The First Department noted that if a contractual representation or warranty is false when made, a claim for breach accrues at the time of the execution of the contract, even if the contract states that the “effective date” is earlier. US Bank NA v DLJ Mtge Capital Inc, 2014 NY Slip Op 07093, 1st Dept 10-21-14
The First Department, in a full-fledged opinion by Justice Acosta, determined that a landlord could not terminate the tenant’s operation of a sidewalk cafe because the lease contemplated that use and the implied covenant of good faith and fair dealing restricted the landlord’s ability to deny consent to the continued operation of the cafe. [The underlying ruling was made on stipulated facts which included the erroneous “fact” that the lease did not include the cafe as part of the leased premises. The First Department noted that it is not bound on appeal by an incorrect stipulation of fact]:
The question presented on appeal is whether a landlord has an unfettered right to withhold or terminate its consent to a tenant’s operation of a sidewalk café, where the café has existed for at least 50 years and the lease contemplates the use of the sidewalk for that purpose. We hold that defendants may not withhold or terminate their consent, irrespective of whether they have a good-faith basis for doing so, because the lease expressly and unequivocally requires them to consent to plaintiff’s operation of the sidewalk café. In any event, we find that the implied covenant of good faith and fair dealing would otherwise restrict defendants’ ability to deny consent, and that they have failed to make a satisfactory showing of good faith in this case. * * *
Having determined that the lease allows plaintiff to use and occupy the sidewalk for the operation of a sidewalk café, it necessarily follows that defendants cannot withhold or revoke their consent to that use absent a good-faith basis. As the Court of Appeals has explained, “In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. While the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship, they do encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included” (511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 153 [2002] [internal citations and quotation marks omitted]).
Because the stipulated facts demonstrate that the sidewalk café existed at the time of the lease’s execution, plaintiff (through its assignor) was justified in understanding that the landlord promised to refrain from unreasonably withholding its consent to operate the sidewalk café. DMF Gramercy Enters Inc v Lillian Troy 1999 Trust, 2014 NY Slip Op 07110, 1st Dept 10-21-14
The Second Department determined the plaintiffs’ motion for summary judgment in a rear-end collision case should have been granted. The court explained the relevant analysis:
The driver of an automobile is required to maintain a safe distance between his or her own vehicle and the vehicle in front of him or her (see Vehicle and Traffic Law § 1129[a]…). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . Once the movant has established his or her entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … . A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference of negligence on the part of the driver of the following vehicle … . Cheow v Cheng Lin Jin, 2014 NY Slip Op 07337, 2nd Dept 10-214
The First Department determined the People did not meet their burden of demonstrating the defendant understood his Miranda rights at the time he waived them. After waiving his rights and making an oral and written statement, the defendant spoke with the Assistant District Attorney (ADA). During that conversation, which was videotaped, the defendant gave responses which indicated he did not understand he had the right to talk to his own attorney before speaking with the ADA. The court determined that the videotaped statement, as well as the prior oral and written statements, should have been suppressed:
…[I]t is not clear that this 18-year-old defendant with no prior criminal history, who could not read or write, ever understood his right to counsel nor the consequences of waiver. The evidence shows that defendant responded “yes” to questions when asked if he understood his rights. Then, immediately afterwards, defendant expressed confusion in understanding his right to counsel. As such, the People failed to present evidence that established defendant sufficiently understood the immediate import of the Miranda warnings. Moreover, ADA Elliot’s explanations failed to clarify for defendant the concept of his right to counsel. Thus, given defendant’s age, illiteracy, unfamiliarity with the criminal justice system, and statements expressing confusion about his Miranda rights, it is evident that the People failed to establish a knowing and intelligent waiver of Miranda rights … . People v Adames, 2014 NY Slip Op 07063, 1st Dept 10-16-14
In a case stemming from a fall from an allegedly defective ladder that was installed to gain access to a loft, the Third Department determined that an out-of-possession landlord was not liable based on a contractual reservation of the right to enter the premises to make repairs, but a question of fact had been raised about whether the out-of-possession landlord created the dangerous condition:
…[D]efendants were entitled to summary judgment as to the question of whether they were liable for plaintiff’s injuries based upon the provision in the lease retaining their right to enter the premises to make repairs. While a landlord who retains the right to enter the leased property to make repairs may be liable to injuries to third parties …, “only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord” … . Here, plaintiff’s expert opined that the condition of the ladder violated regulations found in the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1), the New York State Building Code and the Property Maintenance Code of New York. However, inasmuch as a violation of a regulation is insufficient to impose liability on an out-of-possession landlord pursuant to a reserved right to enter the premises …, plaintiff failed to raise a triable issue of fact.
We reach a different conclusion, however, as to whether defendants created the dangerous condition. Liability to a lessee’s employee for personal injuries may attach if the out-of-possession landlord affirmatively created the dangerous condition … . Although the former tenant hired an architect to design the plans for the premises, including the loft area and access ladder, defendants contracted and paid for the construction. Further, the record reflects that defendants took an active role in the construction project. Defendants and the tenant agreed to make changes to the architectural plans in order to cut costs, including changes to the design of the loft. While the architectural plan called for the ladder to be “mechanically fasten[ed] to surface of floor slab and at top edge to wood platform,” plaintiff’s expert opined, based upon his inspection of the site of the alleged accident, that the right stringer of the ladder was secured by three screws to an adjacent wall, not to the wood platform, and that the left stringer was not secured to the upper landing at all. Further, there was no evidence that the ladder was secured to the floor slab. Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition … . Boice v PCK Dev Co LLC, 2014 NY Slip Op 07042, 3rd Dept 10-16-14
The Third Department explained that the denial of a request that a judge recuse himself from presiding over a particular matter could not be addressed via an Article 78 proceeding, but rather could only be addressed on direct appeal:
A CPLR article 78 proceeding is not an appropriate vehicle for seeking review of issues that could be raised upon a direct appeal …, including the denial of a party’s request that a judge recuse himself or herself from presiding over a particular matter … . Rather, petitioners’ remedy at that point in time was to either reduce respondent’s bench decision on the recusal motion to a written order, serve a copy of that order and the corresponding notice of entry … and timely file an appeal therefrom … or, alternatively, await decision on the underlying summary judgment motions and, if aggrieved thereby, challenge the denial of their recusal motion upon a direct appeal from that order … . Matter of Concord Assoc LP v LaBuda, 2014 NY Slip Op 07052, 3rd Dept 10-16-14
In affirming Supreme Court’s determination of the location of a boundary line, the Third Department explained the doctrine of “practical location” which is used when the description of the land in deeds is inadequate:
As a general proposition, “[d]eeds and surveys indicate boundary lines by various descriptive elements or ‘calls’ which consist mainly of monuments, courses and distances, adjacent lands and area or quantity” … . Here, however, … our review confirms that the subject deeds contain no specific bearings or directional calls and set forth only the vaguest description of the intended boundary line between the land originally conveyed to plaintiff and Laight. Indeed, [a surveyor] opined that the deeds in question were “so bad” that a boundary line could not be established absent either a boundary line agreement, which the parties apparently were unable to forge, or judicial intervention … . To that end, where a dispute exists as to the location of a boundary line, “the intent of the parties existing at the time of the original conveyance of the disputed property controls” … . Pursuant to the doctrine of practical location, “the practical location of a boundary line and an acquiescence of the parties therein for a period of more than [the statutory period governing adverse possession] is conclusive of the location of the boundary line” … . “[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled” … . Gibbs v Porath, 2014 NY Slip Op 07030, 3rd Dept 10-16-14
In another case, the Third Department found the “practical location” doctrine inapplicable. Kennedy v Nimons, 2014 NY Slip Op 07036, 3rd Dept 10-16-14
The Third Department reversed defendant’s conviction and dismissed a conspiracy indictment as jurisdictionally defective because the indictment failed to charge the commission of an overt act in furtherance of the conspiracy:
In early October 2010, defendant then serving a sentence in the Otsego County jail on a contempt conviction stemming from various violations of an order of protection in favor of his ex-girlfriend, Jeanette Hamm allegedly told a fellow prisoner that he desired to have Hamm murdered. Defendant’s block-mate discussed the matter with prison officials, and the Otsego County Sheriff’s Department began an investigation. As part of the investigation, an undercover police officer posing as a potential assassin talked with defendant on the phone and met with him at the jail. Defendant was arrested shortly thereafter and charged by indictment with the crime of conspiracy in the second degree. * * *
As the People concede, the indictment is jurisdictionally defective and must be dismissed inasmuch as it failed to charge the commission of an overt act in furtherance of the conspiracy as required by Penal Law § 105.20 … . People v Grays, 2014 NY Slip Op 07017, 3rd Dept 10-16-14
The Third Department determined the trial court did not abuse its discretion when it ordered, over defendant’s objection, the assignment of new counsel because of a conflict of interest. Assigned counsel had represented the confidential informant (CI). The court was faced with either assigning new counsel or ruling that the CI could not testify:
County Court did not abuse its discretion in substituting assigned counsel against defendant’s wishes … . A criminal defendant’s right to counsel of his or her choice is not absolute and may properly be circumscribed where defense counsel’s continued representation of the defendant would present a conflict of interest … . Here, upon learning of the CI’s identity,[FN2] defendant’s original assigned attorney informed the court that he possessed confidential information from his prior representation of the CI that would affect his ability to cross-examine that witness, thereby establishing the existence of an actual conflict of interest … . Faced with “the dilemma of having to choose between undesirable alternatives” in addressing the conflict …, County Court’s decision to assign new counsel and adjourn the trial rather than preclude the testimony of the CI altogether constituted a proper exercise of its broad discretion under the circumstances presented … . People v Robinson, 2014 NY Slip Op 07018, 3rd Dept 10-16-14
The Third Department determined statements made spontaneously to the police after the defendant requested counsel were properly admitted and a 911 call made by the burglary victim was properly admitted as an excited utterance:
As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded … . However, “[n]otwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously ” … . Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant’s statements were not “the result of express questioning or its functional equivalent” … . That is, his statements to that point were “neither induced, provoked nor encouraged by the actions of the police officers” in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure … . * * *
Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim’s 911 call as an excited utterance, because her call was made after she had time for reflection. “An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “Among the factors to be considered in determining whether . . . a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” …, although “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .
Here, the victim testified that, although she had followed defendant’s car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,” and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is “a startling event” and the victim’s call was made “under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication” … . People v Haskins, 2014 NY Slip Op 07019, 3rd Dept 10-16-14
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