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Plaintiff Sufficiently Demonstrated the Possibility of Long-Arm Jurisdiction to Warrant Discovery

The Third Department determined Supreme Court should not have dismissed an attorney’s suit for fees on lack-of-personal-jurisdiction grounds. The underlying action was brought by a New York resident (Swanson) injured in Massachusetts.  In explaining the general principles of long-arm jurisdiction, the court noted that some discovery may be necessary to determine the jurisdiction issue:

New York courts “may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state” (CPLR 302 [a] [1]). Inasmuch as CPLR 302 (a) (1) is a “single act statute . . . proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” … . With respect to the requirement of a substantial relationship, “the existence of some articulable nexus between the business transacted and the cause of action sued upon” is “[e]ssential to the maintenance of a suit against a non-domiciliary under CPLR 302 [(a) (1)]” … . Although plaintiff bears the burden of proof as the party seeking to assert jurisdiction, that burden “does not entail making a prima facie showing of personal jurisdiction; rather, plaintiff need only demonstrate that it made a ‘sufficient start’ to warrant further discovery” … . In that regard, we note that the issue of whether long-arm jurisdiction exists often presents complex questions; “[d]iscovery is, therefore, desirable, [*3]indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits” … .

In our view, plaintiff has made a “sufficient start” and demonstrated that additional facts establishing personal jurisdiction “may exist” but are within defendants’ exclusive control … . Specifically, plaintiff raised questions of fact regarding whether defendants interjected themselves into Swanson’s New York workers’ compensation proceeding, ultimately negotiating the workers’ compensation lien on the settlement proceeds from Swanson’s personal injury action. Gottlieb v Merrigan, 2014 NY Slip Op 05011, 3rd Dept 7-3-14

 

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Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege

The Fourth Department determined a reporter’s (Velez-Mitchell;s) statements about a judicial proceeding were entitled to absolute privilege under Civil Rights Law 74.  The report concerned a lawsuit brought by a transgender woman and included reference to a DVD the woman had received from plaintiff Most Holy Family Monastery (MHFM).  The DVD was entitled “Death and the Journey to Hell.” The plaintiff contended the report falsely asserted that the Most Holy Family Monastery advocated putting homosexuals to death:

…[D]efendants are entitled to the absolute privilege set forth in Civil Rights Law § 74 … . The … statement was made in the context of the interview conducted by Velez-Mitchell, which concerned, inter alia, pending judicial proceedings commenced by the woman in California after her personal information had allegedly been misused by the DMV employee. During the interview, the woman and her attorney explained that the woman had obtained a temporary restraining order against the DMV employee based upon that employee’s misuse of her personal information, and that she had thereafter received the package from MHFM. The broadcast of the interview was twice promoted as a transgender woman “suing,” and a caption beneath the woman’s image stated, inter alia, “Transgender Woman Suing DMV.” Velez-Mitchell questioned a former prosecutor regarding the viability of an anticipated lawsuit against the DMV, and the woman’s attorney stated that “[t]he Human Rights Commission filed a complaint” concerning the incident and the “big picture is about privacy and the legal right to have [one’s] privacy protected.”

“When examining a claim of libel, we do not view statements in isolation. Instead, [t]he publication must be considered in its entirety when evaluating the defamatory effect of the words’ ” … . Here, “[r]ealistically considered,” the first statement provided background facts for the woman’s claims in pending and anticipated judicial proceedings, and the broadcast as a whole was a ” substantially accurate’ ” report of the judicial proceedings … . Consequently, the first statement is entitled to the absolute privilege set forth in Civil Rights Law § 74. Dimond v Time Warner Inc, 2014 NY Slip Op 05060, 4th Dept 7-3-14

 

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Psychological Injury Related to Threat of Violence Compensable

The Third Department determined psychological injury stemming from a surgeon’s threat of physical violence made to the claimant (a physician’s assistant) during a surgical procedure was a compensable injury:

“For a mental injury premised on work-related stress to be compensable, the stress must be greater than that which usually occurs in the normal work environment . . .[, which is] a factual question for the Board to resolve” … . Here, the employer argues that the surgeon’s verbal threat could not give rise to a compensable stress claim, noting mitigating factors such as the presence of others in the operating room and claimant’s familiarity with the surgeon’s “difficult” personality. However, in adopting the findings of the Workers’ Compensation Law Judge, the Board determined that claimant’s uncontroverted psychiatric diagnoses were caused by the incident, and that, under the circumstances here, threats of physical violence made by her supervisor constituted greater stress than that which normally occurs in similar work environments. Inasmuch as such determination is supported by substantial evidence and this Court cannot “reject the Board’s choice simply because a contrary determination would have been reasonable,” it must be upheld … . Matter of Lucke v Ellis Hosp, 2014 NY Slip Op 05009, 3rd Dept 7-3-14

 

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Motion to Quash Subpoena for Billing Records Re: the Insurance Company’s Examining Physician Properly Denied

The Fourth Department determined a motion to quash a subpoena duces tecum was properly denied, even though the billing documents for the insurance company’s (State Farm’s) examining physician were sought for cross-examination and impeachment purposes:

State Farm moved to quash the subpoena pursuant to CPLR 2304 on the ground that it was plaintiff’s intent to use the subpoenaed materials to impeach the examining physician’s general credibility. Plaintiff opposed the motion on the ground that she intended to use the subpoenaed documents to cross-examine the examining physician at trial with respect to his bias or interest. Supreme Court denied the motion, and we affirm.

“It is . . . well settled that a motion to quash a subpoena duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry” … . “Moreover, the burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoenaed” … . It is “proper to allow cross-examination of a physician regarding the fact that the defendant’s insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness” … . Questions concerning the bias, motive or interest of a witness are relevant and should be “freely permitted and answered” …  and, thus, plaintiff is entitled to discovery materials that will assist her in preparing such questions. In light of the foregoing, we conclude that the court did not abuse its discretion in denying the motion. Dominici v Ford, 2014 NY Slip Op 05081, 4th Dept 7-3-14

 

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Summary Judgment Properly Awarded in Derivative Child-Neglect Proceeding

The Third Department determined summary judgment was properly awarded in a derivative child-neglect proceeding, based in large part on findings made in prior neglect proceedings:

“‘Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists'” … . Neglect or abuse of one child typically may not serve as the sole support for a finding of derivative abuse or neglect; however, where the proof of “past neglect and abuse demonstrably ‘evidence[s] fundamental flaws in the respondent’s understanding of the duties of parenthood, proof of abuse or neglect of other children is alone sufficient to sustain a finding of abuse or neglect of another child'” … . A prior determination should be “sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist” …, but “there is no ‘bright-line, temporal rule beyond which we will not consider older child protective determinations'” … .

Here, petitioner established a prima facie case for summary judgment with the affidavit of its counsel setting forth the prior proceedings, the Family Court records of such proceedings and an affidavit from a caseworker. The nature of the acts that Family Court had found in the 2010 proceedings as having been perpetrated upon a child entrusted to respondent’s care established a fundamental defect in respondent’s understanding of parental duties. The caseworker set forth, among other things, respondent’s failure to complete preventive services, including sex offender treatment. Although respondent’s affidavit in opposition offered explanations for his inability to complete some services, he acknowledged that he had not yet completed sex offender treatment. Given the nature of the 2008 acts found in the 2010 proceedings, together with the fact that respondent is still in, but has not yet successfully completed, sex offender treatment, we are unpersuaded that Family Court erred in granting summary judgment… . Matter of Ilonni I…, 2014 NY Slip Op 04987, 3rd Dept 7-3-14

 

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Precedent Precluded Denial of Benefits

The Third Department, reversing the Workers’ Compensation Board, determined precedent required that benefits be afforded the claimant because his testimony he was engaged in a job search was deemed credible by the Board:

…”[E]ven though there is in the record substantial evidence to support the determination made,” the Board’s “failure to conform to [its] precedent will . . . require reversal on the law as arbitrary” if the Board has failed to explain the reason for its departure … . As relevant here, the Board has previously determined that a claimant remains attached to the labor market when he or she is actively participating in, among other things, a job-location service — such as One-Stop Career Centers — or Board-approved vocational rehabilitation, and that a claimant’s credible testimony regarding that participation is sufficient to establish attachment to the labor market (see Employer: Classic Bindery, Inc., 2011 WL 3612749, *2, 2011 NY Wrk Comp LEXIS 3997, *5-6 [WCB No. G021 5031, July 27, 2011]). The Board here expressly found claimant’s testimony that he was actively participating with One-Stop to be credible but, because claimant did not provide documentation of his participation, the Board concluded that he failed to adequately demonstrate attachment to the labor market. The Board purported to rely upon a prior decision, Employer: American Axle …, in determining that documentation was necessary but, while American Axle held that documentary evidence of active participation in One-Stop constitutes evidence of attachment to the labor market, it required documentary evidence only in connection with a claimant’s independent job search (id.). American Axle, therefore, does not provide an adequate basis for distinguishing Classic Bindery.  Matter of Winters v Advance Auto Parts, 2014 NY Slip Op 05005, 3rd Dept 7-3-14

 

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County Court Should Have Afforded Defendant Opportunity to Withdraw His Plea Before Imposing an Enhanced Sentence Based Upon Post-Plea Events

The Third Department determined County Court should not have imposed an enhanced sentenced based upon post-plea events without affording the defendant the opportunity to withdraw his plea:

A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed … . Here, County Court enhanced defendant’s sentence due to defendant’s arrest while on release pending sentencing. However, the record reflects that defendant was never warned that County Court would not be bound by its sentencing commitment if he were arrested while out on release … . Consequently, County Court erred in imposing an enhanced sentence without first providing defendant an opportunity to withdraw his plea… . People v Tole, 2014 NY Slip Op 04980, 3rd Dept 7-3-14

 

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Court Should Not Have Precluded Expert Evidence About the Quality of Representation Received by Indigent Defendants

The Third Department determined Supreme Court (acting as the trier of fact) should not have precluded the presentation of expert evidence in a case concerning the quality of legal services received by indigent criminal defendants:

Under familiar rules, expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence” of the trier of fact … . “[T]his principle applies to testimony regarding both ‘the ultimate questions and those of lesser significance'” … . Notably, expert testimony is “appropriate to clarify a wide range of issues calling for the application of accepted professional standards” … .

Here, the experts possess the requisite skill, training, education, knowledge and/or experience to qualify as experts on the operation of indigent defense systems and the evaluation of such systems in light of prevailing professional standards … . * * *

At its core, this litigation is about system-wide conditions relating to and affecting the delivery of public defense — such as caseloads, funding and oversight, among others — and whether these conditions in the defendant counties are such that “the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet” … . By virtue of their extensive experience, the experts possess specialized knowledge with respect to the operation of public defense systems, the professional standards applicable to such systems, and the impact of systemic shortcomings on the provision of counsel to indigent criminal defendants at all critical stages. Such particularized knowledge is, manifestly, beyond that of a typical Supreme Court Justice, whose experience is oft confined to case-by-case determinations … . Hurrell-Harring v State of New York 2014 NY Slip Op 05010, 3rd Dept 7-3-14

 

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Court Erred In Failing to Hold a Restitution Hearing—No Support In Record for Amount Imposed

The Third Department determined County Court erred by imposing $100,000 restitution without a hearing.  The People had determined the $100,000 figure was excessive and had requested restitution in the approximate amount of $32,000:

….[W]e agree with defendant that County Court erred in ordering restitution in the amount of $100,000 without a hearing. By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]…). Defendant sufficiently preserved this challenge to the increased amount of restitution, in that defense counsel and the People questioned it at sentencing … . Upon review, we find that there is no evidence in the record to support the court’s imposition of $100,000 in restitution. To the contrary, at sentencing the People characterized such figure as “excessive,” stated that they “lacked sufficient documentation and proof” to support that amount, and proffered evidence supporting restitution in the amount of $32,240, a figure to which the victim, the court and defendant had all agreed. Further, there are statutory limits on the amount of restitution, which may be exceeded, as relevant here, provided “‘the amount in excess [is] limited to the return of the victim’s property, including money, or the equivalent value thereof'” … . Accordingly, the matter must be remitted for a restitution hearing or a redetermination of restitution consistent with the plea agreement. Given that “[a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” …, under the circumstances here, upon remittal, defendant must be afforded an opportunity to withdraw his guilty plea if a hearing is held and the amount of restitution imposed exceeds the originally agreed upon amount, i.e., $32,240. People v Pleasant, 2014 NY Slip Op 04981, 3rd Dept 7-3-14

 

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Fraud Cause of Action Seeking Only Lost Profits as Damages Must Be Dismissed

The Third Department determined that plaintiff’s fraud cause of action could not go forward because plaintiff sought only lost profits as damages.  Also dismissed and briefly discussed were “conspiracy to commit fraud (not a valid separate cause of action),” prima facie tort and a demand for punitive damages:

Plaintiff’s cause of action alleging fraud requires “a misrepresentation or omission of a material fact known to be false and made with the intent to deceive, as well as justifiable reliance and damages” … . * * * “The true measure of damage [for fraud] is indemnity for the actual pecuniary loss sustained as the direct result of the wrong or what is known as the out-of-pocket rule” … . Damages for fraudulent acts should “compensate plaintiffs for what they lost because of the fraud, not for what they might have gained” … . As plaintiff does not dispute that it seeks only the lost profit it anticipated earning as a result of conveying the property to BLP, defendants are entitled to summary judgment dismissing the first cause of action … .

Plaintiff’s second cause of action alleging a conspiracy to commit fraud must also be dismissed because “‘a mere conspiracy to commit a [tort] is never of itself a cause of action'” … . Plaintiff’s third cause of action for prima facie tort “requires a showing of an intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful” … . Significantly, “[s]uch acts must be motivated solely by malevolence” … . Plaintiff … makes no claim that defendants were motivated — even in part — by malevolence. As for plaintiff’s fourth cause of action for declaratory relief, it too must be dismissed as entirely unnecessary under the circumstances here … .

Nor, in light of our determination that plaintiff failed to establish its causes of action for fraud and prima facie tort, is this a case for punitive damages. There is no basis upon which to conclude that defendants’ conduct “‘evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'” … . Route 217, LLC v Greeg, 2014 NY Slip Op 04998, 3rd Dept 7-3-14

 

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