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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

 

 

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Prosecutorial Misconduct and Defense Counsel’s Ineffectiveness Required Reversal

The Second Department reversed defendant’s conviction, in the interest of justice, finding the prosecutor’s improper comments during summation deprived defendant of a fair trial. In addition, the Second Department determined defense counsel was ineffective in eliciting inadmissible expert testimony detrimental to the defense and failing to object to the prosecutor’s misconduct:

Re: prosecutorial misconduct during summation, the Second Department wrote:

In summing up, a prosecutor “must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . At trial, the defendant presented evidence concerning his cooperation with law enforcement authorities in drug cases against the complainants’ mother to establish that the complainants had a motive to fabricate their allegations against him. During summation, the prosecutor improperly referred to such evidence as “an elaborate attempt to distract [the jury] from the real issues in this case” … . The prosecutor also inaccurately stated that the defendant, who had testified on his own behalf, needed “a clarification about which child’s vagina he did or did not touch,” when the defendant, in fact, had asked whether the question concerned his paramour, the complainants’ mother. In addition, the prosecutor made an irrelevant and inflammatory argument intended to convince the jury that the … defendant’s denials of the sexual abuse allegations in the indictment were implicit admissions that he had abused the complainants outside the periods of time designated for the charged crimes … .Furthermore, the prosecutor impugned the defendant’s right to testify and improperly suggested that he lied on the stand, when she referred to him as “an opportunist” who “took the stand, and . . . said what he thought he had to to save himself” … . Finally, the prosecutor impermissibly vouched for the credibility of a witness based on his position as a law enforcement officer … . The cumulative effect of these improper comments deprived the defendant of a fair trial … .

Re: the ineffectiveness of defense counsel, the Second Department wrote:

During cross-examination by defense counsel, the People’s expert on child sexual abuse accommodation syndrome offered testimony that the truthfulness of a child’s disclosure of sexual abuse could be analyzed by looking at whether the content is specific and not age-appropriate knowledge. Despite the fact that this testimony was inadmissible …, and favorable to the People, defense counsel inexplicably asked the expert to elaborate, eliciting highly damaging testimony that a child’s allegations of oral sexual conduct, sexual contact between males, or reciprocal contact would be “rather unique and idiosyncratic,” and more believable than “just a global statement that I was touched.” Thus, defense counsel intentionally elicited inadmissible and unduly prejudicial testimony during cross-examination … . Defense counsel also was deficient in failing to object to the prosecutor’s improper remarks during summation … . The cumulative effect of defense counsel’s errors deprived the defendant of the effective assistance of counsel … . Accordingly, the judgment must be reversed and a new trial ordered for this reason as well. People v Mehmood, 2013 NY Slip Op 08461, 2nd Dept 12-18-13

 

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Conviction Under Accomplice Liability Theory Reversed After a Weight of the Evidence Analysis

The Second Department reversed defendant’s conviction for criminal sale of a controlled substance under an accomplice liability theory, finding the conviction against the weight of the evidence. The officer who purchased the drugs assumed, based on circumstantial evidence, the drugs were supplied to the seller by the defendant (who was in a vehicle with the seller and a woman) but did not actually see any transaction between the defendant and the seller:

Although the officer testified that, based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the codefendant received drugs from the defendant inside the vehicle, he admitted that he did not observe an exchange of money or drugs between the codefendant and the defendant. People v Curry, 2013 NY Slip Op 08455, 2nd Dept 12-18-13

 

 

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Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth

The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination:

In assessing a sex offender’s danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant’s risk of a repeat offense (Correction Law § 168—l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court … .

One of the factors BOSE considers is “whether the sex offender’s conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol” … (Correction Law § 168-1[5][a][ii]). The guidelines clarify that if the individual has a history of drug or alcohol abuse “or was abusing drugs and or alcohol at the time of the offense,” 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is “in the distant past, but [the defendant’s] more recent history is one of prolonged abstinence” … .

Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category … . Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.

We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety … .   * * *

The SORA court also providently exercised its discretion in denying defendant’s application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society * * *.

We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime … . A departure from a sex offender’s presumptive risk level is generally warranted only where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…)… .  People v Watson, 2013 NY Slip Op 08379, 1st Dept 12-17-13

 

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Part Performance Exception to the Statute of Frauds Does Not Apply to Contracts Which Cannot Be Performed Within One Year

The First Department, in a full-fledged opinion by Justice Saxe, determined that the part performance exception to the statute of frauds should not be applied to contracts that cannot be performed within one year.  The court first explained what “capable of performance within one year” means, and then looked at the controlling statute (General Obligations Law 5-701 (a)(1):

Before addressing the central issue of the applicability of a part performance exception for contracts that must be in writing under General Obligations Law § 5-701, I note … the oral contract alleged here was categorized as a contract incapable of performance within one year of its making (General Obligations Law § 5-701[a][1]). The application of § 5-701(a)(1) is limited to contracts that “have absolutely no possibility in fact and law of full performance within one year” … . “[T]he statute does not include an agreement which is simply not likely to be… performed, nor yet one which is simply not expected to be performed within the space of a year. Neither does it include an agreement which, fairly and reasonably interpreted, admits of a valid execution within that time, although it may not be probable that it will be” … . So, the determination of whether an alleged oral contract can possibly be performed within one year of its making is not conducted by looking back at the actual performance; it requires analysis of what was possible, looking forward from the day the contract was entered into. * * *

Analysis of the part performance exception must begin by emphasizing that General Obligations Law § 5-701 lacks any provision for a part performance exception such as that explicitly provided for by General Obligations Law § 5-703, which concerns contracts for the conveyance of an interest in real property. That is, while § 5-703(4) specifically provides, “Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance,” the broader statute of frauds provision of § 5-701 contains nothing of the sort – although, notably, it contains other exceptions … .

Two relevant principles of statutory construction apply here. The first is that “a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact” … . The second is that an “inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Inferring that the Legislature authorized a part performance exception for an oral contract that is not capable of performance within one year violates these principles. Gural v Drasner, 2013 NY Slip Op 08391, 1st Dept 12-17-13

 

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“Equitable Medical Monitoring” Cause of Action Rejected; Plaintiffs, Who Had No Signs of Cancer from Heavy Smoking, Were Not Entitled to Bring an Action to Cover the Costs of CT Scans to Periodically Check for Cancer

In a full-fledged opinion by Judge Pigott, with two dissenting judges, the Court of Appeals determined New York does not recognize a “medical monitoring” cause of action.  The plaintiffs were all heavy smokers.  None of the plaintiffs is currently sick.  The lawsuit sought damages to pay for “medical monitoring” (low dose CT scans “LDCT”) as a way to ensure early diagnosis of cancer:

Plaintiffs do not claim to have suffered physical injury or damage to property.  They assert, rather, that they are at an “increased risk” for developing lung cancer and would benefit from LDCT monitoring, which they claim would allow them to discover the existence of cancers at an earlier stage, leading to earlier treatment.

A threat of future harm is insufficient to impose liability against a defendant in a tort context … .  The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state’s tort system … .  The physical harm requirement serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims.

Having alleged no physical injury or damage to property in their complaint, plaintiffs’ only potential pathway to relief is for this Court to recognize a new tort, namely, an equitable medical monitoring cause of action. Caronia v Philip Morris USA Inc, 227, CtApp 12-17-13

 

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Issuer of Excess Policy Was Required (by the Terms of the Policy) to Pay “All Sums,” Including Interest, Over and Above the Policy-Limit Paid Out Under the Primary Policy

In reversing the Appellate Division, the Court of Appeals determined that the issuer of the excess policy (HIC) was obligated to pay all sums, including interest, after the $1,000,000 policy limit was paid out under the primary policy.  The issuer of the primary was insolvent and the $1,000,000 primary policy limit was paid by the liquidator:

Applying the plain meaning of the primary and excess policies to the particular medical malpractice judgment against plaintiff at issue here, it is clear that the primary insurer’s liquidator fulfilled its obligations under the primary policy, thereby triggering HIC’s responsibility to pay the interest in excess of the primary policy’s $1,000,000 liability limit.  Upon entry of the initial judgment against plaintiff, the liquidator paid plaintiff $1,000,000 toward that judgment.  At that point, the liquidator was no longer required to pay interest under the “supplementary payments” provision of the primary policy because that further amount accrued only after the liquidator had already satisfied the liability limit of the primary policy in the manner specified by the “supplementary payments” provision.  Thus, the additional interest on the judgment, as amended, constituted a “sum[ ] in excess of the limits of liability of the Underlying Policy,” which is covered by the excess policy.  Accordingly, HIC had to pay the additional interest.  Ragins… v Hospitals Insurance Company, Inc, 234, CtApp 12-17-13

 

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Police Officers Properly Allowed to Testify About Victim’s Identification of Defendant Shortly After the Crime/Prior Consistent Statements Not Hearsay

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined that two police officers, as well as the victim, were properly allowed to testify about the victim’s identification of the defendant shortly after the crime, extending the rule announced by the Court of Appeals in People v Huertas (75 NY2d 487):

Velez [the victim] identified defendant at trial as one of the robbers and also testified, without objection, to a description he had given the police on the night of the crime of a black man “about 5’6, short hair, round face, thick eyebrows” and wearing a white shirt.  The description fits defendant, but in the video the man alleged to be defendant is wearing a blueish-gray shirt.  Velez testified that, before he saw the video, he realized that his description of the shirt was in error, and corrected it.

Two police officers also testified, over objection, that Velez had given a description on the night of the crime. The officers’ accounts of the description were brief, and consistent with Velez’s.  One said that Velez had described a man “between 5’6 to 5’7 in height wearing shorts and . . . a white T-shirt.”  The other said only that Velez had described “a short black male, dark skinned.” * * *

Huertas involved a … prior consistent statement: a witness’s description, given shortly after the crime, of the person who committed it.  Huertas held testimony about a description to be admissible not under any exception to the hearsay rule, but because the testimony is not hearsay at all. It is admitted not for the truth or accuracy of the prior description, but as “evidence that assists the jury in evaluating the witness’s opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification” (Huertas, 75 NY2d at 493).  * * *

The issue here is whether the rule of Huertas, like CPL 60.30’s hearsay exception for prior eyewitness identifications, is limited to a witness’s account of his or her own previous statement.  We see nothing to justify such a limitation.  A statement that is not hearsay when the declarant testifies to it does not become hearsay when someone else does so. People v Smith, 226, CtApp 12-17-13

 

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Six-Year Breach of Contract Statute of Limitations Applied to Third Party Beneficiaries (Here the Plaintiff Villages and Towns) of Contracts Between the Counties and the Defendant Sewer-Construction Companies

The Court of Appeals, with two concurring judges, determined that the causes of action alleging the faulty construction of sewers resulting in settling of the roadways within the plaintiff villages and towns was time-barred. The plaintiff villages and towns were third-party beneficiaries to the sewer-construction contracts entered into by the counties encompassing the plaintiff villages and towns. The complaints alleged a “continuing nuisance.”  The court held that the actions were time-barred whether analyzed under a contract or nuisance theory (the continuing nuisance theory was rejected on the merits).  The court further held that the six-year breach of contract statute of limitations applied to third-party beneficiaries of the contracts (here the plaintiff villages and towns):

A breach of contract action must be commenced within six years from the accrual of the cause of action (see CPLR 203 [a]; 213 [2]).  “In cases against architects or contractors, the accrual date for Statute of Limitations purposes is completion of performance” (Newburgh, 85 NY2d at 538…).  This rule applies “no matter how a claim is characterized in the complaint” because “all liability” for defective construction “has its genesis in the contractual relationship of the parties” (Newburgh, 85 NY2d at 538 …). Even if the plaintiff is not a party to the underlying construction contract, the claim may accrue upon completion of the construction where the plaintiff is not a “stranger to the contract,” and the relationship between the plaintiff and the defendant is the “functional equivalent of privity” (Newburgh, 85 NY2d at 538-539 … ). * * *

The Appellate Division properly applied Newburgh to these actions commenced by third-party beneficiaries to the construction contracts.  Newburgh extended the completion of performance accrual rule to actions against architects or contractors brought by “intended beneficiar[ies]” of construction contracts (id.).  Here, the Counties contracted with defendants to install the sewer system for the benefit of municipalities like plaintiffs, a fact which was surely “known to all parties at the time the contracts were negotiated” (id.).  Town of Oyster Bay v Lizza Industries Inc …, 214, 215, 217, 217, 218, 219, 220, 221, 222, 223, CtApp 12-17-13

 

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Writing Requirement of Statute of Frauds Met By a Number of Documents Associated With Absentee Bidding at a Public Auction

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the Appellate Division and determined the plaintiff had not failed to comply with the statutory (statute of frauds) requirement of a writing in support of its breach of contract claim.  The defendant, as an absentee bidder at a public auction held by the plaintiff, successfully bid over $400,000 on an item but subsequently refused to pay for it.  The Appellate Division determined that the name of the seller was not in any of the relevant documents and therefore there was no writing which could be enforced.  The Court of Appeals disagreed and held that, because it was clear the plaintiff was acting as the seller’s agent in the bidding process, the absence of the seller’s name from the documents was not fatal to the writing requirement:

…[T]he absentee bidder form, along with the clerking sheet, provide the necessary information to establish the name of Rabizadeh as the buyer.  …

In addition to the buyer’s name, the GOL requires disclosure of “the name of the person on whose account the sale was made”.    * * *

[T]he GOL does not reference the “seller”, making it clear that the seller’s name need not be provided in order to satisfy the requirement of “the name of the person on whose account the sale was made”.

* * * It is well settled that an auctioneer serves as a consignor’s agent … . … Here, the clerking sheet lists Jenack [plaintiff] as the auctioneer, and as such it served as the agent of the seller. The clerking sheet, therefore, provides “the name of the person on whose account the sale was made” and satisfies GOL § 5701(a)(6).    …

It bears repeating in such a case as this that:

‘The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made’ … .

Using the Statute of Frauds as a “means of evading” a “just obligation” is precisely what Rabizadeh attempts to do here, but the law and the facts foreclose him from doing so.  Rabizadeh took affirmative steps to participate in Jenack’s auction, including executing an absentee bidder form with the required personal information.  He then successfully won the bidding for item 193, closing out other interested bidders, with his $400,000 bid.  He cannot seek to avoid the consequences of his actions by ignoring the existence of a documentary trail leading to him.  Willam J Jenack Estate Appraisers and Auctioneers, Inc v Rabizadeh, 229, CtApp 12-17-13

 

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