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Failure to Apply the Merger Doctrine In a Kidnapping Case is not a “Mode of Proceedings” Error—Failure to Object at Trial Precludes Review

n a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that the failure to apply the merger doctrine, where kidnapping is deemed to merge with another substantive crime, is not a “mode of proceedings” error, and therefore is not reviewable in the Court of Appeals absent an objection at trial.  The merger doctrine was created to remedy overcharging by the prosecution where kidnapping was really part of another, less serious, offense.  Here the defendant argued the kidnapping charge, which was based on his briefly restraining a woman while threatening to shoot her, merged with the related reckless endangerment charge.  Because the alleged error was not preserved in the trial court by an objection, the issue before the Court of Appeal was whether the error should be deemed a “mode of proceedings” error which would allow the Court to hear the appeal, despite the lack of preservation.  The Court wrote:

In light of our case law on preservation, all four Appellate Divisions have concluded that a merger claim must be raised in the trial court … …. Defendant has offered no compelling justification for deviating from this established view and we see no valid reason to do so. Consequently, because the preservation rule applies to a merger claim in a kidnapping prosecution, defendant’s failure to assert the claim in Supreme Court precludes review by our Court … . People v Hanley, 45, CtApp 3-28-13

 

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Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies.  A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion.  The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy).  The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident.  The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory.  In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.  People v Handy, 35, CtApp 3-28-13

 

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1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

The Third Department, in a decision by Justice Garry, reversed Supreme Court’s dismissal of a 1983 action against employees of the Department of Corrections and Community Supervision challenging a urinalysis report:

Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be commenced in the Court of Claims; however, it has been established that this provision may not be applied to bar actions brought pursuant to 42 USC § 1983 … . Carrington v Moore, 513818, 3rd Dept 3-28-13

 

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Child Care Agency Could Be Found Negligent for Failure to Remove Child from Foster Parents’ Home

In a full-fledged opinion by Justice Acosta, the First Department reversed the trial court’s dismissal of a complaint against a child care agency which places children in foster homes.  A child the defendant placed allegedly started a fire in which members of the foster family were either killed or severely injured.  The First Department held that the child care agency, although it did not have a duty to control the child when he was in the foster family’s physical custody, had a duty to remove the child from the foster home upon notice of his propensity for setting fires:

In general, a defendant will not be liable for the conduct of third persons who cause harm to others … . However, the duty to control a third person’s conduct may arise when the defendant has authority to do so, and because of either the relationship between the defendant and the third person or the relation between the defendant and the plaintiff … . An example is the parent-child relationship … .

Thus, a child care agency, acting in loco parentis, has a duty to exercise reasonable care to prevent foster children under its supervision and control from harming others … .  Wynn, as Administratrix … v Little Flower Children’s Services, 2013 NY Slip Op 02156, 15276/95, 9200, 1st Dept 3-28-13

 

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“Professional” Standard of Care Can Be Required Based Solely on Nature of Services Provided

The First Department noted that a “professional” standard of care could be required of a party solely by virtue of the nature of services rendered:

The court properly found that Impact had a professional duty independent of the parties’ agreements. Although Impact, an environmental consultant, was not subject to licensing requirements, public policy requires that it should be held to a “professional” standard of care, given the nature of its services … . Indeed, “[p]rofessionals . . . may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties” … .  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Dept 3-28-13

 

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No Need to Be a Shareholder to Bring an Action Pursuant to BCL 720(b)

The Second Department noted there is no need to be a shareholder at the time a disputed resolution was adopted to bring an action for waste or breach of fiduciary duty pursuant to Business Corporation Law 720(b):

Unlike Business Corporation Law § 626, which authorizes a shareholder to bring a derivative action in the right of the corporation, Business Corporation Law § 720(b) authorizes a corporation, or an officer or director thereof, to commence an action to redress corporate waste or breach of fiduciary duty owed by officers and directors of the corporation … . While Business Corporation Law § 626(b) requires the plaintiff to be a shareholder at the time of the transaction of which he or she complains, there is no similar rule when a corporation, a director, or an officer commences an action pursuant to Business Corporation Law § 720(b) … . Gabel v Gabel, 2013 NY Slip Op 02050, 2011-10621, Index No 9839/10, 2nd Dept 3-27-13

 

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Criteria for 1983 Action Against Municipality Based On Policy or Custom

In reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context:

… [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of “(1) an official policy or custom [on the part of a municipal defendant] that (2) cause[d] the claimant to be subjected to (3) a denial of a constitutional right” … . “For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ]or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers'” …, or have occurred pursuant to a practice “so permanent and well settled as to constitute a custom or usage’ with the force of law” … .

“A municipal custom or policy can be shown by establishing that an official who is a final policy maker directly committed or commanded the violation of the plaintiff’s rights” … . Liability for a violation of 42 USC § 1983 may be predicated on “a single act, as long as it is the act of an official authorized to decide policy in that area” … .  Bassett v City of Rye, 2013 NY Slip Op 02037, 2011-10149, Index No 20430/05, 2nd Dept 3-27-13

 

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Assisting Resident Can Not Be Sued for Malpractice

In dismissing a medical malpractice complaint against a resident who assisted another doctor during surgery, the Second Department wrote:

A resident or fellow who is supervised by a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice unless the resident or fellow knows that the supervising doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, or the resident or fellow commits an independent act that constitutes a departure from accepted medical practice …. Poter v Adams, 2014 NY Slip Op 02061, 2012-03922, Index No 27069/09, 2nd Dept 3-27-13

 

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Reapplication for Visitation Can Not Be Conditioned on Counseling or Treatment

In reversing Family Court’s denial of a petition for visitation by a noncustodial parent without a hearing, the Second Department determined a hearing must held and no counseling or treatment can be ordered as a condition of future visitation:

“[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child” … . Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child … . * * *

Moreover, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” … .  Matter of Lew v Lew, 2013 NY Slip Op 02076, 2012-01599, Docket No V-6403/11, 2nd Dept 3-27-13

 

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Excuse for Default Found Inadequate

The Second Department determined the motion court erred when it found defendant’s excuse for default in appearing or answering adequate:

While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general assertion that the default was occasioned by the defendant’s insurance broker or liability carrier is insufficient … . Here, the defendant’s unsubstantiated claims that he believed that his insurance broker had forwarded the summons and complaint to his insurer and that his insurer was providing a defense are unreasonable given that the defendant was served with the plaintiff’s motion for leave to enter a default judgment … .   Spitzer v Landau, 2013 NY Slip Op 02067, 2012-05686, Index No 001868/11, 2nd Dept 3-27-13

 

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