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Although Not the Case Here, the Court Explained How a Collision Between a Vehicle Entering the Roadway and a Vehicle Which Is In the Roadway (and Has the Right-of-Way) Can Possibly Have Two Proximate Causes

The Second Department determined the defendant, who apparently struck plaintiff’s car as plaintiff pulled into traffic from a parking lot, was entitled to summary judgment.  Plaintiff was negligent as a matter of law based on a violation of Vehicle and Traffic law 1143, which requires a driver entering a roadway to yield to drivers within the right-of-way.  And there was no showing defendant was negligent.  The decision has a good explanation of how there can be two proximate causes of an accident under such facts (not the case here):

There can be more than one proximate cause of an accident …, because each driver has a duty to exercise reasonable care under the circumstances to avoid an accident … . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” … . Thus, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … . However, “[a] driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision” … . Desio v Cerebral Palsy Transp Inc, 2014 NY Slip Op 07322, 2nd Dept 10-29-14

 

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How to Handle a Motion to Dismiss for Failure to State a Claim When Documentary Evidence Is Considered Explained/Dismissal of Foreclosure Action Based on Lack of Standing Is Not a Dismissal on the Merits/Striking of a Foreclosure Complaint for Failure to Comply with a Discovery Order Is Not a Dismissal on the Merits

The Second Department determined plaintiff did not have a cause of action to discharge his mortgage.  The court explained how a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim is handled when documentary evidence is submitted and considered on the motion.  [With respect to the plaintiff’s allegations that the defendant could not institute new foreclosure proceedings against him, the court noted that the dismissal of a foreclosure complaint premised on a lack of standing is not a dismissal on the merits for res judicata purposes, and the striking of a complaint for noncompliance with a discovery order is also not a dismissal on the merits:]

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate … . Caliguri v JPMorgan Chase Bank NA, 2014 NY Slip Op 07319, 2nd Dept 10-29-14

 

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Language In Bill of Particulars Was Necessary to Support Claim for Punitive Damages—Language Should Not Have Been Struck as “Scandalous or Prejudicial”

The Second Department reversed Supreme Court’s order that plaintiff remove language from the bill of particulars which Supreme Court deemed “scandalous or prejudicial:”

… Counsel … made an oral application, in effect, pursuant to CPLR 3024, to strike certain language from the plaintiff’s bill of particulars. … The court … directed the plaintiff to remove allegations that the respondents engaged in “recklessness/reckless, intentional and malicious conduct, gross negligence, blatantly illegal conduct/illegal conduct” (hereinafter the subject language) from her bill of particulars … .  * * *

CPLR 3024(b) provides that “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” This rule is applicable to bills of particulars as well … . In reviewing a motion pursuant to CPLR 3024(b), “the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action” … . Matters that are unnecessary to the viability of the cause of action and would cause undue prejudice to the defendants should be stricken from the pleading or bill of particulars … .

The causes of action asserted by the plaintiff in the complaint demonstrate that the subject language was relevant to this matter, and necessary to support the pleading based on the punitive damages sought. Irving v Four Seasons Nursing & Rehabilitation Ctr, 2014 NY Slip Op 07330, 2nd Dept 10-29-14

 

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Criteria for Dismissal of a Complaint Pursuant to CPLR 3211(a)(1) [Defense Based Upon Irrefutable Documentary Evidence] and CPLR 3211(a)(7) [Failure to State a Cause of Action] Explained

In the context of a legal  malpractice action, in affirming the denial of motions to dismiss, the Second Department explained the criteria for motions to dismiss pursuant to CPLR 3211(a)(1) [defense founded on documentary evidence] and CPLR 3211(a)(7) [failure to state a claim]:

A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that his or her defense is founded upon documentary evidence ” has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . In the instant matter, the documentary evidence submitted by the defendants, consisting of the orders issued by the Supreme Court in the underlying action, failed to utterly refute the plaintiff’s allegations of malpractice or conclusively establish a defense as a matter of law in the instant action … . * * *

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Here, the plaintiff alleged that, but for the defendants’ negligence, including their failure to assert “appropriate claims against the proper parties, . . . the Plaintiff’s medical malpractice claim would have succeeded and resulted in a different, better and/or more positive outcome.” Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as required, the plaintiff stated a cause of action to recover damages for legal malpractice … . Tooma v Grossbarth, 2014 NY Slip Op 07347, 2nd Dept 10-29-14

 

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“Preamble” to Miranda Warnings Used In Queens County Undermined the Effectiveness of the Miranda Warnings—Defendants’ Statements Should Have Been Suppressed

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that the “preamble” to the Miranda warnings used by the police and the District Attorney's staff in Queens County undermined the effectiveness of the warnings to the extent that the defendants (Dunbar and Lloyd-Douglass)  were not adequately and effectively advised of their Fifth Amendment right to avoid self-incrimination:

[The “preamble” was as follows:]

“If you have an alibi, give me as much information as you can, including the names of any people you were with.

“If your version of what happened is different from what we've been told, this is your opportunity to tell us your story.

“If there is something you need us to investigate about this case you have to tell us now so we can look into it.

“Even if you have already spoken to someone else you do not have to talk to us.

“This will be your only opportunity to speak with us before you go to court on these charges.” * * *

Before they were read their Miranda rights, Dunbar and Lloyd-Douglas were warned, for all intents and purposes, that remaining silent or invoking the right to counsel would come at a price —they would be giving up a valuable opportunity to speak with an assistant district attorney, to have their cases investigated or to assert alibi defenses. The statements to “give me as much information as you can,” that “this is your opportunity to tell us your story” and that you “have to tell us now” directly contradicted the later warning that they had the right to remain silent. By advising them that speaking would facilitate an investigation, the interrogators implied that these defendants' words would be used to help them, thus undoing the heart of the warning that anything they said could and would be used against them. And the statement that the prearraignment interrogation was their “only opportunity” to speak falsely suggested that requesting counsel would cause them to lose the chance to talk to an assistant district attorney.

In sum, the issue in these cases is not whether, under the totality of the circumstances, these defendants' waivers were valid, but rather whether or not they were ever “clearly informed” of their Miranda rights in the first place, as is constitutionally required. We agree with the Appellate Division that they were not: the preamble undercut the meaning of all four Miranda warnings, depriving Dunbar and Lloyd-Douglas of an effective explanation of their rights. People v Dunbar, 2014 NY Slip Op 07293, CtApp 10-28-14

 

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Marriage Between a Half-Uncle and Half-Niece Is Not Prohibited by Domestic Relations Law 5 (3)

The Court of Appeals, in answering a certified question from the Second Circuit, determined that a marriage between a half-uncle and half-niece is not incestuous under Domestic Relations Law 5 (3).  The husband is the half-brother of the petitioner-wife's mother.  Petitioner is a citizen of Vietnam and the husband is a naturalized American citizen.  An immigration judge had declared the marriage void and ordered petitioner removed from the country. Judge Smith, in one of two concurring opinions, wrote:

Section 5 of the Domestic Relations Law reads in full:

“A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:

“1. An ancestor and a descendant;

“2. A brother and sister of either the whole or the half blood;

“3. An uncle and niece or an aunt or nephew.

“If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner.”

We must decide whether subdivision 3 of this statute should be read to include a half-uncle and half-niece (or half-aunt and half-nephew). There is something to be said on both sides of this question.  * * *

Domestic Relations Law § 5 is in part a criminal statute: it says that the participants in a prohibited marriage may be fined, and may be imprisoned for up to six months. Penal Law § 255.25, using language very similar to that of Domestic Relations Law § 5 (“ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece”), makes entry into a prohibited marriage a class E felony. Where a criminal statute is ambiguous, courts will normally prefer the more lenient interpretation, and the courts of several other states have followed that rule in interpreting their criminal laws not to prohibit relationships between uncles and nieces, or aunts and nephews, of the half blood … .  * * *

We are not geneticists, and the record and the briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively correct-seeming conclusion that the genetic risk in a half-uncle, half-niece relationship is half what it would be if the parties were related by the full blood. Indeed, both parties acknowledged at oral argument that the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage of first cousins. First cousins are allowed to marry in New York, and I conclude that it was not the Legislature's purpose to avert the similar, relatively small, genetic risk inherent in relationships like this one.  Nguyen v Holder, 2014 NY Slip Op 07290, CtApp 10-28-14

 

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Where a Witness Is Incarcerated Pursuant to the Judiciary Law, After A Finding the Witness is In Contempt, and the Incarceration Is Not Specifically Imposed for a Definite Period As Punishment, But Rather Is Imposed to Induce the Witness to Obey the Court’s Order, the Contempt Finding is Civil in Nature—Double Jeopardy Will Not Bar Prosecution of the Witness for Criminal Contempt Under the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the contempt finding and incarceration of the defendant (under the Judiciary Law) following the defendant's refusal to testify at his brother's trial was civil, not criminal, in nature.  Therefore, the prohibition against double jeopardy did not bar the prosecution from charging the defendant with criminal contempt (under the Penal Law),  The Judiciary Law allows a finding of civil or criminal contempt.  Where, as here, a defendant is incarcerated in the hope that the incarceration will induce the defendant to follow the court's order (in this case the order to testify under immunity), but no period of incarceration is specifically designated and imposed as a punishment for failure to obey the court's order, the proceedings are civil in nature.

…”'[I]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish civil from criminal contempt” (… . Where a defendant is held in contempt for the remedial purpose of compelling compliance, imprisonment continues until such time as the contemnor acquiesces or is no longer able to do so … . Once the contemnor agrees, there is no remedial purpose to be served by continued confinement. The contemnor, therefore, holds “the keys of their prison in their own pockets” … .

In contrast, where a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended —by the contemnor's compliance with the law, then the contempt is not remedial but punitive. As the Supreme Court has stated, “[i]f the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and [the defendant] cannot shorten the term by promising not to repeat the offense” … . * * *

For a court to summarily punish contempt, our Judiciary Law requires issuance of an order “stating the facts which constitute the offense” and “plainly and specifically prescribing the punishment to be inflicted” (Judiciary Law § 755 [emphasis added]). Notably absent from County Court's order of contempt here is a plain and specific statement of the punishment to be imposed upon defendant. The record reveals that the court issued a mandate of commitment and that defendant was confined pursuant to that mandate; no where does the record indicate the precise term of commitment. * * *

In cases where a court invokes its contempt power to coerce a defendant's obedience, the best practice would be for the court to state on the record that defendant may purge the contempt through compliance with the law. However, based on the record before us, it is clear that County Court did not summarily adjudicate defendant in criminal contempt or impose a definite sentence of punishment in accordance with the Judiciary Law. Therefore, defendant's conditional imprisonment was for the remedial purpose of compelling defendant's testimony, and as a consequence defendant's subsequent prosecution for contempt was not barred by double jeopardy. People v Sweat, 2014 NY Slip Op 07292, CtApp 10-28-14

 

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Court’s Role In Reviewing a Motion to Dismiss Pursuant to CPLR 3211 Explained

In reversing Supreme Court’s dismissal of a complaint alleging breach of the terms of an employment contract, the First Department explained the court’s role in determining a motion to dismiss under CPLR 3211 (a)(1) [documentary evidence] and (a)(7) [failure to state a claim]:

Under CPLR 3211(a)(1) and (a)(7) the court is limited to examining the complaint (and, under [a][1], the proffered documentary evidence) to determine whether the complaint states a cause of action … . The law is also settled that “in assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts as alleged in the complaint to be true and afford the plaintiff the benefit of every possible inference” … . “Whether the plaintiff will ultimately be successful in establishing [its] allegations is not part of the calculus” … . Greystone Funding Corp v Kutner, 2014 NY Slip Op 07296, 1st Dept 10-28-14

 

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Civil Commitment of Two Sex Offenders Reversed—In One Case the Proof the Offender Had “Serious Difficulty In Controlling” His Sexual Conduct Within the Meaning of Article 10 of the Mental Hygiene Law Was Legally Insufficient—In the Other Case, Proof the Offender Suffered from Anti-Social Personality Disorder (ASPC) Alone Did Not Meet the Definition of “Mental Abnormality” in Article 10 of the Mental Hygiene Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, reversed the civil commitment of two sex offenders, finding the proof required by Article 10 of the Mental Hygiene Law lacking. In the case of Kenneth T, the state claimed Kenneth suffered from “paraphilia not otherwise specified” (paraphilia NOS) and “antisocial personality disorder” (ASPD).  In the case of Donald DD, the state claimed Donald suffered from ASPD alone.  The Court of Appeals, with respect to Kenneth T, seriously questioned, but did not decide, whether the proof of paraphilia NOS and ASPD sufficiently demonstrated a “mental abnormality” under Article 10 of the Mental Hygiene Law.  The court suggested that a Frye hearing to test the scientific soundness of the opinion evidence in this regard would be a good idea. Sidestepping that issue on stare decisis grounds, the court reversed Kenneth's civil commitment because the proof Kenneth had “serious difficulty in controlling” his sexual conduct within the meaning of section 10.03 (i) was not clear and convincing.  With respect to Donald DD, the court unambiguously ruled that proof of ASPD alone is never sufficient proof of a mental abnormality within the meaning of section 10.03 (i):

We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and reincarceration. A detailed psychological portrait of a sex offender would doubtless allow an expert to determine the level of control the offender has over his sexual conduct. However, … testimony that Kenneth T. lacked “internal controls such as a conscience that might curb his impulses” is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. * * *

Donald DD.'s appeal presents us with an opportunity to decide a question left open in Matter of State of New York v John S. (23 NY3d 326 [2014]), namely whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes … . We hold that it cannot. Matter of State of New York v Donald DD, 2014 NY Slip Op 07295, CtApp 10-28-14

 

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Failure to Allege “Demand Futility” as Required Under Delaware Law Required Dismissal of the Derivative Causes of Action

The First Department determined the derivative claims in the complaint against a Delaware corporation were properly dismissed for failure to allege demand futility, as required under Delaware law:

Under Delaware law, where, as here, no demand has been made on corporate directors to bring a lawsuit, a derivative action may be brought on the corporation’s behalf only where the complaint alleged particularized facts that such a demand would have been futile … . To allege demand futility, the complaint must set forth particularized facts sufficient to raise a reasonable doubt that either (1) the directors are disinterested and independent, or (2) the challenged transaction was the result of a protected business judgment … . Whitecap (US) Fund I, LP v Siemens First Capital Commercial Fin LLC, 2014 NY Slip Op 07297, 1st Dept 10-28-14

 

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