You are here: / INSURANCE LAW 3105 DOES NOT DISPENSE WITH THE COMMON-LAW PROOF REQUIREMENTS...

Search Results

/ , ,

INSURANCE LAW 3105 DOES NOT DISPENSE WITH THE COMMON-LAW PROOF REQUIREMENTS FOR FRAUDULENT INDUCEMENT IN THIS ACTION BY AN INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES.

The First Department, in a full-fledged opinion by Justice Richter, determined that plaintiff Ambac, which insured residential mortgage-backed securities issued by defendant Countrywide, was required to prove all the elements of common-law fraudulent inducement and Insurance Law 3105 did not dispense with those proof requirements:

We agree with Countrywide that Ambac is required to prove all of the elements of its fraudulent inducement claim, including justifiable reliance and loss causation. The elements of a fraud cause of action are long-settled. To establish fraud, a plaintiff must show “a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” … . * * *

​

There is no merit to Ambac’s contention that Insurance Law § 3105 dispenses with the common-law requirement of proving justifiable reliance and loss causation. Nor can that statute be used affirmatively as a basis to recover monetary damages. Insurance Law § 3105 provides that a material misrepresentation “shall avoid [a] contract of insurance” and “defeat recovery thereunder” (Insurance Law § 3105[b][1]).* * *

Cases applying Insurance Law § 3105 arise in the context of either a declaratory judgment action by an insurer seeking rescission of an insurance policy or an insurer asserting a defense to an insured’s claim for payment under the policy … . Here, Ambac seeks neither to rescind the policies, which are unconditional and irrevocable, nor to defeat a claim by an insured for payment. Instead, Ambac seeks to assert Insurance Law § 3105 as an affirmative claim seeking monetary damages. Under these circumstances, Insurance Law § 3105 is not applicable. Ambac Assur. Corp. v Countrywide Home Loans, Inc., 2017 NY Slip Op 03919, 1st Dept 5-16-17

 

FRAUD (INSURANCE LAW 3105 DOES NOT DISPENSE WITH THE COMMON-LAW PROOF REQUIREMENTS FOR FRAUDULENT INDUCEMENT IN THIS ACTION BY AN INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES)/INSURANCE LAW (RESIDENTIAL MORTGAGE-BACKED SECURITIES, INSURANCE LAW 3105 DOES NOT DISPENSE WITH THE COMMON-LAW PROOF REQUIREMENTS FOR FRAUDULENT INDUCEMENT IN THIS ACTION BY AN INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES)/SECURITIES  (RESIDENTIAL MORTGAGE-BACKED SECURITIES, INSURANCE LAW 3105 DOES NOT DISPENSE WITH THE COMMON-LAW PROOF REQUIREMENTS FOR FRAUDULENT INDUCEMENT IN THIS ACTION BY AN INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES)/RESIDENTIAL MORTGAGE-BACKED SECURITIES (INSURANCE LAW 3105 DOES NOT DISPENSE WITH THE COMMON-LAW PROOF REQUIREMENTS FOR FRAUDULENT INDUCEMENT IN THIS ACTION BY AN INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES)

/ , ,

QUESTION OF FACT WHETHER BANK OF AMERICA’S PURCHASE OF THE ASSETS OF COUNTRYWIDE WAS A DE FACTO MERGER ALLOWING THE INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES ISSUED BY COUNTRYWIDE TO SUE BANK OF AMERICA.

The First Department determined questions of fact precluded summary judgment in this action by Ambac, an insurer of residential mortgage-backed securities issued by defendant Countrywide, against defendants Countrywide and Bank of America (BAC). BAC purchased the assets of Countrywide. Ambac argued there was a de facto merger of Countrywide and Bank of America such that Countrywide shareholders became shareholders of BAC, allowing Ambac to sue BAC:

​

“[C]ontinuity of ownership is the touchstone of the [de facto merger] concept and thus a necessary predicate to a finding of a de facto merger” … . Continuity of ownership “exists where the shareholders of the predecessor corporation become direct or indirect shareholders of the successor corporation as the result of the successor’s purchase of the predecessor’s assets, as occurs in a stock-for-assets transaction” … . “Stated otherwise, continuity of ownership describes a situation where the parties to the transaction become owners together of what formerly belonged to each” … . * * *

​

We agree with BAC that there can be no continuity of ownership where the asset seller receives fair value consideration for its assets… . Although BAC maintains that it paid fair value for Countrywide’s assets, Ambac points to evidence showing that large amounts of money Countrywide received in the asset sale were then cycled back to BAC and its subsidiaries. Thus, issues of fact exist as to whether the transactions were coordinated with the goal of combining BAC’s and Countrywide’s mortgage businesses while avoiding Countrywide’s liabilities so as to benefit Countrywide’s former shareholders at the expense of its creditors. Ambac Assur. Corp. v Countrywide Home Loans, Inc., 2017 NY Slip Op 03886, 1st Dept 5-16-17

 

CORPORATION LAW (DE FACTO MERGER, QUESTION OF FACT WHETHER BANK OF AMERICA’S PURCHASE OF THE ASSETS OF COUNTRYWIDE WAS A DE FACTO MERGER ALLOWING THE INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES ISSUED BY COUNTRYWIDE TO SUE BANK OF AMERICA)/SECURITIES (RESIDENTIAL MORTGAGE-BACKED SECURITIES, QUESTION OF FACT WHETHER BANK OF AMERICA’S PURCHASE OF THE ASSETS OF COUNTRYWIDE WAS A DE FACTO MERGER ALLOWING THE INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES ISSUED BY COUNTRYWIDE TO SUE BANK OF AMERICA)/INSURANCE LAW (RESIDENTIAL MORTGAGE-BACKED SECURITIES, QUESTION OF FACT WHETHER BANK OF AMERICA’S PURCHASE OF THE ASSETS OF COUNTRYWIDE WAS A DE FACTO MERGER ALLOWING THE INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES ISSUED BY COUNTRYWIDE TO SUE BANK OF AMERICA)/RESIDENTIAL MORTGAGE-BACKED SECURITIES  (DE FACTO MERGER, QUESTION OF FACT WHETHER BANK OF AMERICA’S PURCHASE OF THE ASSETS OF COUNTRYWIDE WAS A DE FACTO MERGER ALLOWING THE INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES ISSUED BY COUNTRYWIDE TO SUE BANK OF AMERICA)/DE FACTO MERGER (CORPORATION LAW, QUESTION OF FACT WHETHER BANK OF AMERICA’S PURCHASE OF THE ASSETS OF COUNTRYWIDE WAS A DE FACTO MERGER ALLOWING THE INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES ISSUED BY COUNTRYWIDE TO SUE BANK OF AMERICA)/DEBTOR-CREDITOR (DE FACTO MERGER, QUESTION OF FACT WHETHER BANK OF AMERICA’S PURCHASE OF THE ASSETS OF COUNTRYWIDE WAS A DE FACTO MERGER ALLOWING THE INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES ISSUED BY COUNTRYWIDE TO SUE BANK OF AMERICA)

/ , ,

CONSPIRACY JURISDICTION DISCUSSED IN THIS COMPLEX LITIGATION INVOLVING MANY INTER-RELATED INTERNATIONAL CORPORATIONS AND ALLEGATIONS OF FRAUD.

The First Department, in an issue-rich decision which is sparse on facts, determined several jurisdiction and choice of law issues in a complex lawsuit involving a great many inter-related international corporations and allegations of fraud. One of the many jurisdiction issues discussed is so-called “conspiracy jurisdiction;” a sample of that discussion follows:

The remaining possibility for obtaining jurisdiction over defendants-appellants is conspiracy jurisdiction … . Defendants contend that the complaint does not allege an agreement by the Citco defendants to participate in a conspiracy to defraud Massachusetts Bay Transportation Authority Retirement Fund (MBTARF) and that MBTARF failed to identify an overt act. However, we find that the complaint contains factual allegations from which such an agreement can be inferred … . It also alleges an overt act, namely, that alleged co-conspirators Mr. Fletcher and FAM took $7.1 million of MBTARF’s investment in nonparty Fletcher Fixed Income Alpha Fund, Ltd. (Alpha) and used it in violation of Alpha’s offering memorandum as partial repayment of Leveraged’s loan to Citco Bank and SFT … .

Turning to the additional requirements for conspiracy jurisdiction … , we must examine Leveraged’s and Fletcher Income Arbitrage Fund Ltd. (Arbitrage)’s conspiracy claims with respect to personal jurisdiction. Leveraged and Arbitrage’s conspiracy claims allege that Mr. Fletcher and FAM fraudulently transferred cash from plaintiff Fletcher International, Ltd. to Unternaehrer in the FIP Transaction. The transfer was made by instructing SFT to transfer money from FIP’s account to Citco Bank’s account at HSBC New York, for further credit to SFT, for further credit to Unternaehrer. Using a New York bank account for a fraudulent scheme constitutes a tort within New York … .

MBTARF’s conspiracy claim alleges that Mr. Fletcher and FAM made misrepresentations to it about how its investment would be used. It also alleges that they diverted its money. Drawing inferences in favor of plaintiffs … , we find that the misrepresentation and diversion occurred in New York because FAM and Mr. Fletcher were located there.

We find that the additional Lawati factors (102 AD3d at 428) are satisfied as to Citco Group but not Citco Global. Since Citco Group is the parent, it is logical to infer that Citco Cayman (a New York co-conspirator because it has not contested jurisdiction) acted under its control. However, since Citco Global is only a sibling of Citco Cayman, it is not as logical to infer that Citco Cayman acted under Citco Global’s control. FIA Leveraged Fund Ltd. v Grant Thornton LLP, 2017 NY Slip Op 03887, 1st Dept 5-16-17

 

CIVIL PROCEDURE (CONSPIRACY JURISDICTION DISCUSSED IN THIS COMPLEX LITIGATION INVOLVING MANY INTER-RELATED INTERNATIONAL CORPORATIONS AND ALLEGATIONS OF FRAUD)/JURISDICTION  (CONSPIRACY JURISDICTION DISCUSSED IN THIS COMPLEX LITIGATION INVOLVING MANY INTER-RELATED INTERNATIONAL CORPORATIONS AND ALLEGATIONS OF FRAUD)/CONSPIRACY JURISDICTION (CONSPIRACY JURISDICTION DISCUSSED IN THIS COMPLEX LITIGATION INVOLVING MANY INTER-RELATED INTERNATIONAL CORPORATIONS AND ALLEGATIONS OF FRAUD)/CORPORATION LAW (JURISDICTION, CONSPIRACY JURISDICTION DISCUSSED IN THIS COMPLEX LITIGATION INVOLVING MANY INTER-RELATED INTERNATIONAL CORPORATIONS AND ALLEGATIONS OF FRAUD)/FRAUD (CONSPIRACY JURISDICTION DISCUSSED IN THIS COMPLEX LITIGATION INVOLVING MANY INTER-RELATED INTERNATIONAL CORPORATIONS AND ALLEGATIONS OF FRAUD)

/ , ,

ALTHOUGH MOST OF THE CAUSES OF ACTION STEMMING FROM THE PURCHASE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES WERE TIME-BARRED, A LIMITED BACKSTOP GUARANTY CAUSE OF ACTION AND A FAILURE TO NOTIFY CAUSE OF ACTION WERE REINSTATED.

The First Department, in a full-fledged opinion by Justice Moskowitz, reinstated a couple of causes of action in a lawsuit stemming from the purchase of residential mortgage-backed securities, the bulk of which was deemed time-barred. A limited backstop guaranty cause of action and a cause of action stemming from the failure to notify of a material breach were reinstated. The intertwined contracts and guarantees and the legal reasoning stemming from recent similar cases are too detailed to fairly summarize here. Bank of N.Y. Mellon v WMC Mtge., LLC, 2017 NY Slip Op 03881, 1st Dept 5-11-17

 

SECURITIES (RESIDENTIAL MORTGAGE-BACKED SECURITIES, ALTHOUGH MOST OF THE CAUSES OF ACTION STEMMING FROM THE PURCHASE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES WERE TIME-BARRED, A LIMITED BACKSTOP GUARANTY CAUSE OF ACTION AND A FAILURE TO NOTIFY CAUSE OF ACTION WERE REINSTATED)/CONTRACT LAW (RESIDENTIAL MORTGAGE-BACKED SECURITIES, ALTHOUGH MOST OF THE CAUSES OF ACTION STEMMING FROM THE PURCHASE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES WERE TIME-BARRED, A LIMITED BACKSTOP GUARANTY CAUSE OF ACTION AND A FAILURE TO NOTIFY CAUSE OF ACTION WERE REINSTATED)/RESIDENTIAL MORTGAGE-BACKED SECURITIES (RESIDENTIAL MORTGAGE-BACKED SECURITIES, ALTHOUGH MOST OF THE CAUSES OF ACTION STEMMING FROM THE PURCHASE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES WERE TIME-BARRED, A LIMITED BACKSTOP GUARANTY CAUSE OF ACTION AND A FAILURE TO NOTIFY CAUSE OF ACTION WERE REINSTATED)/CIVIL PROCEDURE (RESIDENTIAL MORTGAGE-BACKED SECURITIES, ALTHOUGH MOST OF THE CAUSES OF ACTION STEMMING FROM THE PURCHASE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES WERE TIME-BARRED, A LIMITED BACKSTOP GUARANTY CAUSE OF ACTION AND A FAILURE TO NOTIFY CAUSE OF ACTION WERE REINSTATED)

/

LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS.

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. The scaffolding plaintiff was using collapsed and he fell 40 feet. The defendants alleged that the improper assembly of the scaffolding caused the collapse and plaintiff assembled the scaffolding. Therefore the defendants argued plaintiff’s acts constituted the sole proximate cause of his injuries, precluding recovery. However a contract indicated that another party was responsible for supplying safety equipment and meeting OSHA requirements. The court further noted that the general contractor (Varish) could not escape liability on the ground plaintiff was an independent contractor, not an employee:

​

We find no merit in Varish’s contention that Labor Law § 240 (1) does not apply in that plaintiff was allegedly an independent contractor, not an employee. The duty to provide a safe working environment is nondelegable, and a contractor or owner and its agents may be liable “even though it exercised no control over, or supervision of, an independent contractor who performed the job” … . Griffin v AVA Realty Ithaca, LLC, 2017 NY Slip Op 03829, 3rd Dept 5-11-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)

/ ,

MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT.

The First Department, reversing Supreme Court, determined plaintiff’s toxic tort (injury from mold) cause of action should not have been dismissed at the pleading stage on statute of limitations grounds. There was a question whether the symptoms plaintiff developed within three years of filing suit were qualitatively different from symptoms experienced more than three years before the suit:

The motion court erred in dismissing plaintiff’s claim for personal injury due to toxic mold. Plaintiff sufficiently pleaded that, after August 2010 (within three years of commencing this action), he suffered from “new” symptoms and injuries, including, among other things, eczema and significant fungal growth on his tongue and throat. Accordingly, defendants failed to make a prima facie showing that this claim is time-barred … . While there are factual questions as to whether the sinus infections and related symptoms suffered prior to August 2010 were “qualitatively different” from plaintiff’s injuries after August 2010 … , at this procedural juncture it would be improper to dismiss the claim.  Gordon v ROL Realty Co., 2017 NY Slip Op 03851, 1st Dept 5-11-17

NEGLIGENCE (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/TOXIC TORTS (MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/MOLD (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)

/ ,

MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT.

The First Department, reversing Supreme Court, determined plaintiff’s toxic tort (injury from mold) cause of action should not have been dismissed at the pleading stage on statute of limitations grounds. There was a question whether the symptoms plaintiff developed within three years of filing suit were qualitatively different from symptoms experienced more than three years before the suit:

The motion court erred in dismissing plaintiff’s claim for personal injury due to toxic mold. Plaintiff sufficiently pleaded that, after August 2010 (within three years of commencing this action), he suffered from “new” symptoms and injuries, including, among other things, eczema and significant fungal growth on his tongue and throat. Accordingly, defendants failed to make a prima facie showing that this claim is time-barred … . While there are factual questions as to whether the sinus infections and related symptoms suffered prior to August 2010 were “qualitatively different” from plaintiff’s injuries after August 2010 … , at this procedural juncture it would be improper to dismiss the claim.  Gordon v ROL Realty Co., 2017 NY Slip Op 03851, 1st Dept 5-11-17

NEGLIGENCE (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/TOXIC TORTS (MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/MOLD (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)

/ ,

MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER.

The Third Department, after noting that orders issued upon default are not appealable, determined mother, contrary to Family Court’s ruling, was not in default and therefore the order could be appealed:

​

In the circumstances presented, the mother was not required to seek to vacate the default judgment before taking this appeal. A party may not appeal from an order entered on default (see CPLR 5511), but a party’s absence does not necessarily constitute a default, “particularly where counsel appears upon the absent party’s behalf and offers an explanation for his or her failure to attend” (… . Here, the mother’s counsel appeared and advised Family Court that he had communicated with the mother several times by phone and email, that she was then at a considerable distance in either Florida or South Carolina, and that she had a limited income. The mother’s counsel further advised the court relative to the mother’s position in the matter and participated in the proceedings by consenting to the requested relief, that is, to permit the child to remain temporarily with the father. Counsel also unsuccessfully requested a continuance, and ultimately advised that he did not have authority to consent to a final order of permanent physical placement to the father. In light of these circumstances, we find that the mother was not in default and that the order is appealable … . Matter of Linger v Linger, 2017 NY Slip Op 03822, 3rd Dept 5-11-17

FAMILY LAW (MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/APPEALS (FAMILY COURT, DEFAULT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/DEFAULT (FAMILY COURT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)

/

FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS.

The First Department, reversing Family Court, over a dissent, determined respondent father had demonstrated good cause for a modification of his visitation to allow “sandwich visits,” a half hour of unsupervised visitation between two periods of supervised visitation … . The fact that there was a pending permanent neglect proceeding was not an impediment to the change in visitation. Although father had a drug problem and had been incarcerated, he was working full time and had been drug free for some time:

​

Although respondent has a history of drug abuse, which led to a period of incarceration, he has demonstrated his commitment to counseling and treatment, and has not tested positive for drugs since January 2016. Respondent has also demonstrated a desire to turn his life around, obtaining regular employment and endeavoring to build a relationship with the child, who is now almost six years old, by regularly attending the twice weekly supervised visits. It is undisputed that these visits have been positive for the child and that there are no concerns about the child’s safety in spending time with respondent.

Nor is there any evidence that the limited sandwich visits would be emotionally damaging for the child just because there is a possibility that respondent’s parental rights will be terminated at the end of the permanency proceeding. “No case has been cited for the proposition that a finding of permanent neglect and a goal of adoption are legal impediments to changing the nature of a parent’s visitation or increasing its frequency, and none has been found . . . Until the conclusion of disposition and the rendering of a decision, the outcome of this case remains uncertain” … . Matter of Gerald Y.-C. (Roland Y.), 2017 NY Slip Op 03843, 1st Dept 5-11-17

 

FAMILY LAW (FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)/VISITATION (FAMILY LAW, FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)/NEGLECT (FAMILY LAW, FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)

/

TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER.

The Third Department determined the prosecutor should not have elicited testimony from an investigator about defendant’s exercise of his right to remain silent. The error was deemed harmless however:

​

We agree with defendant that Supreme Court erred in permitting the People to elicit testimony about defendant’s invocation of his right to silence and to comment on that testimony in summation. “[I]t is axiomatic that when a defendant invokes his or her constitutional right against self-incrimination, the People may not use his or her silence against him or her on their direct case”… . The principle applies when a defendant unequivocally states his or her desire to halt all questioning, even if he or she has previously responded to other questions … . A State Police investigator testified at trial that he interviewed defendant after his arrest and read him his Miranda rights, which defendant stated that he understood. Defendant then willingly answered a series of questions about various topics. However, when asked if he had punched or pushed the trooper, defendant responded that “he didn’t want to say any more.” During summation, the prosecutor remarked upon this testimony, noting that when defendant was asked about striking the trooper, he had not denied that he had done so or offered an explanation, but instead had stated that he did not want to say anything else. Defendant’s counsel objected twice to these remarks, but was overruled. Contrary to the People’s assertion, defendant’s statement that he did not want to say any more was an “unequivocal and unqualified invocation of [the] right” to remain silent … . People v Johnson, 2017 NY Slip Op 03804, 3rd Dept 5-11-17

CRIMINAL LAW (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/SELF-INCRIMINATION, RIGHT TO AVOID (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy