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WHERE MODIFICATION OF A SECURING ORDER (RELEASE ON BAIL) IS NOT BASED UPON RISK OF FLIGHT, BUT RATHER IS BASED UPON THE COMMISSION OF FELONIES WHILE RELEASED ON BAIL, A FULL EVIDENTIARY HEARING MUST BE HELD, OR, IN THE ALTERNATIVE, THE PEOPLE CAN SUBMIT TRANSCRIPTS OF GRAND JURY TESTIMONY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, clarified the appropriate procedures for modifying a securing order when a defendant who has been released on bail is alleged to have committed other crimes:

While out on bail after his arrest for a felony, defendant was arrested three times for additional violent felonies. The court modified his securing order by remanding defendant. This appeal concerns the overlap between statutory provisions governing modifications to securing orders under these circumstances. We now hold that, where otherwise applicable, courts may modify a securing order when a defendant is charged with additional class A or violent felonies pursuant to either CPL 530.60 (1) or 530.60 (2) (a), but that, where the Court proceeds under CPL 530.60 (1), the record must reflect that the decision was based on the risk of flight factors and criteria in CPL 510.30. Where, as here, the record does not demonstrate that the court’s decision was based on defendant’s increased risk of flight, it will be assumed that the court proceeded pursuant to CPL 530.60 (2) (a) and a failure to follow the procedural requirements of CPL 530.60 (2) (c) will be considered error. * * *

Where a court modifies a securing order on [a]reasonable cause finding, and so determines that a defendant poses a danger to the community, the court must ensure that the procedural requirements of subdivision (2) (c) are followed (see e.g. People ex rel. Ryan v Warden, 113 AD2d 116, 117 [1st Dept 1985] [subdivision (2) (c) hearing required where “(p)etitioner’s remand without bail was, concededly, based solely upon his arrest for a new charge as provided for in CPL 530.60 (2) (a) and not on any finding that there was a likelihood he might not return to court (under) CPL 530.60 (1)”]). These prerequisites—a hearing with relevant, admissible evidence and the cross-examination of witnesses, or the submission of grand jury testimony transcripts—are designed to provide the court with a basis for a reasonable cause determination and to ensure that a defendant receives due process. While the procedural prerequisites provide for a more formal hearing with witness testimony, they also provide the People with the option, as they did upon remittal here, to submit transcripts of grand jury testimony—a streamlined approach that may provide the support needed for a reasonable cause finding. People ex rel. Rankin v Brann, 2024 NY Slip Op 00850, CtApp 2-20-24

Practice Point: Before bail is revoked because the defendant is alleged to have committed felonies while released on bail, a full evidentiary hearing must be held to flesh out the alleged crimes, or the People may submit transcripts of grand jury testimony. The mere allegation that defendant committed additional crimes while on bail is not enough.

 

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THE JURY NOTE REQUESTED THE “DEFINITIONS” OF THE CHARGED OFFENSES; DEFENSE COUNSEL ASKED THE JUDGE TO ALSO REREAD THE JUSTIFICATION INSTRUCTION IN THIS MURDER CASE; THE JUDGE REFUSED; BECAUSE THE JURY’S NOTE WAS SPECIFIC AND DID NOT REQUEST THE JUSTIFICATION INSTRUCTION, THE JUDGE PROPERLY DENIED DEFENSE COUNSEL’S REQUEST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, with a concurrence, affirming defendant’s convictions in this murder, attempted murder and assault case, determined the judge did not err by denying defense counsel’s request to reread the justification jury instruction after the jury sent out a note asking for the definitions of the charged offenses. The jury asked for “[a]ll definitions discussed: Murder II, Manslaughter I, Depraved Murder II, etc.,” Because the request was deemed specific the justification instruction was not reread because the jury didn’t request it:

… “[T]he form of the jury’s” note indicated a request that the jury be recharged on the elements of the crimes … . The jury note asked for “all definitions” contained in the charges: the jury did not simply ask for “all definitions” to be read back but instead chose to limit which “definitions” it sought by providing an exemplary list containing the first three of the ten criminal offenses on which the trial court had originally instructed the jury and ending the list with “etc.” The usage of “etc.” in this context corroborates this interpretation of the note because et cetera at the end of a list signals “others especially of the same kind” … . That the jury did not seek further instruction or clarification after the recharge also supports our conclusion that the trial court correctly interpreted the jury note and responded meaningfully and with the complete information sought … . People v Aguilar, 2024 NY Slip Op 00849, CtApp 2-20-24

Practice Point: A judge must respond “meaningfully” to a jury note. Here the note requested definitions of the charged crimes. The judge properly denied defense counsel’s request to reread the justification instruction because the jury’s not was specific and did not mention justification.

 

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THE COVID PROTOCOLS WERE IN EFFECT DURING DEFENDANT’S TRIAL; THE JURORS WERE REQUIRED TO WEAR FACE MASKS WHEN THEY WERE NOT BEING INDIVIDUALLY QUESTIONED DURING VOIR DIRE; THE INABILTY TO SEE THE JURORS’ FULL FACES DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO BE PRESENT DURING JURY SELECTION AND DID NOT VIOLATE HIS DUE PROCESS RIGHTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming defendant’s convictions, determined defendant’s inability to see jurors’ facial expressions during voir dire, because of the COVID mask-wearing requirement, did not deprive him of the opportunity to be present during jury selection and did not deprive him of due process of law. Although the jurors wore masks when not questioned during voir dire, the mask was removed when each juror was questioned individually:

… [D]efendant maintains that safety protocols implemented during the COVID-19 pandemic—namely social distancing and the requirement that prospective jurors cover their mouths and noses with a face mask when not being questioned individually—violated these rights because defendant could not see each prospective juror’s entire face throughout the jury selection process. Because neither a defendant’s right to be present during jury selection nor due process require that defendant have a simultaneous, unobstructed view of the entirety of every prospective juror’s face during jury selection, we affirm. * * *

… D]efendant was present at all phases of jury selection. … [D]efendant was able to hear the questions posed to prospective jurors and to observe their responses including their “facial expressions, demeanor and other subliminal responses.” * * *

… [T]he safety protocols in use at defendant’s jury selection were permissible as they did not impede defendant’s ability to be present and observe the selection process. A defendant’s right to be present at jury selection does not entail the absolute or unlimited ability to observe each prospective juror’s facial expressions. After all, there is much more to body language than a person’s nose or mouth; defendant could still observe a great deal about prospective jurors including their posturing, the position of their arms, and their eyes and eyebrows … . People v Ramirez, 2024 NY Slip Op 00848, CtApp 2-20-24

Practice Point: Here, during voir dire, the jurors who were not being questioned wore face masks. Defendant’s inability to see the full faces of the jurors when they were not being questioned did not deprive defendant of his right to be present during jury selection and did not deprive defendant of due process of law.

 

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HERE SLIPPERY PLASTIC SHEETING WAS USED TO PROTECT AN ESCALATOR DURING A PAINTING PROJECT; PLAINTIFF, A PAINTER, SLIPPED AND FELL WHEN HE STEPPED ONTO THE PLASTIC; THE PLASTIC SHOULD BE VIEWED AS A “FOREIGN SUBSTANCE,” LIKE ICE OR GREASE, WITHIN THE MEANING OF THE INDUSTRIAL CODE; IN ADDITION, THE PLASTIC SHOULD NOT BE VIEWED AS “INTEGRAL TO THE JOB” WITHIN THE MEANING OF THE INDUSTRIAL CODE BECAUSE THERE WERE SAFER ALTERNATIVES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, with a three-judge concurring opinion by Judge Garcia, determined the plastic sheeting placed on an escalator during painting was a “foreign substance” within the meaning the Industrial Code and the sheeting was not “integral to the work” within the meaning of the Industrial Code. Plaintiff was therefore entitled to summary judgment on the Labor Law 241(6) cause of action. Plaintiff was required to stand on the plastic while painting. He slipped and fell as he stepped onto the sheeting. There was testimony that drop cloths or wood panels would be safer alternative coverings:

As to whether the covering’s properties are the type encompassed within the affirmative mandate of 12 NYCRR 23-1.7 (d), because that section specifically lists ice, snow, water and grease, the catchall reference to “other foreign substance” includes those substances that share a quality common to the enumerated items. The listed items are, by their nature, types of material that are slippery when in contact with an area where someone walks, seeks passage, or stands, and, when the substance is present, would make it difficult if not impossible to use the work area safely, necessitating one of the affirmative mitigating measures set forth in section 23-1.7 (d) as a means to provide safe footing. The plastic covering used here similarly made [plaintiff’s] work area slippery upon contact, with the result that [plaintiff] could not traverse the plastic-covered escalator without risking a fall. * * *

… [T]he use of some cover was integral to [plaintiff’s] assignment to paint around the escalator. But that does not mean that any cover used—even one that was inherently slippery—was necessarily “integral,” particularly where a safer alternative would have accomplished the same goal. The plastic covering that was placed on the escalator was not integral to the paint job because it made [plaintiff’s] work area slippery, creating one of the hazards that the cover was intended to avoid. … Defendant was in a position to avoid this danger because … there were alternative coverings—drop cloths and wood panels—that were familiar, previously-used options that would have achieved the goal of protecting the worker from injuries caused by a slipping hazard and also protected the escalator from possible damage. Bazdaric v Almah Partners LLC, 2024 NY Slip Op 00847, CtApp 2-20-24

Practice Point: A prohibited “foreign substance” within the meaning of the Industrial Code can include slippery plastic sheeting (here used as a drop cloth during a painting project). Therefore requiring workers to stand or walk on slippery plastic sheeting can be a violation of the Industrial Code, triggering Labor Law 241(6) liability.

Practice Point: Because there were safer alternatives, the slippery plastic covering was not “integral to the job” within the meaning of the Industrial Code.

 

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PLAINTIFF BOOK-PRINTER REPUDIATED ITS BOOK-PRINTING CONTRACT WITH DEFENDANT WHEN IT SOLD ITS PRINTING OPERATION TO A THIRD PARTY (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Oing, determined plaintiff (EPAC) had repudiated its book-printing contract with defendant (Wiley) when it sold its printing operation to non-party LS-1. Therefore Wiley was entitled to summary judgment on EPAC’s breach of contract action:

“A repudiation can be either ‘a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach’ or ‘a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach'” … . Put another way, “a party repudiates a contract ‘where that party, before the time of performance arrives, puts it out of his power to keep his contract'” … . “Besides giving the nonrepudiating party an immediate right to sue for damages for total breach, a repudiation discharges the nonrepudiating party’s obligations to render performance in the future” … . Thus, if there were a repudiation, the rest of the case falls away, and Wiley would be entitled to summary judgment dismissing the complaint. EPAC Tech., Inc. v John Wiley & Sons, Inc., 2024 NY Slip Op 00933, First Dept 2-20-24

Practice Point: Here the requirements for “repudiation” of a contract are described in some detail.

 

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THE FACT THAT PLAINTIFF SLIPPED AND FELL DOWN A PERMANENT CONCRETE STAIRWAY DID NOT REMOVE THE INCIDENT FROM THE REACH OF LABOR LAW 240(1); PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was ordered to carry a 200 pound mold up a concrete stairway. He slipped on concrete debris and fell down the stairs. The fact that the concrete stairway was a permanent structure (as opposed to a scaffold or ladder, for example) did not remove it from the reach of Labor Law 240(1):

Contrary to defendants’ contention, the fact that the staircase on which plaintiff fell was constructed as a permanent structure does not remove it from the reach of Labor Law § 240(1) .. . Because plaintiff’s foreman instructed him to work on an elevated work platform—namely, the stairway—defendants were required to provide plaintiff with an adequate safety device to carry the staircase mold up the stairs. Defendants failed to do so, and the absence of a safety device was a proximate cause of plaintiff’s injuries. At the time of his fall, plaintiff was following his foreman’s instructions to manually carry the mold up the stairs, and thus, he was not the sole proximate cause of the accident … . DaSilva v Toll GC LLC, 2024 NY Slip Op 00862, First Dept 2-20-24

Practice Point: Labor Law 240(1) can apply to a fall from a permanent concrete stairway. The statute does not apply exclusively to temporary structures like scaffolds, for example.

 

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ALTHOUGH THE SPECIFIC CONTRACT WAS NOT IDENTIFIED IN THE COMPLAINT, THE NATURE OF THE BREACH OF CONTRACT CLAIM WAS SUFFICIENTLY ALLEGED BY REFERENCE TO THE NYC ADMINISTRATIVE CODE AND NYC DEPARTMENT OF TRANSPORTATION PERMITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of contract cause of action was sufficiently alleged. Although the complaint did not specifically identify the breached contract, the reference to the relevant provisions of the NYC Administrative Code and the NYC Department of Transportation (DOT) permits gave sufficient notice of the nature of the claim:

… [P]laintiffs alleged that Con Edison failed to ensure payment of prevailing wages by codefendant … as required by the permits issued by the City Department of Transportation (DOT), in that it breached agreements required to be made, pursuant to Administrative Code of City of NY § 19-142, prior to obtaining such permits. Administrative Code § 19-142 required Con Edison “to agree that . . . the prevailing scale of union wages shall be the prevailing wage for similar titles as established by the fiscal officer pursuant to section [220] of the labor law, paid to those so employed,” and provides that “[n]o permit shall be issued until such agreement shall have been entered into with the” DOT. As required by the Administrative Code, the DOT permits issued to Con Edison stated that the permittee was required, “before such permit may be issued, to agree . . . that the prevailing scale of union wages shall be the prevailing wage for similar titles” established pursuant to Labor Law § 220 … …

… [T]he fact that the breach of contract cause of action in the complaint does not specifically identify the relevant contract but instead refers to “the promises required to be made pursuant to New York City Administrative Code § 19-142 prior to obtaining such permits,” does not require dismissal. Despite the non-specificity, the complaint “give[s] sufficient notice of the nature of the claim” by referencing Administrative Code § 19-142 and the DOT permits … . Ross v No Parking Today, Inc., 2024 NY Slip Op 00880, First Dept 2-20-24

Practice Point: Here the failure to identify the specific contract which was breached did not require dismissal of the breach of contract cause of action because the nature of the action was sufficiently alleged by reference to the applicable NYC Administrative Code provision and NYC Department of Transportation permits.

 

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FOLLOWING THE RE-ELECTION OF VENEZUELAN PRESIDENT NICOLAS MADURO, THE VENEZUELAN NATIONAL ASSEMBLY NAMED JUAN GUAIDO INTERIM PRESIDENT AND DECLARED THE EXCHANGE OF UNSECURED FOR SECURED NOTES OFFERED BY THE VENEZUELAN STATE-OWNED OIL COMPANY UNAUTHORIZED; VENEZUELAN LAW CONTROLS THE VALIDITY OF THE NOTES UNDER THE UCC, NEW YORK LAW CONTROLS ALL OTHER ASPECTS OF THE TRANSACTION (CT APP). ​

The Court of Appeals, in a comprehensive full-fledged opinion by Judge Troutman, answering questions posed by the Second Circuit, determined the extent to which the exchange of unsecured for secured notes offered to shareholders by the Venezuela’s state-owned oil company was controlled by the New York Uniform Commercial Code (UCC). The court concluded the validity of the notes under the UCC is governed by Venezuelan law and New York law governs the transaction in all other aspects. The opinion is far too detailed and complex to fairly summarize here. At the heart of the dispute is the 2018 re-election of Nicolas Maduro as President of Venezuela and the declaration by the Venezuelan National Assembly naming Juan Guaido as interim President, followed by the National Assembly’s declaration that the exchange of unsecured for secured notes was unauthorized:

In 2016, Venezuela’s state-owned oil company offered a bond swap through which its noteholders could exchange unsecured notes due in 2017 for new, secured notes due in 2020. The United States Court of Appeals for the Second Circuit certified three questions to this Court concerning the extent to which New York law governs this transaction. … [W]e answer that Venezuelan law governs the validity of the notes under Uniform Commercial Code § 8-110 (a) (1), which encompasses within its scope plaintiffs’ arguments concerning whether the issuance of the notes was duly authorized by the Venezuelan National Assembly under the Venezuelan Constitution—i.e., whether there is a defect in the notes occasioned by the application of a constitutional provision bearing on the procedure through which the notes were issued. … New York law governs the transaction in all other respects, including the consequences if a security was “issued with a defect going to its validity” (UCC 8-202 [b] [1]-[2]). * * *

Plaintiffs are three related entities. Petróleos de Venezuela, S.A. (PDVSA) is an oil and gas company wholly owned by the Venezuelan government (Venezuelan Const art 303 [“the State shall retain all shares of” PDVSA]). PDVSA Petróleo S.A. (Petróleo) is incorporated in Venezuela and is a wholly owned subsidiary of PDVSA. PDV Holding, Inc. (PDVH), also a wholly owned subsidiary of PDVSA, is incorporated in Delaware and has its principal place of business in Houston, Texas. PDVH wholly owns CITGO Holding, Inc., which is the sole owner of CITGO Petroleum Corporation, a refiner and marketer of petroleum products in the United States. Nonparties CITGO Holding and CITGO Petroleum Corporation are both incorporated in Delaware with a principal place of business in Houston. Petróleos de Venezuela S.A. v MUFG Union Bank, N.A., 2024 NY Slip Op 00851, CtApp 2-20-24

Practice Point: Nicolas Maduro was re-elected President of Venezuela. Juan Guaido was subsequently named interim President of Venezuela by the Venezuelan National Assembly. The question at the heart of this dispute is whether actions taken by President Maduro (issuance of notes offered by the Venezuelan state-owned oil company) are valid in the face of a subsequent declaration by the Venezuelan National Assembly that the issuance of the notes was not authorized.

 

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A RETROCESSIONAL INSURER WHICH PAID OUT A SETTLEMENT ON BEHALF OF THE INSURED IN THE UNDERLYING LABOR LAW 240(1) LADDER-FALL CASE, IS ENTITLED TO BRING A LEGAL MALPRACTICE ACTION AGAINST THE LAWYERS FOR THE INSURED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined a retrocessional insurer (the reinsurer of a reinsurer) can maintain a legal malpractice claim against lawyers representing the insured in an underlying Labor Law 240(1) (ladder-fall) personal injury action. Plaintiff retrocessional insurer, having paid out on a settlement on behalf of the insured has standing to assert a claim for legal malpractice under a theory of equitable subrogation. (The opinion is too complex to fairly summarize here):

In New York, “[w]e recognize at once the fairness of the proposition that an insurer who has been compelled by his contract to pay to or in behalf of the insured claims for damages ought to be reimbursed by the party whose fault has caused such damages and the principle of subrogation ought to be liberally applied for the protection of those who are its natural beneficiaries” … . “As an equitable doctrine in the context of insurance, an insurance carrier, upon payment of a loss becomes subrogated to the rights and remedies of its assured to proceed against a party primarily liable without the necessity of any formal assignment or stipulation” … . Under the same equitable principles, “an insurer which has been compelled under its policy to pay a loss, ought in fairness to be reimbursed by the party which caused the loss” … . * * *

Where a reinsurer, or retrocessionaire, has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured. Having pleaded that it was contractually obligated to, and did, pay the majority of the [property owner/general contractor’s] settlement amount in the underlying personal injury action, and that it brings the instant action for legal malpractice as subrogee [of the property owner/general contractor], plaintiff can proceed with this action under the theory of equitable subrogation. Century Prop. & Cas. Ins. Corp. v McManus & Richter, 2024 NY Slip Op 00799, First Dept 2-15-24

Practice Point: Here the retrocessional insurer paid out a settlement on behalf of the insured in an underlying personal injury action. The retrocessional insurer was entitled to bring a legal malpractice action against the lawyers for the insured.

 

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FOR PURPOSES OF THE RELATION-BACK DOCTRINE, A LANDLORD AND A TENANT ARE NOT “UNITED IN INTEREST” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord-tenant relationship between the insured and the defendant building owner, Marion, did not constitute a “unity of interest” such that a negligence action against Marion could be commenced after the statute of limitations had run:

There are three conditions that must be satisfied for a claim asserted against a subsequent defendant such as Marion to relate back to claims asserted against another defendant: (1) both claims must arise out of the same conduct, occurrence, or transaction; (2) the new party must be “united in interest” with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the lawsuit such that he will not be prejudiced in maintaining his defense on the merits; and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well … . * * *

… [A] landlord-tenant relationship, standing alone, does not give rise to vicarious liability or otherwise create unity of interest, which, as the Court of Appeals has recently reaffirmed, requires a situation in which the parties “stand or fall together and the judgment against one will similarly affect the other” … . Kingstone Ins. Co. v Marion Pharm. Inc., 2024 NY Slip Op 00805, First Dept 2-15-24

Practice Point: A landlord and a tenant are not united in interest for purposes of the relation-back doctrine and will not support adding a landlord to a complaint after the statute of limitations has run.

 

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