You are here: / DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE...

Search Results

/ , ,

DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES.

The Second Department determined defendant should be given the opportunity to move to vacate his guilty plea on the ground he was not informed of the deportation consequences:

The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent because the record demonstrates that the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea. In People v Peque (22 NY3d 168), the Court of Appeals held that, as a matter of fundamental fairness, due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty … . A defendant seeking to vacate a plea based on this defect must demonstrate that there is a reasonable probability that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation … .

Here, the record does not demonstrate that the Supreme Court mentioned the possibility of deportation as a consequence of the defendant’s plea. People v Singh, 2017 NY Slip Op 01235, 2nd Dept 2-15-17

 

CRIMINAL LAW (DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)

/ , , ,

FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

/ ,

PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED.

The Second Department, reversing Supreme Court, determined a protective order prohibiting any non-attorney from accompanying plaintiff to a physical examination should not have been issued:

A plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” … . Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination … . Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination. Henderson v Ross, 2017 NY Slip Op 01186, 2nd Dept 2-15-17

CIVIL PROCEDURE (PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/NEGLIGENCE (PHYSICAL EXAMINATION, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/PHYSICAL EXAMINATION (NEGLIGENCE, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/DISCOVERY (NEGLIGENCE, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)

/

SURROGATE’S COURT HAD JURISDICTION TO ISSUE ANCILLARY LETTERS ALLOWING THE NONDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING.

The First Department, in a full-fledged opinion by Justice Tom, determined Surrogate’s Court had jurisdiction to issue ancillary letters allowing the heir of the owner of a painting confiscated by the Nazis to sue to recover the painting. The International Art Center (IAC), which allegedly has possession of the painting in Switzerland, did not have standing to challenge the ancillary letters. The painting, “Seated Man with a Cane” by Modigliani, may be worth $25 million:

… [A]lthough the authority of the Surrogate’s Court over a nondomiciliary’s estate in an ancillary proceeding is generally limited to estate assets within New York … , property includes a “chose in action,” e.g. a cause of action in New York ,,, .

Accordingly, contrary to IAC’s contention, SCPA 206(1) does not require the physical presence of the subject property in New York at the time the proceeding for ancillary letters was commenced. It is sufficient that the Estate had a valid “chose in action” against two New York domiciliaries (the Nahmads), a New York corporation (the Gallery), and IAC, a foreign entity alleged to be owned and controlled by New York residents and doing business in New York.

In this case, personal jurisdiction [over IAC] was acquired based on IAC’s admitted agreement with Sotheby’s to act as its agent to sell the painting in New York in 2008. Further, personal jurisdiction over IAC may be based on respondents’ allegations that IAC transacted business in New York through the Nahmads at the Gallery’s office in Manhattan. Matter of Stettiner, 2017 NY Slip Op 01168, 1st Dept 2-14-17

 

TRUSTS AND ESTATES (SURROGATE’S COURT HAD JURISDICTON TO ISSUE ANCILLARY LETTERS ALLOWING THE NONDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING)/ANCILLARY LETTERS (SURROGATE’S COURT HAD JURISDICTON TO ISSUE ANCILLARY LETTERS ALLOWING THE NONNDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING)/PAINTINGS (SURROGATE’S COURT HAD JURISDICTON TO ISSUE ANCILLARY LETTERS ALLOWING THE NONDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING)

/ ,

PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED.

The First Department held determination of the meaning of the payment guarantees at issue required reference to other documents. Therefore the guarantees were not entitled to expedited treatment pursuant to CPLR 3213 as instruments for the payment of money only:

“The prototypical example of an instrument within the ambit of [CPLR 3213] is of course a negotiable instrument for the payment of money—an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time” … . CPLR 3213 is generally used to enforce “some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness,” so that “a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms” … . A document does not qualify for CPLR 3213 treatment if the court must consult other materials besides the bare document and proof of nonpayment, or if it must make a more than de minimis deviation from the face of the document … . PDL Biopharma, Inc. v Wohlstadter, 2017 NY Slip Op 01151, 1st Dept 2-14-17

CIVIL PROCEDURE (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/DEBTOR-CREDITOR (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/GUARANTEES (CPLR 3213, PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/CPLR 3213 (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)

/ ,

HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined a huge construction crane destroyed during Superstorm Sandy was subject to the “contractor’s tools exclusion” in the applicable policy:

… [W]e conclude that there is no coverage for that loss under the policy because any coverage afforded by that contract in the first instance is defeated by the contractor’s tools exclusion. That exclusion provides that “[t]h[e] Policy does not insure against loss or damage to . . . Contractor’s tools, machinery, plant and equipment including spare parts and accessories, whether owned, loaned, borrowed, hired or leased, and property of a similar nature not destined to become a permanent part of the INSURED PROJECT*, unless specifically endorsed to the Policy.”

“‘[B]efore an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation'” . [Plaintiff] Extell, in particular, contends that defendants cannot have met that burden here because the crane is not a “tool” or “equipment” within the meaning of the contractor’s tools exclusion. The subject exclusion, however, also defeats coverage for “machinery,” and the crane falls squarely within this definition of that term. “Machinery” means, among other things, “machines in general or as a functioning unit,” and “machine” is defined as “a mechanically, electrically, or electronically operated device for performing a task” … . Lend Lease (US) Constr. LMB Inc. v Zurich Am. Ins. Co., 2017 NY Slip Op 01141, CtApp 2-14-17

INSURANCE LAW (HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)/CONTRACT LAW (INSURANCE LAW, HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)/CRANES (INSURANCE LAW, (HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)/EXCLUSIONS (INSURANCE LAW, HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)

/ ,

OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a two-judge dissent, determined the trial court did not abuse its discretion when it allowed in evidence as a potential adoptive admission a recorded phone call between the defendant and the victim. The phone call was recorded by the jail when defendant was incarcerated. Defendant’s silence and evasiveness when the victim told him he had broken her ribs was the essence of the potential adoptive admission. The jury was instructed that defendant’s silence and evasiveness could be considered by them, but it was up to them to determine whether the silence and evasiveness was an admission:

Here, it is clear that the trial court did not abuse its discretion as a matter of law when it made the threshold determination that defendant heard and understood the victim’s accusations against him. The court properly concluded that the content of the conversation, itself, demonstrates that defendant both heard and understood what she was saying, but chose to give evasive and manipulative responses. This view is supported by the context of the call, where, in a domestic violence case, defendant voluntarily contacted the victim in violation of an order of protection in an attempt to influence her to drop the charges against him. Once this foundation was established, it was proper for the call “to be placed before the jury so that the jury might weigh the import, along with its other instructions and responsibilities” … . People v Vining, 2017 NY Slip Op 01144, CtApp 2-14-17

CRIMINAL LAW (OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/EVIDENCE (CRIMINAL LAW, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/ADOPTIVE ADMISSION (CRIMINAL LAW, EVIDENCE, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/ADMISSION (CRIMINAL LAW, EVIDENCE, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)/SILENCE (CRIMINAL LAW, ADOPTIVE ADMISSION, OKAY FOR THE JURY TO CONSIDER WHETHER DEFENDANT’S SILENCE AND EVASIVENESS DURING A PHONE CALL WITH THE VICTIM RECORDED BY THE JAIL WAS AN ADOPTIVE ADMISSION)

/ ,

CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined defendant’s argument that three consecutive 25-year sentences arising from the same incident constituted cruel and unusual punishment was not preserved for review:

Defendant failed to preserve for review his claim that the sentence imposed by the court was “cruel and unusual.” Although defendant generally objected to the length of the sentence before the sentencing court, arguing that the sentence was draconian, he did not alert the court to his constitutional argument. Thus, the sentencing court was never given an opportunity to address any of the constitutional challenges that defendant now lodges with this Court. Accordingly, defendant’s “claim [ ] that his sentence constituted cruel and inhuman punishment [ ] is not properly before us” … . People v Pena, 2017 NY Slip Op 01142, CtApp 2-14-17

CRIMINAL LAW (CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)/APPEALS (CRIMINAL LAW, CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)/CRUEL AND UNUSUAL PUNISHMENT (CRIMINAL LAW, CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)

/

PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant’s plea to hindering prosecution should stand, in spite of the acquittal in the murder prosecution of the codefendant whose weapon defendant provided and subsequently hid:

Defendant … challenges the denial of his motion to withdraw his guilty plea to one count of hindering prosecution in the second degree … . The courts below properly rejected defendant’s claims that his plea is constitutionally infirm and that his codefendant’s acquittal of the underlying felony renders defendant innocent. Neither claim is supported by existing precedent, and his innocence theory is counter to this Court’s holdings in People v Chico (90 NY2d 585 [1997]), People v O’Toole (22 NY3d 335 [2013]), and People v Berkowitz (50 NY2d 333 [1980]). * * *

The logical basis for rejecting defendant’s proposed rule — an assisted person’s acquittal forecloses any finding of a defendant’s criminal liability for hindering prosecution — is rooted in the nature of the crime itself. The intended goal of hindering prosecution is the assisted person’s evasion of criminal liability for the underlying felony. The more effective a defendant’s attempts to obstruct law enforcement, the more likely the assisted person will escape prosecution or be acquitted. Defendant’s rule would have the perverse result of treating as innocent a defendant who stymies an investigation, hides evidence — as in this case — or otherwise sabotages the prosecution, because those efforts lead to the assisted person’s acquittal. People v Fisher, 2017 NY Slip Op 01143, CtApp 2-14-17

 

CRIMINAL LAW (PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER)/HINDERING PROSECUTION (PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER)

/ , ,

CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined damages could not be apportioned against the (non-party) state in a negligence action in Supreme Court. The plaintiffs alleged a tree branch fell on plaintiffs’ car as plaintiffs were driving on a public street. The plaintiffs sued the property owner, but also filed a claim against the state alleging the state was negligent. The state can only be sued in the Court of Claims. Although, by statute (CPLR 1601], damages can be apportioned against a non-party defendant in the Court of Claims, the Court of Appeals held the statute does not allow damages to be apportioned against the non-party state in Supreme Court:

The statutory language permitting the State to seek apportionment in the Court of Claims against a private defendant if the claimant could have sued that defendant in any court of this State was specifically requested by the office of the Attorney General … . Pursuant to that language, as long as a claimant in the Court of Claims could have commenced an action against a private tortfeasor in any court in the State of New York, then the tortfeasor’s culpable conduct can be considered by the Court of Claims in determining the State’s equitable share of the total liability … . The statute does not, however, contain similar, express enabling language to allow apportionment against the state in a Supreme Court action … .

Plaintiffs, along with the State, argue that the inclusion of unambiguous language permitting the Court of Claims to consider the liability of a nonparty tortfeasor — while, at the same time, omitting language to allow the factfinder in Supreme Court to consider the liability of the State — demonstrates the Legislature’s intent not to allow apportionment of the State’s liability in Supreme Court. Moreover, even apart from the absence of language permitting apportionment against the State in Supreme Court, CPLR 1601 (1) provides that a nonparty tortfeasor’s relative culpability must not be considered in apportioning fault “if the claimant . . . with due diligence . . . was unable to obtain jurisdiction over such person in said action” … . Artibee v Home Place Corp., 2017 NY Slip Op 01145, CtApp 2-14-17

 

CIVIL PROCEDURE (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/NEGLIGENCE (DAMAGES,  CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/DAMAGES (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/IMMUNITY (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)

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