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FLAWED EVIDENCE REQUIRED ANNULMENT OF SMUGGLING CHARGES.

The Third Department determined problems with the recording of a conversation and other evidentiary failures required annulment of the smuggling charges:

The tape-recorded conversation that was read into the record during the hearing is replete with inaudible portions rendering it impossible to ascertain if, in fact, petitioner was a participant in the smuggling plan … . Moreover, the investigator who authored the misbehavior report did not identify the coded language allegedly used during the telephone conversation that led him to believe that petitioner was involved in such a plan … . The confidential information considered by the Hearing Officer in camera — which only calls the accuracy of the conversation read into the record at the hearing into further doubt — does not remedy these deficiencies. Thus, the determination must be partially annulled. Matter of McGriff v Venettozzi, 2017 NY Slip Op 00530, 3rd Dept 1-26-17

DISCIPLINARY HEARINGS (INMATES) (FLAWED EVIDENCE REQUIRED ANNULMENT OF SMUGGLING CHARGES)

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FAILURE TO INQUIRE INTO WITNESS’S REFUSAL TO TESTIFY REQUIRED A NEW HEARING.

The Third Department determined the hearing officer’s failure to inquire into a witness’s reasons for refusing to testify required a new hearing:

Where, as here, an inmate initially agrees to testify and later refuses, “[i]t [is] incumbent upon the Hearing Officer . . . to conduct a personal inquiry unless a genuine reason for the refusal is apparent from the record and the Hearing Officer ma[kes] a sufficient inquiry into the facts surrounding the refusal to ascertain its authenticity” … . Significantly, “an inmate’s refusal that is based upon a desire not to be involved is not adequate to excuse a personal inquiry by the Hearing Officer” … . The Hearing Officer failed to conduct the requisite personal inquiry here, notwithstanding his offer to do so. Inasmuch as the inmate’s testimony was potentially relevant to charges for which petitioner was found guilty … , we find that petitioner was denied his regulatory right to call witnesses and that the matter must be remitted for a new hearing … . Matter of Banks v Annucci, 2017 NY Slip Op 00529, 3rd Dept 1-26-17

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO INQUIRE INTO WITNESS’S REFUSAL TO TESTIFY REQUIRED A NEW HEARING)

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NO JUSTICIABLE CONTROVERY BETWEEN LAW SCHOOL AND AN ALLEGED DIPLOMA MILL, DECLARATORY JUDGMENT ACTION PROPERLY DISMISSED.

The First Department determined there was no ‘justiciable controversy” between Touro College (law school) and Novus University (law school). The declaratory judgment action was therefore properly dismissed. Touro, after admitting a Novus graduate into its LLM program, was sued by the Novus graduate when Touro refused to grant the LLM degree upon his successful completion of the program. The Novus graduate had misrepresented Novus as a foreign law school. Touro had successfully defended the lawsuit brought by the Novus graduate:

Touro, an institute of higher education, accredited by the American Bar Association (ABA), alleges that it and similarly-situated institutions have been harmed by Novus in that individuals who have received degrees from Novus, an online, non-ABA accredited law school, have applied to Masters of Law programs at law schools, including Touro, while falsely representing that Novus was a foreign institution. Touro maintains that there is a justiciable controversy between Touro and Novus warranting declaratory relief (CPLR 3001), since Touro was forced to defend against “meritless” litigation instituted by a Novus graduate who was denied a Touro LLM, after he was admitted to the program based on such a misrepresentation … .

A declaratory judgment is intended “to declare the respective legal rights of the parties based on a given set of facts, not to declare findings of fact” … . The general purpose of a “declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations” … . Thus, a declaratory judgment requires a “justiciable controversy,” in which not only does the plaintiff “have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs” … . Touro’s allegations fail to identify any present controversy or disputed jural relationship between the parties to this action that would be resolved by issuance of the requested declaration. Touro Coll. v Novus Univ. Corp., 2017 NY Slip Op 00546, 1st Dept 1-26-17

 

CIVIL PROCEDURE (DECLARATORY JUDGMENT, NO JUSTICIABLE CONTROVERY BETWEEN LAW SCHOOL AND AN ALLEGED DIPLOMA MILL, DECLARATORY JUDGMENT ACTION PROPERLY DISMISSED)/DECLARATORY JUDGMENT (NO JUSTICIABLE CONTROVERY BETWEEN LAW SCHOOL AND AN ALLEGED DIPLOMA MILL, DECLARATORY JUDGMENT ACTION PROPERLY DISMISSED)/JUSTICIABLE CONTROVERSY (DECLARATORY JUDGMENT, NO JUSTICIABLE CONTROVERY BETWEEN LAW SCHOOL AND AN ALLEGED DIPLOMA MILL, DECLARATORY JUDGMENT ACTION PROPERLY DISMISSED)

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PLAINTIFF DID NOT SUFFICIENTLY DEMONSTRATE ​DEFENDANT’S AGENTS TRANSACTED BUSINESS IN NEW YORK, NEW YORK DID NOT HAVE LONG-ARM JURISDICTION.

The First Department, over a substantial partial dissent, determined plaintiff did not demonstrate the transaction of business in New York by agents of the defendant. Therefore, New York could not exercise long-arm jurisdiction over the defendant and defendant’s motion to dismiss was properly granted:

Pursuant to CPLR 302(a)(1) a New York court may exercise personal jurisdiction over a nondomiciliary if the nondomiciliary has purposefully transacted business within the state and there is “a substantial relationship between the transaction and the claim asserted” … . “Purposeful activities are volitional acts by which the non-domiciliary avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” … . “More than limited contacts are required for purposeful activities sufficient to establish that the non-domiciliary transacted business in New York” … . * * *

To establish that a defendant acted through an agent, a plaintiff must “convince the court that [the New York actors] engaged in purposeful activities in this State in relation to [the] transaction for the benefit of and with the knowledge and consent of [the defendant] and that [the defendant] exercised some control over [the New York actors]” … . “[T]]o make a prima facie showing of control, a plaintiff’s allegations must sufficiently detail the defendant’s conduct so as to persuade a court that the defendant was a primary actor’ in the specific matter in question; control cannot be shown based merely upon a defendant’s title or position within the corporation, or upon conclusory allegations that the defendant controls the corporation” … . Coast to Coast Energy, Inc. v Gasarch, 2017 NY Slip Op 00532, 1st Dept 1-26-17

 

CIVIL PROCEDURE (PLAINTIFF DID NOT SUFFICIENTLY DEMONSTRATE ​DEFENDANT’S AGENTS TRANSACTED BUSINESS IN NEW YORK, NEW YORK DID NOT HAVE LONG-ARM JURISDICTION)/JURISDICTION (LONG-ARM JURISDICTION, PLAINTIFF DID NOT SUFFICIENTLY DEMONSTRATE ​DEFENDANT’S AGENTS TRANSACTED BUSINESS IN NEW YORK, NEW YORK DID NOT HAVE LONG-ARM JURISDICTION)/LONG-ARM JURISDICTION (PLAINTIFF DID NOT SUFFICIENTLY DEMONSTRATE ​DEFENDANT’S AGENTS TRANSACTED BUSINESS IN NEW YORK, NEW YORK DID NOT HAVE LONG-ARM JURISDICTION)/AGENTS (LONG-ARM JURISDICTION, PLAINTIFF DID NOT SUFFICIENTLY DEMONSTRATE ​DEFENDANT’S AGENTS TRANSACTED BUSINESS IN NEW YORK, NEW YORK DID NOT HAVE LONG-ARM JURISDICTION)/TRANSACTION OF BUSINESS (LONG-ARM JURISDICTION, PLAINTIFF DID NOT SUFFICIENTLY DEMONSTRATE ​DEFENDANT’S AGENTS TRANSACTED BUSINESS IN NEW YORK, NEW YORK DID NOT HAVE LONG-ARM JURISDICTION)

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PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS; HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED; THE MALPRACTICE ACTION WAS PROPERLY DISMISSED.

The First Department determined the legal malpractice action by plaintiff (Brookwood) against defendant law firm (A & B) was properly dismissed. The law firm defended plaintiff in a patent infringement action which eventually won (with new lawyers). Plaintiff incurred legal fees of $10 million. In this malpractice action, plaintiff alleged its legal fees would have been much lower had the law firm won certain motions early on in the case:

A focal point of this appeal is Brookwood’s claim that A & B, in the patent action, negligently litigated defenses that were available to Brookwood pursuant to 28 USC § 1498. 28 USC § 1498 provides that when a patent is infringed for the benefit of the United States government, the patent holder’s remedy is against the United States in the United States Court of Federal Claims. Brookwood alleges that had A & B not been negligent, the motions that A & B eventually brought based on 28 USC § 1498 would have been granted and Brookwood would have avoided the approximately $10 million it expended on defending itself at trial and on appeal. Important in this analysis is the fact that Brookwood ultimately prevailed in the underlying patent action, achieving a judgment of noninfringement. The theory of Brookwood’s malpractice case is not that but for A & B’s negligence it would have prevailed in the patent action; rather Brookwood’s claim is that but for the manner in which A & B interposed the defenses available to Brookwood under 28 USC § 1498, Brookwood would have prevailed without incurring the additional legal fees it expended. In other words, but for A & B’s negligence, Brookwood could have achieved the same result more expeditiously and economically. The Supreme Court granted A & B’s motion and dismissed the complaint in its entirety, holding, among other things, that the allegations did not support a finding of attorney negligence or of proximate cause. We now affirm. * * *

Decisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws. “[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is open to reasonable doubt” … . Moreover, an attorney’s selection of one among several reasonable courses of action does not constitute malpractice … . Brookwood has not alleged facts supporting its claim that A & B’s evidentiary decision, to rely on [the plaintiff’s] expert, rather than compromise the merits of Brookwood’s position on other arguments, was an unreasonable course of action. Brookwood Cos., Inc. v Alston & Bird LLP, 2017 NY Slip Op 00535, 1st Dept 1-26-17

 

ATTORNEYS (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/LEGAL MALPRACTICE (PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)

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DEUTSCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS.

The First Department, in a decision too detailed to fairly summarize here, determined the defendant Deutsche Bank breached credit default swap agreements with plaintiff Good Hill Master Fund. Good Hill was found to have acted in good faith and in a commercially reasonable manner in negotiating the price of the notes at issue. In addition Supreme Court did not abuse its discretion in prohibiting expert testimony offered by Deutsche Bank because interpretation of the contracts was within the ken of the trial judge:

We find no basis to disturb the court’s determination that Deutsche Bank breached the credit default swap agreements at issue here … . As the trial court found in awarding judgment in Good Hill’s favor, Good Hill negotiated at arm’s length with Bank of America to sell six tranches of notes the Bank had previously sold Good Hill at $.29 on the dollar, so that the Bank of America could unwind and terminate a securitization in the then-declining mortgage market. Bank of America’s resulting writedown of the B6 notes would trigger a negative credit event under the swap agreements. As a result, Good Hill negotiated with Bank of America to forgive only 17% of the principal amount, resulting in a smaller payout to Deutsche Bank under the swap agreements, as opposed to forgiving principal of 71% across the board on all the tranches of notes based on the $.29 purchase price. Bank of America was free to accept or reject that 83% allocation and had rejected several prior proposals from Good Hill that would have resulted in no payment or an even smaller payment to Deutsche Bank. Good Hill Master Fund L.P. v Deutsche Bank AG, 2017 NY Slip Op 00428, 1st Dept 1-24-17

SECURITIES (DEUTSCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS)/RESIDENTIAL MORTGAGE BACKED SECURITIES (CREDIT DEFAULT SWAP AGREEMENT, DEUTSCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS)/CREDIT DEFAULT SWAP AGREEMENTS (DEUTXCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS)/CONTRACT LAW (CREDIT DEFAULT SWAP AGREEMENT, DEUTSCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS)/EVIDENCE (CONTRACT LAW, EXPERT TESTIMONY NOT NECESSARY TO INTERPRET CREDIT DEFAULT SWAP AGREEMENT)/EXPERT OPINION (CONTRACT LAW, EXPERT TESTIMONY NOT NECESSARY TO INTERPRET CREDIT DEFAULT SWAP AGREEMENT)

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DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendants’ motion for summary judgment in this slip and fall case was properly denied. Plaintiff was injured when a concrete step broke and gave way.  Defendants did not demonstrate when the area in question was last inspected and did not demonstrate the defect at issue was latent:

A defendant moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it did not create the alleged dangerous or defective condition or have either actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected … . “To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall” … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … .

Here, in the absence of any evidence as to when the defendants last inspected the subject staircase before the accident, or that the condition of the step was a latent defect that could not have been discovered upon a reasonable inspection, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly defective condition of the subject step … . Gairy v 3900 Harper Ave., LLC, 2017 NY Slip Op 00458, 2nd Dept 1-25-17

 

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)/NOTICE (SLIP AND FALL, EFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION ACCIDENT CASE, WHETHER DEFENDANT STOPPED BEFORE ENTERING PLAINTIFF’S RIGHT OF WAY WAS NOT DISPOSITIVE.

The Second Department determined plaintiff was entitled to summary judgment in this intersection accident case. The court noted that whether the defendant’s truck (driven by Lindo) stopped at a stop sign before entering plaintiff’s right of way was not dispositive. It was enough that the truck entered plaintiff’s path, whether it had previously stopped or not:

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that Lindo, who was faced with a stop sign at the intersection, negligently drove the sanitation truck into the intersection without yielding the right-of-way to the plaintiff, and that this was the sole proximate cause of the accident … .

In opposition, the defendants failed to raise a triable issue of fact. The question of whether Lindo stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop … . Moreover, the defendants failed to contest the plaintiff’s deposition testimony that he was already in the intersection when he saw the sanitation truck one second prior to the impact, and therefore could not have avoided the accident … . Fuertes v City of New York, 2017 NY Slip Op 00457, 2nd Dept 1-25-17

NEGLIGENCE (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION ACCIDENT CASE, WHETHER DEFENDANT STOPPED BEFORE ENTERING PLAINTIFF’S RIGHT OF WAY WAS NOT DISPOSITIVE)/TRAFFIC ACCIDENTS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION ACCIDENT CASE, WHETHER DEFENDANT STOPPED BEFORE ENTERING PLAINTIFF’S RIGHT OF WAY WAS NOT DISPOSITIVE)

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APPLICATION FOR LEAVE TO SERVE LATE NOTICES OF CLAIM SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED.

The Second Department, reversing Supreme Court, determined the city’s (petitioner’s) application to serve late notices of claim should have been granted. The court provided a clear explanation of the analytical criteria:

The key factors in determining whether to allow service of a late notice of claim are whether (1) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in its defense … . The presence or absence of any one of these factors is not necessarily determinative … , and the absence of a reasonable excuse is not necessarily fatal … . “However, whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim is seen as a factor which should be accorded great weight” … .

Here, the County acquired timely actual knowledge of the essential facts constituting the claims … . Matter of City of New York v County of Nassau, 2017 NY Slip Op 00465, 2ne Dept 1-25-17

MUNICIPAL LAW (APPLICATION FOR LEAVE TO SERVE LATE NOTICES OF CLAIM SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED)/NOTICE OF CLAIM (MUNICIPAL LAW, APPLICATION FOR LEAVE TO SERVE LATE NOTICES OF CLAIM SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED)

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APPELLATE COURT NEED NOT REVIEW ISSUES NOT SUPPORTED BY DOCUMENTS IN THE APPENDIX; COUPLING DECLARATORY JUDGMENT WITH SPECIFIC PERFORMANCE WAIVED RIGHT TO JURY TRIAL; FAITHLESS SERVANT DOCTRINE FORFEITED PLAINTIFF’S RIGHT TO A STOCK OPTION.

The Second Department determined (1) certain issues in plaintiff’s appeal could not be addressed because the necessary documents were not included in the appendix provided to the appellate court, (2) the faithless servant doctrine applied to plaintiff who, by his disloyalty, forfeited his contractual right to a stock option, and (3) the plaintiff waived his right to a jury trial in this declaratory judgment action:

This Court is not obligated to determine an issue where the appendix submitted to it is inadequate to permit review … . * * *

Where a plaintiff joins an equitable claim for specific performance to a legal claim for damages, the plaintiff waives the right to a jury trial … . “[A] declaratory judgment action . . . can be legal or equitable in nature, and to determine whether a party is entitled to a jury trial, it is necessary to examine which of the traditional actions would most likely have been used to present the instant claim had the declaratory judgment action not been created'” … .

Here, the Supreme Court correctly determined that the plaintiff’s declaratory judgment cause of action was in the nature of a prayer for specific performance … . Accordingly, the court correctly determined that the plaintiff had waived his right to a jury trial … .  * * *

… [T]he court properly applied the faithless servant doctrine and determined that, pursuant to that doctrine, the plaintiff forfeited the right to exercise the stock option … . Trimarco v Data Treasury Corp., 2017 NY Slip Op 00503, 2nd Dept 1-25-17

 

EMPLOYMENT LAW (FAITHLESS SERVANT DOCTRINE FORFEITED PLAINTIFF’S RIGHT TO A STOCK OPTION)/FAITHLESS SERVANT DOCTRINE (FAITHLESS SERVANT DOCTRINE FORFEITED PLAINTIFF’S RIGHT TO A STOCK OPTION)/CIVIL PROCEDURE (COUPLING DECLARATORY JUDGMENT WITH SPECIFIC PERFORMANCE WAIVED RIGHT TO JURY TRIAL)/DECLARATORY JUDGMENT (COUPLING DECLARATORY JUDGMENT WITH SPECIFIC PERFORMANCE WAIVED RIGHT TO JURY TRIAL)/SPECIFIC PERFORMANCE (COUPLING DECLARATORY JUDGMENT WITH SPECIFIC PERFORMANCE WAIVED RIGHT TO JURY TRIAL)/CONTRACT LAW (COUPLING DECLARATORY JUDGMENT WITH SPECIFIC PERFORMANCE WAIVED RIGHT TO JURY TRIAL)/JURY TRIAL (CIVIL, COUPLING DECLARATORY JUDGMENT WITH SPECIFIC PERFORMANCE WAIVED RIGHT TO JURY TRIAL)/APPEALS (APPELLATE COURT NEED NOT REVIEW ISSUES NOT SUPPORTED BY DOCUMENTS IN THE APPENDIX)

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