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“Mere Nervousness” Does Not Justify Police Inquiry/ More than “Mere Nervousness” in this Case

In finding that the police inquiry was proper because it was prompted by more than merely the defendant’s nervousness (which would not have been sufficient for a suspicion of criminality), the First Department explained:

The Court of Appeals’ decision in People v Garcia (20 NY3d 317 [2012]) does not dictate a different result. In Garcia defendant’s vehicle was pulled over because of a defective brake light. Aside from the faulty light, there was no indication of criminality by the occupants of the car; they merely appeared nervous and acted “furtive[ly]” by “stiffen[ing] up and “looking behind” upon being pulled over (id. at 320). The Court of Appeals agreed with this Court that a defendant’s nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. Here, however, apart from seeming nervous, defendant was observed in a drug-prone neighborhood pulling what appeared to be an aluminum foil packet out of his pocket. The arresting officer suspected that the aluminum foil contained cocaine because cocaine is often packaged in that manner. And, unlike Garcia, where the alleged “furtive” behavior was consistent with nervousness over being pulled over, here, defendant’s attempt to block the … officers’ view of the shirt pocket in which he had placed the aluminum packet was consistent with someone in possession of a controlled substance attempting to avoid apprehension. These circumstances were sufficient to give the police the requisite founded suspicion to approach and question defendant.  People v Loretta, 2013 NY Slip Op 04562, 1st Dept, 6-18-13

STREET STOPS

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Irrelevant Information in Presentence Report Should Not Have Been Allowed In “Dangerous Sex Offender” Proceeding

In affirming a jury finding of mental abnormality and a finding that respondent was a dangerous sex offender requiring confinement, the First Department noted that the state’s expert should not have been allowed to testify about respondent’s admission in a presentence report that he was in the vicinity of a rape with which he was never charged:

The court erred in permitting the State expert to testify regarding respondent’s admission, in a presentence report, that he was in the vicinity when a rape, with which he was never charged, was committed. While this statement was sufficiently reliable to show that respondent was in the vicinity of the rape, it was not reliable for the purpose of showing that he committed the rape…. Nevertheless, this error was harmless given the expert’s reliance on two brutal sexual assaults to which respondent pleaded guilty and a third that he admitted committing, and given the court’s appropriate limiting instructions, which served to dispel any prejudice …. Matter of State of New York v Charada T, 2013 NY Slip Op 04548, 1st Dept, 6-18-13

 

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Significant Limitation Need Not Be Permanent to Constitute Serious Injury; Recent Physical Examination Is Not Prerequisite for Overcoming Summary Judgment

In reversing summary judgment granted to the defendant, the First Department noted that a significant limitation of use of a body function need not be permanent to constitute a serious injury within the meaning of Insurance Law 5102, and the First Department further explained that its precedent in this area should not be read to require a recent physical examination to overcome summary judgment:

…”[A] significant limitation [of use of a body function or system] need not be permanent in order to constitute a serious injury”…. Indeed, a ” permanent consequential limitation’ requires a greater degree of proof than a significant limitation’, as only the former requires proof of permanence”…. “Insurance Law § 5102(d) does not expressly set forth any temporal requirement,” although assessment of the limitation’s significance does require consideration of its duration in addition to its extent and degree…. Therefore, the lack of a recent examination, while sometimes relevant, is not dispositive by itself in determining whether a plaintiff has raised a triable issue of fact in opposing a defendant’s prima facie evidence under the “significant limitation” category.  Our decision in Townes v Harlem Group, Inc. (82 AD3d 583, 583-584 [1st Dept 2011]), should not be read to require a plaintiff to submit a recent examination as a necessary prerequisite to overcoming judgment as a matter of law in every instance of a claim under the “significant limitation” category. To the extent that the Townes Court did require a recent examination, it was due to the specific facts present in that case. Furthermore, the precedents that decision relied upon in requiring a recent examination do not specifically address the degree of proof necessary for a “significant limitation” claim as opposed to a “permanent consequential limitation” claim, instead conflating these two categories of serious injury…. Vasquez v Almanzar, 2013 NY Slip Op 04561, 1st Dept, 6-18-13

 

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Appellate Court Recognized Prior Decision Was “Clearly Erroneous” and Did Not Hold Trial Court to It

The Fourth Department noted that a trial court is bound by an appellate decision, even if the decision is wrong.  However, in this case, the Fourth Department upheld the trial court’s modification, acknowledging that its prior decision should not be followed:

It is well settled that, until a decision of this Court is “ ‘modified or reversed by a higher court, . . . the trial court is bound by our decision’ ”…, regardless of whether our decision was correctly decided….  We thus conclude that the Surrogate erred in failing to comply with our prior decision. Nevertheless, this Court is not likewise required to follow our prior decision under the doctrine of law of the case.    Indeed, for the reasons that follow, we conclude that we should not apply the doctrine of law of the case herein, and we therefore affirm the modified decree … .“As the doctrine of . . . law of the case is not one of inflexible law, but permits a reasoned exercise of a certain degree of discretion in its application, the better rule is that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust . . . [T]he effect of a prior ruling by an appellate court in a later appeal before that court, or in a subsequent stage of the same appeal before that court, presents the problem of balancing the interest in foreclosing reconsideration of the prior decision with the desire for a just result . . .  We recognize that our earlier decision was “clearly erroneous”…, as “shown by contrary authority emanating from [the Court of Appeals,] whose rulings . . . are controlling”…. We also conclude that “correction of the error made on the former appeal [will] create no injustice or hardship, [inasmuch as] no change has been made in the status of the parties in reliance upon the ruling in the former appeal” ….  Matter of Ladelfa, 580, 4th Dept, 6-14-13

 

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Sovereign Immunity Did Not Apply to Golf Course Owned by Seneca Nation

The Fourth Department, in a full-fledged opinion by Justice Peradotto, determined the Lewiston Golf Course Corporation (LGCC) was not an “arm” of the Seneca Nation and, therefore, was not entitled to sovereign immunity and could be sued in New York courts:

It is well settled that “Indian tribes are immune from lawsuits in both state and federal court unless ‘Congress has authorized the suit or the tribe has waived its immunity’ ” … . Less settled is the law governing whether, and to what extent, economic entities created by a tribe share in the tribe’s immunity from suit … .“Tribal subagencies and corporate entities created by the Indian Nation to further governmental objectives, such as providing housing, health and welfare services, may also possess attributes of tribal sovereignty, and cannot be sued absent a waiver of immunity” ….    The critical question is “whether the entity acts as an arm of the tribe so that its activities are properly deemed to be those of the tribe” … , i.e., whether the entity is “so closely allied with and dependent upon the [t]ribe that it is entitled to the protection of tribal sovereign immunity”….… [W]e conclude that LGCC is not an “arm” of the Nation and therefore falls outside the Nation’s cloak of sovereign immunity … .  Sue/Perior Concrete & Paving Inc v Lewiston Golf Course Corporation …, 478, 4th Dept, 6-14-13

 

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Oral Evidence in Quantum Meruit Case Rejected by Appellate Court

In vacating a damages award in a quantum meruit case, the Fourth Department concluded the self-serving oral proof offered by plaintiff should not have been accepted as sufficient by the trial court and that the defendants’ proof of the value of plaintiff’s work should be the basis of damages award:

Plaintiff is correct that “[p]roof of damages may be based upon oral testimony alone, so long as the witness has knowledge of the actual costs”…, and that the customary means of calculating damages on a quantum meruit basis in a construction case is actual job costs plus profit minus amount paid…. Nevertheless, we cannot conclude that the court’s award of $31,720 is supported by a fair interpretation of the….    That award was based on plaintiff’s self-serving testimony and invoice, while defendants presented the testimony and estimates of three nonparty witnesses establishing that plaintiff’s work was not worth more than $8,290.    Under the unique circumstances of this case, i.e., the seven-month lapse between the time that plaintiff completed the project and the time that he drafted and tendered the invoice to defendants, we conclude that the proper remedy is to adopt the highest of the project estimates from defendants’ trial witnesses as the basis for the award of damages … SJ Kula, Inc v Kevin Carrier…, 520, 4th Dept, 6-14-13

 

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Excess Insurance Policies Re: Same Risk Cancel Out

In determining that two insurance policies insuring the same risk were both excess insurance policies (canceling each other out), the Fourth Department explained the relevant law as follows:

In resolving disputes between insurers, “we first look to the language of the applicable policies” …, and we note that New York law “recognize[s] the right of each insurer to rely upon the terms of its own contract with its insured”…. “[W]here there are multiple policies covering the same risk, and each generally purports to be excess to the other, the excess coverage clauses are held to cancel out each other and each insurer contributes in proportion to its [policy] limit,” unless to do so would distort the plain meaning of the policies…. By contrast, “if one party’s policy is primary with respect to the other policy, then the party issuing the primary policy must pay up to the limits of its policy before the excess coverage becomes effective”….  Utica Mutual Insurance Company…v Erie Insurance Company, 430, 4th Dept, 6-14-13

 

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Court Is Powerless After Release Signed and Filed

The Fourth Department noted that a court loses jurisdiction over a case after a release has been signed and filed:

Supreme Court erred in granting the motion of … (defendant) to compel plaintiff to comply with the release agreement between plaintiff and defendants. Defendant brought his motion after the related third-party action was settled and an unconditional stipulation of discontinuation as to him with respect to this action was signed by the attorneys for plaintiff and defendant and filed. Although a trial court has the power “to exercise supervisory control over all phases of pending actions an proceedings”…, it lacks jurisdiction to entertain a motion after the action has been “unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance”….  Cambridge Integrated Services Group, Inc v Johnson…, 723, 4th Dept, 6-14-13

 

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