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Supreme Court Should Not Have Treated Pre-Answer Motion to Dismiss as Motion for Summary Judgment

The Third Department determined Supreme Court erred in treating respondents’ pre-answer motion to dismiss as a motion for summary judgment:

Generally, a summary judgment motion is premature prior to the service of an answer … .  However, a court may treat a pre-answer motion as one for summary judgment if it “give[s] prior notice to the parties or, through their submissions, the parties themselves . . . demonstrate an intent to ‘deliberately chart[] a summary judgment course'” … .  There is no indication in the record before us – nor do the parties assert – that Supreme Court provided any notice of its intention to treat the motion as one for summary judgment. Thus, the question before us distills to whether the parties charted a summary judgment course by laying bare their proof…. .  [P]etitioners clearly did not lay bare all of their proof … .  … Under these circumstances, Supreme Court erred in treating respondents’ motion as one for summary judgment.  Dashmaw v Town of Peru, 516581, 3rd Dept 11-27-13

 

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Motion to Resettle Not Proper Vehicle for Substantive Change to Order

In determining a motion to resettle pursuant to CPLR 5019(a) was not the proper vehicle for seeking the reinstatement of a cause of action the court had dismissed, the Second Department explained:

“CPLR 5019(a) provides a court with the discretion to correct a technical defect or a ministerial error, and may not be employed as a vehicle to alter the substantive rights of a party” … . Where a movant seeks to change an order or judgment in a substantive manner, rather than correcting a mere clerical error, CPLR 5019(a) is not the proper procedural mechanism to be employed, and relief should be sought through a direct appeal or by motion to vacate pursuant to CPLR 5015(a) … . Chmelovsky v Country Club Homes, Inc, 2013 NY Slip Op 07927, 2nd Dept 11-27-13

 

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Arbitrator Exceeded His Authority by Modifying Punishment Imposed by Town Upon Employee for Misconduct

The Second Department determined an arbitrator exceeded his authority (by modifying punishment) as that authority was described in a stipulation prior to the hearing, and further determined objection to the arbitrator’s exceeding his authority was not waived by the town. Petitioner was a town employee who had been suspended for thirty days for misconduct.  The arbitrator determined there was just cause for the town’s action, but imposed a lesser penalty.  The town brought the Article 75 proceeding to address whether the arbitrator had exceeded his authority by modifying the punishment:

“Judicial review of an arbitrator’s award is extremely limited” … . A court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) “only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (…see CPLR 7511[b][1][iii]…).

A party can only waive its contention that an arbitrator acted in excess of his or her power “by participating in the arbitration with full knowledge” of the alleged error that is being committed and “by failing to object until after the award” is issued … . * * *

At the beginning of the arbitration, the issue to be determined was defined as whether there was just cause to punish [the employee] and, “if not,” what the remedy should be. As framed in this manner, the issue to be determined by the arbitrator was in accordance with his powers, as set forth in Article X(E)(6) of the [Collective Bargaining Agreement], which only empowered the arbitrator to provide [the employee] with a remedy upon a finding that the imposition of discipline was not founded on just cause. Since the arbitrator found that there was just cause for the discipline imposed, the arbitrator exceeded his authority in reducing the penalty imposed. Matter of Town of Babylon v Carson, 2013 NY Slip Op 07980, 2nd Dept 11-27-13

 

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NYC Fire Department Cannot Be Compelled to Bargain Over the “Zero Tolerance” Drug-Test Policy for EMS Personnel

In a full-fledged opinion by Justice Richter, the First Department determined the “zero tolerance” policy requiring the termination of emergency medical services personnel who fail or refuse a drug test was not subject to mandatory collective bargaining:

This appeal raises the question of whether the New York City Fire Department’s “zero tolerance” policy, requiring automatic termination of certain emergency medical services [EMS] employees who fail or refuse to provide a specimen for a drug test, should have been subject to mandatory collective bargaining. The New York City Board of Collective Bargaining found that this issue was not required to be bargained, and unions representing the employees brought this article 78 proceeding. We now uphold the Board’s decision because the City Charter provides that the discipline of these EMS employees is the sole province of the New York City Fire Commissioner, and because the Fire Department’s determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety. * * *

The Court of Appeals recently reiterated that a public employer cannot be compelled to bargain over “inherent[] and fundamental[] policy decisions relating to the primary mission of the public employer” … . FDNY’s interest in ensuring that its EMS workers are drug-free directly relates to the primary mission of treating and providing transport for sick and injured citizens and ensuring that EMS workers do so safely. This Court of Appeals precedent provides further support for our conclusion that FDNY cannot be compelled to bargain over this fundamental public safety policy decision. Matter of Roberts v NYC Off of Collective Bargaining, 2013 NY Slip Op 07870, 1st Dept 11-26-13

 

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Count (on which Jury Could Not Reach a Verdict) Dismissed Before “Entry of Sentence” on the Remaining Count Can Be Reprosecuted after Appeal

The First Department determined the defendant could be retried on an attempted rape charge which was dismissed upon a motion by the prosecution after the jury was unable to reach a verdict on that count.  The defendant was convicted of the assault count.  The assault conviction was reversed on appeal and a new trial was ordered. The question before the court was whether, upon re-trial, the dismissed attempted rape count could be re-tried as well:

Upon remand, Supreme Court properly determined that the People were permitted to reprosecute the attempted rape charge, because that count of the indictment was deemed reinstated pursuant to CPL 470.55(1). Although the statute provides that a count is not deemed reinstated if it was dismissed on a “post-judgment order” (CPL 470.55[1][b]), the dismissal of the attempted rape charge occurred between the oral imposition of sentence and the entry of judgment … . There is nothing in the record to indicate that, before dismissing the count at issue, the court had done anything that could be construed as entry of a judgment. Since a judgment “is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (CPL 1.20 [15][emphasis added]), “post-judgment” can only mean after entry.

Double jeopardy concerns did not bar retrying defendant on the attempted rape count. The first jury never returned any verdict on that count. Furthermore, defendant had no legitimate expectation that the dismissal of that count was final and irrevocable As noted, the statute provides that a reversal granting a new trial would automatically reinstate any counts dismissed under the circumstances presented here. Moreover, the record establishes that when the People moved to dismiss, they were engaging in the common practice of dismissing a charge as sufficiently covered by a conviction on another charge, an exercise of prosecutorial discretion that was frustrated by the reversal of the conviction. Defendant had no legitimate expectation that in the event of a reversal he would receive the windfall of having the dismissed charge stay dismissed.  People v Thomas, 2013 NY Slip Op 07833, 1st Dept 11-26-13

 

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Defendant’s Placement of a Bag in the Engine Compartment Deemed Inconsistent with An Innocent Explanation

The First Department determined the observations made by the officer, including the placement of a bag under the hood of the car, provided reasonable suspicion of criminal activity (justifying the stop):

At a drug-prone intersection, experienced narcotics officers saw an illegally parked car, in which defendant and his passenger were making movements suggesting that something was being transferred. They then saw defendant close a clear plastic bag with his mouth, get out of the car while holding the bag, open the hood of the car, reach into the engine area and return to the car without the bag. Based on those observations, the police had reasonable suspicion that defendant had engaged in criminal activity, most likely a drug transaction … . In particular, it was highly suspicious for defendant to apparently secrete a bag under the hood of the car. This behavior was inconsistent with innocent explanations, such as repairing the car. Accordingly, the police conducted a lawful stop for the purpose of investigating criminal activity, and they properly detained and questioned defendant and the passenger.  People v Smalls, 20134 NY Slip Op 07866, 1st Dept 11-26-13

STREET STOPS, DE BOUR

 

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Reopening of Suppression Hearing to Address Deficiency in People’s Case (Pointed Out by the Defense in Post-Hearing Papers) Okay (But See People v Kevin W, 187, Ct App 11-21-13)

The First Department determined the suppression court properly allowed the suppression hearing to be reopened to address a deficiency in the People’s case:

The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and submitted legal arguments but before any decision on the merits had been made, to allow the People’s witness to provide additional testimony establishing the legality of the police conduct … . “A request to present additional evidence in this type of situation should be addressed to the court’s discretionary power to alter the order of proof within a proceeding …, rather than being governed by the restrictions on rehearings set forth in People v Havelka (45 NY2d 636 [1978])” (id. at 481).

Defendant argues that since the reopening came after defense counsel had pointed out a deficiency in the People’s case, there was a heightened risk of tailored testimony. However, “one of the purposes of requiring timely and specific motions and objections, a requirement applicable to suppression hearings, is to provide the opportunity for cure … . It would be illogical to require a defendant, for preservation purposes, to point out a deficiency at a time when it can be corrected, but then preclude the People from correcting the deficiency. In Whipple, the Court of Appeals disapproved of such a notion, which it described as “a sort of gotcha’ principle of law” (97 NY2d at 7).  People v McCorkle, 2013 NY Slip Op 07835, 1st Dept. 11-26-13

 

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“Rent Paid In Advance” Lease Enforced/Insufficient Proof of Oral Modification

In a full-fledged opinion by Judge Read, the Court of Appeals determined the Appellate Division correctly held the tenant was obligated to pay an annual rent in advance and the proof was insufficient to demonstrate any contrary oral modification of the lease.  The Court explained the “rent paid in advance” concept and the criteria for oral modification in the face of a clause prohibiting it:

Under the common law, rent is consideration for the right of use and possession of the leased property that a landlord does not earn until the end of the rental period (…1 Friedman & Randolph, Friedman on Leases § 5:1.1 [5th ed 2013]).  This presumption may be altered, however, by the express terms of the parties’ lease such that rent is to be paid at the beginning of the rental period rather than the end (…1 Robert Dolan, Rasch’s Landlord and Tenant § 12:23 [4th ed 1998]; 1 Friedman & Randolph § 5:1.1). When a lease sets a due date for rent, that date is the date on which the tenant’s debt accrues (see 1 Friedman & Randolph § 5:1.1… ).  Rent paid “in advance” (i.e. at the beginning of the term) is unrecoverable if the lease is terminated before the completion of the term, unless the language of the lease directs otherwise … * * *

When the parties dispute whether an oral agreement has been formed, it is the conduct of the party advocating for the oral agreement that is “determinative,” although the conduct of both parties may be relevant … .  This is because the equity doctrine is designed to prevent a party from inducing full or partial performance from another and then claiming the sanctuary of the Statute of Frauds or section 15-301 when suit is brought … .  Eujoy Realty Corp v Van Wagner Communications LLC, 179, CtApp 11-26-13

 

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Error to Deny Missing Witness Jury Instruction on Ground Such Testimony Would Be Cumulative—Only Testimony of a Party’s Own Witnesses Can Be Deemed Cumulative, Not, as Here, the Testimony of the Opposing Party’s Witnesses

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court erred in refusing to grant the plaintiff’s request for a missing witness jury instruction.  Plaintiff claimed to have been injured in a motor vehicle accident. Questions were raised about whether plaintiff’s injuries were caused by the accident.  The defense failed to call any of the doctors hired by the defense to examine plaintiff.  The plaintiff’s request for the missing witness charge was denied on the ground the defense-doctors’ testimony would be merely cumulative.  The Court of Appeals ruled that testimony can be deemed cumulative only with respect to a party’s own witnesses, not with respect to witnesses under the opposing party’s control:

The appropriate analysis is found in Leahy v Allen (221 AD2d 88 [3d Dept 1996]), in which the [3rd] Department held that “one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party” (id. at 92), noting that to hold “otherwise would lead to an anomalous result.  Indeed, if the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiff’s assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge” (id.).  Accordingly, our holding is that an uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness.

In short, a witness’s testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness’s testimony.  Because the record indicates that the latter was Supreme Court’s rationale in this case, Supreme Court erred in denying plaintiff’s request for a missing witness charge. De Vito v Feliciano, 195, CtApp 11-26-13

 

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A Sex Offender Cannot Be Confined to a Treatment Facility as Part of “Strict and Intensive Supervision” under Article 10

The Court of Appeals, in a full-fledged opinion by Judge Rivera (over a dissent), determined that, pursuant to Article 10 of the Mental Hygiene Law, a sex offender could either be confined or placed under strict and intensive supervision (SIST), not both.  Here the hearing court determined the People did not meet their burden demonstrating the offender (Nelson D) should be confined, but included confinement in a treatment facility (Valley Ridge) as part of strict and intensive supervision:

We conclude that article 10 provides for only two dispositional outcomes, confinement or an outpatient SIST regime. Therefore, we agree with Nelson D. that, absent a finding of the type of condition that statutorily subjects him to confinement, his placement at Valley Ridge constitutes involuntary confinement, in violation of the plain language of Mental Hygiene Law article 10.  We also agree that involuntary commitment, as part of a SIST plan, deprives Nelson D. of the statutorily proscribed procedures mandated for confinement under article 10. Matter the State of New York v Nelson D, 194, CtApp 11-26-13

 

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