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PRINCIPAL OFFICE OF A FOREIGN LIMITED LIABILITY COMPANY, AS LISTED ON THE DEPARTMENT OF STATE APPLICATION FOR AUTHORITY TO CONDUCT BUSINESS, IS THE CONTROLLING LOCATION FOR VENUE PURPOSES.

The Second Department, reversing Supreme Court, determined that appellant’s motion for a change of venue should have been granted. Appellants demonstrated that the foreign limited liability company’s application for authority to conduct business in New York listed a principal office in New York County. Plaintiff brought the action in Queens County, alleging appellant’s principal place of business is in Queens County.  The principal office in New York County, pursuant to Limited Liability Company Law 102[s], was the controlling location for venue purposes:

Pursuant to CPLR 503(a), the venue of an action is properly placed in the county in which any of the parties resided at the time of commencement … . In support of their motion, the appellants established that QPS was a resident of New York County at the time of commencement by producing a certified copy of QPS’s application for authority to conduct business filed with the New York State Department of State, which listed New York as the county in which its principal office was located … . The plaintiff did not dispute the fact that the application for authority designated New York County as the location of QPS’s principal office, but claimed that QPS is a resident of Queens County because that is the location of its principal place of business. However, the sole residence of a foreign corporation or a foreign limited liability company for venue purposes is the county where its principal office is located as designated in its application for authority to conduct business filed with the New York State Department of State, regardless of where it transacts business or maintains its actual principal office or facility (see CPLR 503[c]…). Such office need not be a place where business activities are conducted by the limited liability company … . Carlton Group, Ltd. v Property Mkts. Group, Inc., 2015 NY Slip Op 09423, 2nd Dept 12-23-15

CIVIL PROCEDURE (VENUE, PRINCIPAL OFFICE ON DEPARTMENT OF STATE APPLICATION IS THE CONTROLLING LOCATION OF A FOREIGN LIMITED LIABILITY COMPANY FOR VENUE PURPOSES)/VENUE (FOREIGN LIMITED LIABILITY COMPANY, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION)/LIMITED LIABILITY COMPANY, FOREIGN (FOR VENUE PURPOSES, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION IS CONTROLLING LOCATION)

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DESTRUCTION OF BLOOD EVIDENCE IN FLOODING CAUSED BY HURRICANE SANDY DID NOT WARRANT AN ADVERSE INFERENCE JURY INSTRUCTION.

The First Department, over an extensive dissent, determined that the destruction of blood evidence by Hurricane Sandy did not warrant an adverse inference jury instruction, despite the People’s failure to timely respond to the defense request for the evidence. The court determined that the adverse inference jury instruction is not triggered by a loss of evidence for which the People are blameless:

… [T]he Handy [20 NY3d 663] adverse inference charge is a penalty for destruction of evidence, not for mere tardiness in producing it. …  While we do not condone the People’s slowness in fulfilling their disclosure obligations in this case, the evidence in question was not lost as a foreseeable result of the passage of time, but as a consequence of a natural catastrophe that happened to occur just before this case went to trial. Moreover, the delay in production of the evidence here appears to be as much the fault of the defense as of the People. Even though the defense always knew that the case would rely on DNA evidence, defense counsel, after making a pro forma request to which the physical blood evidence would have been responsive, never took any steps before the hurricane, over a period of approximately two years, to enforce defendant’s right to production of that evidence. As previously noted, the physical evidence did not become a focus of the discussion among the court and counsel until after the hurricane had passed. …

We see no support in the record for the dissent’s position that the physical blood evidence from the crime scene was somehow material to the defense. As previously discussed, while the dissent correctly notes that the match of defendant’s DNA with the DNA in the crime scene evidence was “the lynchpin of the People’s case against defendant,” placing before the jury the physical blood evidence from the crime scene would not have told them anything about the accuracy of the DNA match. Indeed, this appears to have been the original conclusion of defense counsel, who, without ever having had an opportunity to examine the physical evidence, announced that he was “ready to go” to trial before he learned that such evidence was no longer [*4]available. Nothing but speculation supports the dissent’s unlikely supposition that the appearance of the physical blood evidence at trial might have told the jury anything about “the manner of its collection, storage or handling” at the time the State analyzed its DNA, three years before trial. The condition of the physical evidence after the State conducted its analysis is irrelevant, since defendant has never expressed any interest in conducting an independent DNA analysis. People v Austin, 2015 NY Slip Op 09372, 1st Dept 12-22-15

CRIMINAL LAW (DESTRUCTION OF EVIDENCE CAUSED BY HURRICANE SANDY, ADVERSE INFERENCE CHARGE NOT WARRANTED)/JURY INSTRUCTION (ADVERSE INFERENCE CHARGE NOT WARRANTED, EVIDENCE DESTROYED BY HURRICANE SANDY)/EVIDENCE (DESTRUCTION BY HURRICANE SANDY, ADVERSE INFERENCE CHARGE NOT WARRANTED)/ADVERSE INFERENCE JURY INSTRUCTION (NOT WARRANTED WHERE EVIDENCE DESTROYED BY HURRICANE SANDY)

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EVIDENCE OF HOW THE MURDER VICTIM FELT ABOUT DEFENDANT AND EVIDENCE OF STRIFE IN THE COUPLE’S RELATIONSHIP ADMISSIBLE TO SHOW MOTIVE AND IDENTITY.

The First Department determined evidence of how the murder victim felt toward the defendant and evidence of the couple’s “strife and unhappiness” was properly admitted to show the defendant’s motive and was inextricably interwoven with the issue of the identity of the killer:

The court properly admitted testimony from friends of the victim reflecting the victim’s unfavorable perception of defendant’s character, in order to show the victim’s beliefs as part of a showing that the couple had been arguing and that the victim had been attempting to break up with defendant. Proof of the “murder victim’s espoused intention to terminate her relationship with, and stay away from, defendant” was admissible to show the “victim’s state of mind” and was “relevant to the issue of the motive of defendant, who was aware of the victim’s attitude, to kill the victim” … . Hence, the background information about the couple’s “strife and unhappiness” was admissible as “highly probative of the defendant’s motive and [was] either directly related to or inextricably interwoven with the issue of his identity as the killer” … . The friends’ testimony about disputes between defendant and the victim was similarly admissible … . People v Brooks, 2015 NY Slip Op 09379, 1st Dept 12-22-15

CRIMINAL LAW (EVIDENCE OF MURDER VICTIM’S STATE OF MIND AND STRIFE BETWEEN DEFENDANT AND VICTIM ADMISSIBLE TO SHOW MOTIVE AND IDENTITY)/EVIDENCE (MURDER VICTIM’S STATE OF MIND AND STRIFE BETWEEN DEFENDANT AND VICTIM ADMISSIBLE TO SHOW MOTIVE AND IDENTITY); PRIOR BAD ACTS (STRIFE IN RELATIONSHIP BETWEEN DEFENDANT AND MURDER VICTIM ADMISSIBLE TO SHOW DEFENDANT’S MOTIVE AND IDENTITY)

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MASSIVE 750-FOOT TOWER CRANE DESTROYED BY HURRICANE SANDY NOT COVERED UNDER “TEMPORARY WORKS” CLAUSE IN INSURANCE POLICY.

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissent (opinion by Justice Mazzarelli), determined that a massive 750-foot tower crane destroyed during Hurricane Sandy was not included in the policy-definition of “Temporary Works” and was included in a policy-exclusion for “contractor’s tools, machinery, plant and equipment.” Damage to the crane, therefore, was not covered:

The policy defines a temporary structure as something that is “incidental to the project.” Although the term incidental is not defined, “it is common practice for the courts of this State to refer to the dictionary to determine the plain and ordinary meaning of words to a contract” … .

Black’s Law Dictionary defines the term “incidental” as”[s]ubordinate to something of greater importance; having a minor role” (10th ed 2014]). The American Heritage Dictionary, defines incidental as “[o]f a minor, casual, or subordinate nature” (5th ed 2011]). The Merriam-Webster Online Dictionary defines the term “incidental” as “being likely to ensue as a chance or minor consequence” (11th ed 2003).

Applying these definitions, the 750-foot tower crane is not a structure that is “incidental” to the project. Indeed, rather than ensuing by chance or minor consequence … the “[b]uilding was specifically designed to incorporate the Tower Crane during construction” and the crane’s design and erection involved an “in-depth process” that had to be approved by a structural engineer. Moreover, once it was integrated into the structure of the building, the custom designed tower crane, rather than serving a minor or subordinate role, was used to lift items such as concrete slabs, structural steel and equipment, was integral and indispensable, not incidental, to the construction of the 74-story high-rise, which could not have been built without it. Accordingly, the tower crane does not fall within the policy’s definition of Temporary Works. Lend Lease (US) Constr. LMB Inc. v Zurich Am. Ins. Co., 2015 NY Slip Op 09389, 1st Dept 12-22-15

INSURANCE LAW (DAMAGE TO MASSIVE CONSTRUCTION CRANE NOT COVERED BY TEMPORARY WORKS CLAUSE)/CONTRACT LAW (DAMAGE TO MASSIVE CONSTRUCTION CRANE NOT COVERED BY TEMPORARY WORKS CLAUSE IN POLICY)

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HEARSAY STATEMENT BY AN UNAVAILABLE WITNESS SHOULD HAVE BEEN ADMITTED AS A STATEMENT AGAINST PENAL INTEREST.

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissenting opinion by Judge Pigott, determined that a statement made by an unavailable witness should have been admitted as a statement against penal interest. The defendant was convicted of driving while intoxicated. The out-of-court statement made by the unavailable witness indicated that she, not the defendant, was driving. The Court of Appeals affirmed the Appellate Division, reversed defendant's conviction and ordered a new trial. The court held that all of the following elements of the declaration-against-penal-interest exception to the hearsay rule were supported by sufficient evidence at trial:

The declaration-against-interest exception to the hearsay rule “flows from the fact that a person ordinarily does not reveal facts that are contrary to his own interest” unless those facts are true … . A statement qualifies as a declaration against interest if four elements are met: (1) the declarant is unavailable to testify as a witness; (2) when the statement was made, the declarant was aware that it was adverse to his or her penal interest; (3) the declarant has competent knowledge of the facts underlying the statement; and (4) supporting circumstances independent of the statement itself attest to its trustworthiness and reliability … . People v Soto, 2015 NY Slip Op 09316, CtApp 12-17-15

CRIMINAL LAW (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/EVIDENCE (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/HEARSAY (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/STATEMENT AGAINST PENAL INTEREST (REVERSIBLE ERROR TO EXCLUDE)

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PROSECUTION’S USE OF EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION; THE ERROR WAS DEEMED HARMLESS HOWEVER.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion by Judge Pigott (who adopted the dissent by Justice Garry in the Appellate Division), determined that the prosecution’s proof of defendant’s post-Miranda silence as he was being transported by the police violated defendant’s due process rights under the state constitution. The error, however, was deemed harmless because the court found there was no reasonable possibility the error contributed to defendant’s conviction. The defendant’s conviction was therefore upheld. The defendant acknowledged commission of the crimes (two murders) but raised the extreme emotional disturbance (EED) defense. The Court of Appeals held that evidence of defendant’s silence upon arrest, which apparently was aimed at disproving or calling into question the EED defense, did not contribute to the jury’s rejection of the EED defense. The opinion includes extensive discussions of the use of evidence of a defendant’s silence and the related violation of state constitutional rights, the EED proof requirements, and ineffective assistance of counsel. People v Pavone, 2015 NY Slip Op 09315, CtApp 12-17-15

CRIMINAL LAW (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/EVIDENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/SILENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)

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PLAINTIFF IN PERSONAL INJURY ACTION NOT REQUIRED TO DISCLOSE (1) FACEBOOK PHOTOGRAPHS SHE DID NOT INTEND TO INTRODUCE AT TRIAL AND (2) INFORMATION ABOUT POST-ACCIDENT MESSAGES.

The First Department, over an extensive dissenting memorandum by Justice Saxe, reversing Supreme Court, determined plaintiff in a personal injury action was not required to turn over to the defendant post-accident photographs of herself posted on Facebook which she does not intend to introduce at trial, and, further, plaintiff was not required to provide defendant with authorizations allowing Facebook to disclose when private messages were posted by the plaintiff after the accident and how long those messages were:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In determining whether the information sought is subject to discovery, “[t]he test is one of usefulness and reason” … . ” It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'” … . Discovery demands are improper if they are based upon ” hypothetical speculations calculated to justify a fishing expedition'” … .

This Court has consistently applied these settled principles in the context of discovery requests seeking a party’s social media information.  Forman v Henkin, 2015 NY Slip Op 09350, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

CIVIL PROCEDURE (DISCLOSURE OF FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/DISCLOSURE (FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/FACEBOOK (DISCLOSURE OF PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)

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AGREEMENT ALLOWING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ “HOME RULE” RIGHTS.

The Third Department, in a full-fledged opinion by Justice Garry, determined the petitioners, the Town of Vernon and the Town of Verona, did not have standing to attack an agreement (ratified by the New York Gaming Economic Development Act of 2013 [UNYGEDA]) allowing the Oneida Nation to implement legalized casino gambling. The towns argued that the agreement violated the towns’ “home rule” rights by removing land from their zoning and environmental authority, as well as preventing the collection of property taxes. The Third Department held that it was the placing of Oneida Nation land in trust (by the federal Department of the Interior) which caused these negative consequences and the trust was created before the agreement at issue:

These negative consequences … did not result from the agreement or from the UNYGEDA, but, instead, from the decision by the Department to place the lands in trust. That decision had already been made when the agreement was executed, and it was unaffected by any State action other than the agreement’s provision that the State and the Counties would discontinue then-pending federal litigation that challenged the Department’s decision. In 2014, the State and Counties did so … . The State has no constitutional obligation to pursue litigation, nor have petitioners established that the litigation would have resulted in the reversal of the Department’s decision to place the lands in trust if it had not been settled. Further, the discontinuance of the State’s claims did not foreclose the Towns from pursuing separate federal litigation that challenged the Department’s action, which they did until the action was dismissed on the merits in 2015 … . Thus, the State’s actions did not cause the harm that forms the basis of the Towns’ claims. Accordingly, the Towns failed to establish that the agreement and the UNYGEDA impinged upon their home rule powers, and Supreme Court properly ruled that they lacked the capacity to bring this action/proceeding. Matter of Town of Verona v Cuomo, 2015 NY Slip Op 09338, 3rd Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

MUNCIPAL LAW (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/HOME RULE (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/GAMBLING (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/ONEIDA NATION (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)

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SUPERMARKET EMPLOYEES HAD NO LEGAL DUTY TO AID AN UNCONSCIOUS PERSON IN A CAR IN THE SUPERMARKET PARKING LOT.

The Third Department determined employees of Tops supermarket did not have a duty to come to the aid of decedent, who died in his parked car in the Tops parking lot. Decedent and companions were drinking and doing drugs. When decedent was unconscious, his companions placed him in his own car and allegedly told Tops employees decedent was in need of emergency aid. The court held that the Tops employees did not have a legal duty to aid decedent:

“In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff” … . This is frequently a “difficult task [and,] [d]espite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree” … . Consonant with the premise that a moral duty does not equate with a legal duty … , it is the general rule that “one does not owe a duty to come to the aid of a person in peril” … . Exceptions to the general rule exist, such as, for example, a common carrier’s duty to take reasonable action to protect a passenger who is being assaulted … .

Here, although Tops was open to shoppers, this did not necessarily create an affirmative duty to come to the aid of anyone who was anywhere on its property no matter how unrelated such person’s presence was to Tops’ function as a grocery store. Decedent was not a customer of Tops, neither he nor his companions were on the premises for any activity related in any manner to Tops’ business, Tops’ employees did not participate in any fashion in the conduct of decedent’s companions, it is not alleged that Tops’ employees saw or had any contact with decedent on the premises, and Tops’ employees did not take any actions that put decedent in a worse position than the one in which his companions left him. Daily v Tops Mkts., LLC, 2015 NY Slip Op 09336, 3rd Dept 12-17-15

NEGLIGENCE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)/DUTY OF CARE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)

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WRONGFUL BIRTH CAUSE OF ACTION ACCRUES UPON BIRTH OF THE CHILD, NOT UPON THE TERMINATION OF TREATMENT CULMINATING IN THE IMPLANTATION OF A FERTILIZED DONOR EGG.

The First Department, in a full-fledged opinion by Justice Friedman, over a partial dissent, determined that plaintiffs’ action for wrongful birth accrued upon the birth of the child, not when the procedure implanting a fertilized donated egg was complete. The plaintiffs alleged that a donor egg was not adequately screened for genetic defects and that, in fact, a genetic defect in the egg was passed on to plaintiffs’ child:

This is a medical malpractice action for “wrongful birth” … , in which it is alleged that defendants’ failure to perform adequate genetic screening of an egg donor for an in vitro fertilization resulted in the conception and birth of plaintiffs’ impaired child. The primary question raised on this appeal is whether plaintiffs’ wrongful birth cause of action accrued upon the termination of defendants’ treatment of the plaintiff mother, less than two months after the implantation of the embryo, or upon the birth of the infant several months later. We hold that the wrongful birth claim accrued upon the birth of the infant and, therefore, was not barred by the applicable statute of limitations (CPLR 214-a) when this action was commenced within 2½ years after the birth. * * *

In the case of a claim for wrongful birth, “the parents’ legally cognizable injury is the increased financial obligation” of raising an impaired child … , … . Whether this legally cognizable injury will befall potential parents as the result of the gestation of an impaired fetus cannot be known until the pregnancy ends. Only if there is a live birth will the injury be suffered. Thus, until there is a live birth, the existence of a cognizable legal injury that will support a wrongful birth cause of action cannot even be alleged . Without legally cognizable damages, there is no legal right to relief, and “the Statute of Limitations cannot run until there is a legal right to relief” … . Accordingly, the statute of limitations begins to run on a wrongful birth claim upon the live birth of an impaired child, whose care and support will occasion the pecuniary damages the parents may seek to recover. B.F. v Reproductive Medicine Assoc. of N.Y., LLP, 2015 NY Slip Op 09370, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (WRONGFUL BIRTH CAUSE OF ACTION ACCRUES UPON BIRTH OF CHILD)/MEDICAL MALPRACTICE (WRONGFUL BIRTH CAUSE OF ACTION ACCRUES UPON BIRTH OF CHILD)/WRONGFUL BIRTH (CAUSE OF ACTION ACCRUES UPON BIRTH OF CHILD)

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