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CRITIERIA FOR SPOLIATION OF EVIDENCE NOT MET.

In a legal malpractice action, plaintiffs alleged their trial attorneys in the personal injury action failed to inform them about a $12 million settlement offer made shortly before the $3.7 million verdict. Defendants-attorneys alleged the plaintiffs were informed of the offer, which was provided in writing, and plaintiffs rejected it. During the deposition of plaintiff-wife (Mrs. Doviak), she was handed the written offer. The plaintiffs argued that handing the offer to Mrs. Doviak constituted spoliation of evidence, because the document could have been tested for fingerprints, and the absence of her fingerprints would have demonstrated she was never provided with the written offer during the trial. The Second Department determined the criteria for spoliation of evidence had not been met:

“The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense” … . “[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” and may, “under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation” … . This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised … .

Here, the record supports the Supreme Court’s conclusion that the plaintiffs failed to demonstrate that the defendants intentionally or negligently destroyed fingerprint evidence which was critical to their case. The plaintiffs failed to demonstrate that they requested that the offer document be tested for fingerprints, or that it be preserved for forensic testing prior to Mrs. Doviak’s deposition, or otherwise informed the defendants of their desire to conduct fingerprint analysis. The plaintiffs’ boilerplate demand during discovery that they be permitted to examine original documents on request does not satisfy this requirement, nor is it reasonable to contend that the defendants should have anticipated the plaintiffs’ desire for forensic testing of the offer document … . Thus, the plaintiffs failed to demonstrate that, in handing the original document to Mrs. Doviak at her deposition, the defendants intentionally or negligently destroyed potential forensic evidence … . In any event, the plaintiffs failed to demonstrate that, by failing to preserve the offer document for forensic testing, the defendants had fatally compromised the plaintiffs’ ability to prove their claims … . Doviak v Finkelstein & Partners, LLP, 2016 NY Slip Op 01636, 2nd Dept 3-9-16

NEGLIGENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/EVIDENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)

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PRINCIPLES OF CONTRACT INTERPRETATION APPLIED TO DETERMINE THE DEDUCTIBLE AMOUNT; SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE INSURER.

The Second Department, reversing Supreme Court, determined the defendant insurer’s interpretation of the policy language was correct and plaintiff’s damages claim was below the deductible. Plaintiff’s facility was damaged during Hurricane Sandy. The damage claim was approximately $2.3 million. The question on appeal was whether the policy language supported the insurer’s position that the applicable deductible was 2% of the total value of the property, which amounted to more than $2.3 million. Or whether the policy language supported the insured’s position that the deductible was 2% of the $2.5 million sublimit for flood damage. The court concluded the insured’s interpretation was not viable because it rendered several other policy provisions superfluous: “In sum, there is only one reasonable interpretation of the relevant deductible provision of the policy. That interpretation supports [the insurer’s] contention that the applicable deductible was $2,494,020, and that the claim submitted by [the insured] did not meet the deductible.” Castle Oil Corp. v ACE Am. Ins. Co., 2016 NY Slip Op 01632, 2nd Dept 3-9-16

 

NSURANCE LAW (PRINCIPLES OF CONTRACT INTERPRETATION APPLIED TO DETERMINE DEDUCTIBLE)/CONTRACT LAW (INSURANCE LAW, PRINCIPLES OF CONTRACT INTERPREATION APPLIED TO DETERMINE DEDUCTIBLE)

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REQUEST FOR THE NAME OF THE MOHEL WHO PERFORMED CIRCUMCISION ON AN INFANT WHO BECAME INFECTED WITH HERPES SIMPLEX VIRUS PROPERLY DENIED.

The Second Department determined a reporter’s (Berger’s) request to the NYC Department of Health for the name of a mohel who performed a circumcision on an infant who became infected with herpes simplex virus (HSV-1) was properly denied. A person’s medical history is exempt from disclosure under the Public Officers Law. Revealing the mohel’s name would reveal his medical condition:

As relevant here, Public Officers Law § 87(2)(b) expressly exempts from disclosure records that “if disclosed would constitute an unwarranted invasion of personal privacy” under Public Officers Law § 89(2). Public Officers Law § 89(2)(b)(i) expressly includes “medical . . . histories” within the ambit of “unwarranted invasion of personal privacy” … . In turn, the Court of Appeals has held that “medical history” is ” information that one would reasonably expect to be included as a relevant and material part of a proper medical history'” … .

Here, inherent in Berger’s request for “the name of the mohel who infected an infant with HSV-1 during ritual circumcision in December 2012” is that the mohel is himself infected with, or a carrier of, the HSV-1 virus. Thus, the petitioners’ argument that they are not requesting the mohel’s “medical history,” but only his name, is without merit. Inasmuch as that information is undeniably ” information that one would reasonably expect to be included as a relevant and material part of [the mohel’s] proper medical history'” … , it is “medical history” within the meaning of Public Officers Law § 89(2)(b)(i). The conclusion is thus inescapable that disclosure of the record Berger sought would be an “unwarranted invasion of personal privacy” under Public Officers Law § 89(2)(b)(i) and Public Officers Law § 87(2)(b). Matter of Berger v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 01667, 2nd Dept 3-9-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR NAME OF MOHEL WHO INFECTED INFANT WITH HERPES SIMPLEX VIRUS PROPERLY DENIED)/PUBLIC OFFICERS LAW (FOIL, REQUEST FOR NAME OF MOHEL WHO INFECTED INFANT WITH HERPES SIMPLEX VIRUS PROPERLY DENIED)

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FAMILY COURT SHOULD HAVE GRANTED MOTION FOR FINDINGS TO ENABLE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS).

The Second Department, reversing Family Court, determined mother’s motion for an order making the findings to enable her child to petition for special immigrant juvenile status (SIJS) should have been granted;

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law …, and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence … .

Here, the child is under the age of 21 and unmarried, and has been “legally committed to, or placed under the custody of . . . an individual . . . appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, we find that the record supports the mother’s contention that the child’s reunification with her father is not viable due to abandonment … , and that it would not be in the best interests of the child to be returned to El Salvador … . Matter of Fatima J. A. J. (Ana A. J. S. — Carlos E. A. F.), 2016 NY Slip Op 01673, 2nd Dept 3-9-16

 

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, MOTION FOR REQUISITE FINDINGS SHOULD HAVE BEEN GRANTED)/SPECIAL IMMIGRANT JUVENILE STATUS (MOTION FOR REQUISITE FINDINGS SHOULD HAVE BEEN GRANTED)

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MOTHER FAILED TO FIRST USE LESS DRASTIC CHILD-SUPPORT ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED.

The Third Department determined mother’s motion to hold father in civil contempt for alleged failure to pay child support and related expenses was properly denied. Mother did not first attempt to enforce the relevant provisions of the stipulation with a less drastic mechanism:

In matrimonial actions, Domestic Relations Law § 245 grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 756 where the party defaults “in paying any sum of money” required by a judgment or order, “and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced” pursuant to the enforcement mechanisms provided in Domestic Relations Law §§ 243 and 244 and CPLR 5241 and 5242. “A civil contempt motion in a [matrimonial] action should be denied where the movant fails to make a showing pursuant to section 245 that resort to other, less drastic enforcement mechanisms had been exhausted or would be ineffectual'” … . Here, the mother did not attempt to utilize any less drastic enforcement mechanism before moving to hold the father in contempt, and failed to demonstrate that resort to a less drastic enforcement mechanism would be ineffectual. Contrary to the mother’s contention, the fact that the child care, medical care, and extracurricular activity expenses she sought payment of were not for a sum certain did not prevent her from seeking to fix any arrears due for those expenses and enforcing the father’s payment obligations through less drastic means. Rhodes v Rhodes, 2016 NY Slip Op 01657, 2nd Dept 3-9-16

FAMILY LAW (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)/CHILD SUPPORT (MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED/CONTEMPT, CIVIL (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)

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PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT NEAR A STATE PARK.

The Second Department, affirming Supreme Court, determined the petitioner did not have standing to challenge the construction of a temporary asphalt plant near a state forest. The conclusory allegations of pollution of the park by a member of petitioner-organization were not enough:

 

” [I]n land use matters . . . the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large'” … . Whether an organization or association has standing involves the application of the three-pronged test set forth in Society of Plastics Indus. v County of Suffolk (77 NY2d at 775). As pertinent to this appeal, the first prong of that test requires that the organization or association demonstrate that “one or more of its members would have standing to sue” as an individual (id.). An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” (id. at 774) and “the in-fact injury of which [he or she] complains . . . falls within the zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773, …). Here, the petitioner submitted an affidavit from one of its members asserting that he frequently used the area of Stewart State Forest that was closest to the temporary asphalt plant. However, his allegations that the operation of the plant polluted the natural resources of the forest were conclusory and speculative, and therefore, insufficient to establish standing… . Matter of Stewart Park & Reserve Coalition, Inc. v Town of New Windsor Zoning Bd. of Appeals, 2016 NY Slip Op 01685, 2nd Dept 3-9-16

 

ENVIRONMENTAL LAW (PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)/LAND USE (PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)/STANDING (ENVIRONMENTAL LAW, LAND USE, PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)

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COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION IN A DEFAMATIOIN ACTION; MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department determined defendants' oral motion to set aside the verdict in a defamation case should have been granted. Plaintiff alleged statements made by defendants (husband and wife) caused specified pecuniary loss. Because the defendants are spouses, communication between them did not constitute publication. The plaintiff was unable to demonstrate any statements made to third parties caused special harm:

“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, 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” … .

Applying this standard here, we conclude that there was no valid line of reasoning and permissible inferences which could have led the jury to find that the plaintiff established his cause of action alleging defamation. “The elements of a cause of action [to recover damages] for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . Here, because it is undisputed that the defendants are spouses, the communications between the defendants do not constitute publication … . … [T]o the extent that the plaintiff's defamation claim alleged that [defendants] communicated the [statement] to third parties, the plaintiff failed to prove that he suffered special harm, i.e., the loss of something having economic or pecuniary value, as a result of those statements .. . Gaccione v Scarpinato, 2016 NY Slip Op 01640, 2nd Dept 3-9-16

DEFAMATION (COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT IN DEFAMATION ACTION SHOULD HAVE BEEN GRANTED)/VERDICT, MOTION TO SET ASIDE (DEFAMATION ACTION, MOTION TO SET ASIDE PLAINTIFF'S VERDICT SHOULD HAVE BEEN GRANTED)

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ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE IS NOT A LESSER-INCLUDED OFFENSE OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE; SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE.

The Second Department reversed defendant’s conviction (by guilty plea) because the Superior Court Information (SCI) to which defendant pled did not allege a lesser-included offense of an offense charged in the original felony complaint. Attempted criminal possession of a controlled substance in the fourth degree is not a lesser-included offense of criminal possession of a controlled substance in the fourth degree:

The single count in the SCI was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint … . Attempted criminal possession of a controlled substance in the fourth degree under Penal Law §§ 110.00 and 220.09(1) is not a lesser-included offense of criminal possession of a controlled substance in the fourth degree under Penal Law § 220.09(3), because the former offense contains the element “narcotic drug” (Penal Law § 220.00[7]) that is not an element of the latter offense and, therefore, it is possible to commit the greater offense “without concomitantly committing, by the same conduct,” the lesser offense (CPL 1.20[37]…). Thus, the SCI upon which the defendant’s plea was based did not “include at least one offense that was contained in the felony complaint” or a lesser-included offense of an offense charged in the felony complaint … , and the SCI was jurisdictionally defective … . This defect survives the defendant’s failure to raise this claim in the County Court, his plea of guilty, and his waiver of the right to appeal … . People v Chacko, 2016 NY Slip Op 01689, 2nd Dept 3-9-16

CRIMINAL LAW (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)/SUPERIOR COURT INFORMATION (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)/CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)

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ABSENCE OF ANY MENTION OF DEFENDANT DISCARDING A WEAPON IN THE PAPERWORK RELATING TO DEFENDANT’S ARREST, AND THE DIFFERING VERSIONS OF EVENTS PRIOR TO DEFENDANT’S ARREST, RAISED A QUESTION OF FACT WHETHER THERE WAS PROBABLE CAUSE TO ARREST DEFENDANT FOR POSSESSION OF A WEAPON.

The First Department, over an extensive dissent, determined questions of fact precluded summary judgment in favor of the defendants (city and police) in an action alleging, inter alia, malicious prosecution. Defendant was accused of possession of a weapon and spent 247 days in jail before being acquitted at trial. The accusation was based on the testimony of one of the police officers at the scene who said he saw defendant drop the weapon on a pile of garbage bags (where the weapon was apparently recovered). No other officer at the scene saw defendant with a weapon. And there was no mention of defendant discarding the weapon in any of paperwork relating to defendant’s arrest:

The elements of a claim for malicious prosecution are (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice … . A jury may infer that a defendant acted with actual malice from the fact that there was no probable cause to arrest the plaintiff … . As noted, there are numerous factual questions concerning whether the police had the requisite probable cause to arrest plaintiff and initiate criminal proceedings. The omissions in the police paperwork and the various versions of events raise questions as to the credibility of the police account of what transpired. Further, the presumption of probable cause attaching upon an accused’s arraignment or indictment may be overcome by evidence that “the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or [that they have] otherwise acted in bad faith” … . Mendez v City of New York, 2016 NY Slip Op 01586, 1st Dept 3-8-16

MALICIOUS PROSECUTION (QUESTION OF FACT WHETHER POLICE HAD PROBABLE CAUSE TO ARREST, EVIDENCE MAY HAVE BEEN FABRICATED)/MUNICIPAL LAW (MALICIOUS PROSECUTION, QUESTION OF FACT WHETHER POLICE HAD PROBABLE CAUSE TO ARREST, EVIDENCE MAY HAVE BEEN FABRICATED)

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CONNECTICUT SEXUAL ASSAULT STATUTE IS BROADER IN ITS REACH THAN NEW YORK COUNTERPARTS AND THEREFORE CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK.

The First Department, reversing Supreme Court, determined defendant should not have been sentenced as a second felony offender based on a Connecticut conviction for sexual assault. The court found the Connecticut statute was broader than its New York counterparts in both the “threat of harm,” and “accomplice liability” elements.  Therefore the violation of the Connecticut statute could not serve as a predicate felony in New York.

The New York statutes prohibit various sexual acts by forcible compulsion, which is defined (among other things) as the use of a threat “which places a person in fear of immediate death or physical injury [to someone] or in fear that [someone] will immediately be kidnapped” (Penal Law § 130.00[8]…). In contrast, CGSA § 53a-70(a)(1) does not contain any requirement that a threat issued to compel sexual intercourse must threaten immediate harm. Accordingly, the Connecticut statute is necessarily broader than its New York counterparts, and may not serve as a predicate offense … .

In addition, since CGSA § 53a-70(a)(1) is a general intent statute … , “the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts” … . Accordingly, a conviction under the statute is warranted even if a rape committed by a person other than the defendant is the unintended result of the defendant's use or threatened use of force … . In contrast, New York law requires that in order to establish accessorial liability the People must establish that a defendant, acting with the mental culpability required for the commission of the crime at issue, either solicited, requested, commanded, importuned, or intentionally aided another in committing the crime (Penal Law § 20.00). Accordingly, the Connecticut statute is broader than its New York counterparts in this regard as well. People v Davis, 2016 NY Slip Op 01623, 1st Dept 3-8-16

CRIMINAL LAW (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SENTENCING (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER STATUS (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)

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