The First Department, in a full-fledged opinion by Justice Saxe, determined a law firm sued for malpractice could assert third party claims against other law firms which advised the plaintiff on the same matter. There is a substantive discussion of similar third party actions in legal malpractice cases. Millenium Import, LLC v Reed Smith LLP, et al, Index 603350/07; 591100-07 First Dept. 1-24-13
In a Grand Larceny 3rd case, based on the theft of cell phones, the value of the stolen phones was proved by the testimony of the store manager who did not provide “a basis of knowledge” for her statement of value. The Second Department noted that “ ‘[c]onclusory statements and rough estimates of value’ that are unsupported by a basis of knowledge are insufficient…”. The conviction was reduced to petit larceny, which requires no proof of value. People v Sutherland, 2011-06497, Ind. No. 12436/08 Second Dept. 1-23-13
The Second Department determined the trial judge committed reversible error when he answered a juror’s questions in the robing room outside the presence of the defendant, the lawyers and the other jurors. The questions included “when the defendant could be deemed to be responsible ‘by the law’ ….”. Because the questions were not “ministerial’ and related to “the substantive legal and factual issues of the trial…” the error affected the “organization of the court or the mode of proceedings prescribed by law.” Preservation is not required for such a “mode of proceedings” error. People v Rivera, 2009-11428, Ind. No. 9921/07 Second Dept. 1-23-13
The Second Department held that the letter from the buyer’s attorney to the seller’s attorney stating that the buyer was prepared to close “on any date … within the next ten days,” and that the buyer would make himself available “at any time and location so designated by you,” and requested that the seller’s attorney “contact me within the next ten days to schedule a closing” did not make “time of the essence” because “it did not clearly and distinctly set a new date and time for closing, and it did not inform the defendant that he would be considered in default if he did not perform by a given date…”. Latora v Ferreira, 2011-09673, Index No. 20462/05 Second Dept. 1-23-13
In a slip and fall involving snow and ice, the defendant, in seeking summary judgment, did not demonstrate a lack of constructive notice by offering “some evidence as to when the area in question was last cleaned or inspected relative to the time when plaintiff fell….”. Specifically, the defendant “offered no evidence as to what, if any, cleaning procedures or inspection procedures were performed from December 9 … when the parking lots … were plowed, until the time of the injured plaintiff’s accident on December 12 …”. Without such evidence, the Second Department held, the defendant did not meet its prima facie burden and the cause of action should not have been dismissed by the trial court. Feola v City of New York, et al, 2011-06933, Index No. 101006/07, Second Dept. 1-23-13
The Second Department held that plaintiff could not recover for purely emotional damages. The complaint alleged plaintiff’s doctor knew plaintiff was pregnant, but allowed her to undergo a CT-scan without informing her of the pregnancy. Plaintiff sought damages for “the emotional distress arising from her fear that the CT-scan might have harmed her unborn child.” The Second Department determined defendant’s motion to dismiss the complaint should have been granted because “[n]o such claim is recognized under New York law…”. Nadal v Jaramillo, 2012-04006, Index No. 30748/08 Second Dept.1-23-13
Plaintiff brought a cause of action for “fraudulent inducement” alleging she accepted employment with defendant hospital based on a false claim the hospital had “passed” a survey related to accreditation when, in fact, it had received only a “conditional accreditation status.” The Second Department determined that the fraudulent inducement cause of action must be dismissed because plaintiff was an at-will employee. “The at-will employment doctrine … bars a cause of action sounding in fraudulent inducement, even where the circumstances pertain to a plaintiff’s acceptance of an offer of a position rather than his or her termination …”. The Second Department agreed with the trial court that the breach of contract cause of action should not be dismissed, but the Court dismissed the punitive damages aspect of the breach of contract cause of action because punitive damages do not attach to purely private wrongs. Guido v Orange Regional Medical Center, 2011-08527, Index No. 13123/10 Second Dept. 1-23-13
The defendant, who claimed to have been intoxicated at the time, threw bottles and plates off a 26th floor hotel balcony overlooking 7th Avenue during morning rush hour. He was convicted of first degree reckless endangerment, which requires a “depraved indifference to human life.” In affirming the conviction, the First Department, in a full-fledged opinion by Justice Friedman, included a substantive discussion of the relationship among the legal concepts “depraved indifference,” ” recklessness,” and “specific intent to cause harm.” In addition, the Court found sufficient “exigent circumstances” to justify the warrantless entry by the police into defendant’s hotel room. People v Green, 7860, Ind. 4295/05 First Dept. 1-22-13.
The Third Department upheld the defendant’s rape conviction in a full-fledged opinion by Justice Spain. The case is interesting because it is a true “weight of the evidence” analysis where the appellate court conducted “a full review of the testimony adduced at trial,” acting in the role of a jury. There was a strong dissent which argued the conviction should be reversed because the trial judge did not turn over to the defense certain records concerning the complainant’s mental health after an in camera review. People v McCray, 103682 Third Dept 1-17-13
A waiver of the right to appeal is unenforceable where there is “no promise, plea agreement, reduced charge, or any other bargain or consideration given to the defendant in exchange for [her] plea…”. For that reason the Second Department determined defendant’s waiver of appeal was invalid and she could appeal her sentence. People v Brady-Laffer, 2011-11051, Ind. No. 1783-11 Second Dept. 1-16-13
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