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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defense Counsel’s Failure to Move to Suppress Statements, to Challenge Search Warrants, to Request Discovery and to Object to the Conduct of the Prosecutor Raised Questions of Effective Assistance

The Court of Appeals determined questions about the effectiveness of defense counsel warranted a hearing on defendant's motion to vacate his conviction.  The court found defense counsel's explanation for failing to move to suppress defendant's statements (he was interrogated for 26 hours), failure to challenge search warrants, failure to make certain discovery requests and failure to object to the conduct of the prosecutor, inadequate:

[Defense counsel's] affirmation did not, however, address why suppression could not have been sought on the basis of: the 26-hour interrogation at a State Police barracks, which occurred in a room that may have been locked at times; the possible use of handcuffs, shackles and a “jail suit” during such questioning; and a purported refusal by the police to contact the lawyer who was representing defendant in a pending criminal case because defendant's request for legal assistance was deemed “too late.” Nor did [defense counsel] provide an explanation for failing to challenge the various search warrants that were issued or the evidence that was obtained by the police. [Defense counsel] also did not attempt to justify several potential trial errors that were noted by the Appellate Division (including the possibility of inadequate discovery requests and the failure to object to prosecutorial conduct that County Court felt compelled to address sua sponte as “grossly improper”). In these particular circumstances, we conclude that there were sufficient questions of fact as to whether [defense counsel]  had an adequate explanation for his alleged deficiencies. Defendant is therefore entitled to an opportunity to establish that he was deprived of meaningful legal representation … . People v Zeh, 33, CtApp 3-27-14

 

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Because Defendant’s Resentence to Remedy the Failure to Impose a Period of Post-Release Supervision Was On Appeal, Defendant Had Not Acquired a Legitimate Expectation of Finality in His Sentence such that the Double Jeopardy Clause Was Implicated

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined, under the facts, the imposition of a period of post-release supervision [PRS] after defendant completed his sentence (which was illegal because it did not include a period of post-release supervision) did not violate the Double Jeopardy clause.  Because the resentence was being appealed, the defendant had not yet “acquired a legitimate expectation of finality in his sentence:”

Defendant … moved to vacate his conviction under Criminal Procedure Law (CPL) 440.10. Supreme Court denied the motion to vacate the conviction. The court nevertheless noted that defendant's sentence was illegal because it did not include the mandatory term of PRS … and ordered that defendant be resentenced. Defendant was conditionally released in May 2008. One month later, Supreme Court resentenced defendant to the original concurrent terms of imprisonment, as well as a five-year term of PRS. In October 2009, the maximum term of his prison sentence passed.   * * *

The protection against multiple punishments protects defendants from having their sentences increased once they have acquired “legitimate expectations of finality” therein (Williams, 14 NY3d at 214). We explained in Williams that a defendant may acquire a legitimate expectation of finality in an illegal sentence only once “the direct appeal has been completed (or the time to appeal has expired)” and the sentence has been served (id. at 217).

In Velez [19 NY3d 642] , we addressed whether a defendant acquired a legitimate expectation of finality in an illegal sentence where a resentencing proceeding had been instituted but the term of PRS had not yet been imposed prior to the expiration of the sentence. We held that the defendant … acquired a legitimate expectation of finality (19 NY3d at 650). In this case, defendant has served his sentence, but the direct appeal of that sentence is not over; it presently is before us. Consequently, defendant has not acquired a legitimate expectation of finality in his sentence.  People v Cintron, 35, CtApp 3-27-14

 

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In Disability Discrimination Suits Brought Under the NYS and NYC Human Rights Law, to Prevail on Summary Judgment, the Employer Must Demonstrate It Engaged in a Good Faith Interactive Process to Consider a Proposed Accommodation

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that to prevail on a motion for summary judgment in a disability discrimination action brought under the New York State Human Rights Law and the New York City Human Rights Law, the employer must demonstrate it engaged in a good faith interactive process to consider the reasonableness of a proposed accommodation to the disability.  The failure to so demonstrate in this case precluded summary judgment.  The employee had developed a lung condition which required that he not be exposed to construction dust.  His job required that he visit construction sites.  With respect to the consideration of a proposed accommodation in the context of a summary judgment motion, the court wrote:

In light of the importance of the employer's consideration of the employee's proposed accommodation, the employer normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. And, the employer cannot present such a record if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request. Consequently, to prevail on a summary judgment motion with respect to a State HRL claim, the employer must show that it “engage[d] in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the accommodation requested” … . And, because the City HRL provides broader protections against disability discrimination than the State HRL, the City HRL unquestionably forecloses summary judgment where the employer has not engaged in a good faith interactive process regarding a specifically requested accommodation … .  Jacobsen v New York City Health and Hospitals Corporation, 34, CtApp 3-27-14

 

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Tenant Unable to Raise Question of Fact About Whether Dampness and Mold Caused Her Physical Ailments/The Proof of General and Specific Causation Fell Short of Meeting the Frye Criteria for Scientific Tests Deemed “Generally Acceptable as Reliable” in the Scientific Community

In a full-fledged opinion by Judge Read, the Court of Appeals determined plaintiff was unable to raise a triable issue of fact about whether her physical injuries were caused by indoor exposure to dampness and mold.  The court did an extensive analysis of the expert evidence and determined, with respect to the Frye [293 F 1013] criteria, although “links” between plaintiff’s injuries and dampness and mold had been established,  the cause and effect relationship required under the Frye criteria had not been established:

In Frye v United States (293 F 1013, 1014 [DC Cir 1923]), the court rejected the testimony of a defense expert regarding the results of a “systolic blood pressure deception test” — an early type of polygraph test — because it had not yet “gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” While the Frye test turns on acceptance by the relevant scientific community, we have never insisted that the particular procedure be “‘unanimously indorsed'” by scientists rather than “‘generally acceptable as reliable'” … . * * *

Thus, studies that show an association between a damp and moldy indoor environment and the medical conditions that [plaintiff’s expert]  attributes to [plaintiff’s] exposure to mold (bronchialasthma, rhino-sinusitis, hypersensitivity reactions and irritation reactions of the skin and mucous membranes) do not establish that the relevant scientific community generally accepts that molds cause these adverse health effects. But such studies necessarily furnish “some support” for causation since there can be no causation without an association (although, as explained, there can be an association without causation). For these reasons, the Appellate Division was incorrect when it ruled that the Frye standard was satisfied in this case because [plaintiff’s expert’s] opinions as to general causation find “some support” in the record. In sum, then, [plaintiff] has not raised a triable issue of fact with respect to general causation.

Additionally, even assuming that [plaintiff] demonstrated general causation, she did not show the necessary specific causation. Cornell v 360 West 51st Street Realty, LLC, 16, CtApp 3-27-14

 

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Cannot Sue Vehicle Owner as Vicariously Liable Under Vehicle and Traffic Law 388 Where Driver is Immunized from Suit Under Workers’ Compensation Law 29 (6)

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that “a defendant may [not] pursue a third-party contribution claim under New York Vehicle and Traffic Law [section] 388 against the owner of a vehicle, where the vehicle driver's negligence was a substantial factor in causing the plaintiff's injuries, but the driver is protected from suit by the exclusive remedy provision of New York Workers' Compensation Law [section] 29 (6)…”.  Here the driver, who was determined to be negligent (90%), was using her husband's car to drive a co-worker to a business meeting. The co-worker was injured and his exclusive remedy against the driver was under the Workers' Compensation Law.  The co-worker sued the driver of the other car, who was also determined to be negligent (10%).  The owner of that car (the driver's husband) then sued the owner of the car in which the co-worker was riding (the employee-driver's husband) under Vehicle and Traffic Law section 388 for contribution and indemnification:

In sum, we hold that a defendant may not pursue a third-party contribution claim under Vehicle and Traffic Law § 388 against a vehicle owner where the driver's negligence was a cause of the plaintiff's injuries, but the driver is insulated from a lawsuit under Workers' Compensation Law § 29 (6).  Isabella…Hallock… v Koubek, 45, CtApp 3-27-14

 

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A Gallery, as Agent for an Artist, Was Obligated to Disclose All Material Facts Within the Scope of the Agency/The Failure to Disclose the Gallery’s Intention to Treat Prints Made from the Artist’s Originals as Belonging to the Gallery Precluded Any Claim of Ownership by the Gallery

In a full-fledged opinion by Justice Friedman, the First Department determined the terms of the contract between a gallery and an artist (Scher) designated the gallery as the artist’s agent with respect to prints created from the artist’s original works. Therefore, the artist was the owner of the prints.  In addition, the court determined, under the General Obligations Law, the terms of a written contract were not changed by an alleged oral agreement:

…[S]ection 1 of the 2005 agreement (“Scope of Agency”) expressly provides that Scher was appointing the Gallery “to act as [her] exclusive agent . . . for the exhibition and sales of . . . limited edition prints published exclusively by [the] [G]allery,” among other kinds of artwork, for the duration of the agreement. Thus, when the Gallery commissioned the printer to produce the prints, paid the printer for the prints, and took delivery of the prints, it did so as Scher’s agent and, hence, fiduciary … . Accordingly, the prints must be deemed to be Scher’s property… . …

As Scher’s fiduciary, the Gallery was obligated to disclose to her in plain terms all material facts within the scope of the agency, obviously including any understanding the Gallery had, upon entering with Scher into the oral print deal, that it would own the prints and any intention it entertained to treat the prints as its own property … . If the Gallery did not wish to finance the production of prints that it would not own, it could have sought to reach an agreement with Scher specifying that prints made at the Gallery’s expense would be the Gallery’s property. Alternatively, if the Gallery merely wished to protect itself from being abruptly terminated as Scher’s agent before it had a fair chance to sell the prints, it could have sought to reach an agreement with her on a minimum time-period it would have to sell each batch of prints during which the agency could not be terminated without cause. Instead, the Gallery left itself exposed by going forward with the print deal based on only a vague, unwritten agreement that left nearly all of the terms up in the air except for the basic 90/10 split of sales revenue (and even as to that, there is a dispute as to whether Scher’s cut is calculated based on gross or net sales). We see no reason to relieve a fiduciary, such as this professional art merchant, of the consequences of its own carelessness in dealing with its principal.  Scher v Stendhal Gallery Inc, 2014 NY Slip Op 02154, 1st Dept 3-27-14

 

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Plaintiff’s Lost Profits Deemed “General Damages,” Not “Consequential Damages,” Re: a Distribution Contract in which Plaintiff Agreed to Resell Defendant’s Product

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined that, under the facts, lost profits were “general,” not “consequential” damages.  The distribution contract was for “CoStar stents” (manufactured by defendant) used in medical procedures. The contract called for plaintiff to resell defendant's stents. The resale price was the benchmark for the price of the transfer of the stents to plaintiff for resale. The distribution contract had precluded recovery for consequential damages. Plaintiff sought its lost profits as general damages:

The agreement was not a simple resale contract, whereone party buys a product at a set price to sell at whatever the market may bear. Rather, the price plaintiff paid defendant reflected the actual sales, and sales price, of CoStar stents. The agreement required plaintiff to pay defendant a transfer price calculated as a percentage of plaintiff's net sales of Costar: 61% for direct sales and 75% for indirect sales. Each quarter, the parties would calculate a minimum price based on net sales during the preceding quarter. Plaintiff remained obligated to pay defendant the full transfer price for its sales, even when the actual sales price exceeded the minimum price. Thus, the contract would only operate if plaintiff sold stents, and the payment defendant received bore a direct relationship to the market price plaintiff could obtain.  Indirect sales were sales made by affiliates. * * *

General damages “are the natural and probable consequence of the breach” of a contract … . They include “money that the breaching party agreed to pay under the contract.. . By contrast, consequential, or special, damages do not “directly flow from the breach” … . “The distinction between general and special contract damages is well defined, but its application to specific contracts and controversies is usually more elusive” … . Lost profits may be either general or consequential damages, depending on whether the non-breaching party bargained for such profits and they are “the direct and immediate fruits of the contract” … . Otherwise, where the damages reflect a “loss of profits on collateral business arrangements,” they are only recoverable when “(1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties”… .  * * *

Here, the agreement used plaintiff's resale price as a benchmark for the transfer price. The contract clearly contemplated that plaintiff would resell defendant's stents. That was the very essence of the contract. Any lost profits resulting from a breach would be the “natural and probable consequence” of that breach …. .

Although the lost profits sought by plaintiff are not specifically identified in the agreement, it cannot be said that defendant did not agree to pay them under the contract, as these profits flow directly from the pricing formula. The purpose of the agreement was to resell. Indeed, defendant … sought to enter a market unavailable to it by capitalizing on plaintiff's distribution network. The fact is that both defendant and plaintiff depended on the product's resale for their respective payments. Biotronik AG v Conor Medsystems Ireland Ltd, 8, CtApp 3-27-14

 

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Department of Corrections Must Comply with State and Federal Courts’ Expressed Intent to Impose Concurrent Sentences

The Third Department, over a dissent, determined that the intent in both the state and federal proceedings was to impose concurrent sentences and ruled that the Department of Corrections could not act to make the sentences consecutive:

Issues involving sentencing by dual sovereigns are generally considered under the doctrine of primary jurisdiction and occasionally give rise to complexities … . We do not need to engage in an extended discussion of the intricacies of primary jurisdiction and sentencing by dual sovereigns in this case.Succinctly stated, “[j]ust as the dual sovereignty doctrine acknowledges and protects the rights of each sovereign to exact as much punishment for a crime as that sovereign desires, the doctrine also acknowledges and protects the rights of each sovereign to exact as little punishment for the crime as that sovereign desires” … . Here, it is clear that both sovereigns intended the state and federal sentences to run concurrently. To run the sentences sequentially essentially because of the manner in which they were administered despite express intent otherwise by both sovereigns is analogous to a governmental entity other than the court lengthening a sentence, which this state does not permit …  Matter of Hall v LaValley, 515985, 3rd Dept 3-27-14

 

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Criteria for Judicial Review of Agency’s Action Under the State Environmental Quality Review Act Explained

The First Department determined Supreme Court should not have declared that the NYC Industrial Development Agency’s [IDA’s] issuance of a negative declaration (finding no further environmental review necessary for a project in the Bronx) violated the State Environmental Quality Review Act (SEQRA).  In so finding, the First Department explained the criteria for court review in this context:

“‘[J]udicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure'” …. “[T]he courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives'” … .

Our review of the record establishes that the determination of IDA not to require a Supplemental Environmental Impact Study (SEIS) was not affected by an error of law, arbitrary and capricious, or an abuse of discretion … . Likewise, the record reflects that, as the lead agency, IDA identified the relevant areas of environmental concern related to the proposed action (including traffic, air quality and noise impact), took the requisite “hard look” at them and, in its negative declaration, set forth a reasoned elaboration of the basis for its determination that a SEIS [Supplemental Environmental Impact Statement] was not required … . Thus, Supreme Court should have declared that IDA’s issuance of a negative declaration did not violate SEQRA, was not arbitrary and capricious, and was not an abuse of discretion. Matter of South Bronx Unitd! v New York City Indus Dev Agency, 2014 NY Slip 02132, 1st Dept 3-27-14

 

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“Forum Non Conveniens” Dismissal Proper

The Second Department explained the criteria for dismissal of an action on “forum non conveniens” grounds:

“The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that in the interest of substantial justice the action should be heard in another forum'” … . “On a motion to dismiss on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public interest factors that militate against a New York court’s acceptance of the litigation” … . “Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” … .

Here, the Supreme Court did not improvidently exercise its discretion in granting that branch of the defendant’s motion which was to dismiss the complaint on the ground of forum non conveniens. The fact that the witnesses, with the exception of the plaintiff, and evidence are located in Pennsylvania, the fact that Pennsylvania is the situs of the underlying events, the availability of Pennsylvania as an alternative forum, and the burden on the New York courts of retaining a case to which it does not have a substantial nexus militate in favor of dismissal of the action on the ground that Pennsylvania is the more convenient forum … . Wild v University of Pa, 2014 NY Slip Op 02038, 2nd Dept 3-26-14

 

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