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APPEAL WAIVER INVALID, FLAWED ON-THE-RECORD EXPLANATION OF WAIVED RIGHTS NOT REMEDIED BY SIGNED WRITTEN WAIVER.

The First Department, over a dissent, determined defendant’s waiver of appeal was invalid because the trial judge did not make it clear the appeal-rights were distinct from those waived by the guilty plea. The written waiver signed by the defendant was not sufficient to remedy the flawed colloquy:

 

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Rather, the court merely stated that “as a part of this” — that is, as part of the guilty plea — defendant was waiving his right to appeal and thus, that the convictions would be final because no appellate court would review them. Despite our dissenting colleague’s suggestion otherwise, the problem with the waiver’s validity is not that there was “some ambiguity in the court’s colloquy.” Rather, by using the phrase “as a part of this,” the trial court expressly undercut the principle that a defendant must understand his waiver of appeal to be distinct from the rights forfeited upon a guilty plea … . …

… [T]the written waiver that defendant signed was no substitute for an on-the-record explanation of the nature of the right to appeal … . This conclusion holds especially true here, where the record does not make clear when defendant signed the waiver. Although the waiver itself states that defendant signed the waiver only “after being advised by the Court,” it is not evident from the record whether defendant signed the waiver before the colloquy regarding his right to appeal, or whether he signed it after. People v Bryant, 2016 NY Slip Op 01427, 1st Dept 3-1-16

 

CRIMINAL LAW (INVALID WAIVER OF APPEAL)/APPEALS (CRIMINAL, WAIVER OF APPEAL INVALID)/WAIVER (APPEAL, WAIVER INVALID DESPITE SIGNED WRITTEN WAIVER)

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NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF WHO WAS STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY.

The Third Department determined the complaint against defendant non-secure detention facility for juveniles was properly dismissed. Weeks after the juvenile had left and been discharged from the detention facility, the juvenile was in a high-speed police car-chase and crashed into plaintiff’s car.  The Third Department concluded that the detention facility did not owe a duty of care to the plaintiff, did not have a duty to supervise the juvenile because the juvenile was not in defendant’s custody, and, from the standpoint of the detention facility, the juvenile’s actions were not foreseeable:

 

Defendant’s nonsecure residential treatment center is located on an open campus without gates or bars, and residents are not locked in. Here, the resident was attending an educational program when he chose to leave. One of defendant’s staff members followed him and tried unsuccessfully to persuade him to return. The staff member did not attempt to physically prevent the resident from leaving, pursuant to defendant’s policy that — under the statutory mandate against physical restrictions — permits such intervention only when a resident’s behavior is dangerous to the resident or others. After the resident departed, defendant notified DSS and the police and discharged him when directed to do so by DSS a week later. Plaintiff’s argument that defendant should have imposed greater supervision or restraints to prevent the resident from leaving disregards the distinction between secure and nonsecure detention facilities and, more fundamentally, disregards the fact that defendant did not make the placement decision. …

The duty owed by a school to prevent foreseeable injuries caused by negligent supervision of its students arises “from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … . Because this duty arises from the school’s physical custody of its students, it ceases when a student leaves the premises and the student’s parent or legal custodian is free to resume control … . Here, assuming without deciding that defendant’s residential treatment center can be analogized to a school for this purpose, the collision that injured plaintiff occurred almost a month after the resident left defendant’s physical premises, and three weeks after defendant discharged him from its care, upon the direction of the resident’s legal custodian. Any duty that may have existed while the resident was in its physical custody had long since terminated … . Mayorga v Berkshire Farm Ctr. & Servs. for Youth, 2016 NY Slip Op 01375, 3rd Dept 2-25-16

NEGLIGENCE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/DUTY OF CARE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/NEGLIGENT SUPERVISION (DUTY TO SUPERVISE A RESIDENT OF A NON-SECURE JUVENILE DETENTION FACILITY CEASES WHEN CUSTODY CEASES)

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MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE.

The Third Department determined plaintiff’s libel complaint was properly dismissed. The defendant newspaper published an article about plaintiff’s conviction in a mortgage fraud prosecution which was based upon a press release from the Department of Justice (DOJ). Civil Rights Law 74 prohibits a civil action against the publisher of a fair and true report of a judicial proceeding. The Third Department explained that minor inaccuracies will not prevent the characterization of an article as fair and true:

 

Civil Rights Law § 74 provides, in relevant part, that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding” and, as such, “cloaks those publishing fair and true reports of judicial proceedings with immunity from civil liability” … . “[A]n article may be characterized as ‘fair and true’ if it is substantially accurate” … . Moreover, “[a] fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated” … and “there is ‘no requirement that a publication report the plaintiff’s side of the controversy'” … . Minor inaccuracies are “‘not serious enough to remove [a party’s] reportage from the protection of Civil Rights Law § 74′” … .

In light of the foregoing standard, we agree with Supreme Court that defendants’ published statements were a fair and true representation of the DOJ press release, thus falling within the statutory privilege afforded by Civil Rights Law § 74. Although defendants used language that differed slightly from the DOJ press release in their article, given plaintiff’s criminal charges and convictions detailed in the press release, the language used “does not suggest more serious conduct than that actually suggested in the official proceeding” … . A liberal reading of defendants’ statements in the context of the article demonstrates that the statements are substantially accurate and, thus, a fair and true report of the DOJ press release … . Bouchard v Daily Gazette Co., 2016 NY Slip Op 01364, 3rd Dept 2-25-16

 

DEFAMATION (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/LIBEL (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/CIVIL RIGHTS LAW  (LIBEL, MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)

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THE PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, DEFENDANT’S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION PROPERLY GRANTED.

The First Department determined Supreme Court properly dismissed the indictment on speedy trial grounds. At issue was the delay associated with obtaining DNA test results. A delay for that purpose can be an “exceptional circumstance” justifying exclusion of the delay from the speedy trial clock, but only if the People act with due diligence. The court determined numerous other delays during the course of the proceedings demonstrated the People did not act with due diligence:

Pursuant to CPL 30.30(4)(g), periods of delay caused by “exceptional circumstances” are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance … . CPL 30.30(4)(g)(i) specifically makes excludable a continuance “granted because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” Under this provision, the unavailability of DNA test results can be considered an exceptional circumstance, so long as the People exercised due diligence to obtain the results … .

Acknowledging that “[t]here is no precise definition of what constitutes an exceptional circumstance,” the Court of Appeals has made clear that the exception to the rule must conform to the legislative intent of discouraging prosecutorial inaction … . People v Gonzalez, 2016 NY Slip Op 01388, 1st Dept 2-25-16

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)/SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)

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NEW YORK COURTS DO NOT HAVE THE POWER TO DISSOLVE A FOREIGN CORPORATION.

The First Department, in a full-fledged opinion by Justice Richter, overruling its own precedent, determined New York courts do not have jurisdiction over the dissolution of a foreign corporation:

 

We agree with the near-universal view that the courts of one state do not have the power to dissolve a business entity formed under another state’s laws. Because a business entity is a creature of state law, the state under whose law the entity was created should be the place that determines whether its existence should be terminated … . Matter of Raharney Capital, LLC v Capital Stack LLC, 2016 NY Slip Op 01425, 2nd Dept 2-25-16

CORPORATION LAW (NEW YORK COURTS CANNOT DISSOLVE A FOREIGN CORPORATIOIN)/JURISDICTION (NEW YORK COURT’S CANNOT DISSOLVE A FOREIGN CORPORATION)/ FOREIGN CORPORATIONS (NEW YORK COURTS CANNOT DISSOLVE)

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PROBATE PETITION PROPERLY DISMISSED; WITNESSES DID NOT READ ATTESTATION CLAUSE, EVIDENCE SOME WILL PAGES MISSING AT TIME OF EXECUTION.

The Second Department determined the probate petition was properly dismissed. The presumption the will was properly executed was rebutted because the witnesses did not read the attestation clause before signing and there was evidence some of the pages of the will were missing at the time it was executed:

 

” A valid attestation clause raises a presumption of a will’s validity, [but] it is nonetheless incumbent upon [the] Surrogate’s Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity'” … . In conducting this examination, ” the testimony of the attesting witnesses is entitled to great weight'” … .

Here, the attesting witnesses both testified at their depositions that they did not read the attestation clause. Under these circumstances, the attestation clause cannot carry any presumption that the will was properly executed … . The moving objectants met their prima facie burden of establishing that the purported will was not properly executed by submitting evidence that not all of the pages of the document alleged to be the decedent’s will were present at the time of the purported execution … . In opposition, the petitioner failed to raise a triable issue of fact … . Contrary to the petitioner’s contention, the evidence regarding the testamentary intent of the decedent does not raise a triable issue of fact because, with respect to due execution, ” courts do not consider the intention of the testator, but that of the legislature,'” such that the statutory requirements of due execution are determinative … . Matter of Costello, 2016 NY Slip Op 01322, 2nd Dept 2-24-16

TRUSTS AND ESTATES (WITNESSES DID NOT READ ATTESTATION CLAUSE, EVIDENCE PAGES OF WILL MISSING AT EXECUTION)/PROBATE (PROBATE PETITION PROPERLY DISMISSED, WITNESSES DID NOT READ ATTESTATION CLAUSE, PAGES OF WILL MAY HAVE BEEN MISSING AT EXECUTION)/ATTESTAION CLAUSE (WITNESS DID NOT READ, PRESUMPTION OF PROPER EXECUTION REBUTTED)/EXECUTION OF WILL (WITNESSES DID NOT READ ATTESTATION CLAUSE, EVIDENCE PAGES OF WILL MISSING AT EXECUTION)

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NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED.

The Second Department determined a negligent supervision action against a day care provider was properly dismissed. Infant plaintiff (Kevin) was hanging by his hands when a student pulled one of his hands off, causing him to fall:

 

The defendant, as a provider of day care services, was under a duty to adequately supervise the children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . In general, the duty of a day care provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances … . However, a child care provider cannot reasonably be expected to continuously supervise and control all movements and activities of the children in its care, and cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among those children … . To establish a breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of a fellow child, a plaintiff must show that the day care provider “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the accident was the result of a sudden and unforeseeable act of another child, and that it had no actual or constructive notice of prior similar conduct … . The defendant further established, prima facie, that the incident occurred in so short a period of time that its alleged lack of supervision was not a proximate cause of Kevin’s alleged injuries … . Lopez v D & D Day Care, Inc., 2016 NY Slip Op 01298, 2nd Dept 2-24-16

 

NEGLIGENCE (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/NEGLIGENT SUPERVISION (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/EDUCATION-SHCOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/DAY CARE (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)

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SNOW-REMOVAL COMPANY NOT LIABLE TO PLAINTIFF BECAUSE PLAINTIFF WAS NOT A PARTY TO THE SNOW-REMOVAL CONTRACT; NO NEED FOR DEFENDANT TO ADDRESS ESPINAL EXCEPTIONS IN ITS SUMMARY JUDGMENT MOTION IF THE EXCEPTIONS ARE NOT PLED BY THE PLAINTIFF.

The Second Department determined defendant snow-removal company, Brickman, was entitled to summary judgment dismissing the complaint in this slip and fall case. Because the plaintiff was not a party to the snow-removal contract with the owner of the property, Brickman owed no duty to plaintiff. The court noted that, because the plaintiff did not allege the applicability of any of the “Espinal” exceptions to the general rule against tort liability arising from a contract, the defendant was not obligated to address those exceptions in its summary judgment motion:

 

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, there are three exceptions to that general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Brickman made a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the plaintiff was not a party to its snow removal agreement, and that it thus owed her no duty of care … . Inasmuch as the plaintiff did not allege facts in the complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions … , Brickman was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … .

Once Brickman made its prima facie showing, the burden shifted to the plaintiff to come forward with proof sufficient to raise a triable issue of fact as to the applicability of one or more of the Espinal exceptions … . In opposition to Brickman’s prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether Brickman launched a force or instrument of harm, whether she detrimentally relied on the continued performance of Brickman’s duties, or whether Brickman entirely displaced the owner’s duty to maintain the premises in a safe condition … . Bryan v CLK-HP 225 Rabro, LLC, 2016 NY Slip Op 01280, 2nd Dept 2-24-16

 

NEGLIGENCE (NO TORT LIABILTIY AROSE FROM SNOW-REMOVAL CONTRACT, PLAINTIFF NOT A PARTY)/SUMMARY JUDGMENT (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORT LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/CONTRACT LAW (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/ESPINAL EXCEPTIONS (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)

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LEVEL OF SUPERVISORY CONTROL NEEDED TO SUPPORT A LABOR LAW 200 CAUSE OF ACTION AND THE CRITERIA FOR SETTING ASIDE A VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE EXPLAINED.

The Second Department determined defendants’ motions to set aside the verdict in this Labor Law 200/common law negligence action were properly denied. The court explained the level of supervision required to hold gas station subtenants liable for a forklift injury, and the criteria for setting aside a verdict:

 

“To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when [the] defendant bears the responsibility for the manner in which the work [was] performed” … . “[M]ere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” … . “If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law” … .

… “To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that there is no rational process by which the jury could find for the plaintiff against the moving defendant” … . In considering a motion for judgment as a matter of law, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … . “In making this determination, a court must not engage in a weighing of the evidence,’ nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question'” … . …

“[A] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . “Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” … . The apportionment of fault among the parties is generally an issue of fact for the jury … , and the jury’s apportionment of fault should not be set aside unless it could not have been reached based upon a fair interpretation of the evidence … . Hernandez v Pappco Holding Co., Ltd., 2016 NY Slip Op 01295, 2nd Dept 2-24-16

 

LABOR LAW (LEVEL OF SUPERVISORY CONTROL NEEDED TO SUPPORT A LABOR LAW 200 CAUSE OF ACTION)/NEGLIGENCE (LEVEL OF SUPERVISORY CONTROL NEEDED TO SUPPORT A LABOR LAW 200 CAUSE OF ACTION)/CIVIL PROCEDURE (CRITERIA FOR SETTING ASIDE A VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE)/VERDICT, MOTION TO SET ASIDE (CRITERIA FOR SETTING ASIDE A VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE)

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CAUSE OF ACTION FOR BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING NOT DUPLICATIVE OF BREACH OF CONTRACT CAUSE OF ACTION.

The Second Department determined a cause of action alleging breach of the insurer’s duty to act in good faith was not duplicative of the breach of contract cause of action. Therefore the motion to dismiss the “duty to act in good faith” cause of action was properly denied. Plaintiff sued his own car insurance carrier to recover supplementary uninsured/underinsured motorist (SUM) coverage. The court explained the elements of a “duty to act in good faith” cause of action:

 

The second cause of action alleges a failure to act in good faith. Implicit in every contract is an implied covenant of good faith and fair dealing … . The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct … . Such a cause of action is not necessarily duplicative of a cause of action alleging breach of contract … .

An insurance carrier has a duty to “investigate in good faith and pay covered claims” … . Damages for breach of that duty include both the value of the claim, and consequential damages, which may exceed the limits of the policy, for failure to pay the claim within a reasonable time … . Such a cause of action is not duplicative of a cause of action sounding in breach of contract to recover the amount of the claim … . Such consequential damages may include loss of earnings not directly caused by the covered loss, but caused, instead, by the breach of the implied covenant of good faith and fair dealing … . The second cause of action states a claim for consequential damages for breach of the implied covenant of good faith and fair dealing. Gutierrez v Government Empls. Ins. Co., 2016 NY Slip Op 01292, 2nd Dept 2-24-16

 

INSURANCE LAW (CAUSE OF ACTION BASED ON DUTY TO ACT IN GOOD FAITH)/CONTRACT LAW (INSURANCE, CAUSE OF ACTION BASED UPON INSURER’S DUTY TO ACT IN GOOD FAITH IS NOT DUPLICATIVE OF  BREACH OF CONTRACT CAUSE OF ACTION)/IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (INSURANCE, CAUSE OF ACTION BASED UPON INSURER’S DUTY TO ACT IN GOOD FAITH IS NOT DUPLICATIVE OF BREACH OF CONTRACT CAUSE OF ACTION)

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