You are here: / MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR;...

Search Results

/ , ,

MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY.

The Second Department determined a debtor’s membership in a limited liability company can be reached by a judgment creditor. The court further determined that a remedy other than the assignment of the membership interest to the creditor was properly fashioned by Supreme Court:

In considering the remedies available to a judgment creditor such as the petitioner under CPLR article 52, the Supreme Court was not limited to considering the petitioner’s request for an order assigning to him [the debtor’s membership interest in the LLC. CPLR 5240, which was relied upon by the Supreme Court, provides, in pertinent part, that a court “may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure” … . This section grants the Supreme Court broad discretionary power to alter the use of procedures set forth in CPLR article 52 … . Limited Liability Company Law § 607 expressly provides that, on an application by a judgment creditor of a member of an LLC, “the court may charge” the debtor’s membership interest “with payment of the unsatisfied amount of the judgment with interest,” and “[t]o the extent so charged, the judgment creditor has only the rights of an assignee of the membership interest.” Thus, CPLR 5240 and Limited Liability Company Law § 607 give the court discretion, in an appropriate case, to issue a charging order instead of, inter alia, an order assigning or turning over the judgment debtor’s membership interest in an LLC to the judgment creditor … . Matter of Sirotkin v Jordan, LLC, 2016 NY Slip Op 05576, 2nd Dept 7-20-16

DEBTOR-CREDITOR (MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)/CIVIL PROCEDURE (DEBTOR-CREDITOR, MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)/LIMITED LIABILITY COMPANY (DEBTOR-CREDITOR, MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)

/

BOTH BREACH OF CONTRACT AND QUANTUM MERUIT WERE PLED, QUANTUM MERUIT CAUSE OF ACTION SHOULD HAVE GONE TO THE JURY.

The Second Department, reversing Supreme Court, determined plaintiff’s quantum meruit cause of action should have gone to the jury. A new trial was ordered. Although the complaint was deemed inartfully drafted, the Second Department found that the quantum meruit cause of action was pled and evidence presented at trial supported it. The court explained when both a breach of contract cause of action and a quantum meruit cause of action may be validly pled:

Where the existence of a contract is in dispute, the plaintiff may allege a cause of action to recover in quantum meruit as an alternative to a cause of action alleging breach of contract … . “[A] quasi-contractual obligation is one imposed by law where there has been no agreement or expression of assent, by word or act, on the part of either party involved. The law creates it, regardless of the intention of the parties, to assure a just and equitable result” … .

To be entitled to recover damages under the theory of quantum meruit, a plaintiff must establish: “(1) the performance of services in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered” … . Thompson v Horowitz, 2016 NY Slip Op 05561, 2nd Dept 7-20-16

 

CONTRACT LAW (BOTH BREACH OF CONTRACT AND QUANTUM MERUIT WERE PLED, QUANTUM MERUIT CAUSE OF ACTION SHOULD HAVE GONE TO THE JURY)/QUANTUM MERUIT (BOTH BREACH OF CONTRACT AND QUANTUM MERUIT WERE PLED, QUANTUM MERUIT CAUSE OF ACTION SHOULD HAVE GONE TO THE JURY)

/ ,

COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE.

The Third Department reversed the damages verdict in this medical malpractice action because of an erroneous comparative negligence jury instruction. Plaintiff, while at defendant hospital, has a seizure after he was given hot coffee. Plaintiff was burned when the coffee spilled on him. Although the comparative negligence instruction was appropriate with regard to whether plaintiff should have been given coffee, it was not appropriate with regard to the treatment for the burns:

A comparative negligence instruction is appropriate when there is evidence that a plaintiff may share responsibility for harm that was inflicted as a result of a defendant’s medical malpractice … . However, no comparative negligence instruction should be given when a plaintiff’s alleged negligence preceded the alleged medical malpractice and is not otherwise alleged to have contributed to the harm resulting from the malpractice. A plaintiff’s prior conduct “is not relevant, since the defendant’s liability extends only to that portion of [the plaintiff’s] injuries attributable to the defendant’s malpractice” … . Here, although there was evidence from which the jury could have found that plaintiff shared responsibility for the initial coffee spill, defendant made no claim at trial that plaintiff had any such shared responsibility for defendant’s subsequent deviations from the accepted standard of care in treating plaintiff’s injuries, nor was there any evidence adduced at trial from which the jury could have found that plaintiff shared such responsibility … . Vallone v Saratoga Hosp., 2016 NY Slip Op 05526, 3rd Dept 7-14-16

NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/MEDICAL MALPRACTICE (COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/COMPARATIVE NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/JURY INSTRUCTION (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)

/

COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE.

The Third Department, finding Supreme Court should have allowed disclosure of some of the requested documents, noted that a court cannot justify withholding documents on grounds not raised in opposition to disclosure:

A court is limited to considering only those exemptions to disclosure that are invoked by the party from whom disclosure is sought … . Accordingly, the court should not have relied on a justification for withholding documents … that was not raised by respondent. Matter of Rose v Albany County Dist. Attorney’s Off., 2016 NY Slip Op 05536, 3rd Dept 7-14-16

FREEDOM OF INFORMATION LAW (FOIL) (COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE)

/ ,

HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED.

The Third Department reversed Family Court, finding that the hearsay evidence of the child’s statement father had touched her were not corroborated and therefore could not form the basis of a modification of custody:

Evidence of the abuse came in the form of the child’s out-of-court statements and, inasmuch as “the evidentiary standards established in Family Ct Act article 10” were applicable under these circumstances, the question became whether her statements were “sufficiently corroborated” so as to be admissible … . The mother testified that the child stated that the father had touched her, then acted out an incident of sexual abuse. The child also told her therapist that the father had touched her, but the therapist testified that the child declined to give details about the incident and did not opine that the child’s behavior was indicative of sexual assault or that there was reason to believe that her statements were truthful. The therapist expressly declined to offer such an opinion in her testimony, in fact, making clear that she would not say whether the child’s claims were “true or untrue.” The child herself did not testify, and Family Court rejected the belated requests of counsel for the father and the child for a Lincoln hearing.

The corroboration requirement is not demanding and may be “satisfied by any other evidence tending to support the reliability of the [child’s] previous statements” … , but mere “repetition of an accusation” will not suffice … . The proof here did not rise above repetition to include additional evidence such as expert testimony that the child’s behavior or her statements were consistent with abuse, physical evidence of abuse, or the sworn testimony or in camera statements of the child herself … . Matter of Leighann W. v Thomas X., 2016 NY Slip Op 05522, 3rd Dept 7-14-16

 

FAMILY LAW (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/HEARSAY (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CUSTODY (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CORROBORATION (FAMILY LAW, (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)

/ ,

SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED.

 

The Third Department, reversing defendant’s conviction, determined the police did not have justification for searching defendant’s duffel bag and the evidence seized from the bag should have been suppressed. Defendant was arrested in his residence on an outstanding warrant. The defendant was handcuffed when the duffel bag was retrieved by a police officer (Gillis) from behind the couch:

To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest. The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . Two interests underlie the exigency requirement: “‘the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment'” … .

The People failed to establish the existence of exigent circumstances justifying the search of defendant’s duffel bag. Gillis testified that the bag was still against the wall when defendant was handcuffed and personally searched pursuant to the outstanding warrant, and Gillis had to physically retrieve the bag from behind the couch in order to search it. In addition, the officers had searched the residence prior to arresting defendant and did not find any evidence of drug activity or paraphernalia, the owner told Gillis that there was nothing illegal in the apartment and defendant denied that there was contraband in the bag when questioned about its contents. Thus, the search of the subject bag was improper and its contents — namely, crack cocaine, cell phones and train tickets — should have been suppressed … . People v Ortiz, 2016 NY Slip Op 05521, 3rd Dept 7-14-16

 

CRIMINAL LAW (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SUPPRESSION (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SEARCH AND SEIZURE  (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/CLOSED CONTAINERS (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)

/ ,

EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED.

The Third Department, reversing defendant’s conviction, determined evidence of a prior sexual assault, factually similar to the charged offenses, should not have been admitted in the People’s direct case. The victim of the prior assault testified in detail about it. The Third Department held that the prejudicial effect of the prior assault outweighed its probative value, irrespective of whether the evidence fit any Molineux exception to the rule excluding evidence of prior crimes:

… “[E]vidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity — or where such proof is inextricably interwoven with the charged crimes, provides necessary background or completes a witness’s narrative and, further, the trial court determines that the probative value of such evidence outweighs is prejudicial effect” … . Here, even assuming, without deciding, that the previous victim’s testimony at trial and the corresponding photographs fall within one or more of the aforementioned Molineux exceptions, we agree with defendant that the prejudicial effect of such evidence far outweighs its probative value and, therefore, the People should not have been permitted to introduce such evidence on their case-in-chief. People v Ward, 2016 NY Slip Op 05518, 3rd Dept 7-14-16

CRIMINAL LAW (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/PRIOR CRIMES (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED/MOLINEUX (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)

/ ,

DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE.

The Third Department reversed defendant’s murder conviction, finding defense counsel ineffective. Counsel’s errors included: (1) failure to object the prosecutor’s mischaracterization of DNA evidence found on defendant’s clothes (this failure alone warranted reversal); (2) failure to object to irrelevant evidence about the victim’s demeanor, education, behavior as a mother, etc. (evidence from as far back as 1998), and an inept summation which misstated the burden and standard of proof and acknowledged the possibility defendant committed the crime:

[The DNA expert] testified … that there were not enough alleles or DNA data to say conclusively that the victim’s DNA was present.

Nevertheless, during summation, the prosecutor repeatedly mischaracterized [the expert’s] testimony and the DNA results by stating multiple times that the victim’s DNA was on the sweatshirt. Specifically, the prosecutor initially stated that “on that sweatshirt is [defendant’s] wife’s DNA.” Later, when discussing [the expert’s] DNA report, the prosecutor incorrectly stated that the report “shows that [the victim’s] DNA was on that area where the bloody spot is.” Even if this last statement could be viewed as asking the jury to make an inference from the evidence at trial, the prosecutor again misstated the testimony by saying, “We have the forensic people who say[] . . . [the victim’s] DNA is on that sweatshirt, to some degree.” Defense counsel made no objections to such characterization of the testimony or DNA analysis. People v Ramsaran, 2016 NY Slip Op 05520, 3rd Dept 7-14-16

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/DNA EVIDENCE (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)

/ , ,

REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED.

The First Department, over a two-justice dissent, determined the non-citizen defendant, whose direct appeal was pending when he absconded, was entitled to the protection afforded by People v Peque, 22 NY3d 168, which requires the court to inform the defendant deportation may follow a plea to a felony:

The issue here is whether a defendant whose case still is on direct appeal should be denied the benefit of the Court of Appeals’ ruling in People v Peque … , which is rooted in federal constitutional law, because defendant absconded from parole before his attorney perfected this appeal. We conclude Peque should apply to defendant’s case.

In Peque, the Court of Appeals held that a trial court is obligated to apprise any defendants that if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony … . That decision acknowledged that under federal immigration law, deportation, in many cases, is an inevitable consequence of a noncitizen’s guilty plea and that as part of the defendant’s decision to make a voluntary and intelligent choice to plead guilty, the defendant must be alerted to the deportation consequences by the court. In the instant case, the court did not advise defendant about the immigration consequences flowing from his plea … . People v Tejeda, 2016 NY Slip Op 05541, 1st Dept 7-14-16

 

CRIMINAL LAW (REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/APPEALS (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/DEPORTATION (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/IMMIGRATION LAW  (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)

/ ,

FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JURORS RENDERED THE ISSUE UNPRESERVED FOR APPEAL.

The Third Department, over a two justice dissent, determined defense counsel’s failure to contest the prosecutor’s race-neutral reasons for striking jurors rendered the issue unpreserved for appeal:

Following the People’s step-two proffer, County Court denied the Batson challenge, without any attempt to respond or protestation registered by defendant. Now, on appeal, defendant contends for the first time that County Court erred in failing to conduct a step-three inquiry. However, “[b]y accepting the People’s explanation without any additional objection at a time [when] it could have been addressed, defendant failed to preserve” this contention for our review … , and we decline to exercise our interest of justice jurisdiction … . In reaching this conclusion, we reaffirm the importance of both the trial court’s attention to each articulated, sequential step of the Batson inquiry, and counsel’s “attention to placing their objections on the record so they may be addressed by the court” … . Indeed, “whatever procedural problems may exist in a Batson inquiry, the overriding concern is that a properly preserved question regarding the ultimate issue of discrimination is meaningfully addressed” … . People v Acevedo, 2016 NY Slip Op 05517, 3rd Dept 7-14-16

CRIMINAL LAW (FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/JURORS (BATSON CHALLENGE, FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/APPEALS (BATSON CHALLENGE, FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/BATSON CHALLENGE (FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)

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