Neighbor’s Tree | Parent Eavesdropping | Amendment Unconstitutional

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When A Neighbor’s Tree Falls

When A Neighbor’s Tree Falls

In Cicio v. Pollack, an Appellate Court recently reversed a local Court’s judgment for damages in favor of a plaintiff caused by a neighbor’s tree that fell onto his property during a storm.

According to the Appellate Court, the plaintiff and defendants are adjoining property owners. The trunk of a large tree stood on defendants’ property, but had branches which overhung plaintiff’s property. On October 29, 2012, during Hurricane Sandy, the tree fell, damaging plaintiff’s property. The plaintiff’s insurance company declined coverage for “damage caused by wind or fallen tree debris.”

The plaintiff commenced a small claims action to recover $5,000 in damages. At a non-jury trial, plaintiff testified that before the storm he had requested that defendants prune back or remove the tree, and he produced a letter he had written to defendants six years earlier requesting this. He also claimed that it was too difficult to prune the tree from his side of the property line. The defendants denied ever having received plaintiff’s letter, and argued that the tree had been destroyed by an act of God, for which they could not be held liable. Following the trial, judgment was awarded to plaintiff in the amount of $2,500.

On an appeal from a small claims court, the standard of review is different than that of an appeal from a State Supreme Court. As the Appellate Court stated: “In a small claims action, our review is limited to a determination of whether ‘substantial justice has…been done between the parties according to the rules and principles of substantive law.’” The Court held that here it was not.

In so ruling, it reasoned that the plaintiff “bore the burden of establishing that a defective condition existed and that defendants had affirmatively created the condition, or had actual or constructive notice of its existence, in order for defendants to be liable for plaintiff’s loss.”

In negligence actions, no liability attaches to a landowner whose tree falls outside of his premises and injures another or their property unless there exists “actual or constructive knowledge” of the defective condition of the tree. Actual knowledge is a direct and clear awareness of a fact or condition, where constructive knowledge is knowledge that one using ordinary care or diligence would possess.

The Court concluded that the defendants “had ‘no duty to consistently and constantly check the tree for non-visible decay. Rather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.’ Although plaintiff testified that debris often fell from the tree and that he had requested that defendants prune the tree, he failed to provide any evidence that the tree was unhealthy, or that defendants had actual or constructive notice of any defects in the tree.”

Parent Can Legally Eavesdrop on Child

Parent Can Legally Eavesdrop on Child

Recently in People v. Badalamenti, the highest Court in the State of New York recognized, in a five to four decision, a new exception to a State law which makes eavesdropping illegal, holding that a father’s recording of threats made to his infant son by the mother’s boyfriend was not “eavesdropping” within the meaning of the statute. Rather, the father was deemed to have consented to the recording on his son’s behalf.

New York’s Penal Law §250.05 provides that “a person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.” Eavesdropping is a class E felony.

“Wiretapping” is defined in the Penal Law as “the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.” “‘Mechanical overhearing of a conversation’ means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.”

At issue in this case was the criminal conviction of the boyfriend “Badalamenti.” He was convicted on the strength of testimony of his landlord, who heard sounds of the abuse and called the police, and of an earlier recording made by the then 5-year-old boy’s biological father during a cell-phone call he placed of the boy’s mother in October 2008. While the mother apparently did not know she answered the call, she and her boyfriend could be heard over the open line for about 20 minutes berating the boy, at one point the boy calling out, “Please, Anthony, stop, stop,” and the sound of a strap striking the boy. Using a cell phone function, these sounds and words were recorded. That recording was allowed into evidence at Badalamenti’s trial in Nassau County Supreme Court over his objections, claiming the recording was made in violation of Penal Law §250.

Generally, New York’s procedural laws state that the “contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury.”

The Court of Appeals said that by adding vicarious consent on behalf of a minor child to exceptions to New York State’s eavesdropping statute, it was furthering the ability of parents or guardians to protect their children. The Court reasoned, that there “is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child’s conversation out of a genuine concern for the child’s best interests.”

It reasoned that the “principle of vicarious consent that we adopt originates in federal case law. The federal wiretapping law, like the New York statutes we interpret here, contains an exception for the interception of a communication with the consent of one party.

It imposed limits on circumstances where vicarious consent recordings of conversations can be used as evidence. It said: “Our decision sets out a narrowly tailored test for vicarious consent that requires a court to determine (1) that a parent or guardian had a good faith belief that the recording of a conversation to which the child was a party was necessary to serve the best interests of the child and (2) that there was an objectively reasonable basis for this belief.”

The Court of Appeals concluded: “Applying the vicarious consent doctrine to the present case, the record supports the conclusion of the courts below that the People have sufficiently demonstrated that the father had a good faith, objectively reasonable basis to believe that it was necessary for the welfare of his son to record the violent conversation he found himself listening to. The father testified that he was concerned for his son’s safety because of the volume and tone of defendant’s threats. Although other portions of the father’s testimony reveal that he may have been in doubt about whether physical harm would ensue, it does not follow that he had no good faith reason to believe that it was necessary to record the conversation. Furthermore, the evidence that the child had previously expressed fear of returning home adds support to the conclusion that the father had a good faith basis, despite his delay in providing the recording to the police. While defendant argues that the father should have contacted the police earlier, his failure to report what he had heard immediately does not diminish the evidence of good faith. Moreover, the father’s basis is objectively reasonable. The father had heard defendant and the child’s mother yelling at the five-year-old child, and defendant threatening to beat him.” “It was reasonable for the father to conclude that making the recording was necessary to serve the child’s best interests. Additionally, the recording, which captures a five year-old crying while defendant is threatening to hit him 14 times and referring to previous beatings, speaks volumes. The contents of the recording demonstrate that there was an objectively reasonable basis for the father to believe that recording what he was hearing was necessary to serve his son’s best interests.”

Judge Leslie Stein, writing for the four dissenters, said the majority’s decision “encroaches” on law and policy setting territory reserved for State lawmakers. “In my view, the question of whether a parent may permissibly vicariously consent on behalf of a child for purposes of the eavesdropping laws is one for the Legislature, and this court usurps the legislative prerogative by reading such a doctrine into the Penal Law,” she wrote. “While the majority characterizes its holding as a statutory interpretation of the undefined term ‘consent,’ it exceeds the legitimate bounds of statutory construction by going far beyond the plain language of the statutory term ‘consent’ to devise a test by which a parent sometimes can vicariously consent on their child’s behalf and at other times cannot. Even assuming, as the majority does, that the legislature intended to permit parents to vicariously consent to eavesdropping for the purpose of protecting their children, there is nothing in the statute or its legislative history to suggest that the legislature intended to limit that right to particular types of situations. The majority’s efforts to confine vicarious consent to apply only within specifically crafted parameters demonstrates the inconsistencies between the doctrine and the statutory language, and negates any attempt to reconcile the majority’s analysis with our well-settled principles of statutory interpretation.”

Foreseeing a wide possibility for abuse in, for instance, cases where parents involved in bitter divorce disputes will try to use recordings to dig up dirt against the other parent in the name of acting in the best interests of their child, she wrote: “The ability to obtain evidence in this manner. . .will undoubtedly lead to increased familial tension, escalation of hostility in divorce and custody proceedings, and will result in mini-trials regarding whether the evidence is admissible, thereby further prolonging such disputes, all to the detriment of the children themselves.”

Absent an amendment to the law by the State Legislature, vicarious consent by a minor is now an exception under the law.

Amendment to New York Workers’ Compensation Law Is Unconstitutional

Amendment to New York Workers' Compensation Law Is Unconstitutional

In American Economy Insurance Company v. State of New York, the Appellate Division, First Department, recently nullified a 2013 amendment to New York Workers’ Compensation Law, holding it was unconstitutional.

The law was challenged by private insurance companies that underwrite workers’ compensation insurance policies in New York. They challenged the validity and constitutionality of a 2013 amendment to Workers’ Compensation Law § 25-a to the extent it imposes liability on them with respect to policies issued before October 1, 2013. They argued it retroactively imposed an additional $62 million in liabilities under a new State-mandated coverage. They argued that the liabilities did not exist when insurers’ premium rates were calculated, and that the insurers did not maintain reserves to cover the future liabilities created by the  amendment. Thus, they claimed that the amendment, as applied retroactively, violates the Contract Clause of the US Constitution because it retroactively impairs an existing contractual obligation to provide insurance coverage. The Appellate Division agreed.

The “Contract Clause” appears in the U.S. Constitution in Article I, Section 10, Clause 1. It states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

This Clause prohibits States from enacting any law that retroactively impairs contract rights. It applies only to State legislation, not federal legislation or court decisions.

Here, the Appellate Division concluded that the amendment violated the Contract Clause “because it retroactively impairs an existing contractual obligation to provide insurance coverage where the insurer does not have the right to terminate the policy or change the premium rate.”

It concluded that the State “failed to show that the impairment is ‘reasonable and necessary to serve’ ‘a significant and legitimate public purpose *** such as the remedying of a broad and general social or economic problem’” – a common law exception to the Clause’s restriction. “Indeed, the legislation’s stated purpose of preventing a windfall to insurance carriers was based upon the erroneous premise that premiums already cover this new liability.”

The Court further concluded that “the retroactive application would also constitute a regulatory taking in violation of the Takings Clause.”

The Fifth Amendment to U.S. Constitution contains the “Takings Clause” which simply states “nor shall private property be taken for public use, without just compensation.” Quoting U.S. Supreme Court precedent, the Court reasoned that the amendment “imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties’ experience.”

The amendment, as applied retroactively to policies issued before October 1, 2013, was, therefore, found to be unconstitutional.

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