New York Legal Update

Assumption of Risk Does Not Apply To Road Cyclist

2009-06-10T10:30:00-04:00

When someone voluntarily engages in sporting events or athletic activities, the primary assumption of risk doctrine will bar a personal injury lawsuit to recover for injuries sustained from conduct or conditions which are inherent in that activity. An interesting case involving assumption of risk and injuries sustained by a road cyclist was decided on May 19th by the Second Department - Cotty v Town of Southampton, 2009 NY Slip Op 04020.

The plaintiff was a member of a bicycle club which engaged in long-distance rides. On the day her injuries occurred, she was the last cyclist in a group of eight riders cycling on a public road during a 72-mile ride. She indicated in her deposition that the road was not smooth and had potholes. In fact, at the time, a construction company had replaced asphalt in a trench along the edge of the road so that a conduit for a water main could be installed. Two layers of asphalt were to be laid to fill the trench to bring it level with the existing roadway. However, at the time of the accident, only one layer of asphalt had been laid. This left a lip approximately one inch deep, parallel to the length of the road where the existing road and the newly paved section met. This lip was not marked in any way.

The plaintiff had previously ridden on that same road about 20 to 30 times, and as recently as two to four weeks before the accident. She was aware of the construction on the road. The roadway had no shoulder. She was riding about one to two feet from the edge of the road, and approximately 1 to 1 1/2 wheel lengths behind the cyclist in front of her. They were riding at a speed of 17 to 18 miles per hour.

The bicyclists in the front of the pace line then began a "hopping" maneuver with their bicycles to avoid the "lip" in the road. However, the rider in front of the plaintiff unsuccessfully attempted the maneuver, and fell in the path of the plaintiff's cycling. The plaintiff thus swerved and slid into the road where she collided with an oncoming car.

The plaintiff sued the Town, the construction company, and the Suffolk County Water Authority which contracted for the work. The defendants moved for summary judgment arguing the plaintiff had assumed the risks commonly associated with cycling.

The Second Department denied the defendants' motion allowing the plaintiff's action to proceed to trial.The Court rejected a broad application of the assumption of risk doctrine to all forms of leisure activities. It indicated that the doctrine was not designed to relieve a municipality of its duty to maintain its roadways in a safe condition. The Court then contrasted previous cases in which the cycling took place on paved roads or paths with cases involving mountain biking on unpaved trails. The Court noted that assumption of risk was applied in the mountain biking case, but not in the cases involving paved surfaces. The difference of course was that in mountain biking it is reasonably foreseeable that the unpaved nature of the trails is exactly the appeal and challenge of the activity, and thus, participants assume risks associated with riding on rough surfaces. But this is, according to the Court, was not the case with cycling on paved surfaces.

The Court also rejected arguments by the defendants that the plaintiff was cycling too closely.

The Court concluded stating:

In sum, it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor. Adopting such a rule could have the arbitrary effect of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities. We decline to construe the doctrine of primary assumption of risk so expansively.

Commentary:

I think the Court missed a critical consideration in its analysis. The Court focused on the risk presented to the plaintiff by the lip in the roadway, or generally the condition of the roadway. By that was not the only, or, in my belief, the main risk that was present in the circumstances and which precipitated the plaintiff's injuries. The plaintiff was cycling in a pack of 8 riders over long distance and at a relatively high rate of speed. And most crucially, the plaintiff was 1 to 1 1/2 wheel lengths behind the cyclist in front of her. Although not explicitly indicated in the court's opinion, it is apparent that the cyclists were riding in what is known in road cycling as a "pace line." This is a formation in which the cyclists follow each other in close formation so as to "draft" off each other to reduce wind drag, and thus, save energy. This is a technique which requires a considerable degree of skill, constant attention, quick reflexes, and a great deal of confidence and trust in your fellow riders. And it is one of the primary pleasures and challenges of road cycling.

The assumption of risk doctrine applies to both the conditions inherent in a particular activity as well as the conduct of the participants. By focusing merely on the lip in the road, the court seems to have neglected the particular way in which the cyclists were riding. The cyclists did not have to be riding so close to each other. They did not have to be riding at such a high rate of speed (particularly on a road undergoing construction). And the riders did not have to attempt the "hopping" maneuver over the lip in the road. It was in fact the failure of the rider in front of the plaintiff to execute the maneuver which precipitated the plaintiff injuries. There is in fact nothing in the Court's opinion which indicates that the rider in front of the plaintiff failed to execute the maneuver because of the lip. The Court in its decision stated that the issue of whether the plaintiff was following too closely to the rider in front of her was an issue of comparative fault, which should be decided by a trier of fact. I believe this is incorrect. It was not merely the plaintiff who was following too closely. It appears that it was the whole group who were riding in this manner. Thus each individual member of the group had to have a great deal of trust or confidence that the rider in front of them did not make any sudden, unexpected, or risky maneuvers which could put the whole group at risk. I submit that this was the risk that each individual member of the group assumed.

It may be that the defendants did not sufficiently develop the record, or advance this particular argument to the Court. Nevertheless, I believe the Court could have taken a closer look at the manner in which the cyclists chose to ride.

Sex With The Priest - No Breach of Fiduciary Duty

2009-03-31T12:05:38-04:00

If a priest has sexual relations with a congregant, can the congregant assert some claim of breach of fiduciary duty against the priest?

Last year the Court of Appeals in Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15 [2008], stated that in order for the congregant to demonstrate the existence of a fiduciary duty:

a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue (Marmelstein, 11 NY3d at 22).

And that such a fiduciary relationship must exhibit the characteristics of:

de facto control and dominance (Marmelstein, 11 NY3d at 21).

Last week the Court of Appeal was faced with another breach of fiduciary claim by a congregant in Doe v Roman Catholic Diocese of Rochester, 2009 NY Slip Op 02264. In this most recent case, the plaintiff was a congregant of a Catholic Church, where the defendant Father Peter DeBellis was a priest. The plaintiff alleged that in November 2000, she began counseling with Father DeBellis. She then alleged that soon after counseling started, they began a sexual relationship that lasted for more than three years. Both the counseling and the sexual relationship allegedly continued despite repeated complaints to the Diocese by plaintiff's husband, and DeBellis's subsequent transfer to another church. Both the plaintiff and her husband commenced an action asserting a breach of fiduciary duty claim against Father DeBellis, and claims for negligent supervision and retention against the Diocese.

The Court dismissed the plaintiffs' claims finding their allegations insufficient to state a claim for breach of fiduciary duty. The Court stated:

The bare allegation that [plaintiff] was "a vulnerable congregant" is insufficient to establish that plaintiff was particularly susceptible to Father DeBellis's influence. Nor does the complaint provide any other allegations to show that the parties had a relationship characterized by control and dominance.

Since the breach of fiduciary claim against the priest failed, the Court also dismissed the claims for negligent supervision and retention asserted against the Diocese.

Commentary:

I find it very refreshing when courts limit the scope of liability, particularly where consensual behavior is involved. We all may be vulnerable at some point or another. But mere vulnerability does not negate our free will. Free will should be the standard when evaluating the viability of claims such as the plaintiff's. And it appears that the Court of Appeals' recent decisions in this area are along these lines.

Third Department Limits Assumption of Risk Doctrine

2009-03-10T10:50:37-04:00

The primary assumption of risk doctrine provides that those who engage in sporting or recreational activities consent to the commonly appreciated risks which are inherent in and arise out of the nature of that sport or activity. It thus acts as a bar to a defendant's liability based on that defendant's alleged negligence.

Deciding precisely which activities the assumption of risk doctrine applies to sometimes presents problems for the courts. On March 5th, the Third Department surprisingly failed to allow the doctrine to be applied in a situation which would seem to call for its natural application in the case of Trupia v Lake George Cent. School Dist., 2009 NY Slip Op 01571.

In that case, the plaintiff was participating in a summer school program administered by the defendant School District. During a break in classes, he attempted to slide down a banister in stairway. In doing so, he fell and sustained a skull fracture and brain injury.

The plaintiff's parent commenced an action against the School District, and the School District sought to amend their answer to include the affirmative defense of primary assumption of risk.

The Third Department found that the proposed defense was "devoid of merit," as a matter of law and thus did not allow the School District to assert the defense. The Court noted that both the Second and Fourth Departments have expanded application of primary assumption of risk beyond sporting and recreational activities. Indeed, the Court even noted that Fourth Department even applied it in a situation similar to the case before it [infant plaintiff injured while attempting to slide down handrail (Lamandia-Cochi v Tulloch, 305 AD2d 1062 [4th Dept 2003]). Nevertheless, the Court refused to allow the doctrine to be asserted by simply stating:

Extensive and unrestricted application of the doctrine of primary assumption of risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff's own negligence barred recovery from the defendant (quoting Pelzer v Transel El. & Elec. Inc., 41 AD2d 379 [1st Dept. 2007]).

Commentary:

If you ask me, we need more "throwbacks" in the area of tort law. If there any situations where assumption of risk should apply, it should be in those situations in which, such as was the case here, the plaintiff is engaging in inherently risky, dangerous, or even stupid behavior. These are the kinds of cases which simply drive the general public crazy, with good reason. Why should the person who wholly brings it upon himself to cause himself injury be allowed to seek recovery? The pure comparative fault standard used in New York is simply based on the faulty assumption that it always must be considered whether someone else was at fault. No. Sometimes plaintiffs bring their own injuries upon themselves by engaging in risky behavior, and juries should be allowed to consider whether that is the case by considering the assumption of risk doctrine. CPLR 1411 should be modified.

Estate Not Entitled to Son's Frozen Sperm

2009-03-04T16:46:17-05:00

Let's say you want to freeze some of your sperm for future use. What happens to these sperm after you die? Does your estate have a right to that sperm? The First Department was faced with this interesting question yesterday in Speranza v Repro Lab Inc., 2009 NY Slip Op 01543.

In 1997, Mark Speranza deposited a number of semen specimens at Repro Lab, Inc., a tissue bank licensed by the State. The specimens were frozen and stored in the lab's liquid nitrogen vaults. Mark was about to undergo treatment for an illness, and was concerned about being able to conceive a child afterwards. As part of his agreement with Repro Lab, Mark completed a document entitled, "Ultimate Disposition of Specimens," which contained several options for the disposition of the specimens by the tissue bank in the event of his death. One option directed that the specimens be given to the depositor's spouse, another directed that the samples be destroyed, and the third option, with the heading "Other," left a blank to be filled in. Mark checked off the second provision stating that in the event of his death, "I authorize and instruct Repro Lab to destroy all semen vials in its possession." The document concluded with the statement that "[t]his agreement shall be binding on the parties and their respective assigns, heirs, executors and administrators."

Six months later, Mark died.

Mark's parents were named as administrators of his estate, and contacted the lab about the specimens. The lab told them the specimens were for Mark's use only, in that the specimens were not screened as required by Department of Health regulations for donation to a member of the public. However, the lab agreed to maintain the specimens while the parents explored legal options if the parents continued to pay the yearly storage fee, which the the parents did.

The parents then began to seek a surrogate mother to be artificially inseminated with the sperm so that they could have a grandchild. They contacted the lab about obtaining the sperm, but the lab informed them they could not turn over the specimens, and it produced for the first time the document Mark signed specifying that the specimens were to be destroyed upon his death. However, the lab continued to be willing to maintain the sperm upon payment of the annual storage fee.

The parents then commenced a lawsuit, as administrators of Mark's estate, seeking a declaration that the estate were the rightful owners of the specimens. The complaint alleged that by accepting yearly payments from them after Mark's death, the lab breached and terminated its agreement with Mark, or waived or relinquished any obligation it had to destroy the specimens, and the parents became the rightful and proper owners of the specimens.

In denying the parents an injunction and declaring that they had no rights to the sperm, the Court relied primarily on regulations of the Department of Health. These regulations defined two distinct categories of semen depositors with tissue banks: "depositors" and "donors." A "client-depositor" is:

a man who deposits reproductive tissue prior to intended or potential use in artificial insemination or assisted reproductive procedures performed on his regular sexual partner (10 NYCRR 52-8.1[d]).

And a "donor" is:

a person who provides reproductive tissue for use in artificial insemination or assisted reproductive procedures performed on recipients other than that person or that person's regular sexual partner, and includes directed donors (10 NYCRR 52-8.1[f]).

And a "directed donor" by definition:

includes a man providing semen to a surrogate, but who is not the regular sexual partner of the recipient (10 NYCRR 52-8.1[e]).

The Court noted that the regulations contained extensive screening and testing requirements that apply to "donors" only, and not to "depositors" (10 NYCRR 52-8.5, 52-8.6). These screening and testing requirements included testing blood and semen for infectious diseases in order to protect potential surrogate mothers. This required screening and testing was deemed unnecessary by the regulations only when, at the time of the deposit, the specimen was intended to be used only by the depositor or his regular sexual partner. Any other potential recipient, including a surrogate who was not the regular sexual partner of the donor, was included among those intended to be protected by these regulations, which strictly mandate thorough testing before any use.

The lab argued, and the Court agreed, that Mark was a "client depositor" rather than a "donor;" he had not been examined and screened as directed by 10 NYCRR 52-8.5, and his blood and semen had not been tested for the infectious diseases covered in 10 NYCRR 52-8.6. Thus, his specimens were simply stored without any medical screening or testing. Therefore, the lab could not properly release the specimens for insemination of a surrogate.

The Court also rejected the parents argument that Mark's contract with the lab should be either terminated or reformed so as to eliminate the contract's provision that the specimens be destroyed. The Court found that the agreement was clear and unambiguous. The Court stated:

[The parents'] assert that Mark's purpose in storing the sperm was to assure his ability to have a child. The contract, however, is not that vague. It represents a determined choice that the sperm should be available to him so he could protect his ability to procreate if he survived. It does not protect any possibility that his genetic or biological issue could be created after his death; indeed, the directive that his semen be destroyed in the event of his death precludes such a possibility. Since the document conveys a clear intent that the specimens be destroyed upon Mark's death, which intent is not contrary to the asserted intent to assure his ability to have a child while he was alive, it cannot be said that the instrument contains an erroneous expression of the intention of the parties. Accordingly, nothing in the [parents'] submissions would justify reforming the contract so as to permit them to fulfill their wish after his death, contrary to his express wishes.

The Court further rejected the claim the labs acceptance of the yearly storage fees entitled the parents to any possessory rights.

Commentary:

The lab should have clearly destroyed the specimens upon Mark's death. Accepting the storage fees from the parents was just sleazy if it knew that it could not turn over the specimens because of Department of Health regulations, and was contractually bound to destroy them. As for the parents, one also has to question their desire for genetic survival.

Defendant Need Not Be Present For Pronouncement Of Mandatory Surcharge And Crime Victim Assistance Fee

2009-02-20T08:46:59-05:00

A criminal defendant has a right to be personally present at the time his "sentence" is pronounced (Criminal Procedure Law 380.40). But what exactly comprises a defendant's "sentence?"

The Court of Appeals answered an aspect of this question yesterday in People v Guerrero , 2009 NY Slip Op 01242.

The defendant pleaded guilty to murder in the second in exchange for a sentence of 19 years to life. At his sentencing, the defendant was of course told of his 19 years to life term. But he was not advised that he was required to pay a mandatory surcharge of $150 and a crime victim assistance fee of $2 (Penal Law § 60.35 [1]). The defendant appealed his convicting arguing he should have been present when the court imposed them.

The Court reached a similar issue last year in People v Sparber, 10 NY3d 457 [2008], in which the Court held that post-release supervision is a component element of a sentence of which a defendant must be advised at the time of sentencing.

However, here in People v Guerrero, the Court held that the mandatory surcharge and crime victim assistance fee are not part of the defendant's sentence, and thus, a judge need not pronounce them in a defendant's presence during sentencing.

The Court primarily noted that Penal Law § 60.35 (1) states that "there shall be levied at sentencing a mandatory surcharge, sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required or permitted by law." It was this "in addition to any sentence" language which persuaded the Court that the mandatory surcharge and the crime victim assistance fee were not a part of a defendant's sentence. The Court also noted that § 60.35 was originally enacted as part of a revenue raising measure, and was not intended as a punitive measure against criminal defendants. The Court thus affirmed the defendant's conviction.

Commentary: The Court of Appeals' decision may be technically correct. Nevertheless, it would be better practice if a criminal defendant were told of all of the consequences of his conviction at the time of sentencing. Sentencing judges who do no advise defendants of the mandatory surcharge and crime victim assistance fee are simply engaging in judicial sloppiness.

Even Non-Sex Offenders Can Be Required To Register As "Sex Offenders"

2009-02-18T10:35:24-05:00

New York's Sex Offender Registration Act (SORA) (Corrections Law § 168-a et seq.) defines a "sex offender" as any person who is convicted of certain enumerated offenses. These offenses of course include offenses one typically thinks of as sex offenses such as rape, sexual abuse, sex trafficking, incest etc. But it also includes a couple of other offenses perhaps not normally thought of as sex offenses. Specifically, SORA provides that one is considered a "sex offender" if convicted of unlawful imprisonment (Penal Law §§ 135.05, 135.10) and kidnapping (Penal Law §§ 135.20, 135.25), "provided the victim of such . . . offense is less than seventeen years old and the offender is not the parent of the victim" (Correction Law S 168-a [2] [a] [i]).

But what if, in committing an unlawful imprisonment or a kidnapping of a child under 17, there is no evidence of any sexual motivation to the crime; can one still be required to register as a "sex offender?" The Court of Appeals was face with this issue yesterday in People v Knox, 2009 NY Slip Op 01156.

The case actually involved three separate criminal cases. In the first, defendant Judy Knox approached a group of children in a park, grabbed the arm of an eight year old girl and tried to pull her away. Her motive was to replace one of her own children, of whom she had lost custody. Knox pleaded guilty to attempted kidnapping. In the second, defendant Eliezer Cintron became angry when his girlfriend asked him to leave her apartment, and locked the girlfriend in that apartment, along with her one and two-year old children, for several days. Cintron was convicted, among other things, of the unlawful imprisonment of each of the children. In the third, defendant Francis Jackson was the employer of a prostitute who tried to quit her job. He reacted by abducting the woman's son and telling her he would kill the child if she did not continue to work for him. Jackson pleaded guilty to attempted kidnapping.

All three defendants were required to register under SORA as "sex offenders" even though no sexual misconduct or motivation was present in the evidence. The People in fact acknowledged that there was no evidence of sexual misconduct in these cases.

In their appeal to the Court of Appeals, the defendants argued that being labeled as "sex offenders" violated their constitutional rights to due process of law and equal protection of the law since the label was false or misleading.

The Court of Appeals rejected the defendants' arguments finding that their constitutional rights were not violated. The Court summarily rejected any equal protection claim, and instead focused on the defendants' substantive due process claim.

The Court acknowledged that the defendants had a constitutionally protected liberty interest in not being incorrectly labeled. However, the Court found that this interest did not consist of a "fundamental right" under the due process clauses of the State and Federal constitutions. Thus, the Court applied the test of whether the legislation was merely rationally related to legitimate governmental interests.

The Court stated that the governmental interest advanced by the challenged labeling provisions of SORA was the protection of children against people who have shown themselves capable of committing sex crimes. And in finding that people who commit unlawful imprisonment and kidnappers should be labeled as "sex offenders," the Court found that the Legislature could have rationally relied on the fact that in a great number of cases of kidnapping or unlawful imprisonment of children sex offenses do occur. The Court cited two studies. The first found that two thirds of child abductions involved sexual assaults, and curiously the second, more recent study found that 46% of child abductions involved sexual assault (a probability of 46% of course would mean that it was more likely that a sexual assault would not occur). The Court added that the Legislature could have rationally found that these statistics understated the problem, and that sexual assaults could be occurring in child abductions where there is no direct evidence of such. Thus, the Court stated:

In short, the Legislature had a rational basis for concluding that, in the large majority of cases where people kidnap or unlawfully imprison other people's children, the children either are sexually assaulted or are in danger of sexual assault. In light of this, it was plainly rational for the Legislature to provide that, as a general rule, people guilty of such crimes should be classified as "sex offenders."

Finally, the Court concluded that it was also rational for the Legislature not to provide for an exemption from sex offender registration for cases such as the defendants at issue where there was in fact no evidence of sexual misconduct or intent because the Legislature could have considered such cases as few. Also the process of separating those cases from the majority in which the label is justified would be difficult, cumbersome and prone to error. It stated the Legislature could rationally have found that the administrative burden, and the risk that some dangerous sex offenders would escape registration, justified a hard and fast rule, with no exceptions.

Commentary: We all hate sex offenders. And it is a good thing that people who commit sexual crimes, particularly against children, should be required to register, and that this information be accessible to the public. People are empowered when they have better information. But I can't see how the people are better informed when they are given misleading information. I now know that there are registered "sex offenders" out there who are not in fact sex offenders. This does not give me complete confidence in the sex offender registration system. It would have been easy for the Legislature to create an exemption for the crimes of unlawful imprisonment and kidnapping where there is no evidence of sexual misconduct or intent. Instead, the Legislature determined, in the exercise of its wisdom, that the people would be better served by misleading information.

Jehovah Witness Building Must Pay NYC Water And Sewer Charges

2008-10-29T15:03:38-04:00

Some organizations within the City of New York have a unusual benefit - they are exempted from having to pay for water and sewer charges. Religious organizations are entitled to the benefit if the water and sewerage they use is in real estate used in a public place of worship. The limits of this special exemption was tested yesterday in a case before the Court of Appeals - Matter of Brooklyn Assembly Halls of Jehovah's Witnesses, Inc. v Department of Envtl. Protection of the City of New York.

The exemption is set forth in Chapter 696 of the Laws of 1887, as subsequently amended (the water exemption statute), which provides that:

"the real estate owned by any religious corporation located in the city of New York as now constituted, actually dedicated and used by such corporation exclusively as a place of public worship . . . [is] hereby exempted from the payment of any sum of money whatever to said city, for the use of water taken by same from said city."

In addition, New York City Administrative Code § 24-514(e) exempts:

"[a]ny real property . . . entitled to an exemption from the payment of water rents or charges . . . from payment of the sewer rents or charges imposed hereunder."

The Brooklyn Assembly Halls of Jehovah's Witnesses applied for the exemption in 1991 for a building they owned in Brooklyn. The building was 100,000 square feet, four stories high, with an attached three-story structure, and contained multiple meeting and assembly halls used for religious instruction and worship. In its application, the Church indicated that there were "[t]wo apartments on premises — One is for the manager and his wife. The second apartment is for the technical maintenance caretaker and his wife. All are ministers."

The City Department of Environmental Protection (DEP) denied the application on the grounds that under its implementation of the exemption only one dwelling in a building was allowed for a caretaker.

The Church dropped the matter until 2002 when it reapplied for the exemption. In this application, the Church indicated that there were regularly scheduled events 30 weekends per year with approximately 1500-2000 in attendance per day at each event. In addition, it claimed that two caretakers were needed to live on the premises given the size of the facility, maintenance and security needs, and insurance requirements.

The DEP again denied the application on the grounds that the use of the building had not changed. A subsequent investigation by DEP revealed the building contained additional guest rooms that were not disclosed in the Church's application. The Church was advised that it could seek a partial exemption by installing a separate water meter for the non-qualifying portion of the premises.

Instead, the Church commenced an Article 78 proceedings directing and compelling the City to grant its application for the exemption, and to reimburse the Church for charges paid under protest. The Church argued that the determinations denying its request for an exemption were arbitrary and capricious and contrary to law.

The Court of Appeals upheld the denial of the Church's application. The Court set forth the general rule that the construction given statutes by the agency responsible for their administration, if not irrational or unreasonable, should be upheld. It then stated:

"While the agencies [DEP] might legitimately have chosen to read the statute more generously, we cannot say that they acted irrationally by limiting the exemption to premises devoted exclusively to public worship plus the residence of a caretaker for these premises, if there is one. This interpretation, uniformly applicable to religious corporations throughout the City, is easily understood and administered, and is reasonable in light of the water exemption statute's language and legislative history."

The Court rejected the Church's argument that the DEP's interpretation ignored a religious organization's actual need for water consumption. The Court found that there was nothing in the water exemption's legislative history which suggested such a broad interpretation. The Court also rejected the Church's claim that the water exemption laws should be interpreted in the same way as Real Property Tax Law § 420-a(1), which exempts from taxation any real property owned by religious organizations organized or conducted exclusively for religious purposes, if used exclusively for such purposes. The Court stated that the DEP was not called upon to interpret the statutory exemption from water charges afforded religious corporations "in th[e] context" of Real Property Tax Law § 420-a(1). And there was nothing to suggest that the two sets of legislation shared a common source.

Commentary

With the average citizen paying increasing taxes, fees, tolls etc. for government services, what sense does it make to retain this special exemption for religious organizations at all? Religious organizations' use of this special exemption only makes everyone else's water bill higher. The water exemption laws are an anachronism and should be repealed entirely.

Bianca Jagger Can't Get No Rent Control Satisfaction

2008-10-24T08:50:05-04:00

Beware you jet setting, international, super celebrities. Your days in your New York rent controlled or stabilized apartments may be numbered. This is the implication of the Court of Appeals' decision yesterday in Katz Park Ave. Corp. v Jagger, 2008 NY Slip Op 07987.

The case involved not Mic, but Bianca Jagger. Ms. Jagger is in the U.S. legally on a B2 tourist visa. She also has a rent stabilized apartment in Manhattan. The problem?

Under the Rent Stabilization Code (RSC), a landlord may recover possession of a rent stabilized apartment from a tenant whose lease has expired if the apartment "is not occupied by the tenant . . . as his or her primary residence" (RSC [9 NYCRR] § 2524.4 [c]). But the holder of a B2 tourist visa is required to have a "principal, actual dwelling place" outside the United States. Federal regulations make B2 visas available to aliens who are "visitors for pleasure" of the kind described in section 1101 (a) (15) (B) of the Immigration and Nationality Act (see8 CFR § 214.1 [a] [1] [i], [2]). That subsection of the statute applies only to "an alien . . . having a residence in a foreign country which he has no intention of abandoning" (8 USC § 1101 [a] [15] [B]), and "residence" is defined as "principal, actual dwelling place in fact, without regard to intent" (8 USC § 1101 [a] [33]).

Based on this, Ms. Jagger's landlord claimed that her rent stabilized apartment was not her "primary residence" and sought to remove her from the stabilized apartment.

In affirming the landlord's motion for summary judgment, the Court of Appeals concluded that, at least absent some unusual circumstance, a primary residence in New York and a B2 visa are logically incompatible. It noted that Ms. Jagger made no attempt to show how she could simultaneously have a principal, actual dwelling place outside the United States and her primary residence in a New York stabilized apartment.

So, Ms. Jagger's apartment will now be available. Which international celebrity will be next?

Sex, Cohabitation, Divorce, And Spousal Support

2008-10-23T09:35:52-04:00

It is somewhat common in divorces for the parties to reach an agreement regarding spousal support. Tuesday's decision by the Court of Appeal in Graev v Graev, 2008 NY Slip Op 0794 should give a warning to parties entering into such agreements, and the attorneys drafting them, to make it explicitly clear what the terms of the agreement are.

The issue in the case involved exactly what does the term "cohabitation" mean? Is its meaning clear under New York law? Does it require sexual relations or not? Does it imply some sort of economic union?

In the case before the Court, during the parties' divorce, the husband and wife entered into a settlement agreement. The agreement required the husband to pay spousal support to the wife until the occurrence of any of four "termination events." These were: (1) the wife's remarriage; (2) the wife's death; (3) the husband's death; or (4) "[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days." The agreement did not define "cohabitation."

After the agreement was entered into, the husband began conducting surveillance on his wife, and based on this surveillance, he believed that she had been cohabiting with a male (let's call him "MP" as the Court did). The husband thus stopped making the spousal support payments.

The wife then sought judicial relief to enforce the settlement agreement's spousal support provision. The husband moved for summary judgment claiming that the wife and MP were cohabiting within the meaning of the settlement agreement because MP had stayed overnight in the wife's vacation home in Connecticut for at least 60 substantially consecutive days during the summer of 2004, as borne out by surveillance. Further, he contended, there was an "obvious serious relationship" between the wife and MP and that MP was the wife's "lover and life partner," as demonstrated by the number of family occasions — weddings, birthdays and the like — they attended as a couple.

In response, the wife argued that she did not "cohabit" with MP during the summer of 2004 because their relationship had long been purely platonic. And she attempted to prove this with evidence of MP's sexual incapacity and her diminished sexual desire caused by prescribed medication. In her view, "cohabitation" meant having sexual relations.

The husband insisted that "cohabitation" was not synonymous with and did not require a showing of "sexual relations" under the law.

Before a hearing on the matter, the husband sought to introduce extrinsic evidence of the "circumstances surrounding the separation agreement" so as to explain what behavior the parties intended to cover by the term "cohabitation." The wife opposed this motion claiming the motion court was able to define the term cohabitation in accordance with the plain meaning of the term as construed by the case law. The motion court denied the husband's motion finding that the word "cohabitation" as used in the separation agreement was not ambiguous.

During the actual hearing, the wife admitted that at least for a period of three months her relationship with MP was sexual. Other evidence admitted demonstrated that their relationship remained romantic and exclusive for over three years; they participated in social activities with friends and family as a couple and split costs when dating; and they performed chores and errands together. The wife nevertheless argued she and MP were not "cohabiting" within the meaning of the separation agreement because "cohabitation" required the central element of maintaining one residence, sharing household expenses and functioning as an economic unit. And in this case, it was undisputed that MP owned his own home in Connecticut, where he spent considerable time, and did not contribute to the costs of maintaining the wife's summer home.

Both the Supreme Court and the Appellate Division found in favor of the wife essentially holding that previous case law had demonstrated that "cohabitation" had a plain meaning, it was not ambiguous, and it had been consistently interpreted to mean more than a romantic relationship or series of nights spent together, or more than an adult dating relationship. It required some type of "changed economic circumstances," a sharing of finances, a sharing of a residence, or an economic relationship akin to a shared possessory interest in one home. In other words, the couple must function as an economic unit. And based on the evidence, both these courts found that there was no such relationship between the wife and MP because MP owned his own home and there was "absolutely no evidence that the couple shared household expenses or functioned as a single economic unit." Thus, since the relationship did not amount to "cohabitation," the wife was entitled to continued spousal support payments.

However, the Court of Appeals disagreed and reversed. The Court of Appeals found that the term "cohabitation" did not have a plain meaning which contemplated some type of changed economic circumstances. They stated that the meaning of "cohabitation" was not necessarily determined by whether the couple shared household expenses or functioned as a single economic unit. Rather, the word "cohabitation" was ambiguous as used in the separation agreement, and neither the dictionary nor New York caselaw supplied an authoritative or "plain" meaning. The Court stated:

"cohabitation" . . . bring[s] to mind a variety of physical, emotional and material factors, and therefore might mean any number of things in a separation agreement, where otherwise unexplained in the text, depending on the parties' intent. For example, the parties here might reasonably have meant "cohabitation" to encompass whether Mrs. Graev engaged in sexual relations with an unrelated adult; whether she and the unrelated adult commingled their finances or — just the opposite — whether she supported the unrelated adult financially; whether she and the unrelated adult shared the same bed; or some combination of these or other factors associated with living together as if husband and wife.

Accordingly, the Court of Appeals sent the case back to the lower court for further proceedings, presumably to allow the husband the opportunity to introduce evidence as to the parties' intent as to the meaning of the word "cohabitation."

It is obvious that matrimonial attorneys will now have to be quite specific in drafting divorce settlement agreements when using the term "cohabitation." Such agreements should now spell out in detail whether "cohabitation" means having sexual relations, sharing expenses, sharing a residence, or any other number of factors.

Challenge to Dormancy Fees Of Gifts Cards Survives

2008-10-21T10:08:19-04:00

We all love receiving Gift Cards. Let's face it, we'd much rather get the stuff we want rather than those ugly sweaters and hideous candlestick holders. But there is one problem. After getting those gift cards, we stick them in our wallets or purses and forget about them. And unfortunately, many cards have dormancy fees which decreased the value of the cards if they are not used within a certain time.

Are such fees fair? Are they legal?

A class action suit currently underway just survived a motion to dismiss a challenge to such fees in a ruling from the Appellate Division, Second Department last week in Lonner v Simon Prop. Group, Inc., 2008 NY Slip Op 07877.

The Gift Card at issue in this litigation imposed a dormancy fee of $2.50 per month which would be deducted from the balance of the card beginning with the seventh month after the date of purchase. There were three notices advising purchasers of the card of this dormancy fee. The first was on the card itself on the back of the card below the magnetic strip which stated as follows:

"An administrative fee of $2.50 per month will be deducted from your balance beginning with the seventh month from the month of card purchase."

In addition, the card was distributed within a cardboard sleeve, which also contained five additional folding double-sided "pages" which were attached to the sleeve. A section on the back of the card sleeve, entitled "Do I ever expire?" gave the same notice as above. Finally, the actual terms regarding the dormancy fees was placed on the very last page on the back of the 10 folding pages' of information included with the card sleeve. That section, entitled "Service Charges," provided as follows:

"If a balance remains on the Gift Card after the sixth month, the Gift Card will be charged a $2.50 monthly service fee. The fee will be deducted automatically, starting on the seventh month after the month of purchase, from any remaining value on the card on the first day of the month until the value reaches zero."

The class action plaintiffs set forth causes of action to recover damages for breach of contract based upon a breach of the implied covenant of good faith and fair dealing, violation of General Business Law § 349 (which prohibits deceptive and misleading business practices), and unjust enrichment.

The defendants moved to dismiss the complaint for failure to state a cause of action, and a defense based on documentary evidence (CPLR 3211[a][1] and [7]).

In denying the defendant's motion and upholding the complaint, the Second Department found that the complaint pled sufficient facts that the notices about the dormancy fees were in too small a print, in fonts materially less than that required by CPLR 4544. CPLR 4544 provides, in relevant part, as follows:

The portion of any printed contract or agreement involving a consumer transaction . . . where the print is not clear and legible or is less than eight points in depth or five and one-half points in depth for upper case type may not be received in evidence in any trial, hearing or proceeding on behalf of the party who printed or prepared such contract or agreement, or who caused said agreement or contract to be printed or prepared.

The Court also found that sufficient facts were pled that the notices were concealed, and in violation of General Business Law § 349 (prohibiting deceptive and misleading business practices) and General Business Law 396-i(3), which provides that:

[t]he terms of a gift certificate or store credit shall be clearly and conspicuously stated thereon.

The case will now proceed to a jury, or fact finder, to determine whether or not the dormancy fee notices were adequate. Given consumer sentiment on such matters, it is likely that a jury will find in favor of the plaintiffs.