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Criteria for Pre-Action Disclosure and Defamation Explained

The Second Department determined that a request for pre-action disclosure of the name of an anonymous blogger (whom petitioners alleged posted defamatory remarks during an election campaign) should not have been granted.  Pre-action disclosure should only be allowed when the petitioner has alleged facts indicating the existence of a cause of action.  Here the facts alleged did not make out a cause of action for defamation:

Before an action is commenced, “disclosure to aid in bringing an action” may be obtained by court order (CPLR 3102[c]), including “discovery in order to obtain information relevant …to determining who should be named as a defendant” … . A petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action …

Contrary to the Supreme Court’s determination, the petitioners failed to allege facts fairly indicating that they have a cause of action to recover damages for defamation based on the two posts at issue by the blogger Q-Tip. “The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . “In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff”… . Further, “[a] false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession” … .

Here, given the context in which the challenged statements were made, on an Internet blog during a sharply contested election, a reasonable reader would have believed that the generalized reference to “downright criminal actions” in a post entitled “Would You Buy A Used Car From These Men?” was merely conveying opinion, and was not a factual accusation of criminal conduct … . Further, the petitioners failed to demonstrate that the remaining portions of the challenged statements by Q-Tip constituted defamation per se… .  Matter of Konig v CSC Holdings LLC, 2013 NY Slip Op 08632, 2nd Dept 12-26-13

 

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Expert Evidence to Explain an Adolescent’s Reactions to Sexual Abuse Properly Admitted

The Second Department determined expert testimony about “adolescent sexual abuse” was properly admitted in a sex-crime trial to explain delay in reporting, imprecise memory, accommodation, and a “flat affect” during testimony:

“Expert testimony is properly admitted if it helps to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror'” … . “[E]xpert testimony regarding rape trauma syndrome, abused child syndrome or similar conditions may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” … . The expert’s testimony was properly admitted to explain the issue of delayed disclosure and to counter the defense claim that the complainant fabricated the sexual abuse allegations when her parents objected to her having a boyfriend … . The testimony was also properly admitted to explain why the complainant did not recall with specificity when certain of the alleged incidents occurred, and why victims of adolescent sexual abuse may manifest a “flat affect” when testifying. The testimony was “general in nature and does not attempt to impermissibly prove that the charged crimes occurred” … . To the extent the expert testified as to an abuser’s behavior patterns, such testimony was admissible to help explain “why victims may accommodate abusers and why they wait before disclosing the abuse” … . People v Gopaul, 2013 NY Slip Op 08659, 2nd Dept 12-26-13

 

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Burden Is on Defendant in SORA Reclassification Proceeding/Fact that Defendant Was Not Provided With All the Documents Reviewed by the Board Did Not Violate Due Process

In a SORA reclassification proceeding, the Third Department, over a dissent, determined the defendant was not deprived of due process by the SORA court’s denial of an adjournment for the purpose gathering all the documents reviewed by the Board of Examiners of Sex Offenders in making its updated recommendation.  The Third Department noted that, unlike in the initial SORA proceeding where the burden of proof is on the People, in a reclassification proceeding the burden is on the defendant:

Correction Law § 168-o (2) provides a sex offender who is required to register pursuant to SORA with the opportunity to periodically seek a downward modification of his or her risk level classification.  However, the burden falls upon the sex offender to establish by clear and convincing evidence that a modification is warranted (see Correction Law § 168-o [2]), and the trial court’s determination will not be disturbed absent an abuse of discretion… . * * *

We do not take issue with the argument that defendant was entitled to discovery of the materials in question.  However, all discovery is subject to certain limitations and the court has “considerable discretion to supervise the discovery process” … .  In our view, the question before us distills to whether County Court abused its discretion in refusing to adjourn the hearing in order for defendant to belatedly gain access to the requested documents. In this regard, County Court’s decision to deny defendant’s request must be evaluated with full consideration of the attendant circumstances before the court, including the timeliness thereof …, and we cannot agree that reversal is required based solely on the fact that defendant did not obtain the requested materials prior to the hearing. People v Lashway, 514859, 3rd Dept 12-26-13

 

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Not Clear Superior Court Information (SCI) Charged Same Offense as Felony Complaint/SCI and Related Waiver of Indictment Not Valid

The Second Department determined a discrepancy between the felony complaint and the superior court information (SCI) rendered the SCI jurisdictionally defective:

Where a defendant waives the right to be prosecuted by indictment and consents to be prosecuted by SCI, the SCI “must either charge [the] defendant with the same crime as the felony complaint or a lesser included offense of that crime” (…see NY Const, art I, § 6; CPL 195.10[a]…). Under the circumstances of this case, this Court cannot conclude that the defendant was charged in the SCI with the same offense with which he was charged in the felony complaint. There is a factual discrepancy between the two documents, in that they charge the defendant with assaulting two different victims, and there are insufficient surrounding facts to reveal that the assault charges actually refer to the same incident… .  People v Siminions, 2013 NY Slip Op 08670, 2nd Dept 12-26-13

 

 

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Defendant Estopped from Claiming He Was Not Properly Served Because He Never Notified DMV of His Change of Address

The Second Department determined the defendant, who brought a motion to vacate a default judgment in an automobile-accident case, was estopped from claiming he was not properly served because he never notified the Department of Motor Vehicles of his change of address:

Since the respondent failed to notify the DMV of his change of residence, as required by Vehicle and Traffic Law § 505(5), he was estopped from raising a claim of defective service … . Accordingly, that branch of the respondent’s motion which was pursuant to CPLR 5015(a)(4), based on lack of personal jurisdiction, should have been denied. Likewise, the respondent was not entitled to relief pursuant to CPLR 5015(a)(1), based upon excusable default; the respondent’s purported change of residence is not a reasonable excuse, because he failed to comply with Vehicle and Traffic Law § 505(5) … .

Moreover, the respondent was not entitled to relief pursuant to CPLR 317, since his failure to receive notice of the summons was a deliberate attempt to avoid such notice… . Canales v Flores, 2013 NY Slip Op 08584, 2nd Dept 12-26-13

 

 

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Criteria for “Insanity Toll” of Statute of Limitations Pursuant to CPLR 208 Not Met

The Second Department determined the “insanity toll” of a statute of limitations (CPLR 208) did not apply to plaintiff’s decedent, and the lawsuit was therefore time-barred.  Plaintiff alleged plaintiff’s decedent was unable to protect his legal rights when he was hospitalized:

CPLR 208 provides, in pertinent part, that where the plaintiff is suffering from the disability of insanity at the time the cause of action accrues, the statute of limitations is extended “by the period of disability.” The toll for insanity applies “to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society,” and should be narrowly interpreted … . “The provision of CPLR 208 tolling the Statute of Limitations period for insanity, a concept equated with unsoundness of mind, should not be read to include the temporary effects of medications administered in the treatment of physical injuries” … . Further, the fact that the plaintiff’s decedent was able to retain an attorney, and arrange for the service of notices of claim during his hospital stay, indicated that he was not mentally incapacitated during that period… . Thompson v Metropolitan Transp Auth, 2013 NY Slip Op 08614, 2nd Dept 12-26-13

 

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Dismissal for Failure to Show Up at a Conference with the Judge Constituted a Dismissal for Neglect to Prosecute within the Meaning of CPLR 205/2008 Amendment to CPLR 205 Did Not Apply Retroactively

In a full-fledged opinion by Justice Dickerson, the Second Department determined the plaintiffs could not recommence a lawsuit which was dismissed pursuant to 22 NYCRR 202.27 when the plaintiffs failed to show up at a conference with the judge. CPLR 205 precludes the recommencement of a lawsuit dismissed for neglect to prosecute. In 2008 CPLR 205 was amended to require the judge to put on the record the specific conduct constituting neglect and to specify that the conduct involved a general pattern of delay.  In order for the plaintiffs to prevail in their attempt to restart the suit, the 2008 amendment would have to be deemed to apply retroactively.  The Second Department determined that the dismissal for failure to show up at the conference was a dismissal for neglect to prosecute, and the 2008 amendment did not apply retroactively. Therefore the plaintiffs attempt to restart the suit failed:

…[W]e conclude that the prior action commenced by the plaintiffs was dismissed for failure to prosecute. We further conclude that the 2008 amendment to CPLR 205(a) is not to be applied retroactively and, thus, the plaintiffs may not avail themselves of the saving provision of CPLR 205(a) regardless of whether the Supreme Court set forth in the record the specific conduct constituting the plaintiffs’ neglect to prosecute or evidence that the plaintiffs were engaged in a general pattern of delay. Marrero v Nails, 2013 NY Slip Op 08599, 2nd Dept 12-26-13

 

 

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French Court Never Had Personal Jurisdiction Over New York Defendant/Service Not Accomplished In Accordance with Hague Convention

The Second Department determined a foreign (French) judgment could not be enforced in New York because the plaintiff did not demonstrate the French court had personal jurisdiction over the defendant.  The defendant was not served in the French action in accordance with the Hague convention:

…[A] foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law” or (2) “the foreign court did not have personal jurisdiction over the defendant” (CPLR 5304[a][1]…). A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist … .

Here, the plaintiff failed to make a prima facie showing that the Superior Court of Paris had personal jurisdiction over the defendant. Pursuant to the Hague Convention, service in a signatory country may be made, inter alia, “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory” (20 UST 361[5][a]). In the United States, the methods prescribed for service under the Hague Convention are set forth in Rule 4(e)(1) and (2) of the Federal Rules of Civil Procedure … . Rule 4(e)(1) authorizes service to be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made,” and Rule 4(e)(2) sets forth three specific authorized methods of service. …[P]laintiff submitted the affidavit of a process server indicating that service was effected by delivering the writ of summons to a person of suitable age and discretion at the defendant’s place of business in New York. Delivery of the summons to a person of suitable age and discretion at the defendant’s actual place of business is a state law method of service authorized by CPLR 308(2), and thus permissible under Rule 4(e)(1). However, CPLR 308(2) additionally requires that the summons be mailed to either the defendant’s last known address or actual place of business, and personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with … . Since the affidavit of the plaintiff’s process server did not aver that the writ of summons was additionally mailed to the defendant, it was insufficient to establish, prima facie, that service was properly effected pursuant to CPLR 308(2) …, and therefore conformed to Rule 4(e)(1). Daguerre, S.A.R.L. v Rabizadeh, 2013 NY Slip Op 08587, 2nd Dept 12-26-13

 

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Family Court Has No Power to Add to Terms of Remittitur

The Second Department determined Family Court had failed to comply with the terms of its remittitur.  On appeal, the Second Department previously determined that the mother’s commitment to jail for failure to comply with a court order should be reduced from six months to 30 days.  Family Court then committed the mother to 30 days but added she was not to receive allowances for good behavior.  Because the “no allowances for good behavior” was not part of the appellate remittitur, that portion of Family Court’s order was invalid:

Upon a remittitur, a court is ” without power to do anything except to obey the … mandate of the higher court'” … . Here, the Family Court erred in failing to adhere to the terms of this Court’s remittitur by including in the amended order of commitment a provision directing that the mother would not receive time allowances for good behavior. We note that, although the mother is eligible for such time allowances (see Correction Law § 804-a[1]… ), the determination as to whether they should be granted is to be made by the person in charge of the institution where she is committed (see Correction Law § 804-a[3]… . Accordingly, we remit the matter to the Family Court, Nassau County, for the issuance of a second amended order providing that the mother is to be committed to the Nassau County Correctional Facility for a term of 30 days “unless sooner discharged according to law.”  Matter of Cunha v Urias, 2013 NY Slip Op 08624, 2nd Dept 12-26-13

 

 

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Administrative Decision Maker, Who Had Previously Ruled Against Petitioner/Employee in Disciplinary Proceedings, Should Have Been Disqualified from Reviewing Hearing Officer’s Recommendations Made in a Related Subsequent Proceeding

The Third Department, over a partial dissent, determined the mayor (Bertoni), who ruled against the petitioner/employee on disciplinary charges, should have been disqualified from reviewing the hearing officer’s recommendations made in a subsequent PERB hearing.  After noting petitioner could properly be punished for testifying falsely in the hearings, the Third Department explained:

Reversal is required … because Bertoni should have been disqualified from reviewing the Hearing Officer’s recommendations.  To be sure, an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges … .  However, where, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required… . Botsford v Bertoni, 516709, 3rd Dept 12-26-13

 

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