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A SUPERIOR COURT INFORMATION (SCI) FILED AFTER INDICTMENT IS A NULLITY (CT APP).

​The Court of Appeals noted that a superior court information (SCI) filed after indictment is a nullity:

A defendant may waive their constitutional right to grand jury presentment and indictment and proceed by SCI in accordance with the strict technical requirements of CPL 195.10 (2). Here, the SCI was filed after the grand jury indicted defendant and thus the SCI failed to comply with the statutory prerequisites. Accordingly, the SCI is a nullity and was properly dismissed (see CPL 195.10 [2] …). People v Solomon, 2023 NY Slip Op 02030, CtApp 4-20-23

Practice Point: A superior court information (SCI) filed after indictment is a nullity.

 

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TEXT EXCHANGES WITH AND PHOTOGRAPHS OF THE RAPE AND SEXUAL-ABUSE VICTIM DELETED BY DEFENDANT FROM HIS CELL PHONE AND SUBSEQUENTLY RECOVERED DO NOT CONSTITUTE “NEWLY DISCOVERED” EVIDENCE WHICH WILL SUPPORT A MOTION TO VACATE THE CONVICTION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined defendant’s motion to vacate his conviction based on newly discovered evidence was properly denied without a hearing. Defendant was convicted of multiple counts of rape and sexual abuse of the fifteen-year-old victim. The newly discovered evidence was deleted by the defendant and subsequently recovered on defendant’s cell phone:

… [T]he evidence proffered is far from newly discovered—it is evidence the defendant knew about, was involved in the creation of, and believed he destroyed well before trial in an effort to conceal criminal activity. As defendant affirmed, he “deleted the photographs and/or text messages because [he] did not want anyone to see them.” This is unsurprising given that the material, including nude photographs he took of the victim, was compelling evidence of his sexual contact with a minor. Defendant cannot now claim that because certain “technology” was not available to recover the incriminating texts and photographs that he attempted to destroy, that material, now recovered, somehow qualifies as “newly discovered evidence.”

Nor has defendant met CPL 440.10 (g)’s due diligence prong, which requires that defendant show that the evidence could not have been produced at the trial even with due diligence on the part of defendant. Nowhere in defendant’s conclusory submissions is there any showing that the evidence was inaccessible before trial, or any indication that defendant tried to obtain it. People v Hartle, 2023 NY Slip Op 02029, CtApp 4-20-23

Practice Point: Text messages and photos of the sexual abuse and rape victim deleted from defendant’s cell phone and subsequently recovered cannot be deemed “newly discovered” evidence which will support a motion to vacate the conviction.

 

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​ A FIRE DISTRICT CANNOT BE HELD VICARIOUSLY LIABLE UNDER A NEGLIGENCE STANDARD FOR THE ACTIONS OF A VOLUNTEER FIREFIGHTER DRIVING A FIRE TRUCK WHERE THE DRIVER DOES NOT VIOLATE THE RECKLESS-DISREGARD STANDARD FOR EMERGENCY VEHICLES (CT APP). ​

The Court of Appeals, reversing the appellate division, over a two-judge dissent, in a full-fledged opinion by Judge Cannataro, determined a municipality cannot be held vicariously liable under a negligence standard for the actions of a volunteer firefighter driving a firetruck where the driver is protected by the higher reckless-disregard standard for emergency vehicles under the Vehicle and Traffic Law:

Based on undisputed testimony that the firefighter was responding to an alarm of fire, had activated the fire truck’s lights and sirens, stopped the fire truck before entering the intersection, and proceeded slowly through the red light, Supreme Court held that the firefighter had “established prima facie entitlement to the exemption in Vehicle and Traffic Law § 1104,” and that plaintiff had failed to raise a triable issue in opposition as to whether the firefighter acted with reckless disregard. The court therefore granted summary judgment to the firefighter. However, the court reached a different result with respect to the vicarious liability of the District. Relying on General Municipal Law § 205-b, “which states, in part, that ‘fire districts created pursuant to law shall be liable for the negligence of volunteer firefighters,'” the court concluded that questions of fact existed regarding whether the firefighter “was negligent in failing to see plaintiff’s vehicle approaching,” and, thus, the District was not entitled to summary judgment. * * *

… [S]ection 1104 does more than simply immunize firefighters from negligence liability for otherwise privileged conduct … . It modifies their underlying duties in the defined contexts by (i) permitting categories of conduct which would violate other drivers’ ordinary duty of care, (ii) specifying particular safety precautions which must be observed when engaging in such conduct, and (iii) requiring emergency vehicle drivers to avoid recklessness even when engaged in the privileged conduct. When a volunteer firefighter’s actions satisfy all of these conditions and thus are privileged, there is simply no breach of duty or negligence which can be imputed to a fire district under General Municipal Law § 205-b. Anderson v Commack Fire Dist., 2023 NY Slip Op 02028, CtApp 4-20-23

Practice Point: If the volunteer firefighter driving a firetruck does not violate the reckless disregard standard for emergency vehicles, the fire district cannot be held vicariously liable under a negligence standard.

 

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UNDER THE JONES ACT OHIO HAD JURISDICTION TO APPOINT ADMINSTRATORS OF THE ESTATE OF DECEDENT WHO ALLEGEDLY DIED OF EXPOSURE TO ASBESTOS ON MERCHANT MARINE SHIPS; THE NEW YORK EXECUTOR OF THE ESTATE WAS TIMELY AND PROPERLY SUBSTITUTED FOR THE OHIO ADMINISTRATORS (FIRST DEPT).

The First Department, over a dissent, in a complex decision which cannot be fairly summarized here, determined: (1) under the Jones Act Ohio had jurisdiction to appoint administrators for decedent who allegedly died from asbestos exposure on merchant marine ships where he was employed; and (2) substitution of a New York personal representative, executor of the estate, was proper and timely:

… [T]he Jones Act provides that when a seaman dies from an employment injury “the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer” (46 USC § 30104).

The Jones Act grants a right of action to the personal representative “without other description” … . The Act does not require that the personal representative be either “a domiciliary or ancillary administrator” … . A domiciliary administrator has standing to file a Jones Act or FELA [Federal Employers’ Liability Act] lawsuit in another state … . However, nothing “explicitly clothes a domiciliary administrator with the exclusive right to maintain such an action” because such a requirement is inconsistent with “the remedial nature” of FELA and the “representative character” of such a suit … .

Notably, the personal representative’s authority under the Jones Act derives from “a federal statutory right and power given to carry out the policy of the federal statutes” and “is not limited to the confines of the State where he was appointed but is co-extensive with general federal jurisdiction” … . Bartel v Maersk Line, Ltd., 2023 NY Slip Op 02058, First Dept 4-20-23

Practice Point: Under the Jones Act, the estate of a merchant-marine employee who died from exposure to asbestos on the employer’s ships may sue the employer. Here the suit was deemed properly started by administrators appointed by an Ohio court and the New York executor was properly and timely substituted for the Ohio administrators.

See also the companion decision: Bartel v Farrell Lines, 2023 NY Slip Op 02057, First Dept 4-20-23

 

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​ NEW YORK HAS LONG-ARM JURISDICTION OVER A SINGLE ALLEGED ACT OF SEXUAL ABUSE WHICH OCCURRED IN NEW YORK IN 1975 OR 1976 WHEN PLAINTIFF WAS ON A FIELD TRIP; THE ACTION WAS BROUGHT BY A CONNECTICUT RESIDENT AGAINST A CONNECTICUT DEFENDANT AND ALLEGED SEVERAL OTHER ACTS OF ABUSE WHICH TOOK PLACE IN CONNECTICUT; BECAUSE THE ALLEGED TORT TOOK PLACE IN NEW YORK, THE CONNECTICUT PLAINTIFF CAN TAKE ADVANTAGE OF THE EXTENDED STATUTE OF LIMITATIONS IN NEW YORK’S CHILD VICTIMS ACT (SECOND DEPT).

​The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Christopher, determined a single alleged act of sexual abuse which took place during a field trip to New York from Connecticut, involving a Connecticut-resident plaintiff and a Connecticut defendant, was sufficient for long-arm jurisdiction in New York. Plaintiff alleged defendant Boys and Girls Club of Greenwich, Inc failed to properly supervise club activities and, as a result, plaintiff was abused on several occasions by a member of the club. Only one of the alleged instances of abuse took place in New York. Although plaintiff is a Connecticut resident, the court ruled plaintiff could take advantage of the extended statute of limitations in New York’s Child Victims Act because the alleged tort took place in New York.

Where, as here, the plaintiff has established the requisite minimum contacts, as previously set forth, we must then engage in the second part of the due process inquiry; that is, whether defending a suit in New York comports with “traditional notions of fair play and substantial justice” … .  Here, the Club has failed to present a “compelling case” that some other consideration would render jurisdiction unreasonable … . … [T]he exercise of jurisdiction over the Club in New York would “comport with ‘fair play and substantial justice'” … . * * * 

With regard to CPLR 214-g, the revival statute, enacted under the Child Victims Act, S.H. v Diocese of Brooklyn (205 AD3d 180), does not preclude determining that it is appropriate for New York to exercise long-arm jurisdiction in this case. While S.H. discussed the legislative history of the revival statute and found that the history supports the proposition that the statute was enacted for the benefit of New York residents, this was in the context of the facts of S.H., wherein the alleged acts of abuse occurred in Florida. In S.H. we held, “that under the circumstances of this case, CPLR 214-g is not available to nonresident plaintiffs where the alleged acts of abuse occurred outside New York” … . In the instant case, while the plaintiff is not a New York resident, unlike the situation in S.H., the alleged abuse occurred in New York. 

We note that our finding that the Club is subject to personal jurisdiction pursuant to CPLR 302(a)(2) is limited to the one act of sexual abuse alleged to have occurred in New York. WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc., 2023 NY Slip Op 02026, Second Dept 4-19-23

Practice Point: Here a Connecticut resident sued a Connecticut defendant alleging several acts of sexual abuse in 1975 or 1976. Most of the alleged abuse took place in Connecticut. One alleged instance of abuse took place when plaintiff was on a field trip to New York. New York has long-arm jurisdiction over that tort, and the Connecticut plaintiff can take advantage of the extended statute of limitations in the Child Victims Act based on the situs of that single instance of abuse. The opinion should be consulted for its comprehensive analysis of jurisdiction under the long-arm statute.

 

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THE CUSTODY RULING SHOULD NOT HAVE BEEN MADE WITHOUT A BEST INTERESTS HEARING; FATHER’S PARENTAL ACCESS SHOULD NOT HAVE BEEN CONDITIONED ON COMPLIANCE WITH TREATMENT (SECOND DEPT).

​The Second Department, reversing Family Court, held the custody determination should not have been made without a best interests hearing and father’s parental access should not have been conditioned on compliance with treatment:

“Custody determinations should generally be made only after a full and plenary hearing and inquiry” … .. “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “A court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . “Similarly, visitation determinations should generally be made after a full evidentiary hearing to ascertain the best interests of the child” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child … . Moreover, the court failed to articulate the factors and evidence material to its determination … .

The Supreme Court also erred in suspending the father’s parental access without determining the best interests of the child … . Furthermore, the court improperly conditioned the father’s future parental access or reapplication for parental access rights upon his compliance with treatment … . Matter of Baez-Delgadillo v Moya, 2023 NY Slip Op 01994, Second Dept 4-19-23

Practice Point: Custody determinations usually should not be made absent a best interests hearing. Parental access should not be conditioned on the parent’s compliance with treatment.

 

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ALTHOUGH THE REQUIREMENTS FOR THE CONTENTS OF A CLAIM AGAINST THE STATE IN COURT OF CLAIMS ACT SECTION 11 ARE STRICT AND JURISDICTIONAL, THE CLAIMANT IS NOT REQUIRED TO ALLEGE EVIDENTIARY FACTS (SECOND DEPT).

​The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act proceeding sufficiently stated the nature of the claim. The claimant alleged he was sexually abused in state-run foster homes every week for two years (1994 – 1996}. The claim alleged negligent hiring, retention or supervision:

The only reason identified by the Court of Claims in the order appealed from, and by the defendant on appeal, for concluding that the claim failed to state the nature of the claim is that, while the claim included an allegation that the defendant had actual or constructive notice of the alleged sexual abuse, it did not supply any “details” as to how the defendant received notice of the alleged abuse. Although the requirements of Court of Claims Act § 11(b) are strict, and jurisdictional in nature, the fact remains that the claim is a pleading, the contents of which are merely allegations. As the defendant correctly contends, “[a] necessary element of a cause of action to recover damages for negligent hiring, retention, or supervision is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Nonetheless, “[c]auses of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity” ,,, . The manner in which the defendant acquired actual or constructive notice of the alleged abuse is an evidentiary fact, to be proved by the claimant at trial. In a pleading, “the plaintiff need not allege his [or her] evidence” … . Martinez v State of New York, 2023 NY Slip Op 01990, Second Dept 4-19-23

Practice Point: A claim (i.e., the pleading) against the state must meet the strict, jurisdictional “contents” requirements in Court of Claims Act section 11. But the claim is merely a pleading and need not allege evidentiary facts to survive a motion to dismiss.

 

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IN THIS FORECLOSURE ACTION, THE BUSINESS RECORDS UPON WHICH THE REFEREE’S CALCULATIONS WERE BASED WERE NOT ATTACHED TO THE REFEREE’S AFFIDAVIT, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been accepted because the business records upon which the calculations were based were not attached to the affidavit:

 … [A] referee’s computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Here, the referee based his calculations upon documentary evidence submitted by the plaintiff, including the note and mortgage, as well as an affidavit of amount due and owing, submitted in support of the motion to confirm the referee’s report. However, the affidavit of amount due and owing does not identify the business records upon which the affiant relied in order to compute the total amount due on the mortgage, and there are no such records annexed thereto. Consequently, the referee’s findings in that regard were not substantially supported by the record … . M&T Bank v Bonilla, 2023 NY Slip Op 01989, Second Dept 4-19-23

Practice Point: To the extent an affidavit refers to business records which are not attached the affidavit is hearsay.

 

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IF THE WORKER’S COMPENSATION BOARD FINDS A DEFENDANT IN A CONSTRUCTION-ACCIDENT ACTION WAS PLAINTIFF’S EMPLOYER, PLAINTIFF’S RECOVERY AGAINST THE EMPLOYER IS RESTRICTED TO WORKER’S COMPENSATION BENEFITS AND OTHER DEFENDANTS CANNOT MAINTAIN ACTIONS FOR CONTRIBUTION OR INDEMNIFICATION AGAINST THAT EMPLOYER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Wan, determined the employees were restricted to worker’s compensation benefits in this construction-accident action against their employers and the other defendants were precluded from seeking contribution and indemnification from the employers:

Workers’ Compensation Law § 11(1) precludes recovery by “any third person” against “[a]n employer” for contribution or indemnity “for injuries sustained by an employee acting within the scope of his or her employment” unless the employee “has sustained a ‘grave injury'” or there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant.” Despite this clear directive, the Supreme Court, relying on this Court’s decision in Baten v Northfork Bancorporation, Inc. (85 AD3d 697), permitted cross-claims sounding in contribution and indemnity to survive against an entity on the ground that triable issues of fact existed with respect to whether that entity was an employer, regardless of a Workers’ Compensation Board determination on this issue. Here, we clarify that, notwithstanding our prior decision in Baten, no claim for indemnity or contribution may be maintained against an entity determined to be an employer by the Workers’ Compensation Board except in the limited circumstances specified in Workers’ Compensation Law § 11.* * *

… [W]e hold that Workers’ Compensation Law § 11 precludes recovery by any third party for contribution and indemnity against an entity determined by the WCB [Workers’ Compensation Board] to be the plaintiff’s employer except where the injured employee has suffered a grave injury or where the employer has expressly agreed in writing to contribute or indemnify.  Velazquez-Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., 2023 NY Slip Op 02025, Second Dept 4-19-23

Practice Point: If the Workers’ Compensation Board determined a defendant in a construction-accident action was plaintiff’s employer, absent a “grave” injury or the employer’s agreement to contribute or indemnify, the plaintiff’s recovery is restricted to Workers’ Compensation benefits and there can be no recovery for contribution or indemnification against the employer by other defendants.

 

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ALTHOUGH THE ATTORNEYS IN THIS LEGAL MALPRACTICE ACTION MISSED THE STATUTE OF LIMITATIONS, THE COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO DEMONSTRATE THE UNDERLYING LAWSUITS WOULD HAVE SUCCEEDED HAD THEY BEEN TIMELY BROUGHT (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the legal malpractice action should have been dismissed because the complaint did not contain the “but for” allegations. It is not enough to allege defendants missed the statute of limitations, the complaint must also allege facts demonstrating the underlying lawsuits would have succeeded had they been timely brought:

… [T]he plaintiffs alleged that the decedent died after a brief admission to a drug and behavioral treatment facility, that the defendants agreed to represent the plaintiffs in an underlying action against the treatment facility and the medical providers who treated the decedent, that the defendants committed legal malpractice by failing to timely complete service of process in an action commenced in state court and by failing to commence a wrongful death cause of action in federal court before the applicable statute of limitations expired, and that the defendants’ failures resulted in the plaintiffs being unable to recover on their wrongful death causes of action. Absent from the complaint are any factual allegations relating to the basis for the plaintiffs’ purported wrongful death causes of action against the treatment facility or medical providers.

Accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint failed to set forth facts sufficient to allege that [defendants’] purported negligence proximately caused the plaintiffs to sustain actual and ascertainable damages … . Even when considered with the documents submitted by the plaintiffs in opposition to the motion, the complaint failed to allege any facts tending to show that, but for [defendants’] alleged negligence in failing to timely serve process in the state court action and in failing to timely commence an action in federal court, the plaintiffs would have achieved a more favorable outcome on their wrongful death causes of action … . Buchanan v Law Offs. of Sheldon E. Green, P.C., 2023 NY Slip Op 01979, Second Dept 4-19-23

Practice Point: To sufficiently allege legal malpractice, the complaint must not only allege the attorneys’ negligence, here missing the statute of limitations, but sufficient facts must be alleged to demonstrate the lawsuit would have succeeded had it been timely brought.

See the companion decision: Buchanan v Law Offs. of Sheldon E. Green, P.C., 2023 NY Slip Op 01980, Second Dept 4-19-23

 

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