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Formal Training Not Necessarily Required to Qualify an Expert

In affirming the conviction, the Second Department explained the discretionary criteria for qualifying an expert at trial, which does not necessarily depend upon formal training:

The qualification of a witness to testify as an expert is a matter that rests in the sound discretion of the trial court, and the court’s determination should not be disturbed on appeal in the absence of a serious mistake, an error of law, or an improvident exercise of discretion … . “The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject” … . People v Dorvilier, 2014 NY Slip Op 07517, 2nd Dept, 11-5-14

 

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Electronic Documents Constitute “Tangible Personal Property” and Can Therefore Be the Subject of a Conversion Cause of Action

The Second Department determined Supreme Court properly denied a motion for summary judgment dismissing the conversion cause of action, finding that electronic documents constitute “identifiable tangible personal property” and therefor can be the subject of a conversion action:

The subject matter of a conversion cause of action ” must constitute identifiable tangible personal property’; real property and interests in business opportunities will not suffice” … . However, electronic documents stored on a computer may be the subject of a conversion claim just as printed versions of the documents may … . On their cross motion, the defendants failed to demonstrate that the client accounts alleged to have been converted did not exist in tangible form, such as computerized or paper client lists. Accordingly, that branch of the cross motion which was for summary judgment dismissing the conversion cause of action was properly denied, regardless of the sufficiency of the plaintiff’s opposing papers … . Volodarsky v Moonlight Ambulette Serv Inc, 2014 NY Slip Op 07498, 2nd Dept 11-5-14

 

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To Maintain Standing to Bring a Derivative Action Against a Not-for-Profit Corporation At Least Five Percent of the Members Must Be Plaintiffs at All Times As the Suit Progresses

The Third Department determined that in order to maintain standing for a derivative action against a not-for-profit corporation the plaintiffs must constitute five percent of the members at all times. In this case, the five percent requirement was met when lawsuit began but subsequently a member left and the five percent requirement was thereby no longer met:

N-PCL 623 is derived from the Business Corporation Law, but it is different in that it does not require ownership at the time of the transaction and does not allow plaintiffs to post security for expenses if they do not meet the five percent requirement (compare N-PCL 623, with Business Corporation Law §§ 626, 627). The requirement that plaintiffs in a derivative action against a not-for-profit corporation consist of at least five percent of any class of members was “necessitated by the elimination from the new law of the ‘security for expenses’ provision embodied in [Business Corporation Law § 627]” (Mem of Joint Legislative Committee to Study Revision of Corporation Laws, 1969 McKinney’s Session Laws of NY at 2485; see L 1969, ch 1066; see also E. Lisk Wyckoff, Jr., Practice Commentaries, McKinney’s Cons Laws of NY, Book 37, N-PCL 623). Because the N-PCL specifically eliminated the ability of less than five percent of shareholders to continue an action by posting security for expenses, we conclude that the ownership requirement of N-PCL 623 (a) must continue throughout the action in order to maintain standing … . Pall v McKenzie Homeowners’ Assn Inc, 2014 NY Slip Op 07392, 3rd Dept 10-3014

 

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Guilty Plea Based on a Sentence Promise that Neither the Court Nor the Parties Realized Was Illegal Requires Vacation of the Conviction in the Absence of Preservation—Notwithstanding the Fact the Sentence Was Ultimately Rendered Legal by an Enhancement Imposed Because the Defendant Violated the Terms of His Release Pending Sentencing

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that a guilty plea cannot stand where neither the court nor the parties was aware that the agreed upon sentence was illegal, even though the sentence was rendered “legal” by an enhancement.  The sentence promise was three years, but, given the defendant’s prior record, the minimum sentence he could legally receive was six years. Because the defendant was found to have violated the terms of his release pending sentencing, he was ultimately sentenced to six years as an enhanced sentence. The court summarized the facts and its ruling as follows:

The principal question presented here is whether a judgment of conviction, entered upon a guilty plea to a particular crime, may stand when the record discloses that neither the court nor the parties realized that the agreed upon sentence, to be imposed if defendant complied with the conditions of the plea, was illegal. Although defendant violated the conditions of his plea, and the enhanced sentence was legal, defendant is entitled to a plea vacatur for two fundamental reasons. First, defendant’s constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved. Second, to accept a guilty plea induced by an illegal promise affects the fairness, integrity and public reputation of judicial proceedings as the defendant could not have had a full understanding of what the plea connotes and its consequences … or “exercised a voluntary and intelligent choice among the alternative courses of action open to the defendant” … . People v Williams, 2014 NY Slip Op 07458, 1st Dept 10-30-14

 

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Odor of Burnt Marijuana Provided Probable Cause to Search Defendant and Vehicle

The Third Department determined that, upon a valid traffic stop, the odor of burnt marijuana detected by officers Denise and Knoetgen provided probable cause for the search of the vehicle and its occupants:

As for the propriety of the … pat down and/or search of defendant, “it is well established that [t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants” … . Here, both Denise and Knoetgen testified that they smelled burnt marihuana emanating from defendant’s clothing and the vehicle in which he was riding. Even accepting that Denise’s experience in detecting this distinctive odor was not sufficiently developed at the suppression hearing, we are satisfied that Knoetgen, as a drug recognition expert and a K-9 drug detection officer, possessed the requisite training and experience to do so. Further, and as noted previously, Knoetgen testified that the driver of the vehicle admitted that he and defendant had smoked marihuana prior to being pulled over for the underlying traffic violation … . As the circumstances presented and the observations made by the troopers provided probable cause for Knoetgen’s pat down/search of defendant, we discern no basis upon which to suppress the drugs subsequently seized from defendant’s pant leg. People v Rasul, 2014 NY Slip Op 07378, 3rd Dept 10-30-14

 

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Proof of Janitorial Schedule Demonstrated Absence of Constructive Notice of Liquid on Stairs

The First Department determined that proof of the maintenance schedule was sufficient to demonstrate defendant did not have constructive notice of a spill on a staircase:

Defendant … demonstrated that it lacked constructive notice of the liquid on the staircase through the affidavit of the caretaker assigned to the building on the day before the accident, who averred that she would have followed the weekend janitorial schedule, which required inspecting the building by 11:00 a.m. on the day before the accident and removal of anything found on the staircase, and that, pursuant to the schedule, she would inspect the staircase at around 8:00 a.m. the next morning … . Her statement concerning the janitorial schedule was corroborated by her supervisor’s testimony. Plaintiff testified that the wet condition was not present on the stairs the prior evening, when she returned home at 9 p.m. Such evidence established that the wet liquid was deposited on the stairs only after the caretaker left work and that the accident occurred before the caretaker came to work the next morning. This time frame, occurring out of regular work hours, would not have provided the caretaker with a sufficient period of time to discover and remedy the problem … . Defendant is not required to patrol the staircases 24 hours a day … . Pagan v New York City Hous Auth, 2014 NY Slip Op 07441, 1st Dept 10-30-14

 

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Damages in Medical Malpractice Case Paid by Insurer and Hospital—Therefore Doctor, a Defendant in the Medical Malpractice Case, Could Show No Pecuniary Loss—Legal Malpractice Suit by Doctor Must Therefore Be Dismissed

The Third Department determined that because the damages assessed against a doctor in a medical malpractice action were paid entirely by the insurer and the hospital, she suffered no pecuniary loss.  In the absence of pecuniary loss, she could not maintain a legal malpractice action against her attorneys:

Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits “but for” her attorney’s negligence and she sustained actual and ascertainable damages … . * * *

Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff’s contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the … verdict, is unavailing since “the established rule limit[s] recovery in legal malpractice actions to pecuniary damages” … . Plaintiff continued working at the hospital after the … verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. … Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the … verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital’s other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the … verdict are speculative and unsupported in this record … . Kaufman v Medical Liab Mut Ins Co, 2014 NY Slip Op 07398, 3rd Dept 10-30-14

 

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City Was “United in Interest” with Non-Profit Corporation Which Maintained Central Park Pursuant to a Contract with the City—Therefore Plaintiff, Who Was Allegedly Injured by a Truck Owned by the Non-Profit Corporation, Could Amend His Complaint to Include the Non-Profit Corporation After the Statute of Limitations Had Run—However the Extent to Which the City Was “United in Interest” Was Dictated by the Terms of the Contract

The First Department determined that the Conservancy, a non-profit corporation which maintains Central Park under a contract with the City of New York, was “united in interest” with the City.  Therefore, plaintiff, who allegedly had been injured by a maintenance truck owned by the Conservancy, could amend his complaint to include the Conservancy, even though the statute of limitations had run.  The ‘unity of interest” was defined by the terms of the contract.  Because the contract did not call for the City to indemnify the Conservancy for gross negligence, the complaint against the Conservancy could not include the gross negligence claim:

… [P]laintiff relied on the 2006 Central Park Agreement, a contract between the City and the Conservancy, a nonprofit organization, in which they acknowledged that they had formed an effective “public/private partnership.” Under the Agreement, the Conservancy is required to provide specified maintenance services in Central Park to the “reasonable satisfaction” of the City, and the City is broadly required to indemnify the Conservancy “from and against any and all liabilities . . . arising from all services performed and activities conducted by [the Conservancy] pursuant to this agreement in Central Park.” The City’s indemnification obligation, among other things, expressly excludes claims arising from gross negligence or intentional acts of the Conservancy or its agents or volunteers. As a result of the Agreement, the Conservancy acts, in effect, as an independent contractor fulfilling the City’s nondelegable obligation to maintain the City parks in reasonably safe condition … .

The City is vicariously liable for the Conservancy’s negligence in the course of providing maintenance in Central Park by virtue of the contractual indemnification provision, and the parties are thus united in interest … . Further, since the City has a nondelegable duty to maintain Central Park, it is vicariously liable for negligence committed by the contractor in the course of fulfilling that duty … . However, the City is correct that its interests are not united with those of the Conservancy with respect to the proposed gross negligence claim, and leave to assert that claim against the Conservancy is therefore denied. Brunero v City of New York Dept of Parks & Recreation, 2014 NY Slip Op 07444, 1st Dept 10-30-14

 

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Summary Judgment Admitting Will to Probate Appropriate Where Objections to the Will (“Testamentary Capacity” and “Undue Influence”) Not Supported

The Third Department determined summary judgment admitting the will to probate was appropriately granted where the “testamentary capacity” and “undue influence” objections were not supported by evidence:

“Whether to dismiss a party’s objections and admit the challenged will to probate is a matter committed to the sound discretion of Surrogate’s Court and, absent an abuse of that discretion, the court’s decision will not be disturbed” … . While rare, summary judgment in a contested probate proceeding is appropriate where a petitioner establishes a prima facie case for probate and the objectant does not raise any factual issues regarding testamentary capacity, execution of the will, undue influence or fraud … . Upon our review of the record, we find that respondent has raised no such issues and we, therefore, conclude that Surrogate’s Court properly awarded summary judgment to petitioner.

As to testamentary capacity, petitioner bore the initial burden of establishing that decedent understood the nature and consequences of making the will, the nature and extent of her property, and the natural objects of her bounty … . Notably, it was only necessary to demonstrate that decedent had “a general, rather than a precise, knowledge of the assets in . . . her estate” … .  * * *

…[T]he fact that a decedent was subject to undue influence is established when he or she “‘was actually constrained to act against [his or her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred'” … . Here, notwithstanding the confidential relationship between decedent and petitioner …, the record is bereft of any direct or circumstantial evidence indicating that petitioner exercised undue influence over decedent … . “On the contrary, [the evidence] indicate[s] that the will was the product of the free and unfettered act of [decedent]” … . Matter of Vosilla, 2014 NY Slip Op 07417, 3rd Dept 10-30-14

 

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Encroaching Structure Built to Prevent Excavation-Related Damage to Adjoining Property Is a Trespass

The First Department determined the fact that a property owner [Madison] is strictly liable for damage to an adjoining property [17 East] caused by excavation did not allow the construction of encroaching structures to prevent excavation-related damage to the adjoining property:

The imposition of absolute liability on parties whose excavation work damages an adjoining property places the burden of protecting adjoining property onto those undertaking the excavation work, and the risks thereof, rather than those whose interest in adjoining property is harmed by the work … . It should not be inferred, however, that the transfer of risk to the owner/excavator carries with it a corresponding unfettered right to excavate more than 10 feet below curb level, or that the adjoining property owner must allow underpinning of its property simply because the neighboring property owner undertaking such excavation bears absolute liability for any damage it may cause to the adjoining property … . * * *

Madison did not have the right, in the absence of an agreement with 17 East Owners, to erect permanent structures extending beyond the property line, either above or below the surface, and thus encroaching on 17 East Owners’ property.  Madison 96th Assoc LLC v 17 E 96th Owners Corp, 2014 NY Slip Op 07422, 1st Dept 10-30-14

 

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