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Action Dismissed Because Letters of Administration Had Not Been Issued to Plaintiff at the Time the Action Was Commenced

The Second Department affirmed the dismissal of the action because the plaintiff had not received letters of administration at the time the summons with notice was filed and because the plaintiff did not allege any injury to him individually.  The court also noted that the plaintiff did not have standing (no representative capacity at the time the action was commenced) to request more time to serve the complaint:

A personal representative who has received letters of administration of a decedent's estate is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of his or her death … . Here, at the time the action was commenced by the filing of the summons with notice, the plaintiff had not yet received letters of administration of the decedent's estate and, thus, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff in a representative capacity … . Moreover, although the action was commenced by the plaintiff, both individually and as “executor” of the decedent's estate, no cause of action asserted any injury or wrongdoing to him … . Thus, the Supreme Court also properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff individually.

Moreover, as the plaintiff lacked standing to sue in his representative capacity at the time he commenced the action, he could not establish any meritorious basis to extend his time to serve the complaint … . Shelley v Sooth Shore Healthcare, 2014 NY Slip Op 08625, 2nd Dept 12-10-14

 

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Analytical Criteria Re: the Validity of a Stipulation Explained

In affirming the validity of a stipulation related to a divorce, the Second Department explained the relevant analysis, including the concept of ratification of the agreement by accepting its benefits:

” Stipulations of settlement are favored by the courts and are not lightly set aside'” … . A stipulation of settlement is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law … . “Judicial review is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own” … . ” [A] stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability'” … .

Here, the defendant established her prima facie entitlement to judgment as a matter of law by submitting, inter alia, the Stipulation, which contained an express representation that it was not a product of fraud or duress and which awarded the plaintiff meaningful benefits, as well as her affidavit wherein she averred that the parties’ attorneys were engaged in negotiations for months regarding the distribution of marital assets … . Furthermore, the defendant established that the plaintiff ratified the Stipulation and waived his claim to set aside the Stipulation by accepting the benefits of the Stipulation for a significant period of time … . Sabowitz v Sabowitz, 2014 NY Slip Op 08624, 2nd Dept 12-10-14

 

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No Appeal Lies from an Ex Parte, Sua Sponte, Judgment/Order

In affirming the dismissal of an inmate's action seeking to challenge the computation of his sentence (dismissal was based upon the inmate's failure to comply with the service requirements in an order to show cause), the Third Department noted that no appeal lies from an ex parte order, including an order entered sua sponte.  Apparently the remedy is a motion to vacate pursuant to CPLR 5015:

…[T]here is “no right of appeal from an ex parte [judgment/order], including [one] entered sua sponte,” such as Supreme Court's dismissal of the petition here … . Under the circumstances presented here, we decline to treat the notice of appeal from that judgment as an application for leave to appeal (see CPLR 5701 [c]…). Petitioner sought renewal pursuant to CPLR 2221 and, while perhaps more properly viewed as one to vacate pursuant to CPLR 5015, the judgment denying that motion presents the salient issues for review. Matter of Martin v Annucci, 2014 NY Slip Op 08539, 3rd Dept 12-4-14

 

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There Is No “Imminent Litigation” Requirement for the Application of the “Common-Interest Privilege”—Documents Generated During Merger Negotiations Among Two Corporations and Their Counsel May, Therefore, Be Protected by the Privilege, Which Is an Exception to the Rule that the Presence of a Third Party at a Communication Between Counsel and Client Destroys the Privilege

The First Department, in a full-fledged opinion by Justice Moskowitz, determined that the “common-interest privilege” may apply to documents created during merger negotiations among two corporations and their counsel.  The court found there is no requirement that litigation be imminent for the application of the privilege.  The underlying lawsuit was brought by a financial-guaranty insurer (Ambac) which alleged it was fraudulently induced by Countrywide to insure residential mortgage backed securities. Ambac sought discovery of documents relating to a merger between Countrywide and Bank of America Corporation (the subject of secondary claims by Ambac) which, it was alleged, would demonstrate Bank of America Corporation was on notice about Countrywide's alleged fraud. The First Department held that the merger-related documents could be protected by the common-interest privilege and sent the matter back to the motion court to determine whether particular documents are protected:

As noted above, the common-interest privilege is an exception to the rule that the presence of a third party at a communication between counsel and client will render the communication non-confidential … . The doctrine, a limited exception to waiver of the attorney-client privilege, requires that: (1) the communication qualify for protection under the attorney-client privilege, and (2) the communication be made for the purpose of furthering a legal interest or strategy common to the parties … . This Court has never squarely decided whether there is a third requirement: that the communication must affect pending or reasonably anticipated litigation. We answer that question today in the negative. Ambac Assur Corp v Countrywide Home Loans Inc, 2014 NY Slip Op 08510, 1st Dept 12-4-14

 

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Gun Found In Juvenile’s Shoe (After Juvenile Was Told to Remove His Shoes) Should Have Been Suppressed—Juvenile Could Not Be Arrested and Detained for a Violation (Disorderly Conduct Is Not a Crime) and Nothing More than a Frisk Is Justified During a Temporary Detention Pending the Arrival of a Juvenile’s Parents

The Second Department, over a two-justice dissent, determined that the search of the 15-year-old appellant (Jamal) was illegal and the gun found in appellant's shoe should have been suppressed.  The appellant, who had already been searched twice, was being wrongfully detained on a disorderly conduct charge (a violation, not a crime) at the time he was told to take off his shoes:

CPL 140.10 permits a police officer to arrest a person for any “offense” that is committed in the officer's presence. The term “offense” is broadly defined to include conduct for which a sentence to a term of imprisonment or a fine is provided by state or local law (see Penal Law § 10.00 [1]). Family Court Act § 305.2(2), however, provides that “[a]n officer may take a child under the age of sixteen into custody without a warrant in cases in which he [or she] may arrest a person for a crime . . . .” The term “crime” includes only misdemeanors and felonies, not violations (see Penal Law § 10.00[6]). Accordingly, a search may be conducted where a juvenile is taken into custody for conduct which, if committed by an adult, would constitute a crime … . As disorderly conduct is not a crime, Family Court Act § 305.2(2) prohibited Jamal's warrantless arrest for that offense … . Based on this record, it is clear that upon learning that Jamal was a juvenile the police nonetheless kept him under arrest with no statutory authority for doing so. * * *

…[W]hen Jamal was being held pending his parents' arrival, he was under temporary detention as opposed to arrest. “A temporary detention justifies only a frisk, not a full-fledged search” … . The removal of Jamal's shoes was far more intrusive than a frisk or a patdown … . We find no merit to the presentment agency's argument that safety required the removal of Jamal's shoes. “The touchstone of the Fourth Amendment is reasonableness . . .” … . Considerations of safety provide no justification in this case where Jamal was continuously in police custody and had been searched twice before being directed to remove his shoes. It is of no moment that Jamal was directed to remove his shoes pursuant to an alleged standard procedure. “[A]n unreasonable search is not somehow rendered reasonable, and therefore constitutionally permissible, by the mere fact that a departmental procedure was followed” … . The standard of reasonableness still applies … . We recognize that in appropriate cases law enforcement officers are authorized to employ reasonable measures to guard against detainees' self-infliction of harm. Such reasonable measures may include the removal of belts and shoelaces … . Nonetheless, the removal of Jamal's shoes cannot be justified as a protective measure where, as noted above, he had been twice searched by police officers who had no reason to expect that he had “anything on him” or otherwise posed a danger. Matter of Jamal S, 2014 NY Slip Op 08470, 1st Dept 12-4-14

 

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Criteria for a Legal Malpractice Action Re: the Attorney’s Performance In a Criminal Trial Explained—Here Plaintiff’s Conviction Was Reversed and Plaintiff Made a Colorable Claim of Innocence

The Third Department determined a legal malpractice action brought by a client represented by the defendant-attorney in a criminal trial properly survived summary judgment.  The defendant's conviction had been overturned by the Third Department and he was not reprosecuted.  Deficiencies in defendant's representation were noted in the reversal-decision:

In a legal malpractice claim, proximate cause is established by demonstrating that “but for the attorney's negligence, [the plaintiff] would have prevailed in the underlying matter or would not have sustained any ascertainable damages”… . Stated differently, “[t]he test is whether a proper defense would have altered the result of the prior action” … which, in the context of a criminal action, requires proof that the criminal defendant would not have been convicted … . Further, “[f]or malpractice actions arising from allegations of negligent representation in a criminal matter, the plaintiff must have at least a colorable claim of actual innocence” … . We find that a colorable claim has been demonstrated here based upon plaintiff's expressed assertions of innocence, together with our reversal of the judgment of conviction, as well as the District Attorney's decision not to reprosecute plaintiff and the consequent dismissal of the indictment … . * * *

Contrary to defendant's argument, plaintiff has sufficiently alleged pecuniary damages …, i.e., damages that “compensate the victim for the economic consequences of the injury” … . Arnold v Devane, 2014 NY Slip Op 08534, 3rd Dept 12-4-14

 

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“Expert” Affidavit Did Not Address the Affiant’s Qualifications for Rendering an Opinion Re: the Safety of a Curb and Sidewalk—Affidavit Should Not Have Been Relied Upon by the Motion Court

In finding that defendant's motion for summary judgment in a slip and fall case should have been denied, the Third Department noted that the expert affidavit should not have been relied upon by the motion court because it failed to include sufficient information to qualify the affiant as an expert:

Defendant … submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . Defendant's proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant's proffered expert listed the initials “P.E.” after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his “experience as an engineer.” While the “P.E.” would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information … .

Even assuming from the “P.E.” designation that this person is licensed as a professional engineer somewhere, merely stating that a person is a licensed engineer is insufficient to qualify that person as an expert in a particular case, absent any proof that he or she had any specialized training, personal knowledge or practical experience related to the subject at issue … . Flanger v 2461 Elm Realty Corp, 2014 NY Slip Op 08532, 3rd Dept 12-4-14

 

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Court’s Limited Arbitration-Review Powers Described—Collateral Estoppel Precluded the District from Raising the “Faithless Servant Doctrine” in a Related Lawsuit Because the Arbitrator Concluded the Doctrine Did Not Apply

The Third Department affirmed the arbitrator's decision that the school district employee, who had attempted to retire after allegations that she stole school district property surfaced, was entitled to health benefits.  The court determined, given that the faithless servant doctrine was litigated fully during the arbitration and deemed inapplicable, and given the arbitrator's conclusion the employee was entitled to her contractual health benefits, the school district was collaterally estopped from amending its complaint in the related court proceedings to include the faithless servant doctrine:

…Vacatur of the arbitration award is not warranted. “It is well established that an arbitrator's award is largely unreviewable” … . Vacatur of an arbitration award is only appropriate where “it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power” … . “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where 'an arbitrator has made an error of law or fact'” … . Union-Endicott Cent Sch Dist v Peters, 2014 NY Slip Op 08533, 3rd Dept 12-4-14

 

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Psychiatrist Deemed an Employee of a Counseling Center

The Third Department determined a psychiatrist was an employee of the New York Psychotherapy and Counseling Center (NYPCC) and was therefore entitled to unemployment insurance benefits:

“Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record” … . Further, “[w]here, as here, medical professionals are involved, the pertinent inquiry is whether the purported employer exercised overall control over the work performed” … .

Here, evidence was presented that NYPCC referred the patients to claimant and scheduled their initial appointments. NYPCC paid claimant an hourly wage for the time he treated the patients and NYPCC would bill the patients. Claimant was paid whether or not NYPCC was reimbursed by the patients or their health plans. Claimant worked in an office provided by NYPCC on NYPCC's premises — for which he only paid a nominal weekly fee of $9.87 — and would generate a treatment record that is accessed by NYPCC's doctors and staff. Matter of Lustgarten…, 2014 NY Slip Op 08538, 3rd Dept 12-4-14

 

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Where There Is a Surviving Partner and No Agreement to the Contrary, the Representative of a Deceased Partner Cannot Participate in the Winding Up of the Partnership and Has No Legal Right to the Partnership’s Assets, Books, Records or Business

The Second Department noted that the power to wind up a partnership (here BDF) is held by the surviving partner (here 6D) and cannot be exercised by the representative of a deceased partner (here Mrs. Benedict):

Under Partnership Law § 68, “[u]nless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided, however, that any partner, his [or her] legal representative, or his [or her] assignee, upon cause shown, may obtain winding up by the court.” Further, on the death of a partner, “his [or her] right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his [or her] right in such property vests in his [or her] legal representative” (Partnership Law § 51[2][d]…). The representative of a deceased partner is not entitled to participate in or interfere with the continuation of or winding up of partnership business by the surviving partner … .

Based on this authority, the Supreme Court correctly determined that, upon Mrs. Benedict's death, 6D was the only entity with a legal right to wind up BDF's business affairs because 6D was the only surviving partner. Moreover, upon Mrs. Benedict's death, the estate had no legal right to BDF's assets, books, records, or business. Rather, all rights to such property vested immediately in 6D, which was the only entity authorized to wind up BDF's business.  Neilson v 6D Farm Corp, 2014 NY Slip Op 08409, 2nd Dept 12-3-14

 

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