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THE LICENSE ALLOWING THE USE OF A BOAT SLIP AT A COUNTRY CLUB WAS REVOCABLE AT WILL BY THE COUNTRY CLUB (THE LICENSOR) (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over an extensive three-judge dissenting opinion, determined that the license at issue was revocable at will by the licensor:

… [P]laintiff Skaneateles Country Club (SCC) undertook a project to construct 80 boat slips on Skaneateles Lake for the benefit of club members. Interested members, including defendant Olivia Cambs, were required to contribute an initial capitalization payment and enter into an Assignment Agreement. Through the Assignment Agreement, SCC “assign[ed] and transfer[red]” to defendant the “use and occupancy right with respect to one boat slip,” subject to certain express conditions. SCC reserved the right to determine the specific boat slip defendant would occupy, and defendant agreed to comply with all of SCC’s rules and policies, pay an annual maintenance fee, and adhere to any applicable laws, ordinances or governmental regulations. The agreement also permitted defendant to make a “Legacy Transfer” of the slip to her offspring if certain specified conditions were met. Further, the agreement provided that, “[i]n the event [defendant] elect[ed] to terminate this Assignment Agreement” or was no longer a club member, SCC would return the initial capitalization payment.

Following an unrelated dispute with defendant, SCC commenced this declaratory judgment action, seeking a declaration that the agreement was a license terminable at will by SCC. …

… [N]othing in the parties’ agreement limits SCC’s right to terminate or otherwise evinces an intent to alter the general rule that licenses are revocable at will by the licensor … . Although licenses may become irrevocable by the licensor in certain circumstances … , we are not satisfied that any such circumstances are presented here. Skaneateles Country Club v Cambs, 2023 NY Slip Op 05352, CtApp 1-24-23

Practice Point: Although under some circumstances licenses cannot be revoked at will by the licensor, that is not general rule. Here the license allowing use of boat slip at a county club was revocable at will. Nothing in the agreement evinced an intent to alter the general rule.

 

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THE REGULATIONS ALLOWING FAMILIAL DNA SEARCHES WERE VALIDLY PROMULGATED; THE REGULATIONS ALLOW DNA SEARCHES WHICH REVEAL THE IDENTITY OF FAMILY MEMBERS OF PERSONS IN THE CRIMINAL DNA DATABASE (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, determined the Commission on Forensic Sciences properly promulgated the Familial DNA Search (FDS) Regulations. The regulations allow DNA searches which may reveal the identity of relatives of a persons whose DNA is in the database. The underlying Article 78 petition was brought by two men, never convicted of a crime, whose brothers were in the DNA database as a result of a felony conviction:

There is no provision in the FDS for an identified relative to be notified and/or challenge the search before law enforcement officials may proceed with an investigation based on a familial match from the Databank. Petitioners Terrence Stevens and Benjamin Joseph are two Black men living New York who have never been convicted of a crime. Each has a brother whose genetic information has been collected and stored in the DNA Databank as the result of a felony conviction, in accordance with Databank Act requirements. Mr. Stephens and Mr. Joseph brought this CLPR article 78 proceeding against respondents … alleging … that respondents lacked statutory authority to promulgate the FDS Regulations and therefore violated the separation of powers doctrine under the New York Constitution. Respondents denied petitioners’ allegations and asserted that petitioners lacked standing to challenge the FDS Regulations. * * *

Given the clarity and specificity of the guidelines provided in the Databank Act, respondents acted within their delegated authority. The FDS Regulations are a result of “administrative rule-making,” not “legislative policy-making” … . Here, the legislature made the policy determination that New York State should have well-developed DNA testing programs to assist law enforcement, that the use of the information should be limited, and the data and results secure. Matter of Stevens v New York State Div. of Criminal Justice Servs., 2023 NY Slip Op 05351, CtApp 10-24-23

Practice Point: The regulations allowing familial DNA searches which reveal the identity of relatives of persons in the criminal DNA database are constitutional. There was an extensive three-judge dissent.

 

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NYPD’S WRITTEN INVENTORY SEARCH PROTOCOL IS CONSTITUTIONAL; HERE THE INVENTORY SEARCH OF THE TRUNK OF DEFENDANT’S VEHICLE TURNED UP A FIREARM (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive dissent, determined the New York City Police Department’s (NYPD’s) written inventory search protocol was constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm from the trunk:

Defendant moved to suppress the firearm, arguing that the NYPD’s inventory search protocol was unconstitutional because it gives officers too much discretion in conducting inventory searches and that the searching officers failed to create a meaningful inventory of defendant’s items. At the suppression hearing, the People introduced the NYPD’s written inventory search protocol as set forth in section 218-13 of the NYPD Patrol Guide. The protocol instructs officers to first “[s]earch the interior of the vehicle thoroughly,” “includ[ing] any area that may contain valuables.” The protocol lists 10 areas within the car that must be searched, such as the glove compartment and trunk, but does not limit the searching officers to those spaces. Second, section 218-13 directs officers to force open the “trunk, glove compartment, etc. only if it can be done with minimal damage” except in particular situations including where officers “[r]easonably suspect that the item contains weapons, explosives, hazardous materials or contraband.” Lastly, the protocol requires officers to remove the valuables from the vehicle and invoice, or “voucher,” the property on a specifically referenced invoice form. Section 218-13 instructs officers to list property of little value inside the vehicle, “within reason,” in their activity log and cross reference the property “to the invoice number covering any valuables removed.” Both officers testified that the purpose of an inventory search is, in part, to secure a defendant’s items. The arresting officer further testified that it is an officer’s duty to safeguard a defendant’s recovered items prior to vouchering the items. People v Douglas, 2023 NY Slip Op 05350, CtApp 10-24-23

Practice Point: Here the NYPD’s written inventory search protocol for vehicles was found constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm. There was an extensive dissenting opinion.

 

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HERE THE RELATION-BACK DOCTRINE APPLIED TO ALLOW ADDING A PARTY TO THE LAWSUIT AFTER THE STATUTE OF LIMITATIONS HAD RUN; CRITERIA EXPLAINED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined the relation-back doctrine applied to add a party to a lawsuit after the statute of limitations had run:

The relation back doctrine applies when (1) the claims arise out of the same conduct, transaction or occurrence; (2) the new party is “united in interest” with an original defendant and thus can be charged with such notice of the commencement of the action such that a court concludes that the party will not be prejudiced in defending against the action; and (3) the new party knew or should have known that, but for a mistaken omission, they would have been named in the initial pleading (see Buran v Coupal, 87 NY2d 173, 178 [1995]).

The doctrine focuses on the notice and prejudice to the added party. However, the doctrine does not apply when a plaintiff “intentionally decides not to assert a claim against a party known to be potentially liable” or when the new party was omitted “to obtain a tactical advantage in the litigation” (id. at 181). These exceptions minimize gamesmanship and manipulation of the CPLR (see id.).

Here, petitioners established that they satisfied the Buran test and that their omission of a necessary party was not a deliberate, informed litigation strategy to gain tactical advantage. The relation back doctrine applies, and petitioners’ claims against the newly added party were timely interposed under CPLR 203 (c). Matter of Nemeth v K-Tooling, 2023 NY Slip Op 05349, CtApp 10-24-23

Practice Point: If the criteria laid out in Buran, 87 NY2d 173, are met, the relation-back doctrine can be applied to allow adding a party to the lawsuit after the statute of limitations has run.

 

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​ ALTHOUGH THE STATUTORY SPEEDY TRIAL RULES DO NOT APPLY TO STAND-ALONE TRAFFIC INFRACTIONS, THE PEOPLE AGREED TO DISMISS THE TRAFFIC INFRACTION ON SPEEDY TRIAL GROUNDS; THE PEOPLE THEN APPEALED; THE COURT OF APPEALS, OVER A DISSENT, HELD THE MATTER WAS NOT REVIEWABLE (CT APP). ​

The Court of Appeals, over a dissenting opinion, determined that the error was not reviewable because the People consented to it. In 2022 the Court of Appeals held that the statutory speedy trial rules do not apply to traffic infractions which stand alone, i.e., the traffic infraction is not charged along with a felony, misdemeanor or violation. The defendant’s traffic infraction had been dismissed on speedy-trial grounds with the People’s consent. The People then appealed the dismissal:

On appeal, the People contend that CPL 30.30 (1) (e)—which took effect more than a year before defendant was even charged—was enacted to clarify that CPL 30.30 (1) applies ” ‘to accusatory instruments charging traffic infractions jointly with a felony, misdemeanor, or violation,’ ” but that, as we stated in People v Galindo, ” ‘actions involving only traffic infractions would still not be covered by the speedy trial statute’ ” (quoting 38 NY3d 199, 201, 206 [2022] [emphasis added]). Thus, the instant appeal involves no intervening newly declared principle of law.

Because the People agreed in Town Court that CPL 30.30 applied to the simplified traffic information, the issue is unreviewable (see CPL 470.05 [2]). Contrary to the dissent’s suggestion, we engender no unjust result by applying our well-settled principles governing reviewability to reject the People’s attempt to reinstate the accusatory instrument against this pro se defendant, now almost two years after dismissal, by renouncing their express concession that CPL 30.30 applied. People v Lovett, 2023 NY Slip Op 05348, CtApp 10-24-23

Practice Point: If the People agree to an erroneous ruling and then appeal that ruling, the matter may not be reviewable by an appellate court.

 

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IN A FALLING OBJECT CASE WHERE INADEQUATE SAFETY EQUIPMENT IS ALLEGED, THE FACT THAT THE PLAINTIFF DOES NOT KNOW WHAT THE OBJECT WAS DOES NOT PRECLUDE SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this falling object case. Plaintiff did not see or know what struck him. There was a hole in the protective netting:

… [T]he fact that the injured plaintiff could not identify the object that struck him or its origin did not preclude summary judgment in plaintiffs’ favor. A plaintiff’s prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him … . Further, a plaintiff is not required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries … . Here, plaintiff testified that he was struck on the head and neck by an unknown object while working on an outrigging platform on the 25th floor of the building under construction. He also testified that he heard workers stripping wood on the floors above him at the time of the accident, and submitted photographs depicting a large hole in the safety netting that served as overhead protection. This evidence was sufficient to establish prima facie that the accident was the result of a violation of Labor Law § 240(1) … . In opposition, defendants failed to provide any version of the accident under which they could not be held liable, making summary judgment appropriate … . Harsanyi v Extell 4110 LLC, 2023 NY Slip Op 05313, First Dept 10-19-23

Practice Point: Here plaintiff alleged he was struck by a falling object and the safety netting was inadequate. The fact that he did not know what the object was did not preclude summary judgment on his Labor Law 240(1) cause of action.

 

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A JUDGE CANNOT ENTER A JUDGMENT WHICH DOES NOT CONFORM TO THE ORDER; HERE THE JUDGMENT ELIMINATED MILLIONS OF DOLLARS IN DAMAGES AND EXTINGUISHED A DEFENDANT’S LIABILITY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the judge did not have the power to, sua sponte, enter an judgment which did not conform to its order. The judgment eliminated millions of dollars in damages and extinguished liability with respect to a defendant:

“A written order [or judgment] must conform strictly to the court’s decision, and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . A court exceeds its authority when it sua sponte vacates its prior order, as it “has no revisory or appellate jurisdiction, sua sponte, to vacate its own order” … . Here, the court exceeded its authority in entering the judgment, which effectively reversed or vacated its prior confirmation order without notice. Accordingly, the court is directed to enter a revised judgment that conforms to the confirmation order with respect to damages and liability. Magna Equities II, LLC v Writ Media Group Inc., 2023 NY Slip Op 05320, First Dept 10-19-23

Practice Point: A judge cannot effectively vacate a prior order by entering a judgment which does not conform to the order.

 

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MALPRACTICE TREATING THE INITIAL MEDICAL INJURY AT ANOTHER HOSPITAL IS A FORESEEABLE CONSEQUENCE OF THE INITIAL MEDICAL INJURY (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the medical malpractice action, noted that malpractice in treating an injury is a foreseeable consequence of the injury. Plaintiff’s decedent was injured during surgery and the injury was subsequently treated at another hospital (The Valley Hospital). Defendants’ expert opined that a delay in treatment at The Valley Hospital was the cause of decedent’s injuries:

Although defendants’ expert opined that the cause of decedent’s injuries was negligent delay by The Valley Hospital, any such delay “does not absolve defendant[s] from liability because there may be more than one proximate cause of an injury” … . Malpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort … . Therefore, regarding these injuries, defendants’ expert “never actually opined that [decedent’s] claimed injuries were not causally related to defendants’ alleged malpractice” … . Murphy v Chinatown Cardiology, P.C., 2023 NY Slip Op 05321, First Dept 10-19-23

Practice Point: If the initial medical injury leads to subsequent treatment at another hospital, any malpractice in the subsequent treatment is a foreseeable consequence of the initial medical injury.

 

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​ THE MOTION TO AMEND THE COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES SHOULD HAVE BEEN GRANTED; ADDING ALLEGATIONS WHICH INCREASE A DEFENDANT’S EXPOSURE TO LIABILITY DOES NOT CONSTITUTE PREJUDICE TO THE DEFENDANT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the motion to amend the complaint to add a claim for punitive damages did not prejudice defendant (Eldridge) and should have been granted:

The court improvidently exercised its discretion and should have granted plaintiffs’ motion to amend the complaint to add a claim for punitive damages against Eldridge based on his deposition testimony that he knowingly drove a truck on a public roadway with defective brakes, horn, and one inoperable windshield wiper, and was reaching for his cell phone that had fallen to the floor of the car when his truck collided with the rear of plaintiffs’ vehicle. A jury might find that such conduct sufficiently demonstrated a conscious and willful disregard of the interests of others … .

The court denied plaintiffs’ motion to reargue their … order upon a finding that the amendment would prejudice Eldridge because it subjected him to personal exposure in the accident. However, greater exposure to liability does not constitute prejudice. There must be some indication that defendant has been hindered in the preparation of its case or has been prevented from taking some measure to support its position, and the burden of demonstrating prejudice is on the party opposing amendment … . Eldridge failed to sustain his burden of showing prejudice. Owens v STD Trucking Corp., 2023 NY Slip Op 05323, First Dept 10-19-23

Practice Point: Here the fact that the proposed amendment to the complaint exposed the defendant to greater exposure to liability does not constitute prejudice. The motion to amend the complaint to add a claim for punitive damages should have been granted.

 

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DEFENDANT APPEARED IN COURT WITH A SUBSTITUTE COUNSEL WHO INFORMED THE COURT ANOTHER LEGAL AID LAWYER WAS BEING ASSIGNED TO DEFENDANT’S CASE; DEFENDANT WAS NOT “WITHOUT COUNSEL” WITHIN THE MEANING OF CPL 30.30; THE ASSOCIATED SPEEDY-TRIAL TIME-PERIOD SHOULD HAVE BEEN CHARGED TO THE PEOPLE, NOT THE DEFENDANT (CT APP). ​

The Court of Appeals, reversing the Appellate Term. determined the defendant was not “without counsel” during an eight-day period. Therefore that eight-day period must be charged to the People and the People were not ready for the trial within the statutory 90 days:

Under CPL 30.30 (4) (f), a “period during which the defendant is without counsel through no fault of the court” must be excluded when calculating the time within which the People must be ready for trial. However, a defendant is not “without counsel” within the meaning of the statute when appearing with substitute counsel … .

Here, defendant was assigned an attorney from The Legal Aid Society during his arraignment. On November 5, 2018, the date that defendant’s case was calendared for trial, defendant appeared in court with a different attorney from that office, who informed the court that defendant’s original attorney was leaving the office and the case was being reassigned to another attorney from Legal Aid. Defendant plainly was represented at that appearance and was therefore not “without counsel” … . People v Justice A., 2023 NY Slip Op 05306, CtApp 10-19-23

Practice Point: Appearing with substitute counsel is not appearing “without counsel” within the meaning of CPL 30.30 (4)(f). The associated time should not have been charged to the defendant. The People therefore were not ready for trial within the statutory 90-day period.

 

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