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Malpractice Cause of Action Stated Against an Attorney Who Died Just Before the Statute of Limitations on Plaintiffs’ Action Ran Out

In a full-fledged opinion by Justice Tom, the First Department determined that plaintiffs had stated a valid malpractice claim against an attorney who died just before the statute of limitations expired:

That a cause of action might accrue when the plaintiff actually sustains a loss, however, does not require the conclusion that an attorney is absolved of responsibility for any and all consequences of his neglect of the matter simply because it occurred prior to accrual of an actionable claim. Giving plaintiff the benefit of every possible favorable inference that can reasonably be drawn from the pleadings … , as we must on a pre-answer motion to dismiss … it appears that the inaction of counsel rendered the lapse of plaintiff’s cause of action not merely possible—or even probable—but inevitable. On a motion directed at the sufficiency of the pleadings, the issue is whether the facts alleged fit within any cognizable theory of recovery, not whether the complaint is artfully pleaded …, and the circumstances of this matter do not warrant dismissal of the action, at this juncture, as against the … defendants. Cabrera v Collazo, 2014 NY Slip Op 00622, 1st Dept 2-4-14

 

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Trial Court’s Failure to Address Defendant’s Requests to Proceed Pro Se Required Reversal

The First Department determined defendant had been deprived of his constitutional rights when the trial court failed to conduct a “dispassionate inquiry” in response to defendant’s repeated requests to proceed pro se:

A criminal defendant’s right to represent himself is a fundamental right guaranteed by both the federal and state constitutions. “[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so” … . The only function of the trial court, in assessing a timely request to proceed pro se, is to ensure that the waiver was made intelligently and voluntarily …. . This requirement is not satisfied “simply by repeated judicial entreaties that a defendant persevere with the services of assigned counsel, or by judicial observations that a defendant’s interests are probably better served through a lawyer’s representation” … .

Defendant’s requests to proceed pro se were denied by the court without any inquiry whatsoever. People v Lewis, 2014 NY Slip Op 00592, 1st Dept 2-4-14

 

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Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper

The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:

The court properly admitted a statement made at arraignment by defendant’s counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant’s authorized agent when she provided this information to the arraignment court for her client’s benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14

 

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Interplay Between New York Labor Law and Federal Longshore Workers’ Compensation Act Discussed

Plaintiff was injured when he fell on a “float stage” which was used to transport workers and materials on navigable waters.  The First Department discussed the interplay between the Labor Law (elevation-related fall) and the Longshore Workers’ Compensation Act:

Since the accident in which plaintiff Joseph Pipia (hereinafter plaintiff) was injured occurred in navigable waters, and plaintiff, an employee who was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 USC § 901 et seq.), has been receiving benefits thereunder, federal maritime law is applicable to this case … . Plaintiff may not sue his employer, JES, since the LHWCA “precludes recovery of damages against [the injured worker’s] employer” …. . …

Plaintiff is also barred from asserting any claims other than Labor Law § 200 and common-law negligence claims against Trevcon, the vessel owner (see 33 USC § 933…). Contrary to plaintiff’s contention, the float stage involved in his accident constituted a “vessel” for purposes of the LHWCA … . While it consisted of wooden planks bolted together, had limited weight capacity and could only be moved short distances from the pier, it was regularly used to carry workers and materials around the water. Although it generally was tied to land structures with a line, it sometimes was untied to allow a worker to move to a different location to pick up materials from the pier. … “[A] reasonable observer, looking to the [float stage]’s physical characteristics and activities, would . . . consider it to be designed to [a] practical degree for carrying people or things on water”… . Pipia v Turner Constr Co, 2014 NY Slip Op 00612, 1st Dept 2-4-14

 

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Documentary Evidence Can Be Considered In CPLR 3211(a)(7) Motion to Dismiss/Disclaimer Not Specific Enough to Preclude Fraud Cause of Action

In a full-fledged opinion by Justice Renwick, with a concurring opinion by Justice DeGrasse, the First Department determined that arbitration could not be compelled in the absence of a specific, written agreement and a fraud cause of action against Goldman Sachs based upon the sale of mortgage-backed securities to the plaintiff hedge fund could go forward. The court concluded that documentary evidence submitted by the defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) was properly considered by Supreme Court, and the disclaimer relied upon by the defendant was not specific enough to warrant dismissal of the fraud cause of action:

A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim … When documentary evidence is submitted by a defendant “the standard morphs from whether the plaintiff has stated a cause of action to whether it has one”… . * * *

The law is abundantly clear in this state that a buyer’s disclaimer of reliance cannot preclude a claim of justifiable reliance on the seller’s misrepresentations or omissions unless (1) the disclaimer is made sufficiently specific to the particular type of fact misrepresented or undisclosed; and (2) the alleged misrepresentations or omissions did not concern facts peculiarly within the seller’s knowledge … . Accordingly, only where a written contract contains a specific disclaimer of responsibility for extraneous representations, that is, a provision that the parties are not bound by or relying upon representations or omissions as to the specific matter, is a plaintiff precluded from later claiming fraud on the ground of a prior misrepresentation as to the specific matter… . Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc, 2014 NY Sliip Op 00587, 1st Dept 1-30-14

 

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No Reference to When Child-Pornography Images Downloaded/Therefore Consecutive Sentences Could Not Be Imposed

The Third Department determined that consecutive sentences could not be imposed for the downloading of child pornography without specific reference to the date and time of each download:

Consecutive sentences are authorized when “‘the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct'” … .  The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession … .  While the accusatory instrument and defendant’s plea allocution each specified the date and time upon which the images were retrieved from defendant’s computer, there was no information regarding defendant’s act of downloading the images.  Accordingly, consecutive sentences were not authorized in the absence of such information… . People v Pardy, 105529, 3rd Dept 1-30-14

 

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Contract of Adhesion/Unconscionable-Contract Cause of Action Should Have Survived Summary Judgment

The Second Department determined a hearing was required on respondents’ motion to dismiss the cause of action which alleged a contract of adhesion.  The action was brought against the respondents-operators of “three-quarter houses” by residents who had committed their housing allowances to the operators only to find themselves (according to the complaint) “living in abject and overcrowded conditions with no support services on site:”

A contract of adhesion contains terms that are unfair and nonnegotiable and arises from a disparity of bargaining power or oppressive tactics'” … . ” A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made'” … .

“In determining the conscionability of a contract, no set weight is to be given any one factor; each case must be decided on its own facts” … . “However, [in general, it can be said that] procedural and substantive unconscionability operate on a sliding scale; the more questionable the meaningfulness of choice, the less imbalance in a contract’s terms should be tolerated and vice versa” … . ” The determination of unconscionability is a matter of law for the court to decide'” … . ” Where there is doubt . . . as to whether a contract is fraught with elements of unconscionability, there must be a hearing where the parties have an opportunity to present evidence with regard to the circumstances of the signing of the contract, and the disputed terms’ setting, purpose and effect'” … . ” However, [w]here the significant facts germane to the unconscionability issue are essentially undisputed, the court may determine the issue without a hearing'” … . “Thus, on a motion for summary judgment, [t]he question . . . then is whether the record presents an issue as to the existence of unconscionability which should not be resolved without a hearing'”… . * * *

…[T]he plaintiffs submitted … affidavits of residents who signed the agreements in question and who stated that they signed the subject agreements under conditions that were procedurally unconscionable. Under these circumstances, a hearing was warranted on the issue of unconscionability, and as such, summary judgment should have been denied… .  David v #1 Mktg Serv Inc, 2014 NY Slip Op 00477, 2nd Dept 1-29-14

 

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Answer Submitted Pro Se by Corporation Is a Nullity

The Second Department noted that a corporation must be represented by counsel and an answer submitted by a corporation pro se was a nullity:

…[T]he Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff’s motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity, since a corporation must be represented by an attorney and cannot proceed pro se (see CPLR 321[a]…). Boente v Peter C Kurth Off of Architecture & Planning PC, 2014 NY Slip Op 00473, 2nd Dept 1-29-14

 

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Parolees May Move for Resentencing Under the Drug Law Reform Act

In a full-fledged opinion by Justice Cohen, the Second Department determined that parolees are “in custody” within the meaning of the 2011 amendments to the Drug Law Reform Act and, therefore, parolees may move for resentencing under the act:

In 2011, a New York State budget enactment consolidated and modernized several state agencies and created new departments (see L 2011, ch 62). This legislation merged the New York State Department of Correctional Services and the New York State Division of Parole into a single agency, the New York State Department of Corrections and Community Supervision (see id.). At that time, CPL 440.46(1) was amended by changing “department of correctional services” to “department of corrections and community supervision,” so that now “[a]ny person in the custody of the department of corrections and community supervision,” otherwise qualified, could apply to be resentenced (CPL 440.46[1]). People v Brown, 2014 NY Slip Op 00524, 2nd Dept 1-29-14

 

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Parked Garbage Truck Furnished Condition for the Accident, But Was Not Proximate Cause of the Accident

The Second Department determined plaintiff’s complaint was properly dismissed because the accident was caused by plaintiff’s failure to see what he should have seen.  Plaintiff’s vehicle struck a garbage truck which was stopped partially in the roadway:

Although the issue of proximate cause is generally one for the jury …, liability may not be imposed upon a party who “merely furnished the condition or occasion for the occurrence of the event” but was not one of its causes … . Here, the defendants demonstrated their entitlement to judgment as a matter of law by presenting evidentiary proof that [defendant’s] conduct in stopping his truck partially in the roadway merely furnished the condition for the accident, but was not a proximate cause thereof… . Lee v D Daniels Contr Ltd, 2014 NY Slip Op 00487, 2nd Dept 1-29-14

 

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