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FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined that Family Court had jurisdiction to issue a final order of protection, based upon the violation of a temporary order of protection, after the underlying family offense petition (which led to the temporary order of protection) had been dismissed:

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Petitioner Lisa T. filed a family offense petition against respondent King E.T., who is her husband and the father of her child. Petitioner requested and received a temporary order of protection, ex parte, at her first appearance in Family Court. The temporary order of protection directed respondent to refrain from all communications with petitioner except those relating to visitation arrangements and emergencies regarding the child. It is undisputed that respondent was served with, and had knowledge of, this order. Throughout a series of subsequent court appearances concerning the family offense petition — at which respondent was present with one exception — the temporary order of protection was extended. While the family offense proceeding remained pending, petitioner filed two violation petitions, later consolidated into a single petition, alleging that respondent had contacted her in contravention of the temporary orders of protection.

Family Court held a combined hearing on the family offense and consolidated violation petitions. … Family Court dismissed the family offense petition, but sustained the violation petition and issued a one-year final order of protection precluding respondent from, among other things, communicating with petitioner except as necessary to make arrangements for respondent’s visitation with the child.

Family Court Act §§ 846 and 846-a contain no language tying Family Court’s authority to impose specific penalties for the willful violation of a temporary order of protection to the court’s determination of whether or not the family offense petition, itself, should be sustained … . Significantly, there is no basis in the statutory text upon which we may draw any distinction between Family Court’s jurisdiction over violations of final orders of protection entered after a finding of a family offense, on the one hand, and violations of temporary orders of protection entered during the pendency of the family offense proceeding, on the other. Further, the statutory scheme makes clear that conduct constituting a violation of the order of protection need not necessarily constitute a separate family offense in order for the court to have jurisdiction over the violation. Indeed, section 846-a contains no such requirement. Matter of Lisa T. v King E.T., 2017 NY Slip Op 08800, CtApp 12-19-17

 

FAMILY LAW (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))/JURISDICTION  (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))/ORDER OF PROTECTION (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))/FAMILY OFFENSES (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))

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DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over an extensive three-judge dissent, determined defendant was deprived of counsel at a critical stage of the prosecution, i.e., when the People made a motion to take a buccal swap for DNA testing. The appellate division properly vacated defendant’s pleas, but should not have dismissed the indictment:

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Here, the People filed their motion to compel the DNA test and served the motion on retained counsel in court. As the Appellate Division found, the trial court — in defendant’s absence — subsequently granted both the retained defense counsel’s motion to be relieved from representing defendant for failure to pay his fee and the People’s DNA discovery motion, which it granted based on the “putative consent” it inferred from retained counsel’s silence. Later the same day that counsel was relieved, defendant appeared in court. Knowing defendant was unrepresented, the court, rather than remain neutral, proceeded to act in place of counsel throughout an extensive colloquy, telling defendant that there were no bases on which to challenge the DNA sample order. In response to the court, defendant stated that he had not spoken with his attorney about the prosecution’s motion and did not wish to consent to giving a sample. Notwithstanding defendant’s entreaties, the court rejected his repeated requests for an attorney to advise him regarding the motion. Instead, the court told defendant “an attorney [was] not going to be able to help,” and that there was “no basis for fighting [the test].” When defendant said he did not “know the law,” the judge responded “I know the law.” On these facts, the Appellate Division correctly determined that “the pretrial proceedings concerning the DNA test were ‘critical’ within the meaning of the law … . Accordingly, defendant was deprived his right to counsel.

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We reject the dissent’s conclusion that defendant was not denied counsel during a critical stage of the proceeding, as that determination is contrary to law and would require that we distort the factual record. As the People concede, there was no express consent to their request for the DNA sample, either by defendant or by retained counsel. Nor was there any affirmative conduct or errant statement by defendant or counsel from which implied consent could be inferred. Instead, as the People acknowledge, the court issued its order based only on retained counsel’s failure to reply to the People’s motion to compel the buccal swab. Under the circumstances here, that is not a proper basis for finding defendant’s consent … . Further, as the record unambiguously shows, shortly after the court granted retained counsel’s request to withdraw — leaving defendant unrepresented — defendant appeared in court, expressly denied consent, and repeatedly stated he wanted counsel to assist him in responding to the People’s motion [FN5]. Yet, rather than appointing counsel, the court told defendant there was no basis to oppose the motion. Notwithstanding these facts, the dissent believes defendant was represented on the motion for the DNA sample; we do not. People v Smith, 2017 NY Slip Op 08798, CtApp 12-19-17

 

 

CRIMINAL LAW (DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/ATTORNEYS (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/DNA TESTING (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))

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WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge concurring opinion, determined that, in a case where there is a question whether defendant and the identifying witness belong to different racial groups, upon request, a defendant is entitled to a so-called cross-racial identification jury instruction. The issue need not have come up at trial either during cross-examination of the identifying witness or by the presentation of expert opinion evidence:

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In light … the cross-race effect, which has been accepted by a near consensus in the relevant scientific community of cognitive and social psychologists, and recognizing the very significant part that inaccurate identifications play in wrongful convictions, we reach the following holding: in a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification. The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge … . People v Boone, 2017 NY Slip Op 08713, CtApp 12-14-17

 

CRIMINAL LAW (JURY INSTRUCTIONS, IDENTIFICATION, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, IDENTIFICATION, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/JURY INSTRUCTIONS (CRIMINAL LAW, CROSS-RACIAL IDENTIFICATION,  WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))

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CLAIMANT, WHO HAD RETIRED, BUT CLAIMS TO HAVE REATTACHED TO THE LABOR MARKET, DID NOT DEMONSTRATE HIS INABILITY TO FIND COMPARABLE WORK WAS RELATED TO HIS ASBESTOS-CAUSED DISABILITY, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant, who had retired but claimed to have reattached to the labor market, had not demonstrated his inability to find comparable work was related to his asbestos-caused disability:

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We agree with the employer that the Board failed to address its argument that claimant had not satisfied his burden of establishing that his inability to find work, and the related loss of earnings, was causally related to his disability. In order to be entitled to benefits, a claimant who has previously voluntarily retired but claims to have subsequently reattached to the labor market must demonstrate that his or her “earning capacity and his [or her] ability to find comparable employment had been adversely affected by his [or her] disability” … . This burden requires a claimant to demonstrate “that other factors totally unrelated to his [or her] disability did not [cause the] adverse affect on his [or her] earning capacity” … . Despite the employer arguing that claimant had failed to meet his burden in this regard, the Board did not discuss or make findings as to whether claimant had established a relevant nexus between his work-related disability and his unsuccessful job search. As the Board failed to engage in its fact-finding role and deprived the employer of consideration of the merits of the issue, we must reverse the Board’s decision in order to allow that review to occur … . Matter of Pontillo v Consolidated Edison of N.Y., Inc., 2017 NY Slip Op 08760, Second Dept 12-14-17

 

WORKERS’ COMPENSATION LAW (CLAIMANT, WHO HAD RETIRED, BUT CLAIMS TO HAVE REATTACHED TO THE WORK FORCE, DID NOT DEMONSTRATE HIS INABILITY TO FIND WORK WAS RELATED TO HIS ASBESTOS-CAUSED DISABILITY, MATTER REMITTED (THIRD DEPT))

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UNDER THE TERMS OF THE LIMITED LIABILITY AGREEMENT, THE ESTATE OF A DECEASED MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WAS NOT A MEMBER OF THE LLC AND THEREFORE COULD NOT PARTICIPATE IN THE RUNNING OF THE LLC OR INSPECT ITS BOOKS AND WAS NOT OWED A FIDUCIARY DUTY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined the limited liability agreement controlled in this action by the estate of a member of the limited liability company (LLC) against the LLC.  Under the terms of the agreement the estate of the deceased member (Alex) was not a member of the LLC and therefore could not participate in the running of the company, could not demand to inspect the LLC’s books, and was not owed a fiduciary duty:

Ultimately, the parties disagree on the Estate’s rights and status under the LLC Agreement … . The Estate contends that it stepped into Alex’s shoes upon his death, and that it possesses all of his rights and privileges as a Member under the LLC Agreement. Defendants, on the other hand, contend that under the terms of the LLC Agreement, the Estate is considered the successor in interest of a Withdrawing Member (Alex) with rights only to potential distributions, and no rights to control or participate in the running of the company. Estate of Calderwood v ACE Group Intl. LLC, 2017 NY Slip Op 08750, First Dept 12-14-17

TRUSTS AND ESTATES (DEATH OF MEMBER OF LLC, UNDER THE TERMS OF THE LIMITED LIABILITY AGREEMENT, THE ESTATE OF A DECEASED MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WAS NOT A MEMBER OF THE LLC AND THEREFORE COULD NOT PARTICIPATE IN THE RUNNING OF THE LLC OR INSPECT ITS BOOKS AND WAS NOT OWED A FIDUCIARY DUTY (FIRST DEPT))/LIMITED LIABILITY COMPANY (TRUSTS AND ESTATES, DEATH OF A MEMBER, UNDER THE TERMS OF THE LIMITED LIABILITY AGREEMENT, THE ESTATE OF A DECEASED MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WAS NOT A MEMBER OF THE LLC AND THEREFORE COULD NOT PARTICIPATE IN THE RUNNING OF THE LLC OR INSPECT ITS BOOKS AND WAS NOT OWED A FIDUCIARY DUTY (FIRST DEPT))/CORPORATION LAW (LIMITED LIABILITY COMPANY, DEATH OF A MEMBER, UNDER THE TERMS OF THE LIMITED LIABILITY AGREEMENT, THE ESTATE OF A DECEASED MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WAS NOT A MEMBER OF THE LLC AND THEREFORE COULD NOT PARTICIPATE IN THE RUNNING OF THE LLC OR INSPECT ITS BOOKS AND WAS NOT OWED A FIDUCIARY DUTY (FIRST DEPT))

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PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the long-time existence of the sidewalk defect could be inferred from the photograph. Defendants were therefore not able to show the absence of constructive notice and defendants’ motion for summary judgment in this slip and fall case should not have been granted:

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Owner defendants failed to make a prima facie showing that they lacked actual or constructive notice of the defect in the sidewalk that allegedly caused plaintiff to trip and fall … . A jury could infer from plaintiff’s photograph of the defective condition that the condition existed for a sufficient length of time for owner defendants to have discovered it and had time to repair it … .

In opposition, plaintiff raised an issue of fact as to whether the defect was actionable and not trivial. A photograph of the sidewalk at the time of plaintiff’s accident showed the condition of the sidewalk to be well-worn, with cracks between the slabs, and the defect shown in close-up appeared to be capable of causing plaintiff to trip and fall … . Flanders v Sedgwick Ave. Assoc., LLC, 2017 NY Slip Op 08718, First Dept 12-14-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (SIDEWALKS, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department, over a two-justice dissent, determined the motion to dismiss plaintiff’s Labor Law 240 (1) cause of action was properly denied. Plaintiff fell off a loading platform while waiting to sign in to work painting upper floors of a building. The dissent argued that plaintiff was not at the construction site, within the meaning of the statute, at the time of the injury:

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Rather than isolating the moment of a plaintiff’s injury, the general context of the work is what should be taken into account … . Clearly, at the time of the accident, plaintiff was entering the building and reporting to the construction site through the only means of access the owner made available to him and all other construction workers. Arguments that plaintiff’s injury did not occur at a “construction site,” under the circumstance of this case, places an unintended limitation on Labor Law § 240(1).

While at the precise moment of plaintiff’s injury he was awaiting clearance to enter the building and he slipped or fell off a permanent structure, there is no merit to [defendant’s] further contention that plaintiff was not actually engaged in work involving a gravity-related risk … . We have held that injuries sustained while a worker was on site, although entering or exiting the site, or on a break, come within the protections of Labor Law § 240(1) … . It is, therefore, of no moment the elevated loading dock is a permanent fixture that existed before the project began … . Hoyos v NY-1095 Ave. of the Ams., LLC, 2017 NY Slip Op 08717, First Dept 12-14-17

 

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT))/CONSTRUCTION SITE (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT))GRAVITY-RELATED RISK (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT))

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VIOLATION OF A DIRECTIVE BY THE PRISON DID NOT WARRANT ANNULMENT OF THE DISCIPLINARY DETERMINATION (THIRD DEPT).

The Third Department, reversing Supreme Court, found that petitioner’s disciplinary determination should no have been annulled based upon a violation of a directive by the prison. Petitioner was found guilty of possessing a weapon and tampering with property:

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… [T]he violation of former Directive No. 4910 (V) (C) (2) did not entitle petitioner to the annulment of the determination of guilt. Former Directive No. 4910 (V) (C) (2) provided that “[t]he search of a [s]pecial [h]ousing [u]nit cell shall be conducted with the inmate removed from the cell for the duration of the search. The inmate shall be placed in a vacant cell and not allowed to carry anything. If a vacant cell is not available, the inmate is to be taken to the far end of the tier and held for the duration of the search.” It is uncontested that, here, petitioner was placed in a recreation area — and not in a vacant cell or at the far end of the tier — while his cell was searched.

Although the placement of petitioner in the recreation area violated former Directive No. 4910 (V) (C) (2), we reject petitioner’s contention that the proper remedy is annulment. Not all administrative violations invalidate agency actions, and the proper remedy for an administrative violation must take into account the purpose of the regulation that was violated… . Here, a plain reading of former Directive No. 4910 (V) (C) (2) establishes that the provision is intended to promote institutional safety rather than to protect an inmate’s interests in regard to the search of his or her cell. Accordingly, we perceive no reason that petitioner would automatically be entitled to suppression of any evidence recovered from a search due to a violation of a directive that was not intended to protect his rights in regard to that search. Moreover, petitioner does not allege that his placement in the recreation area somehow prejudiced him … . Matter of Tenney v Annucci, 2017 NY Slip Op 08794, Third Dept 12-14-17

 

DISCIPLINARY HEARINGS (INMATES) VIOLATION OF A DIRECTIVE BY THE PRISON DID NOT WARRANT ANNULMENT OF THE DISCIPLINARY DETERMINATION (THIRD DEPT)

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DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea in the interest of justice, determined the defendant was not sufficiently informed of the rights he was giving up by entering a plea:

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“When a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses”… . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… .. The Court of Appeals has made clear that the trial judge has the responsibility to ensure that the defendant fully understands the plea and its consequences … .  During the plea colloquy, County Court did not reference the privilege against self-incrimination or the right to be confronted by witnesses and, although defendant was advised of his right to a trial, the court did not specify a jury trial. “We cannot conclude that defendant’s guilty plea was knowing, voluntary and intelligent as there was neither an affirmative showing on the record that defendant waived his constitutional rights nor any indication that he consulted with his attorney about the constitutional consequences of a guilty plea” … . People v Cotto, 2017 NY Slip Op 08759, Third Dept 12-14-17

 

CRIMINAL LAW (GUILTY PLEA, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))

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ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT).

The Third Department, partially reversing Supreme Court, over a two-justice concurrence, determined plaintiff’s General Business Law (deceptive business practices) cause of action should not have been dismissed for failure to state a cause of action. The plaintiff alleged the defendant insurance company pressured physicians to find no causal connection between the injury and the accident (no-fault claims). The Third Department further found that the claims for consequential damages for emotional distress and punitive damages, stemming from breach of contract, were properly dismissed. The concurring justices argued that the emotional distress was a legitimate damages-claim for breach of contract:

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… [P]laintiff alleged that defendant engaged in a consumer-oriented pattern and practice aimed at the public at large of wrongfully denying claims for no-fault benefits by pressuring the physicians it hired to perform IMEs to provide medical reports that would support the denial of benefits and, further, that she suffered injury as a result of that practice. Such allegations are sufficient to plead a cause of action pursuant to General Business Law § 349 “‘at this early prediscovery stage'”… . …

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 It has long been the rule that “absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty”… .. As Supreme Court noted, plaintiff failed to satisfy this standard because she did not allege the existence of any relationship or duty between the parties separate from the contractual obligation. …

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Plaintiff’s claim for punitive damages was likewise properly dismissed. Punitive damages may be recovered for breach of contract “only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public” … . Plaintiff’s allegations that defendant engaged in unfair claim settlement practices do not allege a tort independent of the parties’ contract sufficient to state a claim for recovery of punitive damages … . Brown v Government Employees Ins. Co., 2017 NY Slip Op 08774, Third Dept 12-14-17

 

CONTRACT LAW (INSURANCE LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/INSURANCE LAW ( ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/GENERAL BUSINESS LAW (ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/DECEPTIVE BUSINESS PRACTICES  (INSURANCE LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/EMOTIONAL DISTRESS (BREACH OF CONTRACT, DAMAGES, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/PUNITIVE DAMAGES  (INSURANCE LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/DAMAGES (CONTRACT LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))

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