong without that legal recognition, although Petitioner
proposed to Respondent nonetheless and gave her a bread-tie ring,
later replacing that with a real ring and then a larger one when
Respondent legally changed her surname to Petitioner’s.
***
13. . . .
f. Petitioner was present for [Child]’s birth . . . was the first person to
hold [Child] after birth, accompanied [Child] to the neonatal
intensive care unit (NICU) immediately after his premature birth,
and was the first person to change [Child]’s diaper;
***
i. Petitioner’s family members, friends, and colleagues were told and
understand that she has two sons, and she has photographs of both
[Child] and [J.] in her office; and,
1
Tennessee Code Annotated section 37-1-104(f) gives juvenile courts jurisdiction to establish the
paternity of children born out of wedlock; section 16-15-501 gives general sessions courts concurrent
jurisdiction with circuit and chancery courts in domestic relations cases.
2
j. Petitioner was known to [Child] from birth as “Momma Sandy”
and Respondent was known to him as “Momma Christy,” by
agreement of and equal participation by the parties.
14. Since birth, both parties have taught [Child] that they are his equal
parents, and he has never questioned that and never been told that the
parties are anything other than equal parents to him; [Child] has grown up
knowing [J.] as his brother, and the four members of the household have
functioned as a nuclear family of two parents and two children for the
entirety of [Child]’s life.
15. The record is clear that the parties regarded themselves as a committed
couple raising two sons together, regardless of who had what legal
relationship with each child . . .
***
17. The parties continued their joint commitment to being equal parents of
[Child] after his birth, as evidenced by the following, among other things:
a. [Child] has grown up being taught and considering Petitioner’s
extended family as his family, calling Petitioner’s mother “Grandma
Marilyn,” Petitioner’s sisters “Aunt Jenny,” “Aunt Debby,” and
“Aunt Clara,” and Petitioner’s nieces and nephews his “cousins”;
***
c. Throughout [Child]’s life, the parties shared household
responsibilities for the family, with Respondent as a stay-home mom
with responsibility for most of the domestic chores, and Petitioner
being the primary breadwinner for the family and paying most
family expenses, including providing health insurance coverage for
the entire family through her employment, and most other expenses
associated with raising [Child];
d. Petitioner regularly took both children shopping for clothing,
school supplies, and other necessities;
***
i. By agreement with and the approval of Respondent, Petitioner was
listed as [Child]’s other parent on all registration forms and in all
directories, and regularly attended parent/teacher conferences for
him;
j. Petitioner was also listed as [Child]’s other parent on registration
forms for his extra-curricular soccer and wrestling classes, for which
she paid;
k. When not traveling for work, Petitioner regularly woke [Child],
got him dressed and ready for the day, made and fed him breakfast,
and dropped him off at daycare or school; and,
***
45. Petitioner relied on the representations and behavior of Respondent that
3
the parties are equal co-parents and she has considered [Child] to be her son
since his birth, willingly and joyfully assuming all obligations of
parenthood, without any expectation of financial compensation, including
providing financial assistance for [Child], taking care of him physically and
emotionally, and engaging in all of the things that parents do for their
children.
46. In addition, Petitioner has been [Child]’s primary source of financial
support since his birth, even after the separation of the parties, and she is
prepared to continue doing that since she is and has always been his second
parent.
47. Petitioner has been in a parental role to [Child] for his entire six years
of life, and thus has established a bonded, dependent relationship with him,
completely parental in nature.
***
90. There is functionally no difference between a married and an un-
married partner where the biological parent chooses to conceive using
donor insemination and where she specifically invites and intends for a
partner to raise the child together with her as an equal parent — as the facts
plainly establish here. See, e.g., Partanen v. Gallagher, 59 N.E.3d 1133
(Mass. 2016) (in related context, person without biological connection to
child may be child’s “presumed parent” under statute providing man is
presumed to be father of child born out of wedlock if he, jointly with
mother, received the child into their home and openly held out child as their
child).
In motions filed on January 9, Sandra sought to have a guardian ad litem appointed and
for a temporary parenting schedule “so as to preserve the status quo by allowing Child to
continue seeing, and to maintain the close, loving, and parent/child relationship he has
with both of the people he has been taught to consider his parents.” On January 18, the
court held a hearing on the motions; by order entered January 22, the court appointed
guardian ad litem and reserved the other matters for hearing on February 1.
Following the February 1 hearing, the court entered an order holding that it was in
Child’s best interest to continue having parenting time with Sandra and setting a
temporary parenting schedule that permitted Sandra to have time with him every other
weekend; the court also ordered the parties to submit a proposed temporary parenting
schedule. On February 2, Christina filed a motion to dismiss the petition and to stay the
overnight visitation pending a hearing on the motion. The motion to dismiss, filed
pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure, asserted that the
petition failed to state a claim for relief as “the parties were never married, and [Child] is
the biological child of Respondent, and is not the biological child, adopted child, or step-
child of Petitioner, [thus] Petitioner has no standing under Tennessee law to seek
parenting time.”
4
A hearing on the motion to dismiss was held on February 15, at the end of which
time the court orally granted the motion; Sandra moved for a stay to allow visitation to
continue pending her appeal. On February 26, the trial court entered the order
memorializing its oral ruling and denying the stay sought by Sandra. On March 14
Sandra moved to alter or amend that portion of the order denying the stay so that
visitation could continue pending resolution of the appeal; following a hearing, the court
granted the motion and permitted visitation between Sandra and Child on the first and
third Saturdays of each month.2
Sandra filed a timely notice of appeal and states the following issues for
resolution:
I. Do the Tennessee parentage presumption statutes, read in a gender-neutral
way as required by T.C.A. §1-3-104 and by established constitutional law,
provide standing for an unmarried adult who is not related to a child by
biology or adoption, particularly where, as here, that adult participated in
the intentional conception of that child, voluntarily and without expectation
of compensation helped raise him for years until this case, supported him
financially and emotionally, took him into her home and held him out to
the world as her natural son, and whom that child was taught by his
biological parent is his other parent?
II. Does Tennessee common law provide standing for an unmarried adult who
is not related to a child by biology or adoption if the statutory parentage
scheme does not apply, particularly where, as here, that adult participated in
the intentional conception of that child, voluntarily and without expectation
of compensation helped raise him for the first 6 years of his life until this
case, supported him financially and emotionally, held him out to the world
as her natural child, loved him, and parented him, and whom that child was
taught by his biological parent is his other parent?
III. Does an unmarried legal parent waive her superior constitutional right to
raise and control her child when she voluntarily and intentionally permits
and encourages that child to have a bonded, parent/child relationship with
another adult who lives with, supports, loves, and coparents her child for
almost all of the child’s life, and where it will cause harm to the child to
2
The court entered an “Abstract Order Regarding Petitioner’s Visitation and Contact with Child” on
April 6 in which it: awarded visitation to Sandra on the first and third Saturday of each month as well as
one phone call per week, awarded holiday visitation to Sandra on December 26 of each year, restrained
the parties from discussing the case with Child, and ordered the parties “to facilitate and encourage a
relationship between the child and the other party consistent with the best interest of the child.”
5
suddenly sever the relationship his legal parent encouraged him to have
with the person he regards as his other parent?
IV. Are In re Thompson, 11 S.W.3d 913 (Tenn. App. 1999), and In re Hayden
C.G.-J, S.W.3d (Tenn. App. 2013), 2013 WL 6040348, based on
Thompson, no longer controlling of the issue presented here given the
reversals of the authority on which they were based and since they have
been substantially undermined by changes in Tennessee law, Tennessee
families, and federal constitutional law since they were decided?
Christina raises the following additional issues:
[I]. The issue of whether Appellant is a parent, based on the language of Tenn.
Code Ann. [§] 36-2-304, the presumption of parentage statute, with
standing to pursue this action was not raised in the trial court and is not
properly before this Court.
[II]. The trial court erred when it granted visitation to appellant after it
dismissed her petition.
[III]. This case should be remanded to the trial court for a determination of the
amount of attorney’s fees to be paid by Appellant to appellee pursuant to
Tenn. Code Ann. [§] 20-12-119(c)(1) and other authority.
[IV]. Appellee should be awarded her attorney’s fees on appeal or awarded
damages for a frivolous appeal and the costs of this appeal should be
assessed to appellant.
II. STANDARD OF REVIEW
The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine
whether the pleadings state a claim upon which relief can be granted. A Rule 12 motion
only challenges the legal sufficiency of the complaint. It does not challenge the strength
of the plaintiff’s proof. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999). “[M]atters outside the pleadings
should not be considered in deciding whether to grant the motion.” In re Francis P., 532
S.W.3d 356, 365 (Tenn. Ct. App. 2017), appeal denied (Sept. 22, 2017) (quoting Trau–
Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002)). In reviewing a
motion to dismiss, we must liberally construe the complaint, presuming all factual
allegations to be true and giving the plaintiff the benefit of all reasonable inferences. See
Pursell v. First American National Bank, 937 S.W.2d 838, 840 (Tenn. 1996); see also
Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn. 2002). Thus, a
complaint should not be dismissed for failure to state a claim unless it appears that the
6
plaintiff can prove no set of facts in support of his or her claim that would warrant relief.
See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Fuerst v. Methodist Hospital
South, 566 S.W.2d 847, 878 (Tenn. 1978). Making such a determination is a question of
law. Our review of a trial court’s determinations on issues of law is de novo, with no
presumption of correctness. Frye v. Blue Ridge Neuroscience Center, P. C., 70 S.W.3d
710, 713 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn 2000); Ganzevoort v.
Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
The issues raised require that we construe several statutes. The construction of a
statute is a question of law and is reviewed de novo. Lee v. Franklin Special Sch. Dist.
Bd. of Educ., 237 S.W.3d 322, 332 (Tenn. Ct. App. 2007). When construing a statute, a
court must “ascertain and give effect to the legislature’s intent.” Home Builders Ass’n of
Middle Tenn. v. Williamson Cnty., 304 S.W.3d 812, 817 (Tenn. 2010). Ordinarily, we
derive this legislative intent “‘from the natural and ordinary meaning of the statutory
language within the context of the entire statute without any forced or subtle construction
that would extend or limit the statute’s meaning.’” Id. (quoting State v. Flemming, 19
S.W.3d 195, 197 (Tenn. 2000)). Where “the language of a statute is ambiguous in that it
is subject to varied interpretations producing contrary results, Walker [v. Sunrise
Pontiac–GMC Truck, Inc.,] 249 S.W.3d [301,] 309 [(Tenn. 2008)], we construe the
statute’s meaning by examining ‘the broader statutory scheme, the history of the
legislation, or other sources.’” Id. (quoting State v. Sherman, 266 S.W.3d 395, 401 (Tenn.
2008)).
III. ANALYSIS
A. Standing
The trial court dismissed the petition, stating that it was “being asked to create a
new category of parent in Tennessee” — “a de facto parent.” The court further opined
that there “is no such thing in Tennessee . . . except on the street and in real life; there are
all sorts of de facto parents, but the law gives them no rights.” The court concluded that
Sandra had no standing to pursue being named the parent of Child. Sandra asserts that
Tennessee Code Annotated sections 68-3-306 and 36-2-304(a)(4), read and applied in a
gender-neutral manner, give her standing to seek to establish parentage and visitation
rights. We address the statutes separately.
Standing is a judicial doctrine used to determine whether a party is “entitled to
have a court decide the merits of a dispute.” Am. Civil Liberties Union of Tenn. v.
Darnell, 195 S.W.3d 612, 619 (Tenn. 2006). The doctrine of standing precludes courts
from adjudicating “‘an action at the instance of one whose rights have not been invaded
or infringed.’” Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001) (quoting 59
AM.JUR.2D. Parties § 30 (1987)). More specifically, this doctrine “restricts ‘[t]he
exercise of judicial power . . . to litigants who can show ‘injury in fact’ resulting from the
7
action which they seek to have the court adjudicate.’” In re Estate of Farmer, No.
M2013-02506-COA-R3-CV, 2014 WL 5308226, at *12 (Tenn. Ct. App. Oct. 15, 2014)
(quoting Valley Forge Christian Coll. v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 473 (1982)). Where the person seeks to base his or her standing
on a statute, he or she must show that the “‘claim falls within the zone of interests
protected or regulated by the statute in question.’” State v. Harrison, 270 S.W.3d 21, 28
(Tenn. 2008) (quoting Wood v. Metro Gov’t of Nashville & Davidson Cnty, 196 S.W.3d
152, 158 (Tenn. Ct. App. 2005)).
Pertinent to the issue of standing presented in this case is the following holding
from In re Thompson, in which this Court considered the question of “whether a petition
for visitation may be brought by a woman who, in the context of a long-term relationship,
planned for, participated in the conception and birth of, provided financial assistance for,
and until foreclosed from doing so by the biological mother, acted as a parent to the child
ultimately borne by her partner.” In re Thompson, 11 S.W.3d 913, 915 (Tenn. Ct. App.
1999). We held:
While Tennessee’s legislature has generally conferred upon parents
the right of custody and control of their children, it has not conferred upon .
. . a nonparent who is not and has not been married to either of the
children’s parents, but who previously maintained an intimate relationship
with such a parent and who previously provided care and support to the
children[] any right of visitation. Absent statutory authority establishing
such a third-party’s right to visitation, parents retain the right to determine
with whom their children associate.
Id. at 918–19, 923 (Tenn. Ct. App. 1999).
1. Tennessee Code Annotated section 68-3-306
Tennessee Code Annotated section 68-3-306, which provides that “[a] child born
to a married woman as a result of artificial insemination, with consent of the married
woman’s husband, is deemed to be the legitimate child of the husband and wife,” is a part
of the Vital Records Act of 1977, codified in Chapter 3 of Title 68, part 3 of which relates
to births. Section 306 follows section 305, entitled “Father’s name on birth certificate –
Surname of child,” and which sets out in great detail the manner by which a child’s
father’s name is entered on the child’s birth certificate and, particularly, the manner in
which the father’s name is determined and added to the certificate, if the father is not
married to the mother.3 Consistent with the wording and intent of section 305, section
3
Section 305(a)(1) provides that “[i]f the mother was married at the time of either conception or birth, or
anytime between conception or birth, to the natural father of the child, the name of the natural father shall
be entered on the certificate . . . .”
8
306 declares that a child born to a married woman by artificial insemination is also a
child of the woman’s husband, thereby allowing the name of the husband of the married
woman who has borne the child to be entered as the child’s father on the birth certificate.
In the context of the broader statutory scheme, section 306 does not create the
relationship that Sandra advocates or confer any rights of parentage; the “marriage-
neutral” construction Sandra urges is a strained interpretation of the natural and ordinary
meaning of the statutory language.
Even if section 68-3-306 were construed to create a right of visitation on the part
of the husband of a woman who has given birth to a child by artificial insemination, that
right would be predicated upon the child being born to a married woman. Inasmuch as
Sandra’s petition stated that she and Christina were not married at the time of Child’s
birth nor at any time afterward, section 68-3-306 does not provide Sandra with standing
and thus cannot be used to support a claim for visitation with Child.
2. Tennessee Code Annotated section 36-2-304
Tennessee Code Annotated section 36-2-304 provides in pertinent part that “[a]
man is rebuttably presumed to be the father of a child if: . . . While the child is under the
age of majority, the man receives the child into the man’s home and openly holds the
child out as the man’s natural child.” Tenn. Code Ann. § 36-2-304(a)(4). Sandra pled
that she received Child into her home and held him out as her natural child, and argues
that “us[ing] the actual language of the statute but substituting feminine for masculine
words,” she “fits within the presumptions that makes a person a ‘parent’ under the
Tennessee Code, and thus has standing to pursue this case.”
As an initial matter, we address Sandra’s contention that reading section 36-2-304
in a gender-neutral way is required by section 1-3-104(b) (“Words importing the
masculine gender include the feminine and neuter, except when the contrary intention is
manifest”), thereby creating a rebuttable presumption of parentage when a person like her
receives a child, who is under the age of majority, into his or her home and openly holds
the child out as that person’s child. Applying the principles of statutory construction set
forth above, we do not agree that recourse to section 1-3-104 is required or necessary to
resolve the issue presented. The parentage statutes are not ambiguous, and to the extent
applicable to our inquiry, the Legislative intent of the statutes is clear and can be derived
“from the natural and ordinary meaning of the statutory language within the context of
the entire statute without any forced or subtle construction that would extend or limit the
statute’s meaning.” Home Builders Ass’n of Middle Tenn., 304 S.W.3d 817. Moreover,
to substitute “comparable feminine terms” for the words like “man” or “father,” as
Sandra proposes, goes beyond allowing words written in one gender be construed, where
necessary, to apply to the other, and exceed the purpose of the parentage statute as stated
in section 36-2-301, as more fully explained below. See Sneed v. Henderson, 366 S.W.2d
758, 759 (Tenn. 1963) (Allowing suit to proceed for the wrongful death of an infant’s
9
mother, where wrongful death statute provided that action would pass “to his children or
to his next of kin” but “applie[d] equally whether the deceased injured party be male or
female.”). No rights or relationships are created by the parentage statutes, only a
procedure by which the father is able to establish parentage; as such, recourse to section
1-3-104(b) for other purposes is not warranted.
Chapter 2 of Title 36 of the Code addresses parentage; section 36-2-301 states that
the purpose of the chapter is to “provide[] a single cause of action to establish parentage
of children other than establishment by adoption pursuant to chapter 1 of this title, or by
acknowledgement of parentage pursuant to §§ 68-3-203(g), 68-3-302 or 68-3-305(b).”4
Tenn. Code Ann. § 36-2-301. Section 36-2-302(5) defines “parent” to mean “the
biological mother or biological father of a child, regardless of the marital status of the
father and mother”; it also defines “mother” as “the biological mother of a child born out
of wedlock” (section 36-2-302(4)), and “father” as “the biological father of a child born
out of wedlock.” Tenn. Code Ann. § 36-2-302(4)(3). Section 36-2-305 permits a
complaint to establish parentage of a child to be filed by the child, the child’s mother, “a
man claiming to be the child’s father,” or the department of human services or its
contractor. Inasmuch as the Legislature has defined “father” in section 36-2-302, we
cannot give a gender-neutral meaning to that term for purposes of section 36-2-304; to do
so would extend both statutes’ meanings beyond that set forth in the chapter. Like the
statutes in chapter 1 of title 36, the statutes governing parentage contemplate a biological
or genetic connection between the child and the putative parent. Sandra does not have a
biological connection to Child and, accordingly, cannot fit this definition.
The Legislature has expressly created rights relative to child custody and visitation
for biological parents, potential adoptive parents, grandparents, stepparents, and parents
of “children born of donated embryo transfer.” See Tenn. Code Ann. §§ 36-1-101 et seq.
(adoption); 36-2-301 et seq. (biological fathers) 36-6-301 et seq. (grandparents and
stepparents); 36-2-401 et seq. (children born of donated embryo transfer). It has not
created the same such rights outside of these relationships. As Sandra does not fit into
any of these categories, her claim falls outside the zone of interests protected or regulated
by the statutes she references, rendering her without standing to pursue a parentage action
or visitation with Child.
4
Chapter 1 of Title 36 governs adoption, and section 102 defines “parent” as “any biological, legal,
adoptive parent or parents or, for purposes of §§ 36-1-127 -- 36-1-141, stepparents.” Tenn. Code Ann. §
36-1-102(36). A “legal parent” is defined as the biological mother of a child; a man who is or has been
married to the biological mother of the child or who attempted to marry the mother of the child; a man
who has been adjudicated to be the legal father of the child or who has signed a sworn acknowledgement
of paternity; or an adoptive parent. Tenn. Code Ann. § 36-1-102(28)(A). Based on the facts alleged in the
petition, Sandra is not a biological parent, a legal parent, or step parent, and she did not seek to adopt
Child; thus, she does not fit within any of these statutory definitions of a parent, even giving the statutes
the wording she urges.
10
3. De Facto Parentage
Additionally, Sandra argues that she should be established as the de facto parent of
Child. The guardian ad litem also urges that we adopt this concept and apply it to the
facts at hand to conclude that Sandra has standing in this matter. Adherence to precedent
prevents us from adopting such an approach; prior cases have expressly declined to adopt
the “de facto” parent definition of parentage for the purposes at hand. In In re Thompson,
this Court observed:
While it may be true that in our society the term “parent” has
become used at times to describe more loosely a person who shares mutual
love and affection with a child and who supplies care and support to the
child, we find it inappropriate to legislate judicially such a broad definition
of the term “parent” as relating to legal rights relating to child custody
and/or visitation. Just as a grandparent who provides care and support to a
child does not become recognized as being a parent (absent adoption) under
Tennessee law, other persons are not recognized as being a parent under
Tennessee law based only upon prior care and support of a child. These
other persons include any unmarried persons who maintain a close intimate
relationship with a child’s natural parent, whether they are of the same or
opposite sex of that natural parent.
***
. . .[W]e are unaware of and have not been cited to any prior
controlling precedent that has utilized the concept of either de facto
parenthood and/or in loco parentis to extend constitutional parental rights,
including the right to visitation, to unmarried/unrelated persons in [the
appellants’] position.
11 S.W.3d at 918–19, 923.5 Fourteen years later, in In re Hayden C.G-J., No. M2012-
02701-COA-R3-CV, 2013 WL 6040348, at *1 (Tenn. Ct. App. Nov. 12, 2013), this
Court again considered facts similar to those in this case and concluded that the
unmarried former partner of a legal parent did not have standing to seek visitation with a
child the couple had raised together for the first 4 1/2 years of the child’s life, stating that
5
We are not persuaded by Sandra’s argument that In re Thompson is “no longer controlling of the issue
presented here given the reversals of the authority on which [it] was based.” She cites Alison D. v.
Virginia M., 572 N.E.2d 27 (N.Y. 1991), overruled by Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488
(N.Y. 2016), as being “relied heavily” on in In re Thompson; however, Alison D. is one of four cases
discussed in In re Thompson in similar depth, and the other three cases, from the States of California,
Vermont, Florida, have not, as of this writing, been overruled.
11
“no statute gives [the petitioner] a legal right or interest regarding visitation with [the
child]” and that, in light of the Legislature’s decision to not change the definition of
parent or legal parent, the petitioner’s arguments that she had standing under the concepts
of in loco parentis and/or de facto parent also “lack[ed] a legal foundation.” Id. at *1, *4.
Although significant changes in the legal landscape regarding the recognition of same-
sex marriage have taken place since In re Hayden C.G-J. was decided, the holding in that
case remains applicable to the facts of this case because the parties were unmarried.6
Inasmuch as Sandra’s claim for visitation does not fall within the zones of
interests protected by the parentage statutes, she does not have standing to pursue
visitation; accordingly, we affirm the judgment of the trial court dismissing the petition. 7
B. Visitation
By order entered May 2, 2018, the trial court granted Sandra visitation with Child
pending resolution of all appeals, finding that it was not in Child’s best interest to be
separated from Sandra through the appeal process, that minimum contacts between the
two “are sufficient to maintain [Child’s] relationship with [Sandra],” and that such
minimum contacts were in Child’s best interest. Christina contends that, in light of the
fact that Sandra was not Child’s biological mother, step-mother, adoptive mother, or
grandmother, the court erred in granting visitation. Inasmuch as we have affirmed the
dismissal of the petition and held that Sandra does not have standing to pursue visitation
with Child, we vacate the order granting visitation. In so doing, we acknowledge the trial
court’s finding that Child’s best interest is served by maintaining a relationship with
Sandra, as well as her son J., and commend the court for its thorough and heartfelt ruling
in that regard.
6
Sandra’s petition states that the parties did not marry, and she does not challenge any Tennessee
marriage laws; thus, the issues presented in this appeal do not implicate the holdings of Obergefell v.
Hodges, 135 S. Ct. 2584, 2593 (2015). In Grant v. Anderson, this Court set forth the precise holdings of
Obergefell:
[T]he [United States Supreme] Court held that “the State laws challenged . . . in these
cases are now . . . invalid to the extent they exclude same-sex couples from civil marriage
on the same terms and conditions as opposite-sex couples.” Id. at 2605. The Court further
held “that there is no lawful basis for a State to refuse to recognize a lawful same-sex
marriage performed in another State on the ground of its same-sex character.” Id. at 2608.
No. M2016-01867-COA-R3-CV, 2018 WL 2324359, at *2 (Tenn. Ct. App. May 22, 2018), appeal denied
(Oct. 10, 2018).
7
Our holding that Sandra does not have standing to pursue visitation pretermits our consideration of the
issue she raises as to whether Christina waived her superior parental rights when she permitted Sandra to
parent Child.
12
C. Attorney’s Fees
Christina has asked that the case be remanded for a determination of an award of
counsel fees as authorized by Tennessee Code Annotated section 20-12-119(c)(1), and
for an award of fees as damages for a frivolous appeal. Upon a review of the petition, we
conclude that an award of fees is precluded under subsection (c)(5)(E).8
This court is authorized by Tennessee Code Annotated section 27-1-22 to award
damages, including attorney’s fees, against the appellant if we determine the appeal is
frivolous or that it was taken solely for delay; the statute is to be interpreted and applied
strictly to avoid discouraging legitimate appeals. Wakefield v. Longmire, 54 S.W.3d 300,
304 (Tenn. Ct. App. 2001); see Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.
1977) (discussing the predecessor of Tenn. Code Ann. § 27-1-122). A frivolous appeal is
one that is devoid of merit or has no reasonable chance of success. Wakefield, 54 S.W.3d
at 304. The award of damages for the filing of a frivolous appeal lies within the sound
8
Tennessee Code Annotated section 20-12-119 states:
(a) In all civil cases, whether tried by a jury or before the court without a jury, the
presiding judge shall have a right to adjudge the cost.
***
(c)(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial court
grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure
for failure to state a claim upon which relief may be granted, the court shall award the
party or parties against whom the dismissed claims were pending at the time the
successful motion to dismiss was granted the costs and reasonable and necessary
attorney’s fees incurred in the proceedings as a consequence of the dismissed claims by
that party or parties. The awarded costs and fees shall be paid by the party or parties
whose claim or claims were dismissed as a result of the granted motion to dismiss.
***
(5) This subsection (c) shall not apply to:
***
(E) Any claim which is a good faith, non-frivolous claim filed for the express purpose
of extending, modifying, or reversing existing precedent, law or regulation, or for the
express purpose of establishing the meaning, lawfulness or constitutionality of a law,
regulation or United States or Tennessee constitutional right where the meaning,
lawfulness or constitutionality is a matter of first impression that has not been established
by precedent in a published opinion by the Tennessee supreme court, court of appeals,
court of criminal appeals, a United States district court in Tennessee, or by the United
States supreme court. This subdivision (c)(5)(E) shall not apply unless at the time the
successful motion to dismiss was filed the party that made the dismissed claim had
specially pleaded in its latest complaint, counter-complaint or cross-complaint that the
dismissed claim was made for one (1) of the express purposes listed above and cited the
contrary precedent or interpretation the party seeks to distinguish or overcome, or
whether the issue to be decided is a matter of first impression as described in this
subdivision (c)(5)(E).
13
discretion of this Court. GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 547 (Tenn. Ct.
App. 2005). In our discretion, we decline to award attorney’s fees on appeal.
IV. CONCLUSION
For the foregoing reasons, the judgment of the trial court dismissing the petition is
affirmed, and the order granting visitation between Sandra and Child is vacated.
RICHARD H. DINKINS, JUDGE
14
|
01-03-2023
|
05-14-2020
|
https://www.courtlistener.com/api/rest/v3/opinions/4408914/
|
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2019 01:07 AM CDT
- 720 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
Sonia Becher, appellant, v.
M ark A. Becher, appellee.
___ N.W.2d ___
Filed March 29, 2019. No. S-18-608.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.
2. ____: ____. Before reaching the legal issues presented for review, an
appellate court must determine whether it has jurisdiction.
3. Courts: Jurisdiction. While it is not a constitutional prerequisite for
jurisdiction, the existence of an actual case or controversy is necessary
for the exercise of judicial power.
4. Actions: Moot Question. An action becomes moot when the issues
initially presented in the proceedings no longer exist or the parties lack
a legally cognizable interest in the outcome of the action.
5. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no longer alive.
6. Moot Question. Mootness refers to events occurring after the filing of
a suit which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
7. Moot Question: Jurisdiction: Appeal and Error. Although mootness
does not prevent appellate jurisdiction, it is a justiciability doctrine that
can prevent courts from exercising jurisdiction.
8. Moot Question. As a general rule, a moot case is subject to sum-
mary dismissal.
9. Jurisdiction: Appeal and Error. Generally, once an appeal is perfected,
the trial court no longer has jurisdiction until a mandate issues.
10. Jurisdiction: Child Custody: Visitation: Appeal and Error. Under
Neb. Rev. Stat. § 42-351(2) (Reissue 2016), a trial court may retain
- 721 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
jurisdiction to provide for an order concerning custody and parenting
time even while an appeal of one of its orders is pending.
11. Jurisdiction: Minors: Final Orders: Appeal and Error. Neb. Rev.
Stat. § 42-351(2) (Reissue 2016) does not grant a trial court authority
to hear and determine anew the very issues then pending on appeal and
to enter permanent orders addressing these issues during the appeal
process.
Appeal from the District Court for Lancaster County: K evin
R. McM anaman, Judge. Vacated and dismissed.
Sally A. Rasmussen, of Mattson Ricketts Law Firm, for
appellant.
David P. Kyker and Bradley A. Sipp for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Sonia Becher and Mark A. Becher were divorced by decree
in 2015. The parenting plan ordered by the court established
a parenting time schedule for only one of the parties’ three
children. In 2018, while an appeal from the dissolution decree
was pending in this court, Mark filed a motion seeking to
establish parenting time and telephone communication with
one of the other children. The court granted that motion, and
Sonia appeals. For the reasons set forth herein, we vacate
and dismiss.
BACKGROUND
Sonia and Mark were married in December 1991 and had
three children: Daniel Becher, born in 2000; Cristina Becher,
born in 2002; and Susana Becher, born in 2008. Sonia and
Mark were divorced in 2015 after an exceptionally contentious
dissolution proceeding.
Mark appealed, and Sonia cross-appealed the 2015 dissolu-
tion decree. Both parties, in part, assigned the district court
- 722 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
erred in its ordering of the custodial arrangement and the award
of parenting time. The court’s decree ordered what it described
as a “split and joint” custody arrangement. We described the
arrangement in Becher v. Becher (Becher I )1:
The district court found that a split and joint custody
arrangement with [a] parenting plan designed to reduce
potential conflicts was in the best interests of the children.
In its decree, the court ordered that Sonia have permanent
legal and physical care, custody, and control of the par-
ties’ two daughters, while Mark have permanent legal
and physical care, custody, and control of the parties’ son
with each “subject to the rights of parenting time for the
noncustodial parent as set forth in the parenting plan.”
However, the court-ordered parenting plan provided that
the parties would share joint legal custody of all three
children, with Mark having primary physical custody of
the parties’ son, Sonia having primary physical custody
of the parties’ oldest daughter, and shared joint physi-
cal custody of the parties’ youngest daughter. . . . [T]he
court-ordered parenting plan did not provide a parenting
schedule for the two oldest children. It did provide a joint
physical custody arrangement for the youngest child with
Mark and Sonia having equal parenting time on alternat-
ing weeks.
We concluded the district court had not abused its discre-
tion in entering this parenting plan and found the provisions
of the decree adequately set forth each party’s rights and
responsibilities.2
Relevant to the issues raised in the present appeal, the
parenting plan gave the following rationale for not establish-
ing a parenting time schedule for the two older children,
and expressly contemplated future modification to address
the issue.
1
Becher v. Becher, 299 Neb. 206, 224, 908 N.W.2d 12, 28 (2018).
2
Id.
- 723 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
Regular Monthly Parenting Time with Daniel and Cristina:
Based upon the recommendations of George Williams,
PhD., the Court determines that it is in the best interests
of Daniel and Cristina . . . that no set parenting time
schedule be established at this time. This is because of
the significant conflict that still exists between these chil-
dren and their non-custodial parent. Until such time as
counseling with the family has resolved at least some of
these issues, Dr. Williams believes a required parenting
schedule would be inappropriate and perhaps detrimental.
Both parties have agreed to voluntarily continue counsel-
ing with Dr. Williams and involve the children as may be
necessary in order to reduce family conflict before a set
schedule with respect to these two children is established.
This parenting plan will need to be modified at some point
in the future to include specific parenting time with these
children, on a regular monthly basis, during the summer
and on holidays. Except for summer parenting time, spe-
cific parenting time only involves Susana at this time.
As to communications between the parents and children during
specified summer parenting time, the parenting plan stated:
[D]uring the summer parenting time for each parent the
parent who is not exercising parenting time is to have
no communication of any nature with their children.
They are not to attempt to contact their children in any
fashion during the other parent summer parenting time.
Additionally, the parent not having parenting time is
not to accept or respond to any attempt by any child to
communicate with them. In the event of an emergency
of any nature during the summer parenting time, Mother
and Father may communicate with each other to address
the emergency.
Becher I was released March 9, 2018, and the mandate
issued on July 13, 2018.3
3
Becher I, supra note 1.
- 724 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
After Becher I was released but before the mandate was
issued, Mark filed a motion in the district court on June 8,
2018, seeking to establish specific parenting time and tele-
phone contact with Cristina. On June 11, Mark amended his
motion to add a sentence to the notice of hearing purporting to
provide that “[t]he hearing will be by affidavit.” Both motions
were e-filed with the court and directed to Sonia’s attorney by
U.S. mail.
Neither motion was styled as a complaint to modify the
decree, and it does not appear from the record that either
motion was served on Sonia personally, nor was a praecipe for
summons ever requested.
On June 14, 2018, a hearing was held on the amended
motion. Sonia did not appear personally or through counsel.
Mark also did not personally appear but was represented by
counsel. Mark’s affidavit was received as an exhibit. In it,
he averred he had not had meaningful contact with Cristina
since the entry of the decree and all telephone contact had to
go through Sonia. Mark sought specific parenting time to take
Cristina on a summer vacation in June 2018 and asked to pur-
chase a cell phone to communicate directly with Cristina with-
out having to go through Sonia. At the hearing, Mark’s counsel
indicated that the motion was made pursuant to Neb. Rev. Stat.
§ 42-351 (Reissue 2016) to enable the court to consider the
issue of custody and parenting time before the mandate of the
initial appeal issued.
The same day as the hearing, the district court entered an
order providing, in full:
1. [Mark] may, at his sole expense, provide a cellu-
lar telephone for the minor child of the parties, Cristina
. . . . While [Sonia] may restrict use of the cellular tele-
phone, [Sonia] may not restrict any contact or communi-
cation between [Mark] and Cristina . . . through the use
of the cellular phone.
2. [Mark] may have parenting time with Cristina dur-
ing the week of June 19, 2018[,] at 9:00 a.m. to June 26,
- 725 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
2018[,] at 9:00 a.m. [Mark] shall be responsible for all
transportation necessary to effect parenting time with his
daughter during this time.
The order was prepared by Mark’s counsel. The order did
not construe the motion as a complaint to modify, nor did
the order purport to modify the decree or the court-ordered
parenting plan. However, neither did the order indicate it
was pursuant to § 42-351 nor that it was a temporary order.
To the extent the order allowed specific parenting time for
Mark, it was limited to 1 week in June 2018. The telephone
parenting time authorized by the order contained no tempo-
ral limit.
ASSIGNMENTS OF ERROR
Sonia assigns, restated, that the district court erred in (1)
modifying the decree while an appeal of the decree was pend-
ing, (2) exercising jurisdiction although Sonia had not been
properly served, (3) failing to find Sonia was denied procedural
due process, and (4) modifying the parties’ parenting time
without a showing of a material change in circumstances.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.4
ANALYSIS
[2,3] Before reaching the legal issues presented for review,
an appellate court must determine whether it has jurisdiction.5
While it is not a constitutional prerequisite for jurisdiction,
4
In re Grand Jury of Douglas Cty., ante p. 128, 922 N.W.2d 226 (2019);
Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
5
See, In re Grand Jury of Douglas Cty., supra note 4; Nesbitt v. Frakes, 300
Neb. 1, 911 N.W.2d 598 (2018).
- 726 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
the existence of an actual case or controversy is necessary for
the exercise of judicial power.6
[4-8] We first note the time period granted to Mark for the
specific summer parenting time with Cristina has passed. An
action becomes moot when the issues initially presented in
the proceedings no longer exist or the parties lack a legally
cognizable interest in the outcome of the action.7 A moot case
is one which seeks to determine a question that no longer
rests upon existing facts or rights—i.e., a case in which the
issues presented are no longer alive.8 Mootness refers to events
occurring after the filing of a suit which eradicate the requisite
personal interest in the resolution of the dispute that existed at
the beginning of the litigation.9 Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that
can prevent courts from exercising jurisdiction.10 As a general
rule, a moot case is subject to summary dismissal.11
On this point, the order stated that Mark “may have parent-
ing time with Cristina during the week of June 19, 2018[,] at
9:00 a.m. to June 26, 2018[,] at 9:00 a.m.” Because this period
has passed and the order does not provide Mark a continuing
summer parenting time schedule, the assigned errors concern-
ing the order’s grant of specific summer 2018 parenting time
are moot.
Taking this limitation into account, we turn to Sonia’s
assignment that the district court erred in modifying the decree
by allowing Mark to provide Cristina a cell phone and have
unrestricted communication while an appeal of the decree
was pending. Mark, in turn, argues that the court retained
6
Nesbitt, supra note 5.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
- 727 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
jurisdiction to issue the order under § 42-351(2) and that such
order was implicitly temporary.
[9,10] Generally, once an appeal is perfected, the trial court
no longer has jurisdiction until a mandate issues.12 However,
a trial court retains jurisdiction under § 42-351(2) for certain
matters. Section 42-351(2) provides:
When final orders relating to proceedings governed by
sections 42-347 to 42-381 are on appeal and such appeal
is pending, the court that issued such orders shall retain
jurisdiction to provide for such orders regarding support,
custody, parenting time, visitation, or other access, orders
shown to be necessary to allow the use of property or to
prevent the irreparable harm to or loss of property during
the pendency of such appeal, or other appropriate orders
in aid of the appeal process. Such orders shall not be con-
strued to prejudice any party on appeal.
Thus, a trial court may retain jurisdiction to provide for an
order concerning custody and parenting time even while an
appeal of one of its orders is pending.
[11] Nevertheless, there is a limit on a trial court’s jurisdic-
tion to enter an order concerning an issue which is pending on
appeal.13 Section 42-351(2) does not grant a trial court author-
ity to hear and determine anew the very issues then pending on
appeal and to enter permanent orders addressing these issues
during the appeal process.14
In the instant case, Mark’s motion sought to change the
decree and court-ordered parenting plan concerning custody
and parenting time even though those were issues pending on
appeal. In Becher I, the appeal of the dissolution decree, Sonia
and Mark both assigned errors related to the district court’s
award of custody and parenting time.15 During that appeal,
12
Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
13
See id.
14
Id.
15
See Becher I, supra note 1.
- 728 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
we considered the validity of the custodial arrangement and
award of parenting time, the interpretation of terminology used
concerning the custodial arrangement and award of parenting
time, and whether the decree was contradicted by the parenting
plan. The resolution of these issues on appeal potentially could
have had an effect on the summer parenting time explained in
the parenting plan which prohibited communication between
the parent not exercising the parenting time and the children.
Specifically, that section of the plan stated that “the parent who
is not exercising parenting time is to have no communication of
any nature with their children” and further explained that “the
parent not having parenting time is not to accept or respond to
any attempt by any child to communicate with them.”
The order currently on appeal also addressed parent-child
communication. As between Mark and Cristina, the order
provided: “[Mark] may, at his sole expense, provide a cellular
telephone for . . . Cristina . . . . While [Sonia] may restrict use
of the cellular telephone, [Sonia] may not restrict any contact
or communication between [Mark] and Cristina . . . through
the use of the cellular phone.” This order did not limit the
contact between Mark and Cristina, including during those
times when Sonia would be exercising summer parenting time.
Instead, the order stated that Sonia could not act to restrict any
communication through the cell phone and permitted Mark
to contact Cristina without limitation. Such provision is at
odds with the section of the parenting plan governing sum-
mer parenting time, the review of which was still pending,
that explicitly stated the nonexercising parent is prohibited
from attempting communication with the children. As stated
above, this provision was included in the parenting plan sec-
tion governing custody and parenting time and was at issue in
the initial appeal. Mark filed his motion for specific parenting
time after the release of our opinion in Becher I, but before the
issuance of the mandate. Thus, at that point, the district court
did not have jurisdiction to enter a permanent order affecting
parenting time.
- 729 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
Mark argues that the district court retained jurisdiction,
because any order entered during the pendency of the initial
appeal was implicitly temporary and expired upon the issuing
of the mandate. Mark argues that as a temporary order, any
change of parenting time scheduling or communication would
not affect contradictory provisions of the decree on appeal,
because such modification would expire once the original
decree was affirmed, and that the original decree’s provisions
would control.
However, Mark offers no support for such assertion and we
find none. The language of § 42-351(2) does not state that any
order issued through its operation is temporary. As a result,
we cannot say that an order is always temporary even if there
is no limiting language when the underlying motion seeks to
affect the rights of the parties while an appeal on those rights
is pending.
Moreover, while Mark’s counsel mentioned the motion
was pursuant to § 42-351 during the hearing, Mark’s motion
and the district court’s order failed to indicate that it was a
§ 42-351(2) motion. The order issued by the court contained
no temporal limit, and Mark’s motion failed to describe that
it sought only a temporary order. As such, the court’s order
providing Mark the ability to communicate with Cristina
without restriction was not implicitly temporary and its issu-
ance conflicted with the decree’s provision on parent-child
communication.
Because we find that during the pendency of the initial
appeal, the district court lacked jurisdiction to enter a perma-
nent order and erred in awarding Mark unrestrained cell phone
communication with Cristina, we need not address Sonia’s
remaining assignments.
CONCLUSION
We conclude Sonia’s assignments concerning the award
of specific summer 2018 parenting time between Mark and
Cristina are moot, because the period during which the
- 730 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BECHER v. BECHER
Cite as 302 Neb. 720
parenting time was awarded has passed. As such, these assign-
ments are dismissed. Regarding Sonia’s assignments concern-
ing the order awarding Mark unrestrained cell phone commu-
nication with Cristina, the district court lacked subject matter
jurisdiction during the appeal of the dissolution decree. As a
result, we vacate the order of the district court on this issue
and dismiss this appeal.
Vacated and dismissed.
|
01-03-2023
|
06-21-2019
|
https://www.courtlistener.com/api/rest/v3/opinions/6495519/
|
Filed 6/27/22 Kravchuk v. Talor Morrison of California, LLC CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
MARIIA KRAVCHUK, H048858
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 18CV322457)
v.
TAYLOR MORRISON OF
CALIFORNIA, LLC,
Defendant and Respondent.
This action arose out of a failed San Jose residential sales transaction involving
appellant Mariia Kravchuk, as buyer, and respondent Taylor Morrison of California, LLC
(Taylor), as developer/seller. Kravchuk filed suit on January 24, 2018, alleging one
cause of action for breach of written contract against Taylor. Two and one-half years
later, on July 27, 2020, Kravchuk filed a second amended complaint. In that pleading,
she alleged seven causes of action, naming Taylor and eight additional defendants.
Taylor filed a demurrer to three causes of action of that pleading and a motion to strike
certain allegations. Taylor then filed a motion for sanctions against Kravchuk under
Code of Civil Procedure section 128.71 (sanctions motion) for attorney fees and costs
incurred in the filing of the demurrer and motion to strike. Before Taylor’s sanctions
1 Further statutory references are to the Code of Civil Procedure unless otherwise
stated.
motion was heard, and after the court ruled on Taylor’s demurrer and motion to strike,
Kravchuk, on November 30, 2020, filed a third amended complaint alleging the same
seven causes of action and naming all nine defendants. On February 2, 2021, the trial
court granted the sanctions motion and awarded Taylor the total sum of $8,220.
On appeal, Kravchuk contends that the trial court erred in granting the sanctions
motion. She makes three arguments. First, she asserts that Taylor’s notice of motion was
defective and that this procedural error precluded the granting of the sanctions motion.
Second, she argues that her filing of the third amended complaint—after the filing of the
sanctions motion but before it was heard by the court—rendered the motion moot. Third,
Kravchuk contends that the underlying allegations in the second amended complaint were
based upon evidence and law, and therefore the imposition of sanctions was improper.
We conclude that the Kravchuk forfeited the claim that the notice of motion for
sanctions was procedurally defective. We hold further that the sanctions motion was not
rendered moot by the filing of the third amended complaint. And we conclude that the
trial court did not abuse its discretion by granting Taylor’s sanctions motion.
Accordingly, we will affirm the order imposing sanctions against Kravchuk in the sum of
$8,220.
I. PROCEDURAL BACKGROUND
A. Pleadings
On January 24, 2018, Kravchuk, then represented by counsel, filed a Judicial
Council form complaint against Taylor alleging a claim for breach of written contract.
On December 30, 2019, Kravchuk, as a self-represented litigant, filed a first
amended complaint alleging six causes of action against Taylor: (1) breach of contract;
(2) breach of implied covenant of good faith and fair dealing; (3) bad faith denial of
contract; (4) unjust enrichment; (5) intentional interference with economic advantage;
and (6) negligent interference with economic advantage. Taylor filed a demurrer to the
first amended complaint that challenged the noncontract causes of action; Taylor also
2
filed a motion to strike portions of the first amended complaint. In opposition to the
demurrer and motion to strike, Kravchuk stated that she had filed a wrong version of the
first amended complaint and that the filing of the correct version would cure any claimed
deficiencies. For this reason, on July 16, 2020, the court sustained the demurrer with
leave to amend.
On July 27, 2020, Kravchuk, as a self-represented litigant, filed her second
amended complaint, alleging seven causes of action and naming Taylor and eight new
defendants, namely, Joyce Lee, James Ganion (Ganion), Collinsworth, Specht, Calkins &
Giampaoli, LLP (CSCG), Ulich Balmuth Fisher LLP (UBF), First American Financial
Corporation (First American), Olivia Trelles, Tina Longo, and Taylor Beck. The causes
of action alleged were (1) breach of contract (against Taylor); (2) breach of implied
covenant of good faith and fair dealing (against Taylor); (3) deceit (against all
defendants); (4) civil conspiracy (against all defendants except First American and
Trelles); (5) aiding and abetting deceit (against all defendants); (6) intentional
interference with economic advantage (against all defendants except Taylor); and (7)
negligent interference with economic advantage (against all defendants except Taylor).
Lee, Longo, and Beck were employees of Taylor. Trelles was an employee of First
American. Ganion is an attorney who represented Taylor in the subject transaction, and
that while the transaction was pending and before Kravchuk’s lawsuit was filed, Ganion
was a partner with UBF and then a partner with CSCG.
Kravchuk alleged in the second amended complaint as follows:
On or about March 9, 2017, Kravchuk and Taylor entered into a written contract
(the Agreement) involving the purchase and sale of 73 Montecito Vista Drive, Unit #1 in
San Jose (the Property). Under the terms of the Agreement, the date of close of escrow
for the transaction was “ ‘following substantial completion of the Home on a date to be
specified in a notice to be provided by Seller to Buyer. Substantial completion of the
Home shall be deemed to have occurred when a certificate of occupancy (or its
3
equivalent) has been issued.’ ” (Bold italics in second amended complaint.) Kravchuk
alleged that neither walk-throughs of the Property (referred to in the Agreement as
“ ‘New Home Orientations’ ”) nor the close of escrow should have been scheduled until
after the City of San Jose (City) issued a Certificate of Occupancy (hereafter, COO) for
the Property, which did not occur until January 31, 2018. Before that date, the City
rejected repeated attempts by Taylor to obtain a COO for the Property.
Kravchuk alleged that, beginning in October 2017, Taylor “engaged in [a] series
of malicious actions towards [Kravchuk] by scheduling [walk-throughs] and dates for
‘Close of Escrow’ [(COE’s)] for [the] Property which should have occurred after (and not
before) the issuance of [a] Certificate of Occupancy for [the] Property.” There were six
walk-throughs and COE’s that Kravchuk claimed were scheduled wrongfully and “in bad
faith” by Taylor between October and December 2017. Taylor “fraudulently claimed” on
November 9, 2017, that a COO for the Property had issued. On November 17, Ganion,
on behalf of Taylor, in a notice of default to Kravchuk claimed that a COO had issued
and “fraudulently attempted to compel” her to close escrow before a COO issued. On
November 28, Taylor “wrongfully terminated” the Agreement based upon Kravchuk’s
failure to close escrow by November 22. Also on November 28, defendants Taylor and
Lee “kept fraudulently claiming” that the City had issued a COO for the Property. On
December 11 and 19, Ganion made further attempts “to compel [Kravchuk] to close
[e]scrow” without the issuance of a COO, “while fraudulently claiming that [a]
Certificate of Occupancy [had] issued.” On December 21, Ganion and Taylor demanded
that Kravchuk immediately deposit into escrow the full purchase price “while
fraudulently claiming that [a] Certificate of Occupancy [had] issued.”
Kravchuk was ready, willing, and able to close escrow. But Taylor sold the
Property to a third party on January 25, 2018, for $832,842, or $163,097 more than the
price in the Agreement. Taylor breached the Agreement by refusing to permit Kravchuk
to close escrow on the Property as agreed.
4
The claim for deceit was founded upon the communications by Taylor and Ganion
alleged in the second amended complaint as stated above. Kravchuk alleged that the
“[d]efendants intentionally misrepresented to [Kravchuk] that the construction on [the]
Property was completed and [the] Property was ready to be occupied, that it was
authorized under [the] Contract to proceed with the walkthrough of [the] Property as of
November 15, 2017, and that it possessed the right to sell [the] Property as the [COO] . . .
had been issued by the [City].” Kravchuk also alleged that Ganion, CSCG, and Ulich
“attempted to wrongfully compel [Kravchuk] to close [e]scrow on [the] Property by
sending threats to [her] and wrongfully stating that [the] Property was (while it was not)
allowed to be used and occupied and that [Kravchuk] would lose her deposit if [she]
would not obey [Taylor’s] . . . demands and that [she] would be penalized for each day of
not closing [e]scrow in the amount of $1,000 a day . . . .” Kravchuk made similar
allegations in support of her civil conspiracy and aiding and abetting deceit claims.
On August 24, 2020, Taylor filed a motion to strike the second amended
complaint, or, in the alternative, certain portions of that pleading. On the same date,
Taylor filed a demurrer to the third, fourth, and fifth causes of action of the second
amended complaint. As discussed in the next section, on November 12, 2020, the court
partially sustained Taylor’s demurrer and partially granted its motion to strike.
B. Motion for Sanctions
On September 25, 2020, Taylor served upon Kravchuk a motion for sanctions
against Kravchuk pursuant to section 128.7. The motion was filed with the court on
October 21, 2020.2 Taylor argued, inter alia, that allegations contained in the second
amended complaint were contradicted by deposition testimony and exhibits attached to
2 Taylor filed an amended notice of motion for sanctions on December 2, 2020.
Kravchuk filed a motion to augment the record to include this amended notice of motion,
as well as her amended notice of appeal filed July 14, 2021. We grant Kravchuk’s
motion to augment the record.
5
Kravchuk’s second amended complaint, and the allegations lacked factual or legal
support. Taylor sought monetary sanctions in the total amount of $20,772. The sanctions
requested included (a) $12,552, which Taylor claimed represented the costs it incurred in
addressing the second amended complaint by filing a demurrer and a motion to strike;
and (b) $8,220, representing Taylor’s costs in preparing the sanctions motion.
After the filing of the sanctions motion but before it was heard, the court ruled on
Taylor’s motion to strike and demurrer relative to the second amended complaint. In an
order filed on November 12, 2020, the court overruled Taylor’s demurrer to the third
cause of action for deceit, and it sustained with leave to amend the demurrer to the fourth
cause of action for civil conspiracy and fifth cause of action for aiding and abetting. In
the same order, the court denied Taylor’s motion to strike the second amended complaint
in its entirety, and it granted in part and denied in part Taylor’s motion to strike specific
allegations of that pleading. On November 30, 2020, Kravchuk filed a third amended
complaint alleging the same seven causes of action and naming all nine defendants.
On January 7, 2021, Kravchuk filed “ ‘limited’ opposition” to Taylor’s sanctions
motion. (Capitalization omitted.) She argued that (1) the motion was moot, and (2)
Taylor’s underlying arguments to the effect that Kravchuk’s allegations in the second
amended complaint had no evidentiary or legal support were without merit.
A hearing on the motion occurred on February 2, 2021. The record reflects that
there were no appearances and that no party contested the court’s tentative ruling. The
court adopted the tentative ruling at that time. The court granted the motion and awarded
Taylor sanctions in the amount of $8,220.3 The court held, inter alia, that certain
allegations in the second amended complaint were “inherently inconsistent,” the evidence
3 The court denied without prejudice Taylor’s request for sanctions of $12,552 for
its costs associated with the filing of its demurrer and motion to strike relative to the
second amended complaint.
6
presented in the motion demonstrated that the allegations “lack[ed] evidentiary support,”
and Kravchuk’s opposition did not refute Taylor’s showing.
Kravchuk filed a timely notice of appeal from the order granting Taylor’s
sanctions motion.4
II. DISCUSSION
A. Motions for Sanctions Under Section 128.7
Under section 128.7, when an attorney or self-represented litigant presents a
pleading, motion or similar paper to the court, he or she makes an implied “certification”
as to its legal and factual merit; that attorney or litigant is subject to sanctions for a
violation of this certification. The purpose of section 128.7 is “to check abuses in the
filing of pleadings, petitions, written notices of motions or similar papers.” (Musaelian v.
Adams (2009) 45 Cal.4th 512, 514 (Musaelian).) As is relevant here, by presenting a
pleading, the litigant impliedly certifies that “(1) [i]t is not being presented primarily for
an improper purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation[; ¶] (2) [t]he claims . . . and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the extension, modification,
or reversal of existing law or the establishment of new law[; ¶] (3) [t]he allegations and
other factual contentions have evidentiary support . . . [; and ¶] (4) [t]he denials of factual
contentions are warranted on the evidence . . . .” (§ 128.7, subd. (b).) Section 128.7 is
4 On March 3, 2021, Kravchuk filed a motion for reconsideration (§ 1008) of the
court’s order granting Taylor’s sanctions motion. On July 9, 2021, the court denied the
motion for reconsideration of the order granting the sanctions motion. Thereafter, on
July 14, 2021, Kravchuk filed a purported amended notice of appeal, identifying the order
denying her motion for reconsideration as the order from which the appeal was taken.
(See Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1680 [order denying motion
for reconsideration is not an appealable order].) Kravchuk does not present argument in
her briefs concerning the court’s order denying the motion for reconsideration. She has
thus abandoned any appeal of that order. (See Tanner v. Tanner (1997) 57 Cal.App.4th
419, 422, fn. 2 [appellate court treats as partial abandonment of appeal an appellant’s
failure to challenge in opening brief an order specified in notice of appeal].)
7
“modeled, almost word for word, on rule 11 of the Federal Rules of Civil Procedure . . .
.” (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467, disapproved of on other
grounds by Musaelian, supra, 45 Cal.4th at p. 520.) Under section 128.7, “there are
basically three types of submitted papers that warrant sanctions: factually frivolous (not
well grounded in fact); legally frivolous (not warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law); and papers
interposed for an improper purpose. [Citations.]” (Guillemin v. Stein (2002) 104
Cal.App.4th 156, 167 (Guillemin).)
The trial court applies “an objective standard in making its inquiry concerning the
attorney’s or party’s allegedly sanctionable behavior in connection with a motion for
sanctions brought under section 128.7. [Citations.]” (Optimal Markets, Inc. v. Salant
(2013) 221 Cal.App.4th 912, 921 (Optimal Markets).) Unlike sanctions under section
128.5 that requires a finding of subjective bad faith, “section 128.7 imposes a lower
threshold for sanctions . . . that the conduct [merely] be ‘objectively unreasonable.’ ”
(Guillemin, supra, 104 Cal.App.4th at p. 167.) Thus, for instance, the trial court’s
determination of whether an action is frivolous under section 128.7 is made under an
objective standard. (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 401.)
The statute includes a 21-day safe harbor provision under which the party to
correct or withdraw the offending conduct. (§ 128.7, subd. (c)(1).) By so providing,
“section 128.7 is designed to be remedial, not punitive. [Citation.]” (Li v. Majestic
Industry Hills LLC (2009) 177 Cal.App.4th 585, 591.) Thus, under the statute’s two-step
procedure, first, the moving party “ ‘must serve a notice of motion for sanctions on the
offending party at least [21] days before filing the motion with the court, which
specifically describes the sanctionable conduct. ([§ 128.7, subd. (c)(1).]) Service of the
motion on the offending party begins a [21]-day safe harbor period during which the
sanctions motion may not be filed with the court. (Ibid.) If the pleading is withdrawn,
the motion for sanctions may not be filed with the court. [Citation.] If the pleading is not
8
withdrawn, the motion for sanctions may then be filed. [Citation.]’ [Citation.]”
(Optimal Markets, supra, 221 Cal.App.4th at p. 920.)
As a general rule, the appellate court reviews an award of sanctions under section
128.7 for abuse of discretion. (Guillemin, supra, 104 Cal.App.4th at p. 167.) “But where
a question of statutory construction is presented in the course of the review of a
discretionary decision, such issues are legal matters subject to de novo review.
[Citations.]” (Optimal Markets, supra, 221 Cal.App.4th at pp. 921-922.)
In determining whether the trial court abused its discretion, “[w]e presume the trial
court’s order is correct and do not substitute our judgment for that of the trial court.
[Citation.] To be entitled to relief on appeal, the court’s action must be sufficiently grave
to amount to a manifest miscarriage of justice. [Citation.]” (Peake v. Underwood (2014)
227 Cal.App.4th 428, 441.)
B. No Error by the Trial Court
We perceive from a review of her appellate briefs that Kravchuk asserts three
arguments—two procedural and one substantive—in support of her position that the trial
court erred in granting Taylor’s sanctions motion. First, Kravchuk argues that the notice
of motion was defective because it did not bear the date and time of the hearing on the
motion. Second, she contends that her filing of the third amended complaint rendered the
previously-filed sanctions motion moot. Third, Kravchuk asserts that the trial court erred
in granting the motion, based upon reasoning she claims was faulty, namely that Taylor’s
failure to obtain a COO for the Property was not a contractual bar to its insistence that
Kravchuk close escrow. We address these arguments below.
1. Objection to Any Notice Defect Was Forfeited
Kravchuk argues that the notice of motion for sanctions was procedurally
defective under sections 128.7 and 1010. Under section 128.7, subdivision (c)(1), a
notice of motion for sanctions “shall be served as provided in Section 1010, but shall not
be filed with or presented to the court unless, within 21 days after service of the
9
motion . . . the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected.” Under section 1010, the written “notice of a
motion . . . must state when, and the grounds upon which it will be made, and the papers,
if any, upon which it is to be based.” (Italics added.) Specifically, she argues that the
notice of motion for sanctions that Taylor filed on October 21, 2020, was defective
because it did not state “when [the motion would] be made” as provided in section 1010.
Kravchuk asserts that it was not until December 2, 2020—after the superior court clerk
had inserted the date and time of the hearing for the sanctions motion—that Taylor served
an amended notice identifying when the sanctions motion would be heard. Kravchuk
contends that Taylor’s failure to include the date and time of the motion in the original
notice was a fatal defect.5
Kravchuk filed her opposition to the sanctions motion on January 7, 2021—after
Taylor had filed its notice of motion (October 21, 2020) and its amended notice of motion
5 Taylor in its respondent’s brief acknowledges that when it served and filed the
motion, it did not include the date and time of the hearing in the notice of motion. Taylor
explains that this omission was due to the superior court’s change in procedure as a result
of the COVID-19 global pandemic. As stated by Taylor, “[a]t the time [Taylor] served
its motion, the trial court accepted law and motion filings electronically, and the hearing
dates for motions were expressly not to be included in the moving papers’ captions.
After being submitted to the trial court electronically, the court would process a
submitted motion and then assign a hearing date, and motions would be re-noticed.” In
support of this position, Taylor has filed a request for judicial notice of a notice and an
order of the superior court issued in response to the COVID-19 pandemic, and superior
court local rules (identified as exhibits A through E). Additionally, related to Kravchuk’s
argument discussed in part B.3., post, Taylor attaches to the request for judicial notice
certain provisions of the San Jose Municipal Code, and a bulletin issued by the San Jose
Planning, Building & Code Enforcement Department, Building Division (identified as
exhibits F through K). Because we conclude that Kravchuk has forfeited her challenge to
the notice of motion, we will deny Taylor’s request for judicial notice of the documents
identified in the request as exhibits A through E. (See Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [judicial notice denied for
materials not relevant to issues decided on appeal].) We will grant Taylor’s request for
judicial notice of the documents identified in the request as exhibits F through K.
10
(December 2, 2020). She raised no objection to the sufficiency of the notice in her
opposition. Kravchuk’s failure to object below to this alleged notice defect precludes her
from raising the challenge here.
“ ‘An appellate court will ordinarily not consider procedural defects or erroneous
rulings, in connection with relief sought or defenses asserted, where an objection could
have been but was not presented to the lower court by some appropriate method . . . .
The circumstances may involve such intentional acts or acquiescence as to be
appropriately classified under the headings of estoppel or waiver . . . . Often, however,
the explanation is simply that it is unfair to the trial judge and to the adverse party to
take advantage of an error on appeal when it could easily have been corrected at the trial.’
[Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185,
fn. 1, original italics.) Although the failure to raise an objection in the trial court is often
referred to as a waiver, strictly speaking, it is a forfeiture of the right to assert the
objection on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2, superseded on other
grounds by statute as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)
This forfeiture rule applies to unasserted procedural challenges to notices of
motions. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) “A party who
appears at the hearing on a motion and contests the motion on the merits without
objecting to a defect or irregularity in the notice of motion ordinarily is deemed to waive
the defect or irregularity, including the failure to serve a notice of motion the prescribed
number of days before the hearing. Courts have applied this rule where the party failed
to object at the hearing [citations], where the objection was deemed inadequate
[citations], and where the party may have objected but failed to show prejudice resulting
from the defective notice. [Citations.] Courts applying the waiver rule generally have
concluded that the party’s appearance at the hearing and opposition on the merits showed
that the notice ‘served its purpose,’ despite any defect [citations], and that any defect in
the notice did not prejudice the party’s preparation for the hearing and opportunity to be
11
heard. [Citations.]” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333,
342-343 (Arambula).)
Thus, in In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826
(Falcone & Fyke), a panel of this court considered an appellant’s challenge to an order
imposing sanctions against her under section 128.7. The appellant asserted on appeal that
she had received insufficient notice because, although she was served with the motion 21
days prior to the hearing, because the service was by mail, her safe harbor period should
have been extended by five days. (Falcone & Fyke, supra, at p. 826.) The appellant
failed to assert the notice objection below, and this court held that she had therefore
waived the challenge, concluding “[the appellant] had ample opportunity to raise the
objection below. Her failure to do so deprived [the respondent] of the chance to argue
the issue or cure the alleged error and prevented the trial court from making any ruling on
the point.” (Ibid.)
Falcone & Fyke is on point. The circumstances that are the bases for Kravchuk’s
challenge to the notice of motion here were known to her well before she filed her
opposition. She did not raise the challenge in her opposition papers, nor did she appear at
the hearing to argue the matter. Kravchuk has forfeited the challenge to the notice
provided in the sanctions motion. (See Falcone & Fyke, supra, 164 Cal.App.4th at
p. 826; Arambula, supra, 128 Cal.App.4th at pp. 342-343.)6
6 We requested that the parties submit supplemental letter briefs addressing two
questions: (1) whether Kravchuk asserted before the trial court that the notice of motion
was defective; and (2) assuming Kravchuk did not raise the issue below, whether it was
waived (forfeited) on appeal. We have received and considered the parties’ letter briefs.
Kravchuk acknowledges that she did not object to the notice at the trial level. She
asserts, however, that an appellate court’s application of the waiver (forfeiture) doctrine
is not automatic, and she requests that this court exercise its discretion to consider the
notice issue here. We decline that request.
12
2. The Motion Was Not Moot
Kravchuk contends—as she did below—that the filing of her third amended
complaint on November 30, 2020, rendered the sanctions motion (filed on
October 21, 2020) moot. Kravchuk relies on JKC3H8 v. Colton (2013) 221 Cal.App.4th
468 (JKC3H8) in support of her position. We reject Kravchuk’s claim that the sanctions
motion was moot.
“ ‘ “[A]n amendatory pleading supersedes the original one, which ceases to
perform any function as a pleading.” ’ (Foreman & Clark Corp. v. Fallon (1971) 3
Cal.3d 875, 884.) . . . ‘Because there is but one complaint in a civil action [citation], the
filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]’
[Citation.] Thus, the filing of an amended complaint renders moot a demurrer to the
original complaint. [Citation.]” (JKC3H8, supra, 221 Cal.App.4th at p. 477.) The
JKC3H8 court was concerned with whether the filing of an amended complaint rendered
moot a special motion to strike the superseded complaint under the anti-SLAPP statute
(§ 425.16). The appellate court stated that “an amended complaint [also] render[s] moot
an anti-SLAPP motion directed to a prior complaint, with the following caveat: A
plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-
SLAPP motion by amending the challenged complaint or cross-complaint in response to
the motion. [Citations.]” (JKC3H8, supra, at pp. 477-478.) But in JKC3H8, because the
amended complaint was filed before the special motion to strike the original complaint
was filed, the appellate court held that the motion to strike had been rendered moot
because “there was no pending anti-SLAPP motion as the time of the amendment.” (Id.
at p. 478.)
By analogy to the circumstances addressed by the court in JKC3H8, supra, 221
Cal.App.4th 468 concerning the impact of the filing of an amended pleading upon a
special motion to strike the superseded pleading, whether a motion for sanctions under
section 128.7 is rendered moot depends upon the timeline of the filing of the amended
13
pleading and the sanctions motion. Here, Eichenbaum v. Alon (2003) 106 Cal.App.4th
967 (Eichenbaum) is instructive. There, in response to being served with a fourth
amended complaint, the defendant filed a demurrer, motion to strike, and a motion for
sanctions under section 128.7. (Eichenbaum, supra, at p. 972.) The sanctions motion
was heard and submitted, but before the court issued a ruling, the plaintiff filed a
voluntary dismissal without prejudice of the fourth amended complaint, thereby mooting
the defendant’s demurrer and motion to strike. (Id. at pp. 972-973.) The trial court held
that the plaintiff’s filing of the dismissal did not deprive the court of jurisdiction to rule
on the submitted motion, and it granted defendant’s motion for sanctions. (Id. at p. 973.)
The appellate court affirmed, rejecting the plaintiff’s argument that the filing of
the dismissal had deprived the trial court of jurisdiction to rule on the sanctions motion.
(Eichenbaum, supra, 106 Cal.App.4th at p. 974.) The court observed that “[t]he
availability of section 128.7 sanctions against an offending plaintiff that has voluntarily
dismissed its action depends upon whether the sanctions motion was filed before or after
the dismissal.” (Id. at p. 975.) The Eichenbaum court noted that another court had
“recently held that a defendant could not obtain section 128.7 sanctions by filing a
motion for them after a voluntary dismissal[, concluding] . . . that to allow such a motion
‘would completely defeat the purpose of the safe harbor provision.’ [Citation.]” (Ibid.,
quoting Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414.) Contrasting the procedural
timing in Hart of the dismissal, the court in Eichenbaum held: “[T]he relevant
considerations point exactly the opposite in a case, such as this one, where a voluntary
dismissal is taken after a motion for section 128.7 sanctions has been brought. In such a
case, the defendant moves for sanctions only after the plaintiff has been allowed the
21-day . . . safe harbor to rectify its sanctionable conduct, but has not done so. In these
circumstances, belated abandonment of the case does not fulfill the object of the statute,
and the policies favoring allowance of sanctions remain extant notwithstanding the
dismissal. [Citation.]” (Eichenbaum, supra, at p. 975, italics added.)
14
Similarly, in Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 183 (Bucur), the
plaintiffs filed two motions for sanctions under section 128.7, one relating to the
complaint and the second related to the first amended complaint filed after service and
filing of the first sanctions motion. The trial court granted the defendant’s sanctions
motions, concluding that the plaintiffs’ pleadings were not supported by the facts, were
filed for an improper purpose, and the plaintiffs failed to withdraw the pleadings during
the safe harbor period. (Bucur, supra, at p. 184.) The appellate court affirmed, finding,
inter alia, that the “filing of the first amended complaint after expiration of the safe
harbor period, and following full briefing on [the defendant’s] first motion for sanctions
did not absolve [the plaintiffs] of section 128.7 sanctions relating to the filing of the
original complaint. [Citation.]” (Id. at p. 191, citing Eichenbaum, supra, 106
Cal.App.4th at pp. 975-976, italics added; see also Banks v. Hathaway, Perrett, Webster,
Powers & Chrisman (2002) 97 Cal.App.4th 949, 954 [“order sustaining a demurrer
without leave to amend does not bar a motion for section 128.7 sanctions unless the order
is reduced to a judgment before the sanctions motion is served and filed”].)
Here, the sanctions motion under section 128.7 was filed by Taylor on
October 21, 2020. Kravchuk filed her third amended complaint on November 30, 2020.
The hearing on the sanctions motion occurred on February 2, 2021. The filing of the
third amended complaint did not render Taylor’s sanctions motion moot. (See Bucur,
supra, 244 Cal.App.4th at p. 191; Eichenbaum, supra, 106 Cal.App.4th at p. 975.)7
7 Kravchuk asserts that the trial court erroneously stated in the order granting
sanctions that the hearing on Taylor’s demurrer and motion to strike the second amended
complaint were vacated because the filing of the third amended complaint rendered the
proceedings moot. It is true that the court below in fact ruled on the demurrer and motion
to strike on November 12, 2020, and Kravchuk thereafter filed a third amended complaint
on November 30, 2020. But the erroneous recital of this procedural matter concerning
the hearing on the demurrer and motion to strike has no impact on the correctness of the
trial court’s determination that the filing of the third amended complaint did not render
the sanctions motion moot. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205,
15
3. Order Imposing Sanctions Was Not an Abuse of Discretion
In its sanctions motion, Taylor focused upon several categories of allegations in
the second amended complaint that it claimed were frivolous, lacking in evidentiary
support, and/or lacking in legal support. We will address here four categories of
allegations made by Kravchuk in the second amended complaint. The allegations relate
to (1) false statements by the Taylor defendants8 to Kravchuk concerning the Property
being ready to be safely occupied; (2) false statements by the Taylor defendants to
Kravchuk that the City had issued a COO (Certificate of Occupancy) for the Property; (3)
claiming that Taylor had refused to allow Kravchuk to close escrow; and (4) a request for
attorney fees incurred in the suit.
a. Property Ready to be Safely Occupied
Kravchuk alleged in the second amended complaint that, beginning in October
2017, Taylor “engaged in [a] series of malicious actions towards [Kravchuk]” by
scheduling a series of walk-throughs and escrow closings “[w]hile knowing that [the
COO had] not issued for the Property and [the] City . . . [had] not approve[d the] Property
to be safely used and occupied.” Similar allegations to the effect that the Taylor
defendants falsely claimed that the City had approved the Property to be safely used and
occupied appeared in at least four other paragraphs of the second amended complaint. 9
1225 [appellate court “may affirm the court’s sanctions order on any ground supported by
the record”].)
8 Because the allegations in the second amended complaint identify
representations by Taylor and others, including counsel, on Taylor’s behalf, we refer to
Taylor, Lee, Ganion, CSCG, UBF, Longo, and Beck collectively as the Taylor
defendants.
9 In paragraph 52 of the second amended complaint, Kravchuk alleged that the
Taylor “[d]efendants intentionally misrepresented to [Kravchuk] that the construction on
[the] Property was completed and [the] Property was ready to be occupied .” In paragraph
54, Kravchuk alleged that the Ganion, CSCG, and Ulich “attempted to wrongfully
compel [Kravchuk] to close [e]scrow on [the] Property by sending threats to [her] and
wrongfully stating that [the] Property was (while it was not) allowed to be used and
occupied . . . .” In paragraph 63, Kravchuk alleged that Taylor intentionally
16
Taylor in its sanctions motion presented evidence refuting these allegations
through deposition testimony from Steve Kroot, a City building inspector. Significantly,
that testimony was given on May 15, 2019, or 14 months before Kravchuk filed her
second amended complaint. Kroot performed inspections of the Indigo development,
which included the Property, Unit 1, that Taylor agreed to sell to Kravchuk. Kroot
testified that on November 9, 2017, he went to 73 Montecito Vista Drive, the building
that included Unit 1, signed off on the electrical, plumbing, mechanical, and building on
the site, and indicated that “all the units were okay to occupy.” Kroot testified that by
signing off on the building, the owners or tenants could then move into their units, and
that they “would have had to be fully completed and livable.” Kroot also explained that a
COO is generated for an entire building, not for each unit, and that the COO would be
issued after final inspection for the entire building. Kroot testified that after the units
have been inspected, they can be occupied even if no COO has issued for the entire
building.
Kravchuk submitted no evidence to contradict Kroot’s deposition testimony.
Other than arguing that escrow could not close under the Agreement unless the City had
issued a COO or a temporary certificate of occupancy for the Property, Kravchuk did not
offer anything below to respond to Taylor’s position that she had no factual basis for
alleging that Taylor had falsely stated that the City had approved the Property to be safely
occupied. And in her appeal, Kravchuk does not point to evidence in the record that
misrepresented to her (and all defendants were aware of Taylor’s deceit) by stating that
the “Property was allowed (while it was not) by [the] City . . . to be used and occupied.”
And Kravchuk alleged in paragraph 64 that Taylor (with the defendants’ knowledge)
“was fraudulently demanding [Kravchuk] to close [e]scrow despite of the fact that [the]
Property was not authorized by [the] City . . . to be used or occupied.”
17
would support her multiple allegations that Taylor had falsely stated that the City had
approved the Property to be safely occupied. 10
b. City’s Issuance of COO for the Property
In the second amended complaint, Kravchuk alleged that on November 28, 2017,
defendants Lee and Taylor sent a letter advising that she was in default in which Taylor
“kept fraudulently claiming that [a] Certificate of Occupancy was issued for [the]
Property by [the] City of San Jose.” There are at least five other paragraphs of the second
amended complaint in which Kravchuk alleged that Ganion, as Taylor’s attorney, falsely
claimed that a COO had issued for the Property. The alleged false statements concerning
the issuance of a COO, in all six paragraphs of the pleading, were reflected in writings
attached to the second amended complaint. The writings were dated between November
28 and December 21, 2017. We have reviewed each of the exhibits, none of which
contained a statement to the effect that the City had issued a COO for the Property.
Kravchuk submitted no evidence to support the veracity of her allegations in the
above-mentioned six paragraphs of the second amended complaint. Kravchuk did not
offer anything to respond to Taylor’s position that there was no factual basis for alleging
that Taylor had falsely stated that the City had issued a COO for the Property. And in her
appeal, Kravchuk does not point to evidence in the record that would support her multiple
allegations that Taylor had falsely stated that the City had issued a COO for the Property.
10Kravchuk’s principal argument on the merits of the parties’ dispute is, as it was
below, that regardless of Kroot’s testimony, escrow could not close on the Property and it
could not be legally occupied until a COO or a temporary certificate of occupancy
(TCOO) for the Property had been issued by the City. Taylor disputes these contentions.
Because we conclude that the trial court did not abuse its discretion in finding a lack of
evidentiary basis for Kravchuk’s allegations that (1) Taylor falsely stated that the City
had found the Property ready to be safely occupied, (2) Taylor had falsely stated that a
COO had issued for the Property, (3) Taylor had refused to permit Kravchuk to close
escrow; and (4) she was entitled to recover attorney fees, we need not address the merits
of Kravchuk’s COO/TCOO argument here.
18
c. Refusal to Permit Kravchuk to Close Escrow
Kravchuk alleged in the second amended complaint in her breach of contract claim
that Taylor “with [the] help of other co-conspirators . . . breached [the] Contract by
refusing to allow [Kravchuk] to close escrow on the purchase of [the] Property.” This
allegation was contradicted by documentary evidence attached as exhibits to Kravchuk’s
pleading, as well as by other evidence presented in Taylor’s sanctions motion.
On November 17, 2017, Ganion sent a letter to Kravchuk’s counsel, Alex
Gortinsky, in which he, inter alia, stated that (1) Kravchuk was in default; (2) Taylor
wanted to give “[Kravchuk] another opportunity to purchase the home”; (3) extension
fees were owed under the Agreement, but they would be waived by Taylor if Kravchuk
closed escrow by November 22; (4) Kravchuk needed to facilitate a prompt close of
escrow; and (5) “Taylor . . . wants [Kravchuk] to buy the home.” In a letter to Gortinsky
dated December 11, 2017, Ganion advised that although escrow was canceled because of
Kravchuk’s failure to move forward, Taylor was prepared to give her another opportunity
if she stated unequivocally that she would close escrow by December 28. Ganion again
wrote to Gortinsky on December 18, 2017, urging that “if [Kravchuk] really does wish to
buy the home, then [Taylor] needs her to prove it” by signing escrow documents by
December 22.
In her deposition, Kravchuk was asked to list all reasons that she did not proceed
with the transaction. Her response was “[b]ecause I was not sure that the house is
complete because they did not allow me in.” In response to the follow-up question of
whether there was “[a]nything else,” Kravchuk testified, “That’s it. At [the] present
moment[,] . . . I can’t remember anything else.” This position was contradicted by
documentary evidence and discovery.
As to whether Taylor denied Kravchuk access to the Property for a walk-through,
Krystyna Taryanik testified that she inspected the Property on Kravchuk’s behalf on
November 8, 2017, pointed out items that needed repair in a list that she signed, and later
19
did a second inspection of the Property to determine if the listed items had been
addressed.11 Kravchuk admitted in a verified response to requests for admissions that the
individual performed a walk-through of the Property on Kravchuk’s behalf on
November 8 and that the individual signed a form confirming that walk-through and
identifying potential repair items observed. Further, in connection with Taylor’s
communications to encourage Kravchuk to move ahead with closing escrow, Ganion
advised Gortinsky on December 18 and 21, 2017, that Taylor would permit another walk-
through, albeit not as a condition of closing escrow. Kravchuk’s attorney, Gortinsky, was
also advised, at least as early as November 17, 2017 (in Ganion’s letter attached to the
second amended complaint), that the Property was habitable and that the City had signed
off for its occupancy on November 8.
Kravchuk’s allegation in the second amended complaint that Taylor “breached
[the] Contract by refusing to allow [Kravchuk] to close escrow on the purchase of [the]
Property” is further called into question by additional correspondence not part of the
pleading that was included in Taylor’s sanctions motion. On November 17, 2017,
Gortinsky wrote to Ganion stating that Kravchuk was willing and able to close escrow,
but that she had certain demands, including the scheduling of a final walk-through,
Taylor’s waiver of extension fees under the Agreement, reimbursement of Kravchuk’s
travel expenses ($1,900), payment of attorney fees, and two additional weeks’ notice for
the closing of escrow. Similarly, Gortinsky advised Ganion in an e-mail of
January 10, 2018, that Kravchuk’s demands for completing the transaction included a
30-day notice for closing escrow, a final walk-through, and reimbursement of legal fees
of approximately $3,800.
11
The Agreement provided that the identification of items that needed repair on a
New Home Orientation List did not furnish a basis for the buyer’s delaying the close of
escrow. Kravchuk was advised of this provision in Ganion’s letter of
November 17, 2017, to her counsel.
20
Kravchuk submitted no evidence or argument supporting a factual basis for her
allegation that the Taylor defendants refused to permit her to close escrow on the
Property. And in her appeal, Kravchuk does not point to evidence in the record that
would support her allegation that Taylor breached the Agreement by refusing to permit
her to close escrow.
d. Prayer for Attorney Fees
The second amended complaint included a prayer for attorney fees. In its
sanctions motion, Taylor argued that the allegation had no evidentiary or legal support.
Under the terms of the Agreement, which was attached as an exhibit to
Kravchuk’s second amended complaint, in the event of a dispute arising out of the
Agreement, each side would bear her/its own attorney fees. Further, “[u]nder the
American rule, as a general proposition each party must pay his [or her] own attorney
fees. This concept is embodied in section 1021 of the Code of Civil Procedure, which
provides that each party is to bear his [or her] own attorney fees unless a statute or the
agreement of the parties provides otherwise.” (Gray v. Don Miller & Associates, Inc.
(1984) 35 Cal.3d 498, 504, fn. omitted.)
The original complaint filed by Kravchuk’s former attorney, Gortinsky, included a
prayer for attorney fees in two locations of the pleading. Taylor’s counsel advised
Gortinsky that these attorney fee allegations were subject to a motion to strike because
the Agreement provided that each party would bear her/its own attorney fees. In
response, in March 2018, Gortinsky signed a stipulation that allegations in the complaint
regarding Kravchuk’s right to attorney fees were stricken.
In her opposition, Kravchuk submitted no evidence or argument identifying a
factual or legal basis for her prayer for attorney fees. Her response was that, because
21
after the filing of the sanctions motion, she filed a third amended complaint in which she
did not seek attorney fees, the question was moot. 12 We reject this argument.
The prayer for attorney fees in the second amended complaint had no basis in fact
or law. Her lack of entitlement to fee recovery if she prevailed in the litigation was
acknowledged by her former counsel as early as March 2018, more than two years before
Kravchuk filed the second amended complaint. Further, her unsupported attorney fee
allegation necessitated Taylor’s filing of a motion to strike. And, critically, she failed to
“withdraw[] or appropriately correct[]” the improper allegation concerning attorney fees
within the 21-day safe harbor period before Taylor filed the sanctions motion. (§ 128.7,
subd. (c)(1).) Kravchuk’s belated action of filing a third amended complaint did not
moot Taylor’s motion insofar as it asserted that Kravchuk’s prayer for attorney fees was
unjustified. (See Bucur, supra, 244 Cal.App.4th at p. 191.)13
e. Conclusion
The trial court concluded that Taylor had established its claim for sanctions under
section 128.7. It held, inter alia, that Kravchuk’s contract allegations in the second
amended complaint that Taylor refused to allow her to close escrow “are inherently
inconsistent, and notwithstanding, the evidence set forth in the motion demonstrates that
they lack evidentiary support. Specifically, the evidence indicates that [Taylor] did not
12 Kravchuk’s appellate briefs contain no argument justifying her prayer for
attorney fees in the second amended complaint.
13 Taylor also argued below that Kravchuk was subject to sanctions for asserting
without legal or factual basis a prayer “[f]or actual, compensatory, incidental and
consequential damages according to proof, but not less than $1,000,000.00.” Taylor
argued that the allegations in the second amended complaint supported damages of no
more than $163,097, the difference between the price Kravchuk agreed to pay under the
Agreement and the price paid for the Property in January 2018 when Taylor sold to a
third party. Kravchuk did not address this argument in her opposition. While Taylor’s
argument appears on its face to offer an additional ground for awarding sanctions under
section 128.7, the trial court did not address this issue. Accordingly, we do not consider
it in determining whether the court abused its discretion in granting the sanctions motion.
22
prevent [Kravchuk] from closing escrow but rather, was proactive in attempts to facilitate
close of escrow, and provided [Kravchuk] several reasonable opportunities to do so.
However, [Kravchuk], instead of taking action to close escrow, submitted a list of
demands which were not conditions precedent to close escrow under the terms of the
purchase agreement. [¶] In opposition, [Kravchuk] does not present facts to refute this
evidence, and the evidence was known to [Kravchuk] prior to filing the [second amended
complaint].” The trial court concluded further that allegations supporting Kravchuk’s
misrepresentation claims that centered on whether Taylor had falsely stated that a COO
had been issued were refuted by Kroot’s deposition testimony, and that those facts had
been known to Kravchuk when she filed the second amended complaint. And the court
concluded that Kravchuk was aware that she had no factual or legal entitlement to
attorney fees at the time she requested them in the second amended complaint.
As discussed, ante, there were substantial grounds for concluding that Kravchuk
made a number of factual allegations in her second amended complaint that were
“factually frivolous (not well grounded in fact).” (Guillemin, supra, 104 Cal.App.4th at
p. 167.) These allegations concerned (1) alleged false statements to Kravchuk concerning
the City advising that the Property was ready to be safely occupied; (2) alleged false
statements to Kravchuk that the City had issued a COO for the Property; (3) claiming that
Taylor had refused to allow Kravchuk to close escrow; and (4) a prayer for attorney fees.
Additionally, Kravchuk’s prayer for attorney fees was “legally frivolous (not warranted
by existing law or a good faith argument for the extension, modification, or reversal of
existing law).” (Ibid.) The trial court did not abuse its discretion in awarding sanctions
against Kravchuk under section 128.7 to Taylor in the amount of $8,220. (See Guillemin,
supra, at p. 167.)14
14 Kravchuk does not challenge on appeal the amount of the sanctions award.
23
III. DISPOSITION
The February 2, 2021 order granting respondent Taylor Morrison of California,
LLC’s motion for sanctions under Code of Civil Procedure section 128.7, awarding
respondent sanctions in the sum of $8,220 to be paid by appellant Mariia Kravchuk, is
affirmed.
24
_____________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
DANNER, J.
__________________________
WILSON, J.
Kravchuk v. Taylor Morrison
H048858
|
01-03-2023
|
06-27-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901765/
|
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered October 18, 2011, convicting him of robbery in the first degree (two counts), robbery in the second degree, burglary in the first degree (two counts), and conspiracy in the fourth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.
As the People correctly concede, the Supreme Court’s failure to advise the defendant at the time of the plea that his sentence would include a period of postrelease supervision prevented his plea from being knowing, voluntary, and intelligent (see People v Catu, 4 NY3d 242, 245 [2005]; see also People v Cornell, 16 NY3d 801, 802 [2011]; People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]; People v Weichow, 96 AD3d 883, 884 [2012]). Accordingly, the judgment must be reversed, the plea vacated, and the matter remitted to the Supreme Court, Nassau County, for further proceedings (see People v Weichow, 96 AD3d at 884; People v Borrego, 59 AD3d 456 [2009]). Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901766/
|
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered October 18, 2011, convicting him of robbery in the first degree (two counts), robbery in the second degree, burglary in the first degree (two counts), and conspiracy in the fourth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.
As the People correctly concede, the Supreme Court’s failure to advise the defendant at the time of the plea that his sentence would include a period of postrelease supervision prevented his plea from being knowing, voluntary, and intelligent (see People v Catu, 4 NY3d 242, 245 [2005]; see also People v Cornell, 16 NY3d 801, 802 [2011]; People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]; People v Weichow, 96 AD3d 883, 884 [2012]). Accordingly, the judgment must be reversed, the plea vacated, and the matter remitted to the Supreme Court, Nassau County, for further proceedings (see People v Weichow, 96 AD3d at 884; People v Borrego, 59 AD3d 456 [2009]). Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901767/
|
—In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Greenbaum, J.), dated March 6, 1987, which, upon a fact-finding order dated November 13, 1986, made upon his plea of guilty, finding that the appellant had committed acts which, if committed by an adult, would have constituted the crime of criminal mischief in the fourth degree, adjudged him a juvenile delinquent and placed him on probation for a period of nine months.
Ordered that the order of disposition is affirmed, without costs or disbursements.
We find no abuse of discretion in the disposition made by *701the Family Court. At the dispositional hearing, the appellant’s probation officer and the court liaison officer recommended probationary supervision based upon the nature of the incident and the appellant’s poor school attendance and performance. Evidence was also adduced at the hearing that the appellant had been participating in an after-school youth program conducted by the 61st Police Precinct where he received tutoring and that he had demonstrated improvement in his school grades and attendance. The record reveals that the court considered the appellant’s improved school record but found that not only was it relatively modest so that appellant was merely elevated to a "borderline” student but also that the evidence of improvement in both school attendance and performance was too recent to conclude that the instant offense constituted an isolated error in judgment. Our review of the record confirms that the Family Court properly concluded, after conducting a thorough inquiry, that a period of probation would serve the appellant’s present needs and best interest, while affording the community protection (see, Family Ct Act § 352.2 [2]; Matter of Katherine W., 62 NY2d 947; Matter of Douglas R. S., 123 AD2d 868; Matter of Michael R., 70 AD2d 521). Furthermore, the Family Court adopted the least restrictive alternative commensurate with those concerns (see, Family Ct Act § 352.2 [2]). The appellant argues that the proceeding should have been adjourned in contemplation of dismissal as the "least restrictive alternative”. The Family Court gave due consideration to the appellant’s application for such disposition and properly rejected it upon its finding that the appellant required a period of supervision longer than the maximum six-month adjournment period available upon an adjournment in contemplation of dismissal (see, Family Ct Act § 315.3). Particularly noteworthy in this regard is the court’s statement that it would seal the record upon the appellant’s application after his successful completion of his probationary period. Thus, if the appellant has complied with the court’s directives, he may be given appropriate relief from the stigma of the juvenile delinquency adjudication. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901768/
|
—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Secretary of State dated March 19, 1986, which, after a hearing, found that the petitioner had demonstrated untrustworthiness within the *702meaning of Real Property Law § 441-c, and revoked the petitioner’s real estate broker’s license.
Adjudged that the determination is confirmed and the petition is dismissed on the merits, with costs.
We find that the Secretary of State’s determination that the petitioner had demonstrated untrustworthiness within the meaning of Real Property Law § 441-c is supported by substantial evidence on this record (see, CPLR 7803 [4]). The transcript of a hearing and determination dated August 22, 1980, by the New York State Department of Insurance revoking the petitioner’s insurance broker’s licenses was in evidence at the instant hearing, as was the petitioner’s renewal application for a real estate broker’s license for the period 1981 to 1983. The August 22, 1980 determination by the Department of Insurance found that the petitioner had failed to satisfy a judgment for collected but unremitted insurance premiums, failed to remit premiums and issued a check for collected premiums later dishonored and not made good, and determined that he had "demonstrated his incompetency and/ or untrustworthiness to act as an insurance agent and broker”. As a result, the Department of Insurance revoked the petitioner’s license as an insurance broker.
On the petitioner’s application to renew his real estate broker’s license, which was prepared by the petitioner after his insurance license had been revoked, he answered the question "Has any license been denied, suspended, or revoked by this state * * * since the filing of your last application?” in the negative.
The Secretary of State should not consider evidence of untrustworthiness where the general public would not be adversely affected (Matter of Stowell v Cuomo, 52 NY2d 208). However, here, the petitioner’s misdeeds as a licensed insurance broker involved his acceptance of premium payments from policyholders which were properly to be remitted to three separate insurance carriers in an amount totaling more than $20,000. The improper handling of money entrusted to the petitioner is as much a factor in judging his fitness to act as a real estate broker as it is in evaluating his fitness as an insurance broker (see, Matter of Gold v Lomenzo, 29 NY2d 468, 477). It was therefore proper for the Secretary of State to base her determination that the petitioner was untrustworthy to act as a real estate broker within the meaning of Real Property Law § 441-c on his misdeeds as an insurance broker (see, Blackmore v Shaffer, 128 AD2d 494; Matter of Smith v *703Paterson, 88 AD2d 917; Matter of Dovale v Paterson, 85 AD2d 602).
We reject the petitioner’s claim of laches and collateral estoppel. Although several years passed between the determination to revoke the petitioner’s insurance broker’s licenses and the start of the instant proceedings, the petitioner remained a licensed real estate broker in the interim, and thus did not suffer prejudice. It is possible that the petitioner’s false statement on his 1981-1983 real estate license renewal application may have added to the delay (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88).
The imposition of the penalty of license revocation is not so disproportionate to the offenses as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Dovale v Paterson, supra).
We have considered the petitioner’s remaining contentions and find them to be without merit. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901769/
|
—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Examiners of the Board of Education of the City of New York (hereinafter the board), dated March 31, 1986, which found the petitioner ineligible for a regular license as a teacher of common branch subjects and denied her application therefor, the appeal is from an order of the Supreme Court, Kings County (Rader, J.), dated September 8, 1986, which granted the petition to the extent of directing the appellants to reconsider the petitioner’s application, on the ground that the refusal of the appellants to accept her substitute teacher’s license in the early childhood area toward the satisfaction of the minimum preparation requirements for a regular teacher’s license in the common branch area was arbitrary and capricious.
Ordered that on this court’s own motion, the appellants’ notice of appeal is treated as an application for leave to appeal, said application is referred to Justice Mangano and leave to appeal is granted by Justice Mangano; and it is further,
Ordered that the order is reversed, on the law, without costs or disbursements, the determination is confirmed, and the proceeding is dismissed on the merits.
In 1969 the petitioner received a Bachelor of Science degree *704in education. In June of that year, the board granted the petitioner a substitute license for teaching early childhood classes (grades kindergarten through two) in the New York City schools. The petitioner taught under her substitute teacher’s license from September 1969 through June 1972. The petitioner obtained a regular teacher’s license in September 1972 but it expired on June 30, 1976, when she failed to return to teaching at the conclusion of a previously granted maternity and child care leave of absence. In January 1979 the petitioner was reissued her substitute teacher’s license and resumed teaching under that license.
In December 1984 the board announced an examination for a regular teacher’s license in the area of common branch subjects (grades 2 through 6). The title of the examination announcement reads as follows: "examination for license as TEACHER OF COMMON BRANCH SUBJECTS IN DAY ELEMENTARY SCHOOLS (GRADES 1-6) UNDER ALTERNATIVE B REQUIREMENTS”.
Alternative B, referred to in the title of the examination announcement, provided an option I and option II, with separate and distinct minimum preparation requirements for the subject license. Under option I, the minimum preparation requirements were as follows:
"option i
"preparation
"A. MINIMUM PREPARATION REQUIREMENTS
"By the date for meeting minimum preparation requirements, applicants must possess a permanent certificate, provisional certificate or certificate of qualification issued by the New York State Education Department valid for either:
"1. Teaching in the early childhood and upper elementary grades (N-6);
"or
"2. Teaching in the early childhood and upper elementary grades and an academic subject in the early secondary grades (N-9)”.
The petitioner indicated on a form that she met the minimum preparation requirements for the subject license under option I. However, the board rejected her attempt to satisfy the *705minimum preparation requirements under option I, since she did not possess a permanent certificate, provisional certificate or certificate of qualification issued by the New York State Education Department. The petitioner’s counsel then advised the board that his client met the minimum preparation requirements for the subject license under option II, which provided in relevant part as follows:
“option ii
“I. preparation
“A. minimum preparation requirements * * *
”2. Satisfactory evidence of one of the following alternatives: G
“a. Achievement on the Core Battery Tests, prescribed by the Commissioner of Education for New York State certification for any area of school service, of at least the minimum scores required by the Commissioner on the date the examination was announced;
“or
”b. Possession of a certificate of qualification, provisional certificate, or permanent certificate issued by the New York State Education Department for any area of school service which was valid on the date the examination was announced;
“or
“c. Possession of a New York City license for any area of school service for which an appropriate New York State certificate exists and for which license requirements have been satisfied in full”.
Specifically, the petitioner’s counsel argued, by letter to the board dated December 26, 1985, that his client met the minimum preparation requirements for the subject license under clause c of paragraph 2 of subdivision A of part I of option II, by virtue of her possession of a valid substitute teacher’s license.
In response, the board advised the petitioner’s attorney that only a valid regular New York City license would be acceptable under that provision and that a “substitute license was never valid for appointed service”.
The petitioner then commenced the instant proceeding. She alleged that the board’s determination was arbitrary and capricious since she had met the eligibility requirement of *706clause c of paragraph 2 of subdivision A of part I of option II in that she possessed a New York City license in an area in which the State issued certification (i.e., early childhood).
The Supreme Court, Kings County, (1) granted the petition to the extent of holding that the board’s refusal to accept the petitioner’s substitute license in the early childhood area in satisfaction of the minimum preparation requirements for a regular license in the common branch area was arbitrary and capricious, and (2) remitted the matter to the board for reconsideration.
The board’s determination was not arbitrary or capricious and should have been deferred to by the Supreme Court (Matter of Howard v Wyman, 28 NY2d 434, 438). First, all parties agree that the word "license” in the title of the examination announcement refers to a regular, and not a substitute license. There is no indication that the use of the exact same word "license” in clause c of paragraph 2 of subdivision A of part I of option II meant anything other than what it clearly meant in the title of the examination announcement. Moreover, under Education Law § 2590-j (2), the Chancellor of the New York City Board of Education is mandated to promulgate "minimum education and experience requirements for all teaching * * * positions which shall not be less than minimum state requirements for certification”. In response to the instant petition, the board submitted a memorandum from the Director of the New York State Division of Teacher Certification which indicated that all candidates for State certification were required to take the core battery tests with the exception of, insofar as is relevant herein, "[pjersons regularly licensed by the boards of education in New York City” (emphasis added). As heretofore indicated, the core battery tests could also be used under clause a of paragraph 2 of subdivision A of part I of option II to satisfy the minimum preparation requirements for the subject license. Since possession of a "New York City license” is an alternative to the core battery tests under option II, as it is under the State certification process, the board acted properly in interpreting the word "license” as meaning a regular, and not a substitute, license. Accordingly, the determination must be confirmed and the petition must be dismissed on the merits. Mangano, J. P., Thompson, Bracken and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901770/
|
Application by the *982appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 11, 2010 (.People v Crewe, 73 AD3d 943 [2010]), affirming a judgment of the County Court, Westchester County, rendered July 25, 2008.
Ordered that the application is denied.
The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745 [1983]; People v Stultz, 2 NY3d 277 [2004]). Eng, P.J., Mastro, Rivera and Skelos, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901772/
|
Application by the *982appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 11, 2010 (.People v Crewe, 73 AD3d 943 [2010]), affirming a judgment of the County Court, Westchester County, rendered July 25, 2008.
Ordered that the application is denied.
The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745 [1983]; People v Stultz, 2 NY3d 277 [2004]). Eng, P.J., Mastro, Rivera and Skelos, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129184/
|
Order affirmed, with ten dollars costs and disbursements. Opinion by
Barker, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129185/
|
Order affirmed, with ten dollars costs and disbursements. Opinion by
Hardin, J.;
Barker, J., dissenting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129186/
|
Judgment affirmed. Opinion by
Hardin, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129188/
|
Order dismissing appeal reversed, with ten dollars costs and disbursements, and order refusing amendment reversed. Opinion by
Hardin, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901773/
|
—In a proceeding pursuant to the Uniform Support of Dependents Law (Domestic Relations Law art 3-A) to recover child support under a judgment of divorce rendered in Florida, the petitioner mother appeals from an order of the Family Court, Nassau County (Feiden, J.), dated November 6, 1985, which (1) ordered that the respondent father pay child support of $50 per week, (2) made a de novo provision for child visitation, and (3) conditioned the payment of support upon the petitioner’s allowing visitation.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith.
Inasmuch as the petitioner was not a resident of this State and there was no prior order fixing the terms of visitation, the Family Court lacked jurisdiction to provide de novo for visitation and to condition support payments upon the petitioner’s permitting such visitation (see, Bonavito v Bonavito, 112 AD2d 41; Griffin v Griffin, 89 AD2d 310).
The Uniform Support of Dependents Law provides an additional or alternate means of enforcing the petitioner’s right to receive child support (Domestic Relations Law §41 [1]). The Family Court had jurisdiction to order the respondent father to make support payments. Such a Family Court support order does not reduce or supersede the father’s obligation to provide child support in accordance with the judgment of divorce (see, Cumming v Cumming, 113 AD2d 735; Lanum v Lanum, 92 AD2d 912).
Finally, we note the record of the Family Court proceedings does not indicate compliance with the provisions of Domestic Relations Law § 37 (5) through (9) (see, Nadiak v Nadiak, 19 AD2d 943). If the respondent father controverts the petition by verified denial, or alleges an inability to pay the child support set by the Florida judgment of divorce, which has also been entered in Nassau County, the Family Court is required to stay the proceedings and transmit a copy of the clerk’s minutes to the Judge of the court in the initiating State (Domestic Relations Law § 37 [6]). Only after completing the proceedings set out in Domestic Relations Law § 37 (7) and (9), including the right to cross-examine by means of depositions *709or written interrogatories, should the Family Court make its determination and order for child support. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901778/
|
Appeal by the defendant from a judgment of the County Court, Westchester County (Capeci, J.), rendered October 14, 2010, convicting him of assault in the third degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in *983which he moves for leave to withdraw as counsel for the appellant.
Ordered that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738 [1967]; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v Paige, 54 AD2d 631 [1976]; cf. People v Gonzalez, 47 NY2d 606 [1979]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129189/
|
Order affirmed, with ten dollars costs and the disbursements of each respondent. Opinion by
Hardin, J,
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822895/
|
Snead, J.,
delivered the opinion of the court.
*34In this appeal May Speed Sexton,, plaintiff, asks us to decide that William A. Stroman, defendant, was as a matter of law guilty of negligence which was the proximate cause of the collision involving their respective automobiles; to hold that the judgment for defendant was plainly wrong or without evidence to support it, and to grant her a new trial on the issue of damages only. Defendant has assigned as a cross-error the refusal of the trial court to submit the issue of contributory negligence to the jury.
At the conclusion of all the evidence and after the instructions of both parties had been considered and ruled upon, plaintiff moved the court to direct a verdict in her favor “on the question of liability”. This motion was overruled, and the case was submitted to the jury. During the course of their deliberations the jurors inquired of the court whether they could find plaintiff negligent, and they were instructed that they could not do so. Shortly thereafter a verdict was returned for defendant. Plaintiff moved the court to set aside the verdict on the ground that it was contrary to the law and the evidence and to “enter judgment” for her. This motion was also overruled, and final judgment was entered on the verdict. We granted plaintiff a writ of error.
The evidence was conflicting in certain material respects, but under familiar principles the jury by its verdict has resolved all such conflicts in favor of defendant, the prevailing party, and defendant is entitled to have the evidence stated, and reasonable inferences to be drawn therefrom considered, in the light most favorable to him.
The mishap occurred on November 21, 1961, at about 4 p.m. on U.S. Route 29 approximately two-tenths of a mile north of Bright-wood in Madison county. The weather was clear; the hard-surfaced road was dry, and the speed limit was 5 5 miles an hour. The highway consists of one northbound lane and one southbound lane which are divided by a white line. At the scene it is straight and “almost level”, but to the north “a little stretch” there is “a dip down” which obstructs a southbound vehicle from the vision of a motorist proceeding in the northbound lane.
Plaintiff and defendant were proceeding north. Plaintiff was driving a 1962 Ford,, and defendant was operating a 1961 Cadillac. At some point south of the accident scene, plaintiff’s car passed defendant’s vehicle. Defendant testified:
“Well, this car came by me with this young lady [plaintiff] in it it came by me, that is got in ahead of me and cut in directly in front *35of me and followed the car immediately in front of me. She she seemed to be very much in a hurry because she was trying to pass that car, she would pull out to the left, as though she was going to pass, and then flash her brake light and then pull back in; she did that several times.”
Defendant further stated that after plaintiff's car had passed his vehicle he reduced his speed “to get more distance between her car and my car”; that he was going “about fifty miles an hour”; that plaintiff’s car did not get out of sight after he lengthened the distance; and that “a short time” thereafter he noticed “all at once” that plaintiff’s car had stopped in the northbound lane about 100 to 150 feet ahead. Defendant said, “All of a sudden I saw her stopped.” He also said that he had been “looking right down the road, watching the traffic” and that plaintiff did not give any type of signal or warning “of what she was going to do” (that she intended to stop). Defendant realized that he “was in a predicament” and applied his brakes, but he was “not quite” able to bring his vehicle to a standstill before the collision occurred. The front of his automobile struck the rear of plaintiff’s car, and according to a witness the accident appeared to be “a very minor thing”.
The record discloses that after plaintiff’s car passed defendant’s vehicle prior to the accident it got behind vehicles which were proceeding in a northerly direction. Mrs. Blankenbaker, the driver of the vehicle immediately in front of plaintiff, intended to make a left turn across the southbound lane in order to gain access to her private driveway. Before the turn could be made, however, she had to bring her vehicle to a complete stop in the northbound lane because of approaching southbound traffic. Plaintiff was therefore obliged to bring her car to a full stop, and it was at this point that the mishap occurred. Plaintiff admitted that she gave no signal of her intention to stop other than her brake lights. However, she testified that she asked trooper Oliver, the investigating officer, to check her brake lights because defendant had said to her, “You stopped like that and you had no brake lights.”
Oliver testified that shortly after the accident he obtained a statement from both plaintiff and defendant made in the presence of each other with regard to the manner in which the collision took place. He said:
“Mrs. Speed [plaintiff] told me that the car in front of her was making a left turn and that this car in front of her stopped on the *36highway; she stated that she stopped and was standing still when something hit her car in the rear.”
When asked for defendant’s version of the accident, he said:
“Mr. Stroman stated that the Ford, or the other car had passed him and had gotten back into the lane in front of him when the traffic in front of her [plaintiff] stopped and that she stopped suddenly and he hit her in the rear.”
Trooper Oliver found four skid marks, “two long ones and two short ones”, in the northbound lane. Each of the marks was “approximately the width of the wheels on an automobile”. The two long marks “began first”, were approximately 54 feet long, and “were almost straight up the northbound lane”. The two short marks were about 24 feet long and “led off from the long ones # * to the right.” One of the short marks lay between the two long ones. The two vehicles had been moved to the east side of the highway by the time the trooper arrived at the scene, and he was unable to connect the skid marks with either of them. He stated, however, that he knew of no other accident that had occurred at the scene that day.
Oliver also found some clear glass in the northbound lane at the northern end or “just ahead” of the skid marks. The right front headlight of defendant’s vehicle had been broken out and had contained the same type of glass as that found on the highway. The front bumper of defendant’s car was also damaged. The “trunk, deck and rear bumper” of plaintiff’s car had been damaged. Oliver estimated the damage to-each vehicle at approximately $100. He did not recall “right offhand” whether he checked the equipment in the vehicles, but he said, “I normally check it. I have got in my accident pad that neither vehicle had equipment defects.” However, he was not specifically asked whether he checked the brake lights on plaintiff’s automobile.
In support of her contention that the evidence was not sufficient to sustain the jury’s verdict plaintiff argues, inter alia, that there was no evidence that she made a sudden stop; that defendant failed to see her brake lights when she. stopped her vehicle, and that as a matter of law defendant’s testimony convicts him of negligence which was “the proximate cause” of the accident and her injuries.
Defendant,, on the other hand, says that the conflicting evidence presented a jury question as to whether he was guilty of negligence which was “a proximate cause” of the mishap and that the jury simply did not construe the facts of the case and the inferences to be drawn therefrom as plaintiff had hoped.
*37In 13 M.J., New Trials, § 31, p. 657, it is said:
“* * # If there is evidence before the jury, of a character not physically impossible or inherently incredible, which, if credited by the jury, is sufficient to sustain the verdict, it is reversible error in the trial court to set it aside. If a condition of facts is such that the jury may deduce from them more than one inference or conclusion, the court, upon a motion to set aside their verdict, has no such discretion, but is bound down to that interpretation of the facts, and is constrained to adopt that conclusion from the evidence which the jury have sanctioned by their verdict. The jury are the sole judges of the weight of the evidence and the credibility of the witnesses, and if there is credible evidence to support their verdict, it cannot be disturbed.” See also Burks, Pleading and Practice, 4th ed. § 325, p. 604, etseq; Code, § 8-491.
“Ordinarily, negligence, contributory negligence and proximate cause are jury questions. It is only when reasonable men may draw but one inference from the facts that they become questions of law for the court to decide. Finck v. Brock, 202 Va. 948, 951, 121 S.E. 2d 373, 375. * * *” Alexander v. Moore, 205 Va. 870, 875, 140 S.E. 2d 645. See also Hudgins v. Jones, 205 Va. 495, 499, 138 S.E. 2d 16; Beasley v. Bosschermuller, 206 Va. 360, 365, 143 S.E. 2d 881; Farmer v. Valley Marine Center, Inc., 206 Va. 737, 741, 146 S.E. 2d 265.
On the record before us, we cannot say as a matter of law that defendant was guilty of negligence which was a proximate cause of the accident. The factual situation presented a jury question, and the evidence was sufficient to sustain a verdict for defendant. The jury could have properly concluded from the testimony, as well as the two sets of skid marks and the location of the broken headlight glass, that both vehicles stopped suddenly. It could have also properly found that plaintiff gave no signal or warning of her intention to stop; that the chain of events just prior to the mishap occurred in a matter of seconds, and that defendant operated his automobile with as much care as a reasonably prudent person would have done under the same or similar circumstances.
Plaintiff also contends that the court’s judgment was plainly wrong because the court “had a clear duty to set aside the verdict when it was of the opinion that there was a miscarriage of justice.” When the trial judge overruled plaintiff’s motion to set aside the verdict as being contrary to the law and the evidence he sáid:
“Gentlemen, I have considered this case very carefully. I have *38considered this on the motions that were made in the previous trial, and I have considered it on this record.
“And, while l am convinced that there — l -feel there has been a miscarriage of justice; I also feel that, taking all the evidence of Mr. Stroman as they have to construe it with emphasis in the most favorable light to sustain a verdict there is evidence on which the Jury might have said, ‘This man didn’t do anything that a reasonable man wouldn’t have done.’
“I don’t think it’s right, but I just can’t — I don’t feel that I ought to set the verdict aside. Maybe the Court of Appeals will.
“I’ll have to sustain the verdict. There are conflicts in the evidence, of course. Mr. Stroman’s testimony is entirely inconsistent with Mrs. Blankenbaker’s testimony. Some of it has got to be inconsistent, because after all the estimates of the distance he was behind her, and her estimates vary somewhat, and not expecting the car to stop on the highway — there was no reason for it to stop, and all of a sudden— not that there was no real sudden emergency; but it does stop; whether he failed to exercise such care as a reasonable and prudent person, the question seems to me for the Jury under all the evidence.
“It’s a very close case and I’d like to feel that I could set it aside, but I don’t.
“I’ll sustain the verdict and overrule the motion.”
(Italics supplied.)
Plaintiff relies upon the fact that the court’s statement included the words: “# * * I am convinced that there — I feel there has been a miscarriage of justice.” She argues that since the court was convinced that there had been a miscarriage of justice it should have set aside the verdict. We find this contention to be without merit.
It is manifest from a reading of the trial judge’s remarks that he personally disagreed with the jury’s verdict, but it is well settled in this jurisdiction that a trial judge cannot set aside a verdict because he would have found a different verdict if he had been a member of the jury. Ellett v. Carpenter, 173 Va. 191, 197, 3 S.E. 2d 370; Braxton v. Flippo, 183 Va. 839, 844, 33 S.E. 2d 757; Schools v. Walker, 187 Va. 619, 624, 47 S.E. 2d 418; 13 M.J., New Trials, § 31, supra. In the instant case, the trial judge observed that the evidence was in conflict; that it presented a jury question, and that it was sufficient to enable the jury to conclude that defendant “didn’t do anything that a reasonable man wouldn’t have done.” It is true that the trial judge was of opinion that the case was close and that he was *39inclined to set aside the verdict, but the fact remains that he did not feel that it could be set aside and he' refused to do so.
In view of our holding that the questions of primary negligence and proximate cause were issues for the jury and in light of the fact that the jury has decided those issues in defendant’s favor, it becomes unnecessary to discuss the cross-error relied upon, i.e., the refusal of the court to submit the issue of contributory negligence to the jury.
The judgment appealed from is
Affirmed.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901779/
|
—Appeal by the People from an order of the Supreme Court, Kings County (Owens, J.), entered October 22, 1986, which set aside a jury verdict convicting the defendant of offering a false instrument for *713filing in the first degree (five counts), and dismissed the indictment.
Ordered that the order is affirmed.
A verdict should be set aside when "the trial evidence is not legally sufficient to establish” an element or elements of the offense (CPL 290.10 [1] [a]; People v Lynch, 116 AD2d 56, 62). Matters of credibility are reserved to the trier of fact and upon a review of the legal sufficiency of the evidence should be regarded as though resolved in favor of the People (see, People v Johnson, 65 NY2d 556, 561, rearg denied 66 NY2d 759, upon remittitur 115 AD2d 215, Iv denied sub nom. People v Tyler, 67 NY2d 658; People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932).
The essential elements of the crime of offering a false instrument for filing in the first degree (Penal Law § 175.35) are (1) knowledge that a written instrument contains a false statement or false information, (2) intent to defraud the State or any political subdivision thereof, and (3) offering or presenting such instrument to a public office or public servant with the knowledge or belief that it will be filed.
The People are required to offer evidence to establish each of those three elements beyond a reasonable doubt (cf, People v Bentley, 106 AD2d 825, 826; People v Chaitin, 94 AD2d 705, affd 61 NY2d 683).
The defendant was a salaried pharmacist who on five separate occasions filled prescriptions calling for a name drug with its generic equivalent and attached the prescription to a blank Medicaid invoice.
There was no evidence, direct or circumstantial, that the defendant intended to defraud the State or that he prepared the instruments or that he offered or presented such instruments to a public official or public servant.
Absent any proof that the defendant individually had the intent to defraud the State, or was familiar with, or participated in the preparation and submission of the vouchers, it would be improper to infer such intent or knowledge from the fact that his employer pleaded guilty to the crime of offering a false instrument for filing.
The defendant’s guilt of the crime cannot be premised solely on the fact that he initiated the false information. Such a hypothesis does not rule out any inference save that of guilt. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901782/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered July 28, 1986, convicting him of rape in the first degree (two counts), sodomy in the first degree, attempted sodomy in the first degree, and sexual abuse in the first degree (14 counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, so as to provide that the 1-to-3-year sentences imposed on the defendant’s convictions of six counts of sexual abuse in the first degree shall run concurrently rather than consecutively; as so modified, the judgment is affirmed.
The evidence, viewed in a light most favorable to the prosecution, is legally sufficient to support the defendant’s. conviction of the crimes charged (see, People v Contes, 60 NY2d 620, 621). Moreover, upon the exercise of our factual review power we are satisfied that the defendant’s guilt was proven beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
Further, the court properly admitted a vibrator and bag into evidence as they were properly connected to the defendant and the crimes charged through the victim’s testimony to render them relevant to the People’s case (see, People v Mirenda, 23 NY2d 439; People v Connelly, 35 NY2d 171).
We find that the sentences imposed were excessive to the extent indicated.
We have examined the defendant’s remaining contentions *718and find them to be without merit. Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901783/
|
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J., at plea; Pickett, J., at sentencing), rendered October 14, 2008, convicting him of robbery in the third degree and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although a claim that a plea of guilty was not voluntary survives a waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]), the defendant’s contention that his plea was not voluntary is unpreserved for appellate review because he withdrew his motion to withdraw his plea (cf. People v Perez, 51 AD3d 1043 [2008]). In any event, a plea of guilty will be upheld as valid if it was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Harris, 61 NY2d 9, 17 [1983]). Here, the defendant’s plea of guilty was entered knowingly, voluntarily, and intelligently.
The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Lopez, 6 NY3d 248, 255 [2006]).
The defendant received the effective assistance of counsel (see People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901784/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered February 28, 1985, convicting him of attempted murder in the second degree, assault in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Chetta, J.) of that branch of the defendant’s omnibus motion which was to dismiss the indictment for unreasonable preindictment delay.
Ordered that the judgment is affirmed.
We find unpersuasive the defendant’s claim that the approximately 28-month hiatus between his commission of the instant offenses and his arrest violated his right to due process and requires dismissal of the indictment. The uncontroverted hearing testimony demonstrates that neither the complainant nor the three eyewitnesses to the crime was willing to participate in its investigation by the police, and all failed to comply with the investigating detective’s repeated requests that they report to the precinct and look through police department photographs in order to identify the assailant. Moreover, it is undisputed that shortly after the investigation commenced, the complainant informed the detective that he "didn’t want to pursue the matter any further” and wanted the investigation discontinued. Hence, it is clear that the police were unaware of the defendant’s identity and had no evidence upon which to prosecute him until the complainant subsequently identified him and he was arrested more than two years after the crime. Under these circumstances, the prosecution established that the failure to procure the defendant’s arrest more promptly was entirely reasonable and was supported by good cause (see, People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789; People v Brown, 124 AD2d 667, Iv denied 69 NY2d 825, Iv denied sub nom. People v Shabazz, 69 NY2d 833; People v Hoff, 110 AD2d 782). Additionally, the serious nature of the instant offenses and the absence of any actual prejudice suffered by the defendant further militate against his present contention (see, People v Fuller, 57 NY2d 152; People v Bonsauger, 91 AD2d 1001; People v Bryant, 65 AD2d 333, appeal dismissed 46 NY2d 1037).
*719Similarly unavailing is the defendant’s contention that he should be permitted to reopen the pretrial hearing and adduce additional evidence in support of his due process claim in light of the trial testimony of the complainant and the eyewitnesses concerning their alleged cooperation with the investigation. Initially, we note that despite having ample opportunity to do so, trial counsel never sought to reopen the hearing and instead apparently elected as a matter of strategy to attempt to cast aspersions on the credibility of the witnesses by calling the investigating detective as a defense witness at trial (see generally, People v Ortiz, 120 AD2d 550, Iv denied 68 NY2d 671). In any event, the defendant was not denied a full opportunity to present evidence at the hearing by any ruling of the court; hence, he is not entitled to a second chance to sustain his claim by eliciting additional evidence which he previously failed to pursue (see, People v Quarles, 63 NY2d 923; People v Havelka, 45 NY2d 636; People v Bryant, 37 NY2d 208).
We have considered the defendant’s remaining contentions, including his claim that his sentence was excessive, and find them to be without merit. Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129191/
|
Judgment affirmed on opinion of
Barker, J.,
at Special Term ;
Barker, J., not sitting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129192/
|
Order affirmed, with ten dollars costs and disbursements. Opinion by
Hardin, P. J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129193/
|
Order affirmed. Opinion .by
Smith, P. J.;
Barker, J., not sitting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822897/
|
Buchanan, J.,
delivered the opinion of the court.
In an amended bill for an injunction filed in January, 1964, the plaintiff, Charles William Hurt, alleged that he was the owner of the unsold part of a tract of land in Albemarle county lying on both sides of the railroad track of the defendant, Southern Railway Company, a short distance north of Rio station, which had been conveyed to him in 1958; that the part of the land lying east of the track had no outlet except across the defendant’s right of way; that the defendant for many years had maintained two suitable and proper crossings over its tracks for this land, but about a year ago it had taken up one set of tracks and destroyed the crossing over the other, and had not complied with repeated demands that it restore the crossings.
The bill prayed that the defendant be required forthwith to construct and maintain the crossings at their old locations and to pay damages for its failure to do so after being requested.
Defendant in its answer admitted that the crossings requested by the plaintiff had once existed, but asserted that they had been abandoned for many years; that they were dangerous and the plaintiff had other and safer access to his land over land in which he owned a half interest; that if the defendant was entitled to any crossing it would be the southern one, which was the safer, and this should be restricted to the private use of the plaintiff.
The court heard the evidence ore terms and entered the decree appealed from ordering the defendant to repair and maintain both of said crossings in their original locations; but that the use of both crossings by the plaintiff be limited to ordinary private access to the land on the east side of the railroad, “including the right to take sand therefrom for the use of the owner of the land.”
The plaintiff assigned error to this limitation on the use of the crossing for the removal of sand, and to the court’s refusal to allow *62damages. The defendant assigned cross-error to the requirement that it construct two crossings instead of one.
There was little conflict in the evidence and such as existed is now to be resolved as determined by the trial court. Darden v. Lee Company, 204 Va. 108, 113, 129 S.E.2d 897, 900.
The plaintiff, Hurt, purchased the tract of land in January, 1958, at which time there were two private crossings over the railroad right of way which at that point ran generally north and south and carried two sets of tracks. There were extra ties and gravel on these crossings, making easy passage for a truck. The right of way was fenced and there was a gate on each side of each crossing.
After plaintiff acquired the property he used the south crossing in dry weather from time to time to haul sand and in connection with a dump area. This use continued until the defendant, in 1962, removed one set of the double tracks and fenced up the crossings.
These crossings were originally used in connection with farming the land, and corn, wheat and other products were hauled over them. A witness who helped with the farming testified that he worked on the land about 1942 and these crossings were old at that time. Another who worked on the railroad during the first world war said these two crossings looked like they were being used then. There was evidence that there was no practical way for getting sand out of the bottom land on the east side of the railroad other than by taking it across the railroad tracks.
In support of his claim for damages resulting from closing the crossings, the plaintiff testified that he had to move stumps across town to the city dump, “I think about a hundred loads at about $2.00 a load”; that he was not able to use any more sand from his property for road construction work with respect to which he said, “We could have used about $700.00 of business per month, at a savings of two-thirds the cost of what we pay for gravel, in the neighborhood of $500.00 a month.” An additional claim was expressed this way: “Well, we had a parking area for the Moose Home, about an acre. And that would have saved us a thousand dollars to have been able to use the sand instead of the crushed gravel dust.”
Quite obviously these generalities and speculations provided no sufficient basis for the allowance of a specific amount of damages and there was no error in the action of the court in this respect.
The defendant contends, as stated, that the court erred in requiring it to repair and maintain two crossings instead of only one. *63Its objection is to maintaining the north crossing. This crossing gives access to a tract of five acres on the west of the railroad and at the north end of a subdivision made by the plaintiff. There is no sand on this five-acre tract, according to the evidence, but this north crossing is the only reasonable way of entering it from the land on the east. We find in the record no sufficient ground for changing the holding of the court that the north crossing should be maintained.
The only question in the case that gives concern is the limitation on the right to take sand over the crossings only “for the use of the owner of the land.” The solution of the question lies in applying the provisions of § 56-16 of the Code to the evidence in the case. That section provides in relevant part as follows:
“Every public service corporation, whose road i;' * passes through the lands of any person in this State, shall provide proper and suitable wagon ways across such road # # from one part of such land to the other, and shall keep such ways in good repair. * *”
The statute originated in Acts 1836-1837, ch. 118, p. 108, which contained a provision not materially different from the quoted part of the present Code.1
It has been considered in several cases,2 none of which however dealt specifically with the principal issue now presented, i.e., whether the plaintiff may haul sand over the crossing only for his own use.
In Adams v. Tidewater R. Co., (Note 2), it was said that this remedial statute (then § 1294b (2), Code 1904) “ought to receive a reasonable construction, so as to make the remedy commensurate with the right of the land owner and the mischief intended to be redressed, and should not be suffered to fall short of its admitted purpose by a too narrow interpretation.”
In Lanford v. Virginia Air Line Ry. Co., (Note 2), it was repeated that the statute should receive a reasonable construction. Applying *64it the court refused to require the railroad company to reconstruct its road bed so as to provide the landowner with an underpass at a cost out of proportion to the landowner’s need.
Gaulding v. Virginian Ry. Co., (Note 2), was a suit for damages for failure of the railroad company to keep in good repair the crossing it had constructed. It was held that the declaration stated a good cause of action since “The duty to keep in good repair necessarily began when the duty to construct ended.”
No question is raised as to the right of the landowner to use trucks for hauling across “the wagon ways”. Wagoner v. Coal Corp., 199 Va. 741, 744, 101 S.E.2d 627, 629; Black’s Law Dict., (3d ed.), p. 1827.
The statute requires the construction of proper and suitable wagon ways from one part of the owner’s land to the other. It does not require construction of a way to a public road, and plainly does not contemplate that kind of crossing. Its purpose is to lessen the difficulties of the owner in the convenient and profitable use of his land when the railroad divides one part of it from the other. The normal farming operation involves the sale or the use of the products of the farm, such as grain, hay or livestock. It may also include the sale or other use of trees grown on the land and lumber therefrom. Ways “proper and suitable” required by the statute are ways proper and suitable for the reasonable use of the land and the use or sale of its products.
The limitation of the use of the crossing to hauling sand for plaintiff’s own use is, we think, too narrow a limitation. It may be construed to mean only sand for his personal use, not sand that he would sell to another. It is a limitation that could render worthless what may be a valuable element of the land, just as such a restriction applied to grain or other products of the soil could render them valueless.
The proper and suitable wagon ways required by the statutes were not intended to be public crossings. They are in the nature of private easements attached to the land for the reasonable use of the owner. Such use does not include the right to haul over the crossings the products of a commercial enterprise. Nor should it include a use that would create a dangerous condition at the crossings and unreasonably interfere with the operation of defendant’s trains. This involves the volume of traffic over the crossings rather than the use and disposition of what is hauled.
The division engineer of the defendant testified that 26 scheduled *65trains a day were operated over these crossings, about fourteen of which crossed in the daytime, and that no safety precautions are required for private crossings. At the southern crossing, which is the one that will be used for hauling sand, the sight distance to the north from the east side of the crossing is 1140 feet, and to the south 1900 feet. From the west side the sight distance to the north is 1070 feet and to the south 1930 feet. Plaintiff testified that the prospective purchaser of sand would probably expect to haul ten to twenty truckloads a day over this crossing. Such would clearly be a use in excess of that intended by the statute.
On consideration of the factual situation, and the rights and duties of both the plaintiff and the defendant under the statute, we conclude and hold that the plaintiff has the right to remove over said crossings sand for his own use taken from his property on the east side of the railroad; and the additional right to sell sand from said property to be hauled over said crossings in quantity not to exceed a total of five ordinary truckloads of sand in any twenty-four hour period.3
The decree appealed from is modified in the manner stated and as modified is affirmed and the cause is remanded to the trial court with direction to keep the cause on its docket for such future relief as the landowner and the railroad company may show themselves entitled to.
The plaintiff shall recover his costs here and in the trial court.
Modified and remanded.
“Whenever, in the construction of any rail-road, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors so to construct their rail-road across such established road or way as not to impede the passage or transportation of persons or propety along the same. And where it shall be necessary to pass through the land of any person, it shall be their duty to provide for such person, and keep in proper repair, proper wagon ways across their rail-road from one part of his land to another *
Adams v. Tidewater R. Co., 107 Va. 798, 60 S.E. 129; Lanford v. Virginia Air Line Ry. Co., 113 Va. 68, 73 S.E. 566; Gaulding v. Virginian Ry. Co., 121 Va. 19, 92 S.E. 832; Washington-Virginia Ry. Co. v. Fisher, 121 Va. 229, 92 S.E. 809; Penn sylvania R. Co. v. Black, 175 Va. 256 8 S.E.2d 291; Southern Ry. Co. v. Anderson, 203 Va. 991, 128 S.E.2d 429.
We do not consider this conclusion to be in conflict with the holding in Weiss v. Chicago & c., Railroad, 9 Wis.2d 581, 101 N.W.2d 688, cited by the defendant, which is distinguished by its facts from the present case. Cf. Cushman Corp. v. Barnes, 204 Va. 245, 253, 129 S.E.2d 633, 639-40.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901785/
|
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J., at plea; Pickett, J., at sentencing), rendered October 14, 2008, convicting him of robbery in the third degree and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although a claim that a plea of guilty was not voluntary survives a waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]), the defendant’s contention that his plea was not voluntary is unpreserved for appellate review because he withdrew his motion to withdraw his plea (cf. People v Perez, 51 AD3d 1043 [2008]). In any event, a plea of guilty will be upheld as valid if it was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Harris, 61 NY2d 9, 17 [1983]). Here, the defendant’s plea of guilty was entered knowingly, voluntarily, and intelligently.
The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Lopez, 6 NY3d 248, 255 [2006]).
The defendant received the effective assistance of counsel (see People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901787/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered March 6, 1985, convicting him of burglary in the first degree (two counts), robbery in the first degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Balbach, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant challenges on several grounds the hearing court’s denial of that branch of his omnibus motion which was to suppress identification testimony. First, the defendant claims that because of an alleged delay in his arraignment on an unrelated criminal complaint, we should find that formal prosecutorial proceedings had been initiated requiring the presence of counsel at the lineup. This claim is without merit. There is nothing in the record to suggest that the defendant’s arraignment on the unrelated criminal charges was unduly delayed. Further, since no formal prosecutorial proceedings had yet been initiated with respect to the instant charges, the defendant had no right to have counsel present at the investigatory lineup (see, People v Hawkins, 55 NY2d 474, rearg denied sub nom. People v Laffosse, 56 NY2d 1032, cert denied 459 US 846; People v Mosley, 135 AD2d 662; People v Hernandez, 122 AD2d 856, Iv denied 69 NY2d 712).
Second, the defendant argues that a remark by the police to the two witnesses, prior to their viewing of the lineup, that they had arrested two men who would be among the individu*721ais exhibited, rendered the lineup impermissibly suggestive. This remark, which merely “informed the complainant that the police had picked up a suspect, not necessarily the person who robbed him”, was not improper (People v Warner, 125 AD2d 430, 431, Iv denied 69 NY2d 887; People v Hernandez, supra).
The defendant further raises the claim that the police lacked the requisite probable cause to arrest him and that therefore, the pretrial identification should have been suppressed as being tainted by the unlawful arrest. However, having failed to raise this claim before the hearing court, the defendant has not preserved it for appellate review (CPL 470.05 [2]; People v Warner, supra).
Nor do we find that the lineup was impermissibly suggestive or created a substantial likelihood of irreparable misidentification. The fill-ins for the lineup were sufficiently similar in appearance to the defendant such that the viewer would not have been oriented toward selecting the defendant as a participant in the crimes charged (see, People v Rodriguez, 124 AD2d 611; People v Mason, 123 AD2d 720, Iv denied 69 NY2d 714). There is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (People v Rodriguez, supra).
Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt, and that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
The defendant charges that numerous instances of prosecutorial misconduct and trial court errors deprived him of a fair trial. We need not address the majority of the claims of prosecutorial misconduct because, having failed to raise any objection thereto at trial, the defendant has failed to preserve such claims for our review (CPL 470.05 [2]) and we decline to consider these claims in the interest of justice. To the extent that the defendant’s contentions in this regard were preserved, we do not believe that the prosecutor’s remarks operated to deprive the defendant of a fair trial.
The defendant claims that the prosecutor’s opening statement was inadequate because it did not substantially link him to the crimes charged in the indictment. ”[A]bsent bad faith nor undue prejudice, a trial will not be undone for deficiencies in an opening statement” (People v Watson, 121 AD2d 487, 488, Iv denied 68 NY2d 818). Not only do we find no insuffi*722ciency in the opening, but also neither bad faith nor prejudice is evident upon this record.
The defendant also asserts that the trial court’s failure to strike the testimony of the complainant Harry Zarin when he failed to respond "in a fair and forthright manner” to questions directed to him during cross-examination deprived him of a fair trial. The trial court noted on the record that Mr. Zarin was a difficult witness and admonished him. The court’s action was sufficient to cure whatever harm the defendant may have suffered by the conduct of the witness (see, People v Berg, 59 NY2d 294, 299; People v Jones, 120 AD2d 747, 748; cf, People v Beaman, 122 AD2d 848, 849, Iv denied 68 NY2d 809).
Contrary to the defendant’s contention, we do not believe that the concurrent sentences of 8 Vs to 25 years on each of the burglary and robbery convictions and 2 Vs to 7 years on the assault conviction, which were to run consecutively to the sentence imposed upon a conviction under indictment No. 3344/83 and to any parole owed upon a North Carolina conviction were excessive. Given the defendant’s lengthy criminal history and the violent nature of the crimes charged, the sentences imposed were a proper exercise of discretion and we decline to disturb them.
We have considered the defendant’s remaining contentions, including those raised in his pro se supplemental brief, and find them to be either unpreserved for appellate review or without merit. Thompson, J. P., Lawrence, Eiber and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901788/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered March 6, 1985, convicting him of robbery in the first degree (two counts) and burglary in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Balbach, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant argues that a lineup identification was impermissibly suggestive because of a remark by the police to one of the complainants that the police had apprehended two men whom they suspected might be responsible for the rob*723bery of the complainant and those apprehended individuals would be exhibited in a lineup. We do not find that this remark rendered the lineup improper. ”[A]t most [it] informed the complainant that the police had picked up * * * suspects], not necessarily the personfs] who robbed [her]” (People v Warner, 125 AD2d 430, 431, Iv denied 69 NY2d 887; see, People v Hernandez, 122 AD2d 856, Iv denied 69 NY2d 712). Moreover, the defendant was not deprived of his right to counsel at the lineup as no formal prosecutorial proceedings had yet been initiated (see, People v Hawkins, 55 NY2d 474, rearg denied sub nom. People v Laffosse, 56 NY2d 1032, cert denied 459 US 846; People v Hernandez, supra). The defendant’s claim that his arraignment on an unrelated criminal complaint had been unnecessarily delayed and, therefore, his right to counsel had attached, is without merit (see, People v Hopkins, 58 NY2d 1079). Nor do we find that the lineup was unduly suggestive or created a substantial likelihood of irreparable misidentification. The fill-ins for the lineup were sufficiently similar in appearance to the defendant such that the viewer would not have been oriented toward selecting the defendant as a participant in the crimes charged (see, People v Collins, 136 AD2d 720 [decided herewith]; People v Rodriguez, 124 AD2d 611; People v Mason, 123 AD2d 720). There is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (People v Rodriguez, supra). In any event, there was clearly an independent basis for the complainant’s in-court identification of the defendant since the complainant had ample opportunity to observe the defendant at close range under good lighting conditions for a period of about 30 to 40 minutes (see, People v Adams, 53 NY2d 241; Manson v Brathwaite, 432 US 98, 114).
The defendant charges that he was deprived of a fair trial by numerous prejudicial and inflammatory comments made by the prosecutor in the course of his summation. Many of these issues have not been preserved for our review as the defense counsel registered no objection thereto before the trial court (see, CPL 470.05 [2]; People v Nuccie, 57 NY2d 818, 819; People v Marmolejos, 125 AD2d 335, 336, Iv denied 69 NY2d 830, Iv denied sub nom. People v Pena, 69 NY2d 831). In those instances in which an objection was made, any minimal prejudice which might have arisen from the prosecutor’s remarks was overcome by the court’s sustaining defense counsel’s objections or its taking prompt curative action. In any event, the prosecutor’s summation , in the main was a proper *724response to the defense counsel’s summation (see, People v Street, 124 AD2d 841, Iv denied 69 NY2d 834).
The defendant next contends that the trial court erred in refusing to grant his application characterized as one for a change of venue but which was, in effect, a request that the Trial Judge recuse himself because he had presided at an earlier trial of the defendant on unrelated charges (see, People v Collins, supra). The trial court found no conflict or bias existed which would warrant recusal. "[T]he decision on a recusal motion is generally a matter of personal conscience” (People v Smith, 63 NY2d 41, 68, cert denied 469 US 1227; People v Smith, 120 AD2d 753, 755). An examination of the record demonstrates that the trial court did not abuse its discretion in presiding over the instant trial.
We also reject the defendant’s contention that the trial court erred in permitting the People, before the trial commenced, to amend the indictment to add the words "acting in concert with another person”. Throughout these proceedings, it was clear that the People sought to prove that the robbery in question was committed by a "Mutt and Jeff” team. Therefore, the amendment did not "change the theory * * * of the prosecution as reflected in the evidence before the grand jury which filed [the] indictment, or otherwise tend to prejudice the defendant on the merits” (CPL 200.70 [1]; see, People v Hartman, 123 AD2d 883, Iv denied 69 NY2d 712).
We find nothing in the record before us which would warrant a modification of the defendant’s sentence. The defendant’s remaining contentions, including those raised in his pro se supplemental brief, have been examined and have been found to be either unpreserved for appellate review or without merit. Thompson, J. P., Lawrence, Eiber and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901790/
|
Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated October 4, 2004 (People v Hernandez, 11 AD3d 479 [2004]), affirming a judgment of the Supreme Court, Queens County, rendered March 23, 2001.
Ordered that the application is denied.
The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 *984US 745 [1983]; People v Stultz, 2 NY3d 277 [2004]). Skelos, J.P., Dickerson, Chambers and Hinds-Radix, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901791/
|
—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Martin, J.), rendered March 28, 1985, convicting him of arson in the second degree, criminal mischief in the second degree and arson in the fourth degree (two counts), after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s claim that the court at this nonjury trial improperly denied his application for a Sandoval hearing (People v Sandoval, 34 NY2d 371), ruling instead that he *725should challenge any inquiry into his prior misconduct upon cross-examination by objections which would be promptly ruled upon, is unpersuasive. While the better practice would have been to give the defendant an advance ruling in this regard, in light of the belated nature of the defendant’s request for a hearing and his intention to testify regardless of the court’s ruling, we find no error in this regard (see, People v Ortero, 75 AD2d 168, 173-174; cf, People v Rosa, 96 Misc 2d 491). Moreover, the defendant’s argument that the Trial Judge should not have been permitted access to information regarding his criminal history, but that a Judge other than the one who would serve as the trier of fact should have rendered a Sandoval determination, has been recently rejected by the Court of Appeals in People v Moreno (70 NY2d 403, 406), since, "[ujnlike a lay jury, a Judge 'by reasons of * * * learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination’ based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision” (quoting People v Brown, 24 NY2d 168, 172). Thus, " 'it suffices to say that there is no prohibition against the same Judge conducting a pretrial hearing as well as the trial itself ” (People v Moreno, supra, at 406, quoting People v De Curtis, 63 Misc 2d 246, 249, ajfd 29 NY2d 608, cert denied 404 US 940; see, People v Latella, 112 AD2d 324, Iv denied 65 NY2d 983, 66 NY2d 616; People v Lombardi, 76 AD2d 891). The record is devoid of any evidence that the Trial Judge harbored any " 'bias or prejudice or unworthy motive’ ” against the defendant (People v Moreno, supra, at 407, quoting Matter of Johnson v Hornblass, 93 AD2d 732, 733) and thus, the defendant’s claim must be rejected.
Similarly unavailing is the defendant’s claim that the People were improperly permitted to elicit from an investigator testimony as to a statement made by the defendant since they did not serve notice of their intention to do so prior to trial pursuant to the dictates of CPL 710.30. Initially, it is observed that by failing to object to the elicitation of the testimony on the ground that he did not receive statutory notice, the defendant waived his right to raise this issue on appeal (see, People v Ross, 21 NY2d 258; People v Webb, 97 AD2d 779). In any event, notice was not required since the People did not intend to utilize the statement as part of their direct case, eliciting testimony as to it only upon redirect examination once defense counsel " 'opened the door’ ” to such questioning *726(People v Melendez, 55 NY2d 445, 450; People v Webb, supra). Moreover, since the "obvious purpose of the statute is to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or admission” (People v Ross, supra, at 262), where there is no question of voluntariness regarding the statement, the notice of intention need not be served (see, People v Greer, 42 NY2d 170, 178; People v Pray, 99 AD2d 915; People v Early, 85 AD2d 752). At bar, the statement was not made to law enforcement officials but merely overheard; as such, no question of voluntariness can be said to have arisen.
We have considered the defendant’s remaining contentions, including those raised in his pro se supplemental brief, and find them to be without merit. Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/1892497/
|
88 So. 2d 33 (1956)
230 La. 221
Joseph D. BREAUX
v.
Martin L. LAIRD, Jr., et al.
No. 42149.
Supreme Court of Louisiana.
March 26, 1956.
Rehearing Denied May 7, 1956.
*36 Gravel & Downs, Alexandria, Clint L. Pierson, John L. Avant, Watson, Blanche, Fridge, Wilson, Posner & Thibaut, Baton Rouge, for defendants-appellants.
Jimmie R. Major, Baton Rouge, for Baton Rouge Tin Shop, Henry C. Viccinelli, Henry V. Viccinelli and Albert J. Hebert, partners, called in warranty by Midstates Const. Co.
J. Burton LeBlanc, Jr., Ashton L. Stewart, Baton Rouge, for plaintiffs-appellees.
Harry J. Korn, Jr., Baton Rouge, for consolidated Roofing Co. called in warranty.
SIMON, Justice.
Plaintiff instituted this suit against the defendants, Belfair Homes, Inc.,[1] Mid-States Construction Company, its partners, Martin L. Laird, Jr., and Thomas O. Wells, and its insurer, American Motorists Insurance Company, for damages, in solido, on alleged noncompliance with building plans and specifications and resultant defects in the construction of a dwelling purchased by him from Belfair Homes, Inc.
By supplemental and amended petition plaintiff itemized the defects and noncompliance with the plans and specifications alleged. Exceptions of no cause or right of action were filed by all defendants, which were overruled insofar as Belfair Homes, Inc., and Mid-States Construction Company were concerned, but sustained as to American Motorists Insurance Company. On appeal[2] we reversed the trial court's ruling and remanded the case to the district court for hearing on its merits as against all defendants. Whereupon, plaintiff having filed a second supplemental petition against Belfair and Mid-States, filed a similar pleading against American Motorists Insurance Company, both pleadings adding two complaints, paragraph 40 (A), subparagraphs (d) and (j), which on objections filed by defendant were stricken from the record.
Upon trial on the merits the district court rendered judgment in favor of plaintiffs and against all defendants, in solido, in the sum of $1,485, together with legal interest from date of judicial demand until paid; and in favor of Mid-States Construction Company on its call in warranty against Baton Rouge Tin Shop, an ordinary partnership composed of Albert J. Hebert, Henry V. Viccinelli and Henry C. Viccinelli, in the sum of $230.
Defendants and warrantor have appealed from said judgment; and plaintiff has answered *37 said appeal praying that the lower court's judgment be amended by increasing the amount awarded to him from $1,485 to $5,931.50, and further that the judgment be reversed insofar as his claims set forth in paragraph 40 (A), subparagraphs (d) and (j) of his second supplemental and amended petition were stricken, and that the cause be remanded for trial of the claims presented therein.
Defendants-appellants have filed a motion to strike said answer, contending that the appeal lodged in this court is only from the final judgment rendered against them and that no appeal has been taken from the judgment of the district court striking the said subparagraphs from plaintiff's second supplemental and amended petition, and that, therefore, plaintiff's prayer for a reversal of the judgment striking said subparagraphs should be dismissed, relying on the case of Howard v. Toye Bros. Yellow Cab Co., 226 La. 346, 76 So. 2d 391.
In the Howard case the suit against defendant Ernest Guillory, relator therein, was dismissed on an exception of no right or cause of action. After a trial on the merits judgment was rendered in favor of the plaintiff and against Mrs. Shirley Guillory in the amount sued for, and the other defendants were absolved from liability. Plaintiff and defendant Mrs. Shirley Guillory obtained separate orders of appeal to the Orleans Parish Court of Appeal, which court in due time reversed the judgment of the lower court only insofar as it had dismissed plaintiff's suit as against exceptor, Ernest Guillory, and condemned him in solido with Mrs. Shirley Guillory. On review before us, we concluded that, no appeal having been taken from that part of the judgment dismissing plaintiff's suit as against Ernest Guillory on exception of no cause or right of action, the Court of Appeal was in error in reviewing same. We held that an appellate court will not review a judgment sustaining exceptions thereby dismissing part of the demand when the appeal is taken by the defendant merely from the judgment rendered on the merits, citing Stansel v. Roberts, 35 La.Ann. 885.
The principles announced in the Howard and Stansel cases, supra, are sound law. The basis for the principle announced in the Stansel case was that the plaintiff-appellee had simply prayed for the affirmance of the judgment rendered below.
In the case at bar the defendants appealed from the judgment rendered by the trial court on the merits, and plaintiff has answered this appeal and seeks more than an affirmance of the judgment appealed from. He prays that the said judgment be amended by increasing the amount awarded to him to the amount originally prayed for; and further, that it be reversed insofar as his claims set forth in his second supplemental and amended petition were stricken and that the cause be remanded for hearing on said claims presented therein.
The record discloses that the two items ordered stricken were: (1) plaintiff's claim for an air conditioning system called for in the plans and specifications; and (2) the complaint of installation of screen doors of an inferior quality to those specified in the plans and specifications. Having stricken said allegations, the trial court refused to permit proof thereof at the trial on the merits.
It is well settled in our jurisprudence that amendments to pleadings should be permitted where they tend to further justice, cause no injury and are without prejudice to the right of the other party. Should the other party plead surprise, he may obtain time to prepare adequate defense. Our modern-day tendency is to relax the technical rules of pleading in order to arrive at the truth, afford a litigant his day in court and avoid a miscarriage of justice. This court has consistently recognized the right of the plaintiff to amend his petition with the leave of court, after issue joined, provided the amendment did not assert a demand different from the relief first sought or change the substance of the demand. Code of Practice Article 419; Coleman v. Continental Bank & Trust Co., 139 La. 1078, 72 So. 742; Ruiz v. American Trading Co. of New Orleans, 167 La. 28, 118 So. 597; Seale v. Stephens, 210 La. 1068, 29 So.2d *38 65; Messersmith v. Messersmith, La., 86 So. 2d 169.
The trial court correctly permitted plaintiff to file the supplemental petition. However, we feel it committed error in striking from the pleadings, upon objection by the defendants, the two items set forth in paragraph 40 (A), subparagraphs (d) and (j) of the supplemental petition.
Defendants contend that the second supplemental and amended petition filed herein changes the issue, injecting new and different matters. We are constrained to hold that the nature of the demand has not been changed from that originally asserted, either in substance or in law. The original demand is for damages, having as its cause of action the noncompliance with building plans and specifications as originally alleged. The defects alleged in the two subparagraphs are merely complaints which are incidents of and not inconsistent with or exclusive of the cause of action originally asserted. Though the ultimate moneyed demand has been increased, the cause of action and the very substance and nature thereof which give rise to this litigation has not been changed. This second supplemental petition was filed prior to a hearing on the merits, and in view of our modern-day tendency to relax the rules of pleading we find no possible prejudice occasioned these defendants in that respect.
Defendants also contend that the deviations and defects alleged in the said paragraph 40 (A), subparagraphs (d) and (j), are of such a nature as plaintiff would have had knowledge thereof at the time of filing his first supplemental and amended petition, under court order, and that his failure to have included them therein constitutes a waiver and abandonment thereof. This contention was also raised by defendants before the lower court in their motion to strike.
Though there are various definitions of the term "waiver", it can be comprehensively defined as a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed. It is recognized that the terms "waiver" and "estoppel in pais" are closely related, the line of demarcation between them being slight, both partaking of the same elements and essentially the same relief.
The doctrine of waiver or estoppel contravenes the legal rights of the person sought to be estopped, and in some instances stays the operation of the usual proceedings in the adjustment of rights of individuals and for that reason should, in every instance, be applied with great care and caution. Our courts and other jurisdictions universally hold that this doctrine should be applied only in exceptional cases where its application is necessary to effectuate justice or prevent injustice, and should not be applied where it will serve as an instrument of, or operate as, a fraud, be against good conscience, work injustice or accomplish a wrong. Gonsoulin v. Equitable Life Assurance Society of the United States, 152 La. 865, 94 So. 424; C.J. Sec., Vol. 31, p. 242 et seq.; 42 C.J.S. p. 380.
The promotion and enforcement of fair dealing and the prevention of undue advantage are equally involved in the application of the equitable doctrine of waiver or estoppel, and pleas of this doctrine can be of no avail to the party urging same unless he has been clearly misled to his detriment or injury by the actions or conduct of the party against whom the plea is urged. In re Clover Ridge Planting & Mfg. Co., Inc., 178 La. 302, 151 So. 212.
In the case at bar the record fails to disclose any act or conduct on the part of the plaintiff which would warrant the application of this doctrine as urged by defendants.
Defendants also contend that the judgment of the lower court striking from the record said two subparagraphs of the second supplemental and amended petition was not appealed from by plaintiffs and is therefore not reviewable by this court.
In the case of Three Way Finance Co. v. McDonald, 213 La. 504, 35 So. 2d 31, we announced *39 that the rule that an appeal is not allowed from an interlocutory decree unless it is one which may cause irreparable injury is based on the fact that the law does not favor the interrupting of judicial proceedings by appealing from such decrees. Code of Practice Article 566. Also, see Feitel v. Feitel, 169 La. 384, 125 So. 280; Painten v. Pilie, 198 La. 713, 4 So. 2d 804; Reeves v. Barbe, 200 La. 1073, 9 So. 2d 426; In re Canal Bank & Trust Co., 216 La. 410, 43 So. 2d 777; Succession of Willis v. Willis, 229 La. 293, 85 So. 2d 520.
In the instant case the judgment striking the two subparagraphs was and is an interlocutory judgment which the record shows caused no irreparable injury to plaintiff and therefore was not appealable.
Our law provides that where an appeal has been duly returned the appellee must appear within the delay prescribed and file his answer seeking an affirmance of the judgment of the inferior court, Code of Practice Article 591, but that "Nevertheless, if the appellee complain of some parts of the judgment of the inferior court, he may, without appealing from the same, pray it to be set aside in those points in which he believes that he is aggrieved." Code of Practice Article 592.
In the case of Lange v. Baranco, 32 La. Ann. 697, at page 699, in answer to plaintiff's objection to the trial of the case in this court as regards the reconventional demand, on the ground that the defendant did not appeal from the judgment dismissing that demand, we said:
"It was unnecessary that she should do so. A judgment is the solemn adjudication of a court, established by law, made in a suit upon the relative claims of parties thereto, as disclosed by the record, and which passes on the matters so presented for determination. When it decides the issues submitted, it is an entirety, and, strictly, is indivisible; not so, however, as to compel a party who is only party benefited to appeal from the judgment in his behalf. It may be rendered partly in favor of or against a litigant, and partly in favor of or against others. The party who appeals, whoever he be, theoretically brings up the entire judgment for revision to the appellate court; absolutely, as far as it aggrieves him, and conditionally as it affects others who are the appellees, and who can ask that the judgment, as to them, be re-examined and reformed. The Code of Practice, art. 888, recognizes undoubtedly this theory, by permitting expressly the appellee, in his answer, when seasonably filed, to ask a reversal in part and a confirmation in part, as he may choose to do.
"The whole judgment is therefore before us for review." (Italics ours.)
In Alengi v. Hartford Accident & Indemnity Co., 183 La. 847, 165 So. 8, 10, we said:
"* * * It is difficult to understand how the appellant, by limiting his appeal, can deprive the appellee of the rights, granted him by articles 592 and 888 of the Code of Practice, to have the judgment reviewed in the respects complained of in the answer to the appeal, without appealing. A mere reading of those two articles clearly shows that it was never contemplated that the appellee's right to have the judgment reviewed, by answering the appeal, could be taken away from him by the appellant appealing only for an express and specific, or limited purpose."
Accordingly, in view of the foregoing, we shall review the entire record.
The record discloses that by a recorded written contract dated November 22, 1946, and bonded by defendant American Motorists Insurance Company, Mid-States Construction Company agreed to construct for Belfair Homes, Inc., 53 reinforced concrete type dwelling units in accord with plans and specifications prepared by Carl Kellogg, architect.
On December 2, 1946, Belfair agreed to sell Lot No. 95, with improvements thereon, to plaintiff, and accordingly undertook to have a dwelling constructed thereon in accord with the said plans and specifications *40 referred to in said agreement as No. 155 P, Elevation Q, prepared by Carl Kellogg, and exhibited to plaintiff. In consideration of the payment of $8,500 cash, Belfair sold and transferred said lot and improvements thereon to plaintiff by a duly recorded authentic act of sale dated December 3, 1947.
Plaintiff began occupancy of said home in October, 1947, prior to its completion, with the understanding that its construction would be completed by the vendor. At the time of the sale, December 3, 1947, plaintiff was again assured that the construction work would be completed.
On August 10, 1949, plaintiff filed suit against his vendor, the vendor's contractor and the contractor's surety for damages, alleging noncompliance with and deviations from plans and specifications in the construction of the premises purchased by him.
Defendants strenuously denied liability, contending that the plans and specifications submitted and considered by the court in the light of plaintiff's complaint were not the ones used in the construction of plaintiff's dwelling, but that original drawings of said plans had been changed and amended by oral mutual consent of the owner and the contractor (Belfair and Mid-States), and, further, that the house purchased by the plaintiff from Belfair Homes, Inc., was constructed in substantial compliance with the contract and the plans and specifications as so changed and amended. Defendants have failed, however, to procure and produce the plans and specifications they allege to have been used, despite orders of subpoenas duces tecum against them to produce same. Every effort and means available by judicial process was exerted by plaintiff to force defendants to produce the specifications in their possession or in the possession of their agents, without avail. We note with regret the comment of the trial judge during the course of the trial that "The court gets a very definite impression that the defendants in this case could produce plans and specifications, * * * and they have been called upon to do so, and it is just not the cooperation that I have been taught to believe should exist in the trial of lawsuits."
The best evidence rule requires that the highest degree of proof of which a case from its nature is susceptible must, if accessible, be produced. If the best evidence cannot be produced, then secondary evidence becomes admissible. The primary evidence of the plans and specifications as changed and amended, as alleged by defendant, in the instant case was not accessible; therefore the secondary evidence rule became applicable. Moreover, the primary evidence was or should have been in defendants' possession, and their failure to produce it was the occasion and created a necessity for resorting to secondary evidence. Under such circumstances defendant cannot be heard to complain of the character of such evidence, the quality and weight of which rests with the trial judge. Merritt v. Wright, Williams & Co., 19 La. Ann. 91; Hotard v. Texas & Pacific Ry. Co., 36 La. Ann. 450; Franklin v. First African Baptist Church, 2 La.App. 698.
Plaintiff produced and offered in evidence the plans and specifications in his possession as well as in the possession of others considered to be pertinent to the issues in the case, and he was under no duty to produce the records of which the defendants were, or should have been, the custodians. Thus the trial court correctly received in evidence the plans and specifications tendered by plaintiff as copies of those referred to in the construction contract between Belfair and Mid-States.
Defendants also contend that there had been an acceptance of the building contract by Belfair, and therefore all rights to recover for failure of the contractor to perform according to the terms of the contract had been waived. They contend that plaintiff's house was constructed under the personal direction of Belfair Homes, Inc., supervised by the Federal Housing Administration, both of whom had approved and accepted the work prior to the sale to plaintiff; that, therefore, should any part of it have been defective either in workmanship *41 or materials, or should there have been any substantial deviation from the building contract, plans and specifications, Belfair, as owner, had or should have had full knowledge thereof at the time of its acceptance of the work. The building contract between Belfair and Mid-States was accepted in writing by Belfair on August 11, 1948, and recorded, whereas, Belfair had by act of sale on December 2, 1947, transferred its right, title and interest in and to said property to plaintiff and was, therefore, not owner of said property to make effective any purported acceptance on that date. We are not impressed with defendants' contention that there had been an oral acceptance prior to the sale to plaintiff.
Defendants' contention that by taking possession and moving into the house plaintiff thereby accepted the building contract and waived all rights to institute this suit is equally without merit.
The record discloses that plaintiff sold a home in which he had been living and surrendered possession thereof to the purchaser. He and his wife resided with relatives awaiting the completion of the dwelling herein involved. They began occupancy thereof prior to its completion to supply their urgent need for a home and for the further reason that the payment of the purchase price would afford defendant with the means with which to complete the construction. Under the circumstances it cannot be said that plaintiff voluntarily and intentionally waived or abandoned his known existing legal rights, benefits or claims. In fact, it was agreed that the vendor would complete the construction of the home. Plaintiff had no knowledge of the extent of the inferiority of the material and workmanship as complained of herein. He did not accept such inferior work by mere occupancy under the circumstances stated. The very essence of waiver which can result only from the intentional relinquishment of a known right is not present.
The case of Michel v. Efferson, 223 La. 136, 65 So. 2d 115, 119, involved a suit to recover from a building contractor and his bondsmen the amount required to remedy faulty construction. The defendants therein contended that the plaintiff had waived whatever claims she had for the defective construction at the time she accepted the building. On rehearing we held that plaintiff was entitled to recover, saying:
"It appears that the plaintiff observed some defects in the construction of the building a few days before she accepted it and that a meeting was held at her instance with the contractor and his bondsmen, wherein certain defects in the construction of the building were discussed and that a list of the defects was drawn up by the agent of the bondsmen. This list was turned over to the contractor with the understanding that the defects would be corrected. This list was not presented in evidence and the testimony is very indefinite as to the defects enumerated therein and whether or not they have been corrected. If these defects were corrected, the ones now complained of were not included therein. If, on the other hand, they were not corrected, the contractor has not fulfilled his obligations. In any event, the contract has not been complied with. Much stress has been made over the fact that the plaintiff had knowledge that the plaster was defective in the downstairs portion of the house when she accepted the building and stated that she guessed she would have to `swallow the plaster.' While the plaintiff knew there were some defects in the plaster in the downstairs portion of the house, yet we do not believe she would have accepted the building had she known the extent of the defects which were later ascertained by the independent contractors. She could not have known at the time she accepted the building about the defective plaster in the upstairs portion of the building because her testimony, that she did not go upstairs on account of her illness, is not contradicted. It is not shown that she had knowledge at that time that certain materials were *42 omitted or that inferior materials had been substituted for those called for in the specifications.
* * * * * * *
"The defense of waiver is a special one and the burden of proof is on the defendants to show that the plaintiff had knowledge of the defects in construction and that she intentionally waived same.
"The courts of this state have held that an owner is not estopped from claiming damages for the breach of a building contract by taking possession and moving into the building. The failure of the contractor to construct the building in accordance with the plans and specifications was a violation of the contract and the taking of possession of the premises by the plaintiff can not be considered as a discharge of the defendants' liability. Lobdell v. Parker, 3 La. 328, 331; Morton v. Pollard, 9 La. 174; Overton v. Simon, 10 La.Ann. 685; Miller v. Stewart, 12 La. Ann. 170; Nicholson v. Desobry, 14 La.Ann. 81; Conery v. Noyes, 17 La. Ann. 201; Gordy v. Veazey, 25 La. Ann. 518; Levy v. Schwartz, 34 La. Ann. 209; Borrosky v. Hill, Harris & Co., Inc., 1 La.App. 431; Payne & Joubert v. Amos Kent Brick & Lumber Co., 110 La. 750, 34 So. 763; Police Jury [of Parish of Vernon] v. Johnson, 111 La. 279, 35 So. 550; Di Franco v. Ascani, 13 La.App. 2, 127 So. 76. * * *"
Plaintiff's complaint of incomplete and defective work was itemized in paragraph 40 (A) of his second supplemental and amended petition, and the lower court in its analysis of the evidence adduced presented its conclusion as to each item therein complained of. The able and learned trial judge saw and heard the witnesses as well as personally visited and inspected plaintiff's premises and has given us the benefit of his superior opportunity for observation as disclosed in his written reasons for judgment wherein his analysis of the facts from a voluminous record has been of material help to us. We find no manifest error therein.
Warrantor-appellant does not sustain its contention, in law or in fact, that the judgment of the lower court in favor of defendant Mid-States and against Baton Rouge Tin Shop and its individual partners should be reversed.
In reurging the contention that plaintiff does not have a cause of action against his vendor for breach of warranty and against the vendor's contractor and its surety in solido, defendant cites the case of Cipriano v. Superior Realty & Construction Corporation, 228 La. 1065, 84 So. 2d 822. This case is not applicable to the case at bar, being based on fundamentally different factual situations. In the Cipriano case plaintiff sued for a breach of warranty under a contract of sale between him and Superior; whereas, in the instant case plaintiff sues to enforce a contract made for the improvement of property by Belfair, from whom he acquired said property. LSA-Civil Code Article 2011; Breaux v. Laird, supra. Plaintiff's suit is also to enforce an agreement by the terms of which Belfair agreed to have a dwelling constructed on Lot No. 95, in accord with the plans and specifications referred to in said agreement and exhibited to plaintiff, being the same plans and specifications referred to in the building contract.
Accordingly, for the reasons assigned, the judgment appealed from is amended so as to include damages claimed in subparagraphs (d) and (j) of paragraph 40(A) of plaintiff's second supplemental petition, and for determination of said damages this case is remanded for trial by the district court in accordance with law; and in all other respects the judgment of the district court is affirmed; all costs to be paid by defendants.
NOTES
[1] A Louisiana Corporation whose 1,000 shares of stock are owned by Martin L. Laird, Jr., T. O. Wells and Carl Kellogg, in proportions of 499 shares, 500 shares and 1 share, respectively.
[2] Breaux v. Laird, 223 La. 446, 65 So. 2d 907.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/4140745/
|
OFFICE OF THE AITORNEY GENERAL OF TEXAS
AIJSTIN
Hon. Gee. H. Sheppard
Comptroller OS Pub110 Aocotmto
state of Texas.
Autia, Texe?l
DeerSIr: -,*
a mbsequcnt o,onthly
raymnt for wtor
traatote 00~morce to
e cuatomr for the
ortation rhea seld .
thereafter exportad
r rather then by the .-
any perscn shall.export or lose by fire or
other accideat any olctorfuel in c?uantlties02 one hundred
(100) i9llons or nor%, so that the 3~318my never be rzade
use of within this 3tate, aftor the tax has been paid on
such motor fuel, or ahall sell motor fuel upon which the
.
,
818
Eon. oeo. B. Sheppard, pace 2
tax has~boen paid, in any Quantities, to the Ubiteb
States Covammnt, for the exolusive use of said
Covernmnt, c1al.mfor refund of the tax so pald xaay
be mde in the mnner herein ,nrovided,or au the
Co~ptrollor53~ dlroot. E'roviricd,.however, that sbow-
in: mat be cad@ that safd tax wss paid or accounted
. for by a lloensed and bonded distributor,and tho
Coxptrollor shall deduct fro3 such refund the one (1)
por oent allowed to dis*txibutors Baking the first sale,
distribution or use of notor fuel in Tcxae. Frovldcd,
f-urthor. thRt n bond& and licmncd Eiatributor me,
In lieu or:filinr &lain for xSur.d of %:!atax raid on
notor T'uolthcreaftor ssoorted, or sold to t'ic? Unite&
:;tntrsCmcmr?e3t for the oxclu:3lveu3e 0:'asid CGZ-
mcnt. taim credit on any nonthly ramrt and tax papen
r.aBoto till0 CocHirollorwithin air (6) monthsot the
t-Into ot saiiioalc or exuortaCI.03, ior t!:omount of
tnx so Jxi?.'
*'3cveralTexas distributorswith places of business
looated along the border lines oi adjolninlratate and,Old
~xixlcio
sol1 30tor fuel.to out of state tank truck operator3
who 00.110
into the.:;tateand puroha30 the motor fuel tron ._
said'~oxas distributors and .thentransport the motor fuel
back irttothoLv own state or into Xexloo. Your opinion No.
O-24243,written prior.to the above ar.ondr%mt,held that suoh
sales were ot intrastate character and :'~ero
thus sub&sot to
the Ytnte tgx thou@ t?.epurchaser could obtain a refund of
sala.taz ii am%wllen he esrmted the saze. :
*A3 a nnttar of'bus'lnsssconvenience them Texas i
distributors deslro to relieve the out of state tmk truck ,
purchasersot the burder‘of fil.lnEc1oit-sfor rerun&of the I
tax. The distributors propose to pay ttletax themelves
and then sell the tax,Iaid notor'fuol to t!reout of state :
truckers and when they have been furnished with suffloient .
proof OS export by tho task truckers ths distributorswill
taka credit oh their next or a-subaoquant tax~roport snd
rmlttance for the tax originally paid to the State by thorn.
T!:aCan;;tmcker will.then be p,von or&it lor the tax paid
to the distributor upon his next gI.rohasefrom said distri-
butor,
TWO of 'thez&or distributorshave construed the
underscored rmograph of the above quoted amndment to authorize jj
3~01:,procedureana have requested an opinion as whether their _ I
,:
construotlonharncnizes tith.our view of the anenUment.* j,
1.
819
Eon. Coo. 8, -jhsppnr.rd, page 3
And you rocuest our opinion as followo:
*~,~llyou therefore ploese advioe us whether or
net, wder t.ixemnd~e3t ns Ouotet herclnabove, a
bcr,deCon% licens~ii distributor .%a7take aredit on a
subsequent 1~.onthly rs>ort and tax paymnt for motor
rue1 sold in Intrastate cozmrce to an out or state
oustmer rbl: tfiejzmponc or exportation’ when said
p;otortuel is thereattcr exported by the ousto=roz
rathex than by the distributor.”
Se answer your Questior, no.
The gotor Fuel Tax Law in ei?oct at the elm or
thl,s amendGent did not ~=ovlUe for a refbnd of the tax pal6
on notor rue1 sold to the ??nitedSetes Covermeht ior its
exolnsive use, The above quoted Snendnent was paS33d t0
correct t3.s defeat In the law, and also to allow “beaded
md 1icon~aJ Aiatclbutoj:s* to take credit on their nonthly
reports .uadeto the Conptrolior far :.ha ammt of tho taxes
paid on li;otox ?a4 cxpor:cd by thornor said to tho iJrItad
States Covera:.lent‘ for its emlusive use. In ar’ePfo?t to
aons5rve tha trmapoitation raoilisies durinq the mr e::rGr-
genoy, t2e Co-mrment roquiror~ eaoh distributor to scpgly
xotor furl froizthe marest ~ouroe of aupglg to the dellvery
point, regardless of whether suoh somce or supply v:asa
refinery of the ciatributor or belongs to ahother. Ir the
,zotor fuel suI~pliebby a distributor for emortation OF sale
to the fjnltcdSates Goverment o,em fron a ref‘inerynot
omod bg the distributor naklnflthe sele, there ~8s no Iro-
vision $n ‘Uhelaw for the Uatributor to recover the taxco
paid cxccpt by riling a clain for refund. This created a
uselcms burden upon the Comptroller and the distributors.
It ws hot contmzplated,however, that a bonded or licsxsed
distributor could take credit for the tax naid on motor fuel
sold to out oi’State truckers. Such a conhtructionwould
authorize distributors to ascertain facts about exportation
end sale to the United States Government for its exclusive
use, thoroby usmping the function or the Comptroller,who
is charged uriththe duty,of colleotltq the notor fuel tax.
Yours very truly
|
01-03-2023
|
02-18-2017
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.