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THE WAIVER OF APPEAL WAS INVALID; THE PLEA COURT CONFLATED THE RIGHT TO APPEAL WITH THE RIGHTS FORFEITED BY A GUILTY PLEA; CASE REMITTED TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE SUPPRESSION CLAIM (CT APP).

The Court of Appeals, reversing the Appellate Division and remitting the case for consideration of the suppression claim, upon the People’s concession, determined the waiver of appeal was invalid:

… [O]rder reversed and case remitted to the Appellate Division, Second Department, for further proceedings. Under the totality of the circumstances and upon the People’s concession that the appeal waiver was invalid because the plea court conflated the right to appeal with those rights automatically forfeited by a guilty plea, defendant’s appeal waiver did not foreclose consideration of his suppression claim … . People v Johnson, 2022 NY Slip Op 00909, CtApp 2-10-22

 

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AFTER MAKING THE LIFE INSURANCE PREMIUM PAYMENTS FOR 15 YEARS ON THE PREMIUM DUE DATE (JANUARY 14), PAYMENT WAS NOT TIMELY MADE IN 2018 AND DECEDENT DIED ON FEBRUARY 18, 2018, AFTER THE EXPIRATION OF THE 31-DAY GRACE PERIOD; COVERAGE WAS PROPERLY DENIED; TWO DISSENTERS ARGUED THE POLICY WAS AMBIGUOUS AND SHOULD BE INTERPRETED SUCH THAT THE GRACE PERIOD HAD NOT EXPIRED AT THE TIME OF DEATH (CT APP).

The Court of Appeals, affirming the Appellate Division, over a two-judge dissent, determined the decedent’s life insurance policy was unambiguous about the date premiums were due–January 14 or at the end of the 31-day grace period thereafter. After paying the premiums by January 14 for 15 years, the premium was not paid on time in 2018. The insured died on February 26, 2018, just days after the grace period expired. The insurer denied the claim arguing the coverage had lapsed. The Court of Appeals agreed with the insurer. The dissent argued the policy was ambiguous because it also stated the term of the policy was annual and the very first payment was made on January 31, which would place the decedent’s death within the grace period:

Plaintiff is not entitled to benefits under the policy. The terms of the policy clearly and unambiguously tie the due date of the annual premium to the date of issue, January 14, 2002, and expressly state that January 14 is the premium due date. That the insurance policy uses the term “annual” but the premium payment period—which runs from January 14th, the “Date of Issue” and “premium due date”—may not cover a full year creates no ambiguity in light of the clear policy language identifying January 14th as the “premium due date” … . Furthermore, any claimed ambiguity in the definition of “policy date” is irrelevant inasmuch as the policy does not tie the premium due date to the “policy date” but, rather, the date of issue, which is January 14th. Because the insured failed to pay the 2018 premium by January 14, 2018 or within the 31-day grace period, the policy lapsed prior to the insured’s death. Bonem v William Penn Life Ins. Co. of N.Y., 2022 NY Slip Op 00908. CtApp 2-10-22

 

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THE TOWN LAW STATUTE WHICH AUTHORIZES A TOWN TO REGULATE THE DISCHARGE OF “FIREARMS” DOES NOT AUTHORIZE A TOWN TO REGULATE THE DISCHARGE OF “BOWS” (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the Town Law does not authorize the Town of Smithtown to regulate the discharge of “bows” pursuant to its authority to regulate “firearms:”

Town Law § 130 (27) specifically authorizes certain towns to prohibit the discharge of “firearms” through ordinances that may be more restrictive than other laws where such discharge may be hazardous to the general public, and requires that notice be provided to the Department of Environmental Conservation of any ordinance “changing the five hundred foot [setback] rule” (Town Law § 130 [27]; see Environmental Conservation Law § 11-0931 [4] [a] [2]). While the term “firearm” is undefined in the Town Law, construing it in accordance with its “usual and commonly understood meaning” … , the term “firearm” does not encompass a “bow” … and we are unpersuaded that the Legislature intended otherwise when it used the term in the Town Law. Accordingly, Town Law § 130 (27) does not authorize Smithtown to regulate the discharge of bows. Hunters for Deer, Inc. v Town of Smithtown, 2022 NY Slip Op 00907, CtApp 2-10-22

 

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PLAINTIFF’S “INVOLUNTARY RESIGNATION,” HOSTILE WORK ENVIRONMENT AND RETALIATION ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department over a two-justice dissent, determined plaintiff’s employment discrimination and retaliation action properly survived summary judgment. Among the issues presented by the allegations was whether she “involuntarily resigned” because of the intolerably hostile work environment. Plaintiff alleged she was subjected to sexual harassment and was retaliated against after she complained about her treatment:

In our view, the broader account by plaintiff of a hostile work environment, Hawkins’ [plaintiff’s supervisor] behavior in placing plaintiff, but not a similarly situated man, on a PIP [performance improvement plan], and what plaintiff described as a wholly inadequate response by Russo [human resources official] to her August 2017 complaint about the situation reflect questions of fact as to whether plaintiff was subjected to a work environment so hostile that her only alternative was resignation and whether that hostility arose from a discriminatory motive … . Defendants attempted to rebut the presumption of discrimination arising from those facts via the affidavit of Hawkins, who averred in conclusory fashion that the other employee he supervised was performing better than plaintiff at the time she was placed on a PIP and that the other employee was also placed on a PIP at some point. Hawkins, however, gave no detail as to how the other employee compared to plaintiff on the performance metrics, failed to deny that the other employee was also underperforming on those metrics in July 2017 and offered no explanation as to why he did not seek to place both on a PIP at that time. Long v Aerotek, Inc., 2022 NY Slip Op 00915, Third Dept 2-10-22

 

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THE PEOPLE FOCUSED THEIR PROOF ON THE SEXUAL MOTIVATION FOR THE BURGLARY; ALTHOUGH BURGLARY SECOND IS A LESSER INCLUDED OFFENSE OF BURGLARY SECOND AS A SEXUALLY MOTIVATED OFFENSE, THE JURY SHOULD NOT HAVE BEEN CHARGED ON THE LESSER OFFENSE BECAUSE THE DEFENDANT HAD NO PRIOR NOTICE OF THAT POSSIBILITY (FIRST DEPT).

The First Department, dismissing the burglary second count, determined the People’s request to instruct the jury on burglary second as a lesser included offense of burglary second as a sexually motivated offense should not have been granted. Although burglary second is a lesser included offense of burglary second as a sexually motivated offense, the People’s case focused only on the sexual motivation. Defendant therefore did not have notice the jury would consider burglary second:

… [T]he court improperly charged the lesser-included offense because the People, through the way they presented their case, deprived defendant of notice of the possibility that the jury would be asked to consider a lesser-included. In People v Barnes (50 NY2d 375 [1980]), the Court of Appeals observed that, where the People in a burglary case limit to a particular crime the act that the defendant intended to commit while unlawfully in a building, “the court is obliged to hold the prosecution to this narrower theory alone” … . * * *

In opposing defendant’s pretrial motion to sever certain charges in the indictment from the others, the People focused exclusively on defendant’s sexual harassment of the complainant, and on his grabbing the arm and pulling the shirt of another woman he encountered in the dorm. In making an application for the admission of certain Molineux evidence, the prosecutor focused only on the theory that defendant entered the dorm to satisfy his own sexual urges. And, in his opening statement, the prosecutor stated that defendant “knowingly and unlawfully entered the private area of a dorm to do exactly what he had been doing minutes prior — to grab, to grope and to harass the young women who lived there.” Further, the prosecutor downplayed the behavior defendant displayed towards some men he saw in the lobby of the dorm, stating that “the evidence will show that he was substantially motivated by his desire to abuse women when he passed that turnstile and unlawfully entered the private area of the dorm.” People v Seignious, 2022 NY Slip Op 00948, First Dept 2-10-22

 

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DEPRAVED INDIFFERENCE MURDER CONVICTION AFFIRMED; DURING A POLICE CHASE, DEFENDANT DROVE THE WRONG WAY ON A HIGHWAY AND CRASHED HEAD-ON INTO AN ONCOMING CAR (FIRST DEPT).

The First Department determined the evidence supported defendant’s depraved indifference murder conviction stemming from his driving the wrong way on a highway and crashing into an oncoming car during a police chase:

While fleeing from the police, defendant drove 14 blocks against oncoming traffic on the West Side Highway, a major roadway, despite openings in the median between the north and southbound lanes, while running several red lights and driving onto the curb and sidewalk. Additionally, defendant did not avail himself of parking lots and driveways on the west side of the Highway, where he could have pulled off to avoid any collision with an oncoming vehicle. Heading north, the Highway merges into, and becomes, the Henry Hudson Parkway at the intersection of 57th Street. Instead of utilizing the last available opportunity to turn into the north bound lanes, defendant made the decision to continue driving in the wrong direction and entered onto the Parkway. It is unrefuted that the Parkway had no breaks in the median through which he could return to the northbound lanes and that oncoming cars were going even faster there than on the Highway because the speed limit increased from 35 mph to 50 mph. After he got on the Parkway, defendant remained in the lane immediately to the left of the concrete barrier separating the northbound and southbound lanes, made no effort to change lanes or to swerve to avoid oncoming vehicles and made no effort to stop or slow down, despite the fact that he was now on a parkway. He continued driving this way on the Parkway for seven blocks at which time he collided, head-on, with a vehicle driving in the proper direction in the southbound lane. People v Herrera, 2022 NY Slip Op 00949, First Dept 2-10-22

 

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THE ARBITRATOR EXCEEDED HER POWERS BY AWARDING RELIEF WHICH WAS NOT REQUESTED BY ALL THE PARTIES OR AUTHORIZED BY LAW; PUNITIVE DAMAGES, SANCTIONS AND ATTORNEY’S FEES AWARDS VACATED (FIRST DEPT).

The First Department vacated the arbitrator’s award of punitive damages, sanctions and attorney’s fees because that relief was not requested by the parties, therefore the arbitrator exceeded her power:

Although the American Arbitration Association (AAA) preprinted form petitioner used allows a claimant to seek other relief, including attorneys’ fees, interest, arbitration costs and punitive/exemplary damages, the only boxes that petitioner checked off were for interest and arbitration costs. It did not check the punitive damages box or attorneys’ fees box, nor indicate anywhere on its demand that it was seeking such relief. Petitioner never amended its demand for arbitration. Nor did it include a prayer for such relief in its subsequently filed post-arbitration memorandum. By granting unrequested relief, the arbitrator exceeded the expressly enumerated limits on her authority by deciding matters that were not before her … .

Although AAA commercial rule 47(d) empowers an arbitrator to award attorneys’ fees, this is only “if all parties have requested such an award or it is authorized by law or their arbitration agreement.” Here, neither party requested such an award and it is not authorized by law.  Matter of 544 Bloomrest, LLC v Harding, 2022 NY Slip Op 00936, First Dept 2-10-22​

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT AVERRED HIS ATTORNEY DIDN’T REQUEST THE SEARCH WARRANT DOCUMENTS, DIDN’T MAKE A SUPPRESSION MOTION, AND DIDN’T INFORM HIM THAT THE LEGALITY OF THE SEARCH WARRANTS COULD BE CONTESTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on the ground of ineffective assistance of counsel. Defendant alleged his attorney did not “request and review the search warrant affidavits, move to controvert the search warrants, or advise him before he pleaded guilty that challenging the legality of the search warrants was an option:”

Defense counsel’s “investigation of the law, the facts, and the issues that are relevant to the case” is “[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client” … . Accordingly, a defendant’s right to representation entitles him or her “‘to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself [or herself] time for reflection and preparation for trial'” … . Here, the defendant’s averments in his affidavit, along with other evidence submitted in support of his motion, were sufficient to warrant a hearing on the issue of whether his former counsel was ineffective for failing to conduct an appropriate investigation to determine whether pretrial motions concerning the search warrants should be made, and failing to advise him of potential challenges to the legality of the search warrants before he pleaded guilty to possession counts predicated on physical evidence recovered pursuant to the warrants … . People v Tindley, 2022 NY Slip Op 00886, Second Dept 2-9-22

 

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THE AFFIDAVIT UPON WHICH THE REFEREE’S REPORT WAS BASED DID NOT LAY A PROPER FOUNDATION FOR THE ASSERTIONS MADE BY THE AFFIANT AND THE CALCULATIONS IN THE AFFIDAVIT WERE BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED, RENDERING THE INFORMATION INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed. The affidavit submitted by the mortgage servicer was insufficient and the records upon which the calculations in the affidavit were based were not produced:

… [T]he referee’s report was not substantially supported by the record. The report was based in significant part on the affidavit of Elizabeth A. Ostermann, a vice president for Carrington Mortgage Services, LLC (hereinafter Carrington), the purported “servicer and attorney-in-fact” for the plaintiff. However, Ostermann did not set forth when Carrington began servicing the loan and did not provide a power of attorney appointing it as attorney-in-fact … . Moreover, Ostermann did not state that “she was personally familiar with the record-keeping practices and procedures” at Carrington … .

Furthermore, computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Here, the plaintiff did not submit the business records upon which Ostermann purportedly relied in computing the total amount due on the mortgage. Trust v Campbell, 2022 NY Slip Op 00845, Second Dept 2-9-22

Similar issue and result in HSBC Bank USA, N.A. v Sharon, 2022 NY Slip Op 00852, Second Dept 2-9-22

 

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SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE ACTION AFTER TRIAL ON THE GROUND PLAINTIFF DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSION OF THE DOCUMENTS REQUIRED TO MAKE OUT A PRIMA FACIE CASE; COMPLAINT REINSTATED AND JUDGMENT AWARDED TO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action properly laid a proper foundation at trial for the admission of documents making out a prima facie case. Therefore the action should not have been dismissed and a judgment in favor of plaintiff should have been entered. At trial plaintiff established standing to bring the action, the defendant’s default, and compliance with the notice provisions of RPAPL 1304. Bank of Am., N.A. v Bloom, 2022 NY Slip Op 00839, Second Dept 2-9-22

 

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