You are here: / Affidavits and Text Messages Do Not Constitute “Documentary Evidence”...

Search Results

/ ,

Affidavits and Text Messages Do Not Constitute “Documentary Evidence” In the Context of a Motion to Dismiss Pursuant to CPLR 3211(a)(1)

The Second Department determined defendant’s motion to dismiss the breach of contract complaint should have been denied. The affidavits and text messages submitted in support of the motion did not constitute “documentary evidence” upon which a motion to dismiss may be based. The court defined “documentary evidence” in this context:

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as “documentary evidence,” it must be “unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,’ would qualify as documentary evidence’ in the proper case” … . However, “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … .

Here, the affidavits and text messages relied upon by the Supreme Court in concluding that the plaintiff failed to comply with the alleged condition precedent were not ” essentially undeniable,'” and did not constitute documentary evidence … . Eisner v Cusumano Constr., Inc., 2015 NY Slip Op 07812, 2nd Dept 10-28-15

 

/

Implied Definite Term of Duration

The Second Department explained the analytical criteria for determining the duration of a contract with no express definite term of duration. If there is no definite term of duration, the contract is terminable at will.  However, a definite term of duration need not be express (it can be implied from the surrounding circumstances):

Contracts containing no definite term of duration are terminable at will … . A definite term of duration need not be relayed in express terms, and may be implied … , and “where a duration may be fairly and reasonably supplied by implication, a contract is not terminable at will … . “In the absence of an express term fixing the duration of a contract, the courts may inquire into the intent of the parties and supply the missing term if a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties’ intent” … .

Here, the Supreme Court correctly determined that, by fair implication, the duration of the parties’ agreements was dependent upon the continued sale of the products designated in the subject agreements and, thus, the agreements could be terminated only upon [defendant’s] discontinuation of the sale of the designated products. Bennett v Atomic Prods. Corp., 2015 NY Slip Op 07806, 2nd Dept 10-28-15

 

/ , , ,

Non-Constitutional Appellate Issues Re: Refusal to Submit to a Chemical Test (DWI) Do Not Survive a Guilty Plea

The Second Department, in a full-fledged opinion by Justice Leventhal, determined defendant, by pleading guilty, had forfeited his right to appellate review of (non-constitutional) rulings about the admissibility of his refusal to submit to a chemical test (DWI) after his involvement in a car accident. The court explained why some appellate issues survive a guilty plea and some don’t:

The Court of Appeals has repeatedly observed that “a plea of guilty generally marks the end of a criminal case, not a gateway to further litigation'” … . A guilty plea signals the defendant’s intention not to litigate the issue of his or her guilt, “and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury” … . A guilty plea not only encompasses a waiver of the specific rights attached to a trial, but also “effects a forfeiture of the right to renew many arguments made before the plea” … . “This is so because a defendant’s conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial'” … . The forfeiture occasioned by a guilty plea extends to a variety of claims, including those premised upon a failure to provide CPL 710.30 notice … , the statutory right to a speedy trial … , the exercise of alleged discriminatory peremptory challenges … , and adverse rulings on Sandoval and Ventimiglia/Molineux applications … .

However, not every claim is forfeited by a guilty plea. The issues that survive a valid guilty plea generally relate either to jurisdictional matters, such as an insufficient accusatory instrument, or to rights of a constitutional dimension that go to the heart of the criminal justice process … . “The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not” … . Examples of rights of constitutional dimension which are not forfeited by a guilty plea include the constitutional right to a speedy trial, the protection against double jeopardy, and the competency of the defendant to stand trial … .

Among the limited group of issues that survive a valid guilty plea and may be raised on a subsequent appeal are those relating to the denial of a motion to suppress evidence under CPL 710.20 … . The Legislature has preserved such claims for appellate review through the enactment of CPL 710.70(2) … . CPL 710.70(2) expressly grants a defendant a statutory right to appellate review of an order denying a motion to suppress evidence “notwithstanding the fact” that the judgment of conviction “is entered upon a plea of guilty.” However, the statutory right to appellate review created by CPL 710.70(2) applies to orders which deny a motion to suppress evidence on the grounds enumerated by CPL 710.20 … .  Athough CPL 710.20(5)  authorizes a defendant to move to suppress evidence of “a chemical test of the defendant’s blood administered in violation of the provisions” of Vehicle and Traffic Law § 1194(3) or “any other applicable law,” that provision is not implicated here. In this case, the defendant did not move to suppress the results of a chemical test of his blood. Indeed, the police did not perform a chemical test upon the defendant. Rather, he moved to preclude the People from admitting testimony of his refusal to submit to a chemical test. Such a motion cannot be characterized as one seeking suppression under CPL 710.20(5). Accordingly, the defendant does not have a statutory right to appellate review of the County Court’s ruling permitting the introduction of evidence of his refusal to submit to a chemical test.

Nor is the defendant’s claim that the County Court erred in ruling that the People would be permitted to introduce evidence at trial of his refusal to submit to a chemical test a claim of constitutional dimension, or one that bears upon the integrity of the judicial process. Rather, the court’s determination relates to an evidentiary or technical matter. People v Sirico, 2015 NY Slip Op 07862, 2nd Dept 10-28-15

 

/

Identically Worded Misbehavior Reports Re: Different Inmates Were Inherently Incredible

The Second Department determined the inmate’s disciplinary determination must be annulled. Identically worded reports, concerning different inmates, signed by at least three different reporting officers, were “inherently incredible:”

The misbehavior report in this case was in the form of a first-person narrative, which provided a number of factual details about the reporting officer as well as the petitioner, including the direction from which the officer arrived at the scene, the exact location from which the officer first observed the disturbance, his personal observation of the petitioner “yelling and shouting,” the officer’s inability to hear the petitioner’s exact words, and the number of direct orders the officer gave the petitioner.

Ordinarily, such a particularized statement would be sufficiently relevant and probative to constitute substantial evidence supporting the determination … . Here, however, the petitioner successfully challenged the reliability of the report by showing that identically worded reports (except for the name and identifying information of the subject inmate) were signed by at least three different reporting officers.

While it is entirely plausible that several inmates, in the course of a disturbance, may have engaged in substantially similar misbehavior, we find it inherently incredible that several officers could have experienced the same particularized encounter with a number of different inmates. We further note that the hearing officer twice precluded the petitioner from asking the reporting officer whether he had actually written the unsworn report. Matter of Jackson v Annucci, 2015 NY Slip Op 07842, 2nd Dept 10-28-15

 

/

Two-Justice Dissent Argued Termination of Father’s Parental Rights Was Not In the Best Interests of the Child

The Second Department, over a two-justice dissent, determined father had abandoned the child and his parental rights were properly terminated. The dissent argued that, because of new facts revealed after the order appealed from was issued, and because the mother’s parental rights were not terminated, severing the child from his father was not in the child’s best interests:

FROM THE DISSENT

A petition to terminate parental rights on the ground of abandonment may be denied where, despite evidence that the parent abandoned the child during the six-month period prior to the filing of the petition, the record nevertheless demonstrates that termination would not be in the best interests of the child … . Here, my colleagues in the majority conclude that the father’s failure to take prompt action to assert paternity after the mother informed him that he might be the child’s father in the six months prior to the filing of the petition constituted abandonment. However, that finding does not mandate granting the petition to terminate parental rights where, as here, new facts arose after the filing of the petition, and after the issuance of the order appealed from, which demonstrate that termination of the father’s parental rights is not in the child’s best interests … . * * *

.[T]here are no facts in this record which indicate that a relationship between the child and his father will be harmful to the child … . * * * It appears from this record that terminating the father’s parental rights would serve no purpose other than to sever any potential ties between the child and his father and paternal kindred. Matter of Jake W.E. (Jonathan S.), 2015 NY Slip Op 07840, 2nd Dept 10-28-15

 

 

/

Children’s Remaining in Foster Care Until Father’s Release from Prison Was Not a Sufficient Plan for the Children’s Future, Permanent Neglect Finding Proper

The Second Department determined a permanent neglect finding was proper. Children’s remaining in foster care until father’s release from prison was not a sufficient plan for the children’s future:

A parent’s incarceration does not obviate the obligation to develop a “realistic and feasible” plan for the children’s future … . A plan for children to remain in foster care throughout a parent’s incarceration and for a period of time thereafter as necessary to establish suitable living arrangements for the children is not a viable plan to secure permanency for the children … . Thus, “[t]he failure of an incarcerated parent to provide any realistic and feasible’ alternative to having the children remain in foster care until the parent’s release from prison . . . supports a finding of permanent neglect” … .

Here, the father failed to provide any feasible plan for the subject children other than continued foster care until after he was released from prison and had time to “get on [his] feet.” Accordingly, despite the petitioner’s diligent efforts to encourage and strengthen the parental relationship, the father failed to adequately plan for the children’s future, and the Family Court’s finding of permanent neglect was supported by clear and convincing evidence … . Matter of Jenna K. (Jeremy K.), 2015 NY Slip Op 07843, 2nd Dept 10-28-15

 

/ , ,

Anti-Social Personality Disorder (ASPD) Alone Will Not Support Civil Commitment of Sex Offender

The Second Department noted that the diagnosis that a sex offender suffers from anti-social personality disorder (ASPD) is insufficient to justify civil commitment:

A diagnosis of anti-social personality disorder (hereinafter ASPD) “has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03(i) that it cannot be relied upon to show mental abnormality for [Mental Hygiene Law] article 10 purposes” … . Since ASPD was the sole diagnosis underlying the jury’s finding that the appellant suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), the finding was not supported by legally sufficient evidence, and the petition must be dismissed … .  Matter of State of New York v Odell A., 2015 NY Slip Op 07851, 2nd Dept 10-28-15

 

/

Church Had No Special Relationship With Plaintiff, Church Had No Authority to Exercise Control Over Conduct of Man Who Injured Plaintiff/Therefore Church Did Not Owe Plaintiff a Duty of Care

The Second Department determined the defendant church was properly granted summary judgment in a case stemming from an altercation between, Edward,  the husband of a church employee (Rhonda), and plaintiff, a pedestrian on a public sidewalk (presumably outside the church). It was alleged that Rhonda encouraged and facilitated an assault on plaintiff by Edward. The respondeat superior cause of action was properly dismissed because Rhonda was not acting within the scope of her employment during the altercation. And the negligence cause of action was properly dismissed because there was no special relationship between the church and the plaintiff, and, therefore, the church did not owe plaintiff a duty of care:

” For a defendant to be held liable in tort, it must have owed the injured party a duty of care'” … . “The existence and extent of a duty is a question of law” … .

“Generally, there is no duty to control the conduct of third persons to prevent them from causing injury to others,’ even where, as a practical matter, the defendant could have exercised such control … . A duty to control the conduct of others requires a special relationship: “a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others” … .

Here, the church made a prima facie showing of its entitlement to judgment as a matter of law dismissing the cause of action alleging negligence, insofar as asserted against it, by establishing that owed no duty to the plaintiff. Its submissions demonstrated that it had no relationship with the plaintiff, who was a pedestrian on a public sidewalk … . Further, the church established that it did not have the necessary authority or ability to exercise the requisite control over Edward’s conduct so as to give rise to a duty to control his conduct for the protection of off-premises pedestrians … . Rodriguez v Judge, 2015 NY Slip Op 07828, 2nd Dept 10-28-15

 

/ ,

Defendant-Driver’s Admission and Prior Inconsistent Statement, Contained in the Police Accident Report, Should Have Been Admitted in Evidence

The Second Department reversed a defense verdict in a vehicular accident case because an admission and prior inconsistent by the defendant-driver, included in a police accident report, was not admitted in evidence:

On appeal, the plaintiff contends, among other things, that the Supreme Court erred in precluding her from admitting into evidence that portion of the police accident report which contained [defendant-driver’s] statement that he never observed the plaintiff’s vehicle prior to the accident. This statement was admissible against the defendant as an admission, since it tended to inculpate the defendant in connection with a material fact … . Moreover, that same statement in the police accident report was admissible as a prior inconsistent statement … . Under the circumstances presented her, the error in precluding the admission of that portion of the police accident report into evidence cannot be considered harmless, as it bore on the ultimate issue to be determined by the jury … . Brown v URS Midwest, Inc., 2015 NY Slip Op 07809, 2nd Dept 10-28-15

 

/ ,

Criteria for Amending a Complaint to Replace “John Does” with Named Defendants Explained

Plaintiff alleged he was injured when tackled by police officers. The officers were named in the complaint as “john does.” After the statute of limitations had run, plaintiff sought to amend the complaint to name the officers involved. The Second Department determined the motion was properly denied because plaintiff did not exercise due diligence in discovering the officers’ names:

In order to employ the procedural “Jane Doe” or “John Doe” mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired … . “[W]hen an originally-named defendant and an unknown Jane Doe’ [or John Doe’] party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the relation-back’ doctrine of CPLR 203(f), based upon postlimitations disclosure of the unknown party’s identity” … . The moving party seeking to apply the relation-back doctrine to a later-identified “Jane Doe” or “John Doe” defendant has the burden, inter alia, of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations … .

Here, the plaintiffs failed to establish that they exercised due diligence to discover the identity of the John Doe defendants prior to the expiration of the statute of limitations. There is no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests … . Moreover, there is no indication that the plaintiffs sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run … . Although the plaintiffs maintain that, due to a pending investigation by the NYPD’s Internal Affairs Bureau, they did not learn the identities of the subject officers until the injured plaintiff’s criminal trial, the plaintiffs’ submissions failed to show that they diligently sought to gain access to the records contained in the file for the criminal proceeding prior to the expiration of the statute of limitations. Holmes v City of New York, 2015 NY Slip Op 07819, 2nd Dept 10-28-15

 

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