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Defects in On-the-Record Waiver of Appeal Not Cured by Written Waiver

The Second Department, in determining defendant’s waiver of appeal was insufficient, noted that signing a written waiver does not cure defects in the court’s on-the-record inquiry about the defendant’s understanding of the waiver:

The record fails to establish that the defendant’s purported waiver of his right to appeal was knowing, voluntary, and intelligent … . An appeal waiver is not valid unless the defendant’s understanding of the waiver is evident on the face of the record … . Here, the trial court’s statement to the defendant that he was giving up his right to appeal, followed by its inquiry as to whether his attorney had explained that right to him, was insufficient to demonstrate a valid waiver … . The defendant’s execution of a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . People v Little, 2015 NY Slip Op 03567, 2nd Dept 4-29-15

 

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Denial of Special Use Permit Reversed As Arbitrary and Capricious/Difference Between Special Use Permit and Use Variance Explained

The Second Department determined that the denial of 7-Eleven’s petition for a special exception (also referred to as a special use permit) for operation of a convenience store was arbitrary and capricious.  The court explained the difference between a special use permit and a use variance. A special use permit gives a property owner permission to use property in a way that is consistent with the zoning ordinance but not necessarily allowed as of right. A use variance gives the owner permission to use the property in a manner inconsistent with the zoning ordinance.  The proof burden is much lighter for a special use permit, as opposed to a use variance.  The proponent of a special use permit need only show compliance with legislatively imposed conditions, while the proponent of a use variance must show undue hardship in complying with the ordinance. Here no evidence was presented to support the denial of the special use permit:

A special exception, commonly known as a special use permit, “gives [a property owner] permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . By contrast, a use variance gives a property owner permission to use the property in a manner inconsistent with a local zoning ordinance. “The significance of this distinction is that the inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood” … . Accordingly, “the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a [use] variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance” … . Matter of 7-Eleven, Inc. v Incorporated Vil. of Mineola, 2015 NY Slip Op 03544, 2nd Dept 4-29-15

 

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Third-Party Beneficiary of an Indemnification Agreement May Enforce Obligations Owed to the Judgment Debtor by the Indemnifying Party

The Second Department determined the third-party beneficiary of an indemnification agreement could bring an action to collect a debt by suing the entity which entered the indemnification agreement with the judgment debtor. “Pursuant to CPLR 5227, a special proceeding may be commenced by a judgment creditor ‘against any person who it is shown is or will become indebted to the judgment debtor.’ Such a proceeding is properly asserted against one who agreed to indemnify the judgment debtor in the underlying proceeding … . The judgment creditor stands in the judgment debtor’s shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party… “. Matter of White Plains Plaza Realty, LLC v Cappelli Enters., Inc., 2015 NY Slip Op 03549, 2nd Dept 4-29-15

 

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Summary Judgment Motion Served Within 60 Days of the Filing of the Note of Issue but Filed on the 61st Day Deemed Untimely

The First Department, reversing Supreme Court, strictly enforced a Supreme Court “individual part rule” and deemed a summary judgment motion untimely.  The rule requires a motion for summary judgment to “filed” within 60 days of the filing of the note of issue.  Here the motion was served within the 60 days but was filed on the 61st day. Connolly v 129 E. 69th St. Corp., 2015 NY Slip Op 03450, 1st Dept 4-28-30

 

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Including “Statute of Limitations” in a Catch-All Paragraph Listing Many Affirmative Defenses Did Not Provide Plaintiff with Sufficient Notice—At a Bare Minimum, the Duration of the Relevant Statute of Limitations, Six Years Here, Should Be Pled

The First Department, in a full-fledged opinion by Justice Acosta, with an extensive concurrence, determined that the inclusion of the “statute of limitations” in a catch-all paragraph listing many affirmative defenses did not provide sufficient notice to the plaintiff.  In addition to failing to separately number and plead each affirmative defense (as required by the CPLR) the defendant failed to plead what the applicable statute of limitations (six years here) was. The court criticized a Court of Appeals case which said that simply mentioning the “statute of limitations” as an affirmative defense is sufficient notice—the First Department specifically suggested that the Court of Appeals revisit the issue. The court held that the plaintiff was prejudiced by the failure to plead the applicable (six-year) statute of limitations because the issue was not directly addressed during discovery as a result of the insufficient notice.  Supreme Court’s grant of summary judgment to the defendant was reversed on the merits (competing expert affidavits raised questions of fact). The defendant was allowed to replead the affirmative defense and the plaintiff was allowed further discovery on the issue:

The result of defendant’s failure to comply with CPLR 3014 is that its statute of limitations defense lay buried within a paragraph of mostly irrelevant, and conclusory, defenses. Although plaintiff could have moved to compel separate numbering …, it was not required to make such a motion because defendant’s answer did not necessitate a responsive pleading (see CPLR 3018; CPLR 3024). Thus, plaintiff cannot be forced to accept the defective answer simply because it declined to make a motion to compel separate numbering.

Further, we have no doubt that defendant was permitted to plead its affirmative defenses hypothetically — which it apparently attempted to do by “reserving” those defenses unto itself — but only insofar as those defenses were concise, separately numbered, and sufficiently stated (CPLR 3013; CPLR 3014). A permissive hypothetical pleading does not extend so far as to authorize a defendant to plead each and every affirmative defense that might exist without regard to its relevance to the cause(s) of action presented by the complaint. Permitting such conduct here would effectively sanction deception on the part of defendant, whether intentional or not, thereby avoiding the CPLR’s notice requirement. In other words, defendant’s formulation of its laundry list of defenses in hypothetical terms does not exempt it from the other requirements of CPLR 3014.

The question, therefore, becomes one of prejudice. That is, the CPLR directs us to construe a defendant’s answer liberally and disregard defects unless a substantial right of the plaintiff would be prejudiced (see CPLR 3026). This must be done in light of the overarching directive that the CPLR “be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding” (CPLR 104). “[W]e must literally apply the mandate [to construe pleadings liberally] as directed and thus make the test of prejudice one of primary importance” … . * * *

It seems clear that a court cannot require a level of particularity beyond that outlined by the Official Forms; to do so would contravene CPLR 107’s command that pleadings that comply with the forms are sufficient as a matter of law … . Thus, the most that a court could require of a defendant pleading the statute of limitations is to state the applicable period of limitations, as set forth in Official Form 17. We acknowledge that Official Form 17 establishes a ceiling, not a floor. To be sure, a defendant whose answer pleads the “statute of limitations” and includes the applicable period of limitations will necessarily be in compliance with the official form, and courts must deem that pleading sufficient pursuant to CPLR 107 and CPLR 3013. Scholastic Inc. v Pace Plumbing Corp., 2015 NY Slip Op 03489, 1st Dept 4-28-15

 

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Special Proceedings, Here a Motion to File a Late Notice of Claim, Are Subject to the Same Standards and Rules as Motions for Summary Judgment—Supreme Court Should Not Have Considered New Evidence Presented for the First Time in Reply Papers

In finding that plaintiff’s motion to file a late notice of claim should not have been granted (inadequate excuse for delay, misrepresentations made to the court), the First Department explained that Supreme Court should not have considered matters raised for the first time in petitioner’s reply papers.  The court noted that special proceedings are subject to the same standards and rules as those applied to summary judgment motions:

As a matter of procedure, the motion court erred in entertaining arguments advanced for the first time in petitioners’ reply papers and in accepting their offer of new proof, unnecessarily protracting summary proceedings. As succinctly stated by this Court:

“It is settled that a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment, requiring the court to decide the matter upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised'” … .

We further held that where, as here, a petition is unsupported by sufficient evidentiary proof, the petitioning party will not be entitled to remedy those deficiencies …, thereby extending a procedure providing for summary disposition through “unnecessary and unauthorized elaboration” … . We have consistently stated that in proceedings subject to summary determination, no consideration is to be accorded to novel arguments raised in reply papers … . That this Court may, in the exercise of discretion, entertain such arguments upon review … does not endorse the unnecessary extension of summary proceedings. Under these circumstances, it was improvident to excuse petitioners’ deceit and grant their application to serve a late notice of claim. Matter of Gonzalez v City of New York, 2015 NY Slip Op 03467, 1st Dept 4-28-15

 

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All Causes of Action Against a Provider of Clinical Laboratory Services, Which Were Based Upon the Alleged Misreading of a Tissue Sample, Governed by the 2 1/2-Year Medical Malpractice Statute of Limitations

The First Department determined that all the causes of action against Quest, a clinical laboratory which analyzed a Pap smear tissue sample, were subject to the two-and-one-half-year statute of limitations for medical malpractice actions (as opposed to the three-year statute for negligence actions generally).  The complaint alleged Quest negligently misread the tissue sample.  In addition, the complaint alleged regulatory infractions, i.e., no plan for error reduction and failure to adequately implement, maintain or supervise quality assurance.  The court explained the relevant law:

It is settled that a negligent act or omission “that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice” … . Laboratory services, such as Quest’s, performed at the direction of a physician are an integral part of the process of rendering medical treatment … . Accordingly, a claim stemming from the rendition of such services is a medical malpractice claim … .

Plaintiffs however make additional claims that Quest failed to properly employ a plan for error reduction and failed to adequately implement, maintain or supervise quality assurance. These claims cannot be distinguished from allegations of medical malpractice. In applying the statute of limitations, courts must look to the reality or essence of a claim rather than its form … . The critical factor in distinguishing whether conduct may be deemed malpractice or ordinary negligence is the nature of the duty owed to the plaintiff that the defendant allegedly breached … . The additional claims put forth in this case would not be actionable in the absence of the misreading of the tissue sample, the basis of the malpractice claim. All of the regulatory infractions alleged by plaintiffs bear a substantial relationship to the rendition of medical treatment … . Annunziata v Quest Diagnostics Inc., 2015 NY Slip Op 03466, 1st Dept 4-28-15

 

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Cross-Examination About the Omission of Exculpatory Information from a Statement Made to Police Is Not the Same as Cross-Examination About the Exercise of the Right to Remain Silent

The First Department noted that defendant was properly cross-examined about the omission of exculpatory information provided in his direct testimony from the statement he had given to police. “After receiving Miranda warnings, and agreeing to provide a statement to the police, defendant made statements that omitted significant exculpatory matter that he included in his trial testimony. Under the circumstances, this was an unnatural omission, and a permissible basis for impeachment…”.  People v Brown, 2015 NY Slip Op 03469, 1st Dept, 4-28-15

 

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The “Physical Intrusion” by the Police Officer (Tapping the Defendant’s Pocket) Was Not Justified by Reasonable Suspicion of a Crime—The Subsequent Frisk of the Defendant Was Similarly Not Justified—The Arrest Was Therefore Invalid–All Seized Items and Statements Made by the Defendant Should Have Been Suppressed

The First Department determined the police officer’s observations of the defendant’s actions (head turning both ways) in a “high narcotics area” justified his approach of the defendant, who was sitting in a car (founded suspicion/common-law right of inquiry).  Asking the defendant what was in his pocket after the defendant pulled his hand from his jacket was also justified. However, the officer’s “tapping” of an object in defendant’s pocket was not justified.  The intrusion (tapping the pocket) and the subsequent frisk of the defendant were not supported by reasonable suspicion of a crime or by the need to ensure the officer’s safety. The arrest was invalid and the motion to suppress all seized items, as well as the statements made by the defendant, should have been granted:

Defendant was the passenger in a vehicle stopped by the police at approximately 9 p.m. in a “high narcotics area.” As an officer approached the passenger side of the vehicle, he noticed defendant’s “head turning both ways and a lot of . . . movement coming from the area of the front passenger seat.” As he reached the passenger side window, he saw defendant, who appeared nervous, “pulling his hand from his jacket, from the fold of his jacket.” When the officer asked defendant what he “put in [his] jacket,” defendant “mumbled something unintelligible or really didn’t say much.” The officer then reached into the car, “tapped” the pocket of defendant’s jacket with the flashlight he was holding, and felt “something hard.”

The officer’s observations, up until the time he arrived at the passenger window, gave rise to founded suspicion that criminality was afoot, and so justified his question regarding what defendant had put in his pocket, which constituted a common-law inquiry … . However, we find that the physical intrusion of tapping defendant’s pocket was unauthorized. The circumstances did not give rise to the reasonable suspicion required to authorize a frisk. Nor was the officer’s conduct justifiable as a “minimal self-protective measure”…, which is permissible in furtherance of the common-law right of inquiry, where sufficient concerns for personal safety are present … . The circumstances, viewed as a whole, did not suggest any need for the officer to take such a precaution. At the time of the officer’s intrusion, defendant was not reaching for an area where a weapon might be located, there was no suggestion that a weapon was present or that violence was imminent, and there was no other basis for a self-protective intrusion.

Because the ensuing frisk outside the car, and the resulting arrest, depended on the initial improper intrusion, they were invalid as well. In any event, we also find that the search of the plastic bag following defendant’s arrest was not supported by exigent circumstances … . People v Butler, 2015 NY Slip Op 03458, 1st Dept 4-28-15

 

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“Pertinent to Litigation” Privilege for Statements Made by an Attorney Does Not Apply If the Relevant Litigation Is a “Sham”—Here Sufficient “Sham Litigation” Allegations Were Made—Slander Per Se Cause of Action Should Not Have Been Dismissed

In finding plaintiff had stated a cause of action for slander per se, the First Department explained that the privilege for statements made by an attorney which pertain to on-going litigation does not apply if the litigation is a “sham.”  The plaintiff, an attorney, sued Finkelstein, also an attorney, for statements alleged to have been made by Finkelstein to plaintiff’s former client, Harrison. Plaintiff alleged that Finkelstein told Harrison plaintiff had taken Harrison’s money and that Finkelstein was the source of the false allegations in Harrison’s complaint against plaintiff.  Disagreeing with Supreme Court, the First Department held that the complaint stated a cause of action because the complaint sufficiently alleged the lawsuit brought by Harrison was a “sham” to which the “statements pertinent to litigation” privilege would not apply:

… [A] statement that is pertinent to litigation is absolutely privileged and cannot form the basis of a defamation action. That principal of law was first stated by the Court of Appeals in Youmans v Smith (153 NY 214, 219 [1897]), and was recently reaffirmed by the Court in Front, Inc. v Khalil (24 NY3d 713 [2015]) . This Court has held that, where the privilege is invoked, “any doubts are to be resolved in favor of pertinence” … . Further, the test to determine whether a statement is pertinent to litigation is ” extremely liberal'” …, such that the offending statement, to be actionable, must have been “outrageously out of context” … .

This Court has recognized, however, that the privilege is capable of abuse and will not be conferred where the underlying lawsuit was a sham action brought solely to defame the defendant … , in which this Court declined to dismiss a defamation claim based on the pertinency privilege where the context in which the allegedly offending statement was made was a litigation that the plaintiffs filed but never prosecuted. The existence of this “sham litigation” exception has been confirmed (but not applied) in other cases in this Department… . Flomenhaft v Finkelstein, 2015 NY Slip Op 03468, 1st Dept 4-28-15

 

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