New York Law Review

Tag: 1997

  • Will v. Gates, 89 N.Y.2d 778 (1997): Easement by Grant Survives Partial Unity of Title

    Will v. Gates, 89 N.Y.2d 778 (1997)

    An easement acquired by grant is not extinguished by merger unless there is a complete unity of title between all dominant and servient estates; partial unity does not terminate the easement rights of other dominant owners.

    Summary

    Plaintiffs sought a declaratory judgment to establish their right to a right-of-way over the defendants’ properties. The defendants argued that the easement was extinguished by merger when they acquired a parcel that included both dominant and servient estates. The Court of Appeals reversed the lower court’s grant of summary judgment to the defendants, holding that merger requires complete unity of title between all dominant and servient estates. Since not all dominant and servient estates were under common ownership, the easement remained valid, and the case was remitted for further consideration of other defenses.

    Facts

    Judge Garrison created a horseshoe-shaped right-of-way when he subdivided his property in 1868, recorded as map No. 32. The right-of-way consisted of northern, southern, and north-south spurs. The plaintiffs, the Wills, acquired a parcel abutting the southern spur in 1977, with a deed granting a non-exclusive easement over the right-of-way depicted on map No. 32. The defendants, the Gates, acquired a parcel west of the north-south spur in 1977, with a deed containing identical language granting a right-of-way over the horseshoe-shaped easement. In 1991, the Gates sold a southern portion of their residential lot, restricting the buyer’s easement rights to the southern spur and extinguishing any rights to the north-south spur over the Gates’ residential parcel.

    Procedural History

    The Wills sued the Swinburne-Browers (the buyers of the southern portion of the Gates’ property) in a prior action, which established the Swinburne-Browers’ right-of-way through the Wills’ property via the southern spur. The Wills then commenced the present action seeking access to the north-south spur. Supreme Court granted summary judgment to the Gates, holding the Wills’ interest had been extinguished by abandonment and adverse possession. The Appellate Division affirmed, finding the easement was extinguished by merger. The Court of Appeals reversed and remitted the case.

    Issue(s)

    Whether an easement is extinguished by merger when the owner of a portion of the servient estate acquires a portion of the dominant estate, but complete unity of title between all dominant and servient estates does not exist.

    Holding

    No, because an easement ceases to exist by merger only when there is unity of title of all the dominant and servient estates.

    Court’s Reasoning

    The Court of Appeals reasoned that an easement appurtenant passes with the grant of the land, even if not expressly mentioned in the deed. Such an easement remains unless conveyed, abandoned, condemned, or lost through prescription. The defendants argued that when the Gates acquired the westerly parcel in 1977, it created a merger because they already owned the servient estate (the residential lot). The Court explained that the merger doctrine stems from the principle that a person cannot have an easement in their own land. However, the Court emphasized that merger requires complete unity of title: “An easement ceases to exist by virtue of a merger only when there is a unity of title of all the dominant and servient estates.” Because other dominant owners existed, and the Gates did not own all of the dominant and servient estates, the easement was not extinguished. The Court found the defendants were not entitled to summary judgment on merger grounds and remitted the case for consideration of adverse possession, abandonment, and other unresolved issues. The Court cited the Restatement of Property § 497, comment c, which states that an easement is “not extinguished under the doctrine of merger by the acquisition by the owner of the dominant or servient estate to title to only a fractional part of the other estate.”

  • Meyer v. Board of Trustees, 90 N.Y.2d 139 (1997): Establishes Standard for Reviewing Firefighter Disability Determinations

    Meyer v. Board of Trustees, 90 N.Y.2d 139 (1997)

    When a firefighter’s application for accidental disability retirement is denied by a tie vote of the Board of Trustees, a reviewing court can only overturn that decision if it determines, as a matter of law, that the disability was the natural and proximate result of a service-related accident, and the Board’s determination must stand if there is any credible evidence of a lack of causation.

    Summary

    This case addresses the standard of judicial review applied when the New York City Fire Department Pension Fund Board of Trustees denies a firefighter’s application for service-related accidental disability retirement benefits due to a tie vote. In these consolidated cases, the Medical Board found the firefighters incapacitated but did not find a causal link between service-related injuries and the disability. The Court of Appeals held that the Appellate Division erred in overturning the Board’s decisions, emphasizing that as long as there is any credible evidence of lack of causation before the Board, its determination must stand. The Court clarified that the opinion of a nonexamining physician can constitute credible evidence.

    Facts

    Four firefighters applied for accidental disability retirement, claiming various service-related injuries caused their disabilities.

    Meyer claimed back pain from three service-related accidents.

    Hacker suffered neck and back injuries over his career, with the last injury occurring in August 1992.

    Sorrenti had a prior knee surgery before joining the Fire Department and experienced several incidents affecting his knee and back during his service.

    Pomilla suffered four documented service-related back injuries between 1972 and 1989.

    In each case, the Pension Fund Medical Board determined the firefighter was disabled but concluded the service-related injuries did not cause the disability, recommending ordinary disability retirement.

    Procedural History

    The Board of Trustees deadlocked on the issue of causation in each case, resulting in a denial of accidental disability retirement and an award of ordinary disability benefits.

    The firefighters filed CPLR Article 78 petitions for review.

    The Appellate Division concluded in each case that causation was established as a matter of law and ordered accidental disability retirement benefits.

    The Board of Trustees appealed to the Court of Appeals.

    Issue(s)

    Whether the Appellate Division erred in determining that causation was established as a matter of law, thereby annulling the Board of Trustees’ denial of accidental disability retirement benefits.

    Whether the opinion of a non-examining medical expert can constitute credible evidence of a lack of causation in determining eligibility for accidental disability retirement benefits.

    Holding

    Yes, because the Appellate Division erroneously ignored credible evidence of a lack of causation before the Board of Trustees in the form of articulated, rational, and fact-based medical opinions.

    Yes, because a non-examining physician’s expert opinion, based on a review of medical records and other data, is considered credible evidence and cannot be rejected solely because it is not based on a direct physical examination.

    Court’s Reasoning

    The Court of Appeals emphasized the limited scope of judicial review in cases where the Board of Trustees denies accidental disability retirement benefits due to a tie vote. The Court stated that a reviewing court can only overturn the Board’s decision if causation is established as a matter of law, and the determination must stand if there is any credible evidence of a lack of causation.

    The Court rejected the Appellate Division’s implicit rule that the opinion of examining physicians on causation must be credited over the rationally based opinion of a non-examining physician. It noted that New York law generally accepts the testimony of non-examining physicians as medical experts in civil and criminal trials.

    The Court explained that credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered. The Court found that articulated, rational, and fact-based medical opinions from the Medical Board constituted credible evidence of a lack of causation in each of the cases under review. For instance, regarding Firefighter Meyer, the Court pointed to the opinion of Dr. Jones, the Fire Department’s Chief Medical Officer, who based his opinion on Meyer’s medical records and his interpretation of an MRI. The Court found this to be credible evidence supporting the Board’s denial.

    The Court specifically stated, “As long as these opinions were otherwise credible, they could not be rejected solely because they were not based on direct physical examination of the petitioner.”

  • People v. Tichenor, 89 N.Y.2d 769 (1997): Constitutionality of New York’s Disorderly Conduct Statute

    People v. Tichenor, 89 N.Y.2d 769 (1997)

    New York’s disorderly conduct statute, Penal Law § 240.20(3), is constitutional because it applies to words and conduct that create a risk of public disorder and requires a culpable mental state, distinguishing it from statutes that regulate pure speech.

    Summary

    The New York Court of Appeals upheld the constitutionality of New York’s disorderly conduct statute, Penal Law § 240.20(3), affirming the defendant’s conviction. The defendant was arrested after uttering obscenities at a police officer, shoving him, and then engaging in a scuffle with bar patrons after attempting to re-enter a bar. The Court found that the statute, which prohibits the use of abusive or obscene language with the intent to cause public inconvenience, annoyance, or alarm, is not overbroad or vague because it targets conduct creating a risk of public disorder, not protected speech. The court distinguished this statute from the one struck down in People v. Dietze, emphasizing the requirement of a culpable mental state and the focus on preventing public disturbances.

    Facts

    A police officer observed Tichenor outside a bar. Tichenor uttered an obscenity at the officer and spat on the ground near his feet. Tichenor then shoved the officer while continuing to use obscene language. As the officer attempted to arrest Tichenor, a group of people gathered in the doorway of the bar, yelling at the officer. Tichenor then pulled away and re-entered the bar. The officer followed, and a scuffle ensued with bar patrons joining in. Tichenor was eventually arrested after other officers arrived.

    Procedural History

    Tichenor was convicted in Saratoga Springs City Court of disorderly conduct and resisting arrest. He was acquitted of harassment. The County Court affirmed the conviction. A Judge of the Court of Appeals granted Tichenor leave to appeal.

    Issue(s)

    1. Whether Penal Law § 240.20(3), the disorderly conduct statute, is unconstitutional under the State and Federal Constitutions for violating free speech, and being vague or overbroad.
    2. Whether the statute was unconstitutionally applied to Tichenor because his confrontation with the officer was a private encounter and whether there was sufficient evidence to support his conviction.

    Holding

    1. No, because the disorderly conduct statute applies to words and conduct creating a risk of public disorder and requires a culpable mental state, distinguishing it from statutes regulating pure speech.
    2. No, because the jury had sufficient evidence to conclude that Tichenor intended to cause and incite a public disturbance.

    Court’s Reasoning

    The Court of Appeals held that the disorderly conduct statute is constitutional, reaffirming prior decisions upholding similar statutes. The Court distinguished People v. Dietze, where a harassment statute was struck down, by emphasizing that the disorderly conduct statute requires intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof. This requirement, coupled with the objective standard of public disturbance, narrows the statute’s scope and prevents it from being applied to pure speech. The Court stated that “the statutory requirement that the defendant possess an intent ‘to cause, or recklessly create a risk of, public inconvenience, annoyance or alarm, narrows the definition, so that no inadvertent * * * act may be punished’.” The Court also rejected Tichenor’s argument that the statute was unconstitutionally applied to him, finding that the jury had sufficient evidence to conclude that he intended to cause a public disturbance, noting that “[d]isorderly conduct occurs when a person, with intent to cause a public annoyance or alarm in a public place, uses abusive or obscene language (Penal Law § 240.20 [3]).” The Court emphasized that the events leading to the arrest, including the gathering of bar patrons and the ensuing scuffle, supported the inference that Tichenor intended to incite a public disturbance. The court further reasoned that “the fact that the defendant slipped away from the officer’s grasp and reentered the bar after the street confrontation further supports a ready inference that the defendant intended to cause a ‘public inconvenience, annoyance or alarm.’”

  • Matter of Professional, Clerical, Technical Employees Association v. Buffalo Board of Education, 90 N.Y.2d 364 (1997): Enforceability of Collective Bargaining Agreement Limiting Appointment Discretion

    Matter of Professional, Clerical, Technical Employees Association v. Buffalo Board of Education, 90 N.Y.2d 364 (1997)

    A public employer can voluntarily agree through collective bargaining to give promotional preference to certain members of an eligible list, provided a probationary period precedes their permanent appointment, without violating public policy or infringing on statutory appointment discretion.

    Summary

    The Court of Appeals addressed whether an arbitrator’s award requiring the Buffalo Board of Education to promote the highest-scoring bargaining unit member on a civil service eligible list, as per their collective bargaining agreement (CBA), violated public policy by restricting the Board’s statutory discretion under Civil Service Law § 61. The Court held that such an agreement is permissible because the Board retained ultimate authority through a probationary period. This case clarifies the balance between collective bargaining rights and statutory obligations in public sector employment.

    Facts

    Two separate grievances were filed by the Professional, Clerical, Technical Employees Association (PCTEA) against the Buffalo Board of Education. In the first (PCTEA I), Melvin Cross, the highest-scoring PCTEA member on the promotional eligible list for Associate Account Clerk, was passed over for three vacancies. In the second (PCTEA II), Christine Czosek, the highest-ranked PCTEA unit member, was not offered a Senior Typist position. The PCTEA argued these actions violated their CBA, which they contended included a practice of promoting the highest-ranked unit member. Arbitrators ruled in favor of the PCTEA in both cases.

    Procedural History

    In PCTEA I, the Supreme Court confirmed the arbitrator’s award, but the Appellate Division reversed, finding the CBA improperly restricted the Board’s discretion. In PCTEA II, the Supreme Court also confirmed the award, but the Appellate Division reversed, holding that while an agreement to promote the highest scorer was not per se prohibited, it must be express and not implied from past practice. The Court of Appeals granted leave to appeal in both cases.

    Issue(s)

    1. Whether an arbitrator’s award requiring the Buffalo Board of Education to promote the highest-scoring bargaining unit member on a civil service eligible list, as required by the terms of the parties’ collective bargaining agreement, is void as violative of public policy in that it restricts the statutory discretion vested in the appointing authority under Civil Service Law § 61 to select one of the three highest-ranked candidates on an eligible list.

    Holding

    Yes, because an appointing authority can voluntarily bargain regarding the exercise of its discretion under Civil Service Law § 61, and the probationary period provided sufficient means for the board to assess the appointee’s fitness, thus, the board did not relinquish ultimate appointment authority.

    Court’s Reasoning

    The Court emphasized that while Civil Service Law § 61 grants discretion to appoint one of the top three candidates, this discretion can be voluntarily limited through collective bargaining. The Court highlighted the importance of the probationary period, during which the Board can terminate an appointee if their performance is unsatisfactory. This probationary period allows the Board to assess qualities not measured by the competitive exam, ensuring merit and fitness. The Court distinguished between restrictions imposed by external sources (impermissible) and self-imposed limitations through bargaining (permissible). Citing Matter of Heslin v City of Cohoes, 74 AD2d 393, 399, the court reasoned that the limitation was “a voluntary surrender by the appointing authority of the full range of possibilities available to it for the duration of the contract period.” Because the Board retained the right to dismiss an unsatisfactory employee during the probationary period, the agreement was not against public policy. The court also noted that the appointment of the highest-scoring candidate aligns with the policy of selecting qualified civil servants based on merit, without political influence. The arbitrator’s findings of an agreement and past practice were also upheld, emphasizing the enforceability of collectively bargained terms, even if not explicitly in the CBA itself.

  • People v. Wilson, 89 N.Y.2d 754 (1997): Right to Counsel at Investigatory Lineup

    People v. Wilson, 89 N.Y.2d 754 (1997)

    Once a suspect is represented by counsel, even on an unrelated charge, police cannot conduct an investigatory lineup without making reasonable efforts to notify and secure the attorney’s presence, absent exigent circumstances.

    Summary

    Eric Wilson, arrested on Brooklyn charges, was identified in a lineup as the perpetrator of a Queens homicide. Wilson’s attorney on the Brooklyn charges informed Queens detectives that he also represented Wilson on the Queens matter and that no questioning or lineups should occur without him. Despite this, police conducted a lineup without notifying the attorney, and Wilson was identified. The New York Court of Appeals held that because Wilson was represented by counsel, the lineup conducted without notifying counsel violated his right to counsel, requiring suppression of the identification. The Court emphasized the importance of affording a defendant’s attorney the opportunity to be present at critical stages of the investigation.

    Facts

    Defendant Eric Wilson was arrested on Brooklyn charges of criminal possession of a stolen vehicle and a weapon. The weapon was linked to a Queens homicide. An eyewitness identified Wilson’s photo as being involved in the Queens shooting. Wilson’s attorney, Norman Berle, representing him on the Brooklyn charges, informed Queens detectives that he also represented Wilson regarding the Queens matter and that no questioning or lineups should occur without his presence. The Brooklyn charges were dismissed, and Queens detectives took Wilson into custody. Advised of his Miranda rights, Wilson waived them and denied knowledge of the homicide. A lineup was conducted without notifying Berle, and Wilson was identified as the shooter.

    Procedural History

    The Supreme Court, Queens County, denied Wilson’s motion to suppress the lineup identification, finding that the attorney-client relationship terminated with the dismissal of the Brooklyn charges. Wilson was convicted of murder and other charges. The Appellate Division reversed, granting the motion to suppress and ordering a new trial, allowing the People to establish an independent source for the in-court identification. The Court of Appeals granted permission to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether an investigatory lineup conducted without notifying a suspect’s attorney, after the attorney informed police of their representation and requested their presence at any questioning or lineups, violates the suspect’s right to counsel.

    Holding

    Yes, because once a suspect is actually represented by counsel, a waiver of the right to counsel without the attorney present is ineffective, and the police are obligated to make reasonable efforts to notify counsel of an impending lineup, absent exigent circumstances.

    Court’s Reasoning

    The Court of Appeals relied on the principle that while a suspect has no constitutional right to counsel at a pre-indictment lineup, if a suspect already has counsel, that attorney may not be excluded from the lineup proceedings. The Court found that attorney Berle’s notification to the Queens detectives that he represented Wilson on the Queens matter created a duty for the police to notify Berle of the lineup. The Court cited People v. LaClere, 76 N.Y.2d 670 (1990), emphasizing that the police took the risk that the evidence would be suppressed by conducting the lineup without notice to counsel. The Court also noted that no exigent circumstances justified proceeding without counsel. The Court reasoned that once an attorney-client relationship is established and communicated to law enforcement, the police cannot disregard the attorney’s request to be present. Allowing a lineup without notifying known counsel undermines the protections afforded by the right to counsel. The court emphasized, “In conducting the lineup in these circumstances, without some notice or other legally recognized excusal of counsel’s presence, the police took the risk that the adduced evidence would not be allowed” (People v. LaClere, supra, at 672).

  • Speichler v. Board of Cooperative Educational Services, 90 N.Y.2d 110 (1997): Determining ‘Regular Substitute’ Status for Tenure Credit

    90 N.Y.2d 110 (1997)

    A teacher’s actual service as a substitute, rather than the anticipated duration of the replaced teacher’s absence, determines whether the teacher qualifies as a “regular substitute” for purposes of earning Jarema credit toward tenure.

    Summary

    Mindy Speichler, a special education teacher, sought tenure by estoppel, arguing that her prior substitute teaching service should count towards her probationary period. The Board of Cooperative Educational Services (BOCES) denied her claim, arguing that her service as a “per diem substitute” filling in for teachers on indefinite leave did not qualify as “regular substitute” service under Education Law § 2509(1)(a). The Court of Appeals reversed the Appellate Division’s decision against Speichler, holding that the nature of the service actually performed, rather than the expected duration of the replaced teacher’s absence, determines whether a substitute teacher is considered a “regular substitute” eligible for Jarema credit.

    Facts

    Mindy Speichler began working as a per diem substitute teacher for BOCES in November 1989, filling in for a regular teacher moved to a different assignment for an indeterminate period. She continuously taught the class. In March 1990, she was formally appointed as a regular substitute due to another teacher’s child care leave, though she remained in the same classroom. The following school year, she again worked as a per diem substitute, covering another teacher’s class while he was temporarily assigned to another role. In December 1990, she was formally appointed to a probationary teaching position. In October 1993, BOCES notified her that she would not be recommended for tenure, leading to this legal challenge.

    Procedural History

    Speichler initiated a CPLR article 78 proceeding, arguing she had achieved tenure by estoppel because her prior substitute service should count toward her probationary period. The Supreme Court granted her petition, reinstating her with tenure. The Appellate Division reversed, finding her per diem substitute service did not qualify as regular substitute service. Speichler appealed to the Court of Appeals.

    Issue(s)

    Whether a teacher’s service as a substitute for a teacher on leave for an indefinite period can be credited towards the probationary period required for tenure under Education Law § 2509(1)(a) as “regular substitute” service.

    Holding

    Yes, because the actual nature and continuity of the substitute service, not the anticipated duration of the replaced teacher’s absence, define the ambiguous statutory term “regular substitute.”

    Court’s Reasoning

    The Court reasoned that the term “regular substitute” in Education Law § 2509(1)(a) is ambiguous and not defined by statute. While BOCES argued that “regular substitute” status requires a definite leave of absence for the replaced teacher, the Court disagreed, finding that the focus should be on the actual service performed by the substitute teacher. Citing prior decisions from the Commissioner of Education, the Court noted that the key factor is whether the teacher provided continuous service for at least one school term. The Court emphasized the principle that tenure rules should be interpreted broadly in favor of the teacher, prioritizing function over form. Citing Ricca v. Board of Educ., the court reiterated that the tenure system should not be undermined by technical obstacles. The Court acknowledged BOCES’ argument that a definite term requirement promotes predictability, but concluded that it is more important to protect qualified teachers from losing tenure rights due to manipulable labels. The Court concluded that Speichler’s continuous teaching for a full semester qualified her for Jarema credit, entitling her to tenure. The dissenting judges argued that the majority’s retrospective, functional criterion for determining ‘regular substitute’ status contradicted the Commissioner of Education’s interpretation and would create more uncertainty.

  • In re Estate of Janes, 90 N.Y.2d 41 (1997): Prudent Investor Rule and Duty to Diversify

    In re Estate of Janes, 90 N.Y.2d 41 (1997)

    Under the prudent person rule, a fiduciary’s duty to diversify investments must be evaluated in light of the specific circumstances of the trust, considering the needs of the beneficiaries and the overall portfolio risk, and not solely based on the inherent quality of an individual investment.

    Summary

    The Estate of Janes case addresses the fiduciary duty of an executor to prudently manage estate assets, specifically regarding diversification. The Court of Appeals held that the executor, Lincoln Rochester Trust Company, acted imprudently by retaining a high concentration of Eastman Kodak stock, which significantly declined in value, without adequately considering the needs of the testator’s widow and the overall risk to the estate’s portfolio. The court emphasized that the prudent person rule requires a holistic assessment of investment decisions, not just a focus on the individual merits of a stock. The court affirmed the finding of liability but modified the damages calculation to reflect the capital lost due to the imprudent retention.

    Facts

    Rodney Janes died in 1973, leaving an estate heavily concentrated in Eastman Kodak stock (71% of the stock portfolio). His will created trusts benefiting his widow and charities. Lincoln Rochester Trust Company, as co-executor and trustee, initially sold some Kodak shares to cover administrative expenses but retained the majority. The widow, unsophisticated in financial matters, consented to some sales but wasn’t fully informed about the investment strategy. The price of Kodak stock declined significantly over the next several years, diminishing the estate’s value.

    Procedural History

    The Trust Company filed accountings, which were challenged by the widow and the Attorney General (representing the charitable beneficiaries). The Surrogate’s Court found the Trust Company imprudent in retaining the Kodak stock and imposed a surcharge. The Appellate Division modified the damages calculation, reducing the surcharge. Both sides appealed to the Court of Appeals.

    Issue(s)

    1. Whether a fiduciary can be surcharged for imprudent management of a trust for failure to diversify in the absence of additional elements of hazard pertaining to the specific stock.

    2. Whether the Surrogate Court properly determined August 9, 1973 as the date by which the Trust should have divested the Kodak stock.

    3. Whether the Surrogate Court applied the correct measure of damages in calculating the surcharge.

    Holding

    1. Yes, because the prudent person rule requires considering the investment in relation to the entire portfolio and the needs of the beneficiaries, not just the inherent qualities of the individual investment.

    2. Yes, because the evidence supports the conclusion that a prudent fiduciary would have divested the estate’s stock portfolio of its high concentration of Kodak stock by August 9, 1973.

    3. No, because the proper measure of damages for negligent retention of assets is the value of the capital lost, not lost profits.

    Court’s Reasoning

    The Court of Appeals held that the prudent person rule, as codified in EPTL 11-2.2(a)(1) and interpreted in cases like King v. Talbot, requires fiduciaries to act with the diligence and prudence that prudent persons would use in managing their own affairs. This includes considering the nature and object of the trust, the preservation of the fund, and the procurement of a just income. The court rejected the Trust Company’s argument that diversification is only required when specific hazards exist regarding the individual stock. The Court emphasized that “the very nature of the prudent person standard dictates against any absolute rule that a fiduciary’s failure to diversify, in and of itself, constitutes imprudence, as well as against a rule invariably immunizing a fiduciary from its failure to diversify in the absence of some selective list of elements of hazard”.

    The court noted the importance of considering factors beyond the individual investment, such as “the amount of the trust estate, the situation of the beneficiaries, the trend of prices and of the cost of living, the prospect of inflation and of deflation” (Restatement [Second] of Trusts § 227, comment e). The court found that the Trust Company failed to adequately consider the needs of the testator’s widow, the high concentration of Kodak stock in relation to the overall portfolio, and its own internal review protocols. As the court noted, “[t]he trustee should take into consideration the circumstances of the particular trust that he is administering, both as to the size of the trust estate and the requirements of the beneficiaries. He should consider each investment not as an isolated transaction but in its relation to the whole of the trust estate” (3 Scott, Trusts § 227.12, at 477 [4th ed]).

    Regarding damages, the court distinguished between cases involving negligent retention and those involving self-dealing. In cases of negligent retention, the measure of damages is the value of the capital lost. The court found that the Appellate Division correctly applied this measure, calculating the difference between the value of the Kodak stock when it should have been sold (August 9, 1973) and its ultimate sale price.

    The court specifically rejected the “lost profits” measure of damages used by the Surrogate, noting this was only appropriate in cases of self-dealing, citing Matter of Rothko, where “the fiduciary’s misconduct consisted of deliberate self-dealing and faithless transfers of trust property”.

  • In re Luis R., 89 N.Y.2d 1043 (1997): Prior Felony Findings for Designated Felony Act Determinations

    In re Luis R., 89 N.Y.2d 1043 (1997)

    Family Court Act § 301.2(8)(vi) requires only two prior felony findings by the court to classify an act as a designated felony act, and does not impose a sequentiality requirement demanding separate sentencing on each earlier conviction before commission of the latest offense.

    Summary

    This case addresses whether two prior felony findings, consolidated in a single Family Court order with sentencing on the same day, satisfy the requirements of Family Court Act § 301.2 (8)(vi) for determining a designated felony act. The Court of Appeals held that the statute requires only two prior findings, not sequential sentencing. The court distinguished the Family Court Act from Penal Law provisions requiring sequentiality for enhanced punishment, emphasizing the remedial and rehabilitative purposes of the Family Court Act and the discretion afforded to Family Court.

    Facts

    A 15-year-old appellant committed drug-related transactions on February 5, 1995, which, if committed by an adult, would constitute felonies. Prior to this, on April 27 and July 20, 1994, the appellant had committed acts that would also constitute felonies if committed by an adult. Both 1994 felony findings were consolidated in a single Family Court order, and the appellant was sentenced for both offenses on the same day, August 18, 1994.

    Procedural History

    The Family Court found that the appellant committed acts constituting felonies based on the February 5, 1995 transactions. The Family Court further found that, based on the two prior felony findings from 1994, the appellant had committed a “designated felony act” and sentenced him accordingly. The Appellate Division affirmed the Family Court’s decision. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether Family Court Act § 301.2 (8)(vi) requires sequential sentencing on two prior felony findings, meaning that a juvenile must be separately sentenced on each earlier conviction before commission of the latest offense, in order for an act to be classified as a designated felony act.

    Holding

    No, because unlike Penal Law § 70.08, Family Court Act § 301.2 (8)(vi) explicitly requires only two findings of prior felonies, a requirement that was fully satisfied in this case, and the Family Court Act’s remedial and rehabilitative purpose would be undermined by requiring full disposition of prior findings before they could count toward a designated felony act.

    Court’s Reasoning

    The Court distinguished this case from People v. Morse, which read a sequentiality requirement into Penal Law § 70.08 for enhanced punishment of persistent violent felony offenders. The Court reasoned that unlike the Penal Law provision, Family Court Act § 301.2 (8)(vi) explicitly requires only two findings of prior felonies. The Court emphasized that the Family Court Act is not part of a single system of related general provisions indicative of a settled policy like the Penal Law provisions considered in Morse.

    The Court also highlighted the discretion afforded to Family Court to determine whether a restrictive placement is necessary for a designated felony offender under Family Ct Act § 353.5, a discretion not available under the Penal Law recidivist statutes. Furthermore, the Court considered the remedial and rehabilitative purposes of the Family Court Act, noting that requiring full disposition of prior findings before they could count toward a designated felony act would undermine these purposes, especially given the limited time juveniles are subject to the Family Court Act (until age 16).

    The court stated, “Unlike Penal Law § 70.08, Family Court Act § 301.2 (8) (vi) explicitly requires only two findings of prior felonies, a requirement that was fully satisfied here.” It further explained the purpose of the Act, stating, “As evidenced by the present case, the time it would take for a juvenile to have such findings reach disposition could limit the effectiveness of any recidivist measures.”

  • People v. Carvey, 89 N.Y.2d 707 (1997): Justifying a Vehicle Search Based on Specific Threats to Officer Safety

    People v. Carvey, 89 N.Y.2d 707 (1997)

    When a police officer has a reasonable suspicion that criminal activity is afoot and an articulable basis to fear for their safety, they may intrude upon a suspect’s person or personal effects only to the extent necessary to protect themselves from harm; however, specific facts, like wearing a bulletproof vest and furtive movements, can justify a vehicle search even after occupants are removed.

    Summary

    Carvey was a passenger in a car stopped for a traffic violation. Officers noticed Carvey wearing a bulletproof vest and saw him making a furtive movement as if placing something under his seat. After removing all occupants from the car, officers searched the area under Carvey’s seat and found a gun. The New York Court of Appeals held that the search was justified because the bulletproof vest, combined with the furtive movement, gave the officers a reasonable basis to believe a weapon was present and posed an immediate threat to their safety. This case clarifies the exception to the rule that a vehicle search is unlawful once suspects are removed and patted down without incident.

    Facts

    At 1:20 a.m., police stopped a car for lacking a rear license plate. An officer noticed Carvey, a passenger in the rear seat, bend down and place something under the seat with his right hand. The officer also observed that Carvey was wearing a bulletproof vest under his sweatshirt. All four occupants were removed from the car. After patting Carvey down, an officer reached into the car under the rear passenger seat and recovered a gun from the spot where Carvey had been seated.

    Procedural History

    Carvey moved to suppress the weapon and his subsequent statements, arguing they were the result of an unconstitutional search. The suppression court denied the motion, finding the stop and subsequent search lawful. Carvey pleaded guilty to attempted criminal possession of a weapon. The Appellate Division affirmed the suppression court’s decision. The New York Court of Appeals then affirmed the Appellate Division’s order.

    Issue(s)

    Whether, after lawfully stopping a vehicle and removing its occupants, police officers may conduct a search of the vehicle’s interior based on reasonable suspicion of a weapon, when the suspect was wearing a bulletproof vest and made furtive movements.

    Holding

    Yes, because the combination of Carvey wearing a bulletproof vest and his act of placing something under the seat gave the officers a reasonable basis to conclude that a weapon was in the vehicle and presented an actual and specific danger to their safety.

    Court’s Reasoning

    The Court of Appeals relied on its prior holding in People v. Torres, which established a narrow exception to the general rule that a vehicle search is unlawful once the suspects have been removed and patted down without incident. The court emphasized that while reasonable suspicion alone is insufficient, facts that lead to the conclusion that a weapon presents an actual and specific danger to officer safety can justify a further intrusion. The court distinguished this case from Torres, where an anonymous tip was deemed insufficient, and People v. Ellis, where bullets found during a frisk provided probable cause for a search. The Court reasoned that a bulletproof vest, unlike an empty holster, demonstrates a readiness and willingness to use a deadly weapon. Combined with Carvey’s suspicious movements, this created a reasonable belief that a weapon was present and posed a threat. As the court noted, “[t]he whole purpose of the wearing of the vest is to make it more feasible to go armed, [and] to enhance the advantage of doing so.” The court emphasized that the intrusion was limited to the area where Carvey had been seated. The court explicitly declined to address whether probable cause to search the entire vehicle existed, as that issue had not been decided below.

  • Matter of Robert, 89 N.Y.2d 745 (1997): Judicial Misconduct and Impropriety

    Matter of Robert, 89 N.Y.2d 745 (1997)

    A judge must avoid impropriety and the appearance of impropriety, and removal from office is warranted when a judge presides over cases involving close friends and confronts critics in an unprofessional manner, even after being cautioned about such behavior.

    Summary

    This case concerns a Justice of the Chester Town Court who was charged with judicial misconduct for presiding over cases involving his friends and for confronting a woman who had criticized him in a newspaper letter. The Commission on Judicial Conduct found him guilty of misconduct, and the Court of Appeals affirmed, holding that his actions warranted removal from office because they demonstrated a lack of understanding of the serious nature of his conduct and a disregard for the rules of judicial conduct, even after being cautioned by the Commission.

    Facts

    The petitioner, a Justice of the Chester Town Court, was charged with violating the Rules of Judicial Conduct. The charges included presiding over cases involving his friends, despite prior cautions from the Commission on Judicial Conduct against such behavior. He was also charged with confronting a woman in the presence of her employer after she wrote a letter to the editor critical of him.

    Procedural History

    The Commission on Judicial Conduct designated a Referee who held a hearing. The Referee found the factual allegations of the charges were sustained. The Commission confirmed the Referee’s findings and determined the petitioner engaged in misconduct warranting removal from office. Three members of the Commission dissented with respect to the sanction, voting for censure instead. The case was then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the actions of the Justice of the Chester Town Court, specifically presiding over cases involving friends and confronting a critic, constitute judicial misconduct warranting removal from office.

    Holding

    Yes, because the Justice’s conduct demonstrated a failure to comprehend the serious nature of his actions and a disregard for the rules of judicial conduct, even after being cautioned by the Commission, thus making him unfit for judicial office.

    Court’s Reasoning

    The Court of Appeals found that each of the charges against the Justice was established. The court cited Matter of Murphy, 82 NY2d 491, 495 and Matter of Fabrizio, 65 NY2d 275 to support the impropriety of presiding over cases involving close friends. The court emphasized that the Justice failed to understand the seriousness of his conduct. He even testified that he intended to continue presiding over matters involving his friends. The Court noted, “The fact that the misconduct continued even after petitioner was on notice that the Commission considered his actions improper demonstrates that he is not fit for judicial office (see, Rules of Judicial Conduct [22 NYCRR] § 100.2 [a]; Matter of Hamel, 88 NY2d 317, 320) and that the sanction of removal is appropriate (Matter of Sims, 61 NY2d 349, 356).” This continuation of misconduct, even after being cautioned, was a key factor in the Court’s decision to uphold the sanction of removal.