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Papers Sufficient to Require Suppression Hearing—No Need to Allege Expectation of Privacy Where Police Act Illegally

In finding defendant’s papers were sufficient to require a suppression hearing (re: the suppression of a gun), the Second Department noted that the defendant was not required to demonstrate he had a legitimate expectation of privacy in the area the gun was found because the motion alleged the gun was seized as a result of illegal police conduct:

A motion to suppress evidence must state the grounds of the motion and contain sworn allegations of fact supporting such grounds (see CPL 710.60[1]…). “It is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue” (…see CPL 710.60[3][b],,,). In testing the sufficiency of a defendant’s factual allegations, a court should consider “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” … .

Here, the allegations in the defendant’s papers, when considered in the context of the information provided by the People, raised a factual dispute requiring a hearing … . Contrary to the People’s contention, the defendant’s motion papers contained the requisite sworn allegations of fact … . Moreover, the defendant was not required to demonstrate that he had a legitimate expectation of privacy in the area where the gun was found …, since, under both the defendant’s and the People’s versions of events, the dispositive issue was whether the gun was recovered as a direct result of unlawful police action …. In light of the foregoing, the County Court should not have denied suppression without conducting a hearing. Accordingly, we remit the matter to the County Court, Suffolk County, for a hearing and a new determination thereafter of that branch of the defendant’s motion which was to suppress physical evidence.  People v Jennings, 2013 NY Slip Op 06384, 2nd Dept 10-2-13

 

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Police Violated Defendant’s Constitutional Rights by Pushing Door Open and Entering Apartment When Defendant Answered the Door—The “Payton” Violation (a Warrantless Arrest Inside Home) Mandated Suppression of Defendant’s Statement

Over a two-justice dissent, the Second Department determined defendant was arrested pursuant to a Payton violation (a warrantless arrest inside defendant’s home) and his subsequent statement should have been suppressed. The police were at defendant’s door with the complainant who told the police defendant had assaulted her.  When defendant opened the door, the complainant identified him as the assailant.  The defendant tried to shut the door, but the police pushed their way in and arrested him. The trial court felt there was no Payton violation the defendant’s attempt to shut the door after the identification was akin to “fleeing” or “exigent circumstances.”  The Second Department, in a full-fledged opinion by Justice Balkin, disagreed and wrote:

In Payton v New York (445 US 573), the United States Supreme Court announced a clear and easily applied rule with respect to warrantless arrests in the home: “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (Payton v New York, 445 US at 590). The rule under the New York Constitution is the same (see NY Const, art 1, § 12; People v Levan, 62 NY2d 139, 144). Payton and Levan require suppression of the defendant’s statement under the clear, undisputed facts of this case.

Certainly, if the defendant’s encounter with the police had begun outside his home, or even on the threshold of it, the defendant could not have avoided arrest by fleeing into his home (see United States v Santana, 427 US 38, 43). But, contrary to the hearing court’s characterization, the defendant’s attempt to close his door was not “akin” to “fleeing”; he had never left the constitutionally protected interior of his home in the first place, even partially, so he did not flee “into” his home … . People v Gonzales, 2013 NY Slip Op 06381, 2nd Dept 10-2-13

 

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Hospital Not Necessary Party in Malpractice Action Where Liability Vicarious

The Second Department determined a hospital which may be vicariously liable in a medical malpractice action was not a necessary party to the action:

The Supreme Court did not err in concluding that the nonparty Victory Memorial Hospital (hereinafter the hospital) was not a necessary party to this action. Contrary to the appellants’ contention, even if it were shown that the hospital would be vicariously liable for any negligence of the individual defendants, or that it had a contractual obligation to indemnify those individual defendants for damages recovered from them in this action, those factors would not render the hospital a necessary party to this action (see CPLR 1001[a]…). Complete relief may be accorded to the parties in this action without the presence of the hospital, as a plaintiff may proceed against any or all joint-tortfeasors, and a judgment for or against one tortfeasor does not operate as a merger or bar of a claim against other tortfeasors … . Accordingly, the Supreme Court properly denied those branches of the motion and cross motion which were pursuant to CPLR 3211(a)(10) to dismiss the complaint for failure to join a necessary party.  Smith v Pasqua, 2013 NY slip Op 06356, 2nd Dept 10-2-13

 

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Action Abandoned, Should Not Have Been Restored

In determining an action had been abandoned and should not have been restored, even though there had been a stipulation to restore the action, the Second Department wrote:

Where, as here, an action has been marked “off” the trial calendar, and more than one year has passed without its restoration to the trial calendar, the action shall be deemed abandoned and shall be dismissed (see CPLR 3404). A plaintiff subsequently seeking to restore an action to the trial calendar must demonstrate the existence of a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant … .

Although the stipulation to restore this action provides some indication that the plaintiff did not intend to abandon it when it was first marked “off,” and there was sporadic activity over the period, in excess of five years, between the automatic dismissal and the motion to restore the action to the trial calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed pursuant to CPLR 3404… . Saint Mary Byzantine Catholic Church v Kalin, 2013 NY Slip Op 06355, 2nd Dept 10-2-13

 

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Plaintiff Should Have Been Granted Extension to Serve Summons and Complaint Three Days After 120-Day Period Expired

The Second Department determined plaintiff should have been granted an extension of time to serve the summons and complaint where the statute of limitations ran out between the commencement of the action and the service.  The Second Department further determined that service of one copy of the summons and complaint upon an officer of defendant corporation (MBRI) was valid for both the corporation and the officer:

The defendants contend that MBRI was never served with a copy of the summons and complaint. We disagree. Service of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311(a)(1) and CPLR 308(1) … .Here, MBRI was served pursuant to CPLR 311(a)(1) when the plaintiff’s process server delivered the summons and complaint to the individual defendant, an officer of MBRI. Accordingly, the method employed to serve MBRI was proper and, thus, that branch of the defendants’ cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against MBRI for lack of personal jurisdiction should have been denied.

In this case, where the statute of limitations expired between the time that the action was commenced and the time that the copy of the summons and complaint was served, that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon MBRI nunc pro tunc to September 11, 2011, should have been granted in the interest of justice … . The copy of the summons and complaint was served only 3 days after the 120-day time period of CPLR 306-b had expired, the plaintiff promptly sought relief after receiving the answer, and there was no demonstrable prejudice to MBRI attributable to the delay in service … .  Fernandez v Morales Bros Realty Inc, 2013 NY Slip Op 06345, 2nd Dept 10-2-13

 

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Relief Granted By Court Went Too Far Beyond Relief Requested

In a partition action, the First Department determined Supreme Court ordered relief which went too far beyond the relief requested in the motion papers and explained the relevant principles:

Pursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only “on motion of [an] interested person” and “with such notice as the court may direct” (CPLR 5015[a] [emphasis added]…). ” Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment'” … . Likewise, while a court “may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing [in] the papers on both sides,” it may do so only “if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically” … .  Carter v Johnson, 2013 NY Slip Op 06333, 2nd Dept 10-2-13

 

 

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Wife’s Encumbrance of Marital Property in Violation of Court Order and Knowledge of the Court Order by Mortgage-Holder’s Agent Precluded Payout to Mortgage-Holder from Surplus Foreclosure Sale Proceeds

The Second Department determined the holder of a mortgage (Marie Holdings), which was undertaken by the wife in violation of the matrimonial court’s order not to encumber the marital residence, was not entitled to any of the surplus proceeds after a foreclosure sale of the property.  The facts that the wife violated the matrimonial court’s order and the attorney who was the agent for the mortgage holder knew of the court-order were determinative:

“The surplus funds of a foreclosure sale stand in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land” … . Accordingly, “[s]urplus money takes the place of the equity of redemption and only one who had a vested estate or interest in the land sold under foreclosure which was cut off by the foreclosure sale is entitled to share in the surplus money with priority in each creditor determined by the filing date of his lien or judgment” … . * * *

Contrary to Marie Holdings’ contention, the matrimonial court had authority to determine that the husband was entitled to the surplus funds as part of the equitable distribution of the marital property … . Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order … , and because Marie Holdings’ agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife’s interest therein … . The matrimonial court, in its discretion, divested the wife of that interest based upon her conduct. Emigrant Mtge Co Inc v Biggio, 2013 NY slip Op 06344, 2nd Dept 10-2-13

 

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Request to File Late Notice of Claim Granted in Absence of Good Reason for Delay

Over a dissent, the Second Department determined Supreme Court properly allowed plaintiff to file a late notice of claim, in the absence of a good reason for the delay. The infant plaintiff was a student who injured her finger in a door at school:

The plaintiffs demonstrated that the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … .

Before the infant plaintiff was taken to the hospital by ambulance, her teacher told her that he would give her a dollar for every stitch she had, and he later called the infant plaintiff’s home to inquire about her. During that telephone call, the teacher and the infant plaintiff’s mother allegedly discussed a door at the school… Additionally, the school nurse completed a medical claim form, detailing the accident, the injury, and the treatment provided. Under these circumstances, the defendant acquired actual knowledge of the essential facts constituting the claim … .

Furthermore, the defendant will not be substantially prejudiced in maintaining a defense on the merits as a result of the plaintiffs’ delay in seeking leave to serve a late notice of claim, in light of the teacher’s involvement in the incident and the nurse’s documentation of the accident and injuries … . “[T]he absence of a reasonable excuse for the delay does not bar the granting of . . . leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice” … . Claud v West Babylon Union Free Sch Dist, 2013 NY Slip Op 06339, 2nd Dept 10-2-13

 

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Most of Police Internal Investigation Report Deemed Immune from Disclosure

In determining that most of a police department’s internal investigation report need not be disclose pursuant to a Freedom of Information Law (FOIL) request, the Second Department wrote:

The Freedom of Information Law (Public Officers Law art. 6; hereinafter FOIL) was enacted “to promote open government and public accountability” and “imposes a broad duty on government to make its records available to the public” … . Under FOIL, government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law § 87(2), which permits an agency to deny access, inter alia, to records which “are specifically exempted from disclosure by state or federal statute” (Public Officers Law § 87[2][a]… ). One such statute exempting records from disclosure is Civil Rights Law § 50-a(1), which provides, in relevant part, that “[a]ll personnel records used to evaluate performance toward continued employment or promotion” of police officers “shall be considered confidential and not subject to inspection or review.” However, “when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer” … . Matter of Cook v Nassau County Police Dept, 2013 NY Slip Op 06364, 2nd Dept 10-2-13

 

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Excessive Intervention and Improper Conduct by Trial Judge Required New Trial

In a medical malpractice case, the Second Department determined plaintiff was deprived of a fair trial by the trial judge’s excessive intervention and improper conduct:

“[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” . A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” … . Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance'” … . Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial===and often times in the presence of the jury—unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. Porcelli v Northern Westchester Hosp Ctr, 2013 NY Slip Op 06354, 2nd Dept 10-2-13

 

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