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JURORS WHO ENGAGED IN PREMATURE DELIBERATIONS SHOULD NOT HAVE BEEN DISCHARGED AS “GROSSLY UNQUALIFIED” ABSENT A FINDING THEY COULD NOT RENDER AN IMPARTIAL VERDICT (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined two jurors, who engaged in premature deliberations by discussing the case on the subway, should not have been discharged, over a defense objection, as “grossly unqualified:”

The record does not support the court’s discharge of a juror and an alternate, over defense objection, as “grossly unqualified.” The record establishes that the two jurors engaged in premature deliberations while on the subway by discussing the demeanor and testimony of witnesses and the age of the case. Initially, the court properly conducted an inquiry of the jurors themselves and confirmed that they had engaged in premature deliberations. However, it should have inquired further and ascertained whether they were unable to render an impartial verdict, rather than discharging them as grossly unqualified based solely on the conclusion that, by prematurely deliberating, they had violated the court’s instructions not to discuss the case … . “Premature deliberation by a juror, by itself, does not render a juror grossly unqualified” … . The “grossly unqualified” standard for removal of a sworn juror is higher than that for a prospective juror, and “the record must convincingly demonstrate that the sworn juror cannot render an impartial verdict for him or her to be disqualified”… . Nothing express or implied in the jurors’ answers suggested that they could not render an impartial verdict in spite of their conversation and decide the case based solely on the evidence before them … . People v Thompson, 2021 NY Slip Op 06778, First Dept 12-2-21

 

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DOUBLE HEARSAY SUPPORTED THE DENIAL OF THE APPLICATION TO HAVE A REPORT MAINTAINED BY THE CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT AMENDED TO BE UNFOUNDED AND EXPUNGED (THIRD DEPT).

The Third Department determined that double hearsay supported the denial of petitioner’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged:

… [O]ur review of the record confirms that the double hearsay evidence introduced at the expungement hearing was sufficiently relevant and probative to the inquiries of whether petitioner drove under the influence of alcohol with the children in the car and whether she failed to exercise a minimum degree of care in providing the children with proper supervision and guardianship by misusing alcohol to the extent of losing control of her actions … . Specifically, statements made to the investigating caseworker by the oldest and middle children, which were memorialized in the indicated report, supported the conclusion that petitioner drove under the influence of alcohol with the children in the car on at least two occasions in May 2019. Such statements were corroborated by petitioner’s admissions that, after roughly five years of sobriety, she relapsed in or around mid-May and that she “had a buzz” while driving the children. Further, the oldest child reported to the caseworker that, on the evening of May 29, 2019, she observed petitioner to be intoxicated, “sick” and “throwing up,” which prompted her to call her maternal grandparents. The oldest child’s account was corroborated by the maternal grandfather, who stated that he believed petitioner to have been intoxicated on the night in question and that it was “an ongoing concern.” Matter of Elizabeth W. v Broome County Dept. of Social Servs., 2021 NY Slip Op 06732, Third Dept 12-2-21

 

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COMMENTS ALLEGEDLY MADE BY A JUROR DURING DELIBERATIONS EXPRESSING ETHNIC BIAS REQUIRED A HEARING AND FINDINGS WHETHER DEFENDANT’S CONSTITUTIONAL RIGHTS, BOTH FEDERAL AND STATE, WERE VIOLATED (FIRST DEPT).

The First Department remitted the matter for a hearing on defendant’s motion to vacate the judgment, Defendant’s motion included an affidavit from the jury foreperson alleging a juror exhibited ethnic bias during deliberations:

The People consent to this matter being remanded for a hearing to determine whether ethnic bias tainted the jury’s deliberations as alleged by defendant (see PeÑa-Rodriguez v Colorado, – US -, 137 S Ct 855 [2017]; People v Leonti , 262 NY 256 [1933]). Defendant’s CPL 440 motion included an affidavit from the jury foreperson, in which he swore that, during deliberations, a juror made ethnic comments concerning defendant and the complainant exhibiting “overt [ethnic] bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict” (PeÑa-Rodriguez , – US -, 137 S Ct at 869).

At the hearing, the court should determine the veracity of these allegations. Should the court find these allegations to be true, it should determine, as a matter of federal law, whether defendant’s Sixth Amendment right to jury trial was denied because “[ethnic] animus was a significant motivating factor in the juror’s vote to convict” … . The court should also determine more broadly, as a matter of New York State law, whether the juror’s statements “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own” … . People v Chodakowski, 2021 NY Slip Op 06781, First Dept 12-2-21

 

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THE TRIAL COURT AS FACT-FINDER PROPERLY ADMITTED IN EVIDENCE A PHOTOCOPY OF THE LEASE AT THE HEART OF THE DISPUTE AS AN EXCEPTION TO THE BEST EVIDENCE RULE (FIRST DEPT).

The First Department determined a photocopy of a lease at the heart of the dispute was properly admitted in evidence pursuant to an exception to the best evidence rule:

The best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven” … . However, under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent [] has sufficiently explained the unavailability of the [original]” and that the secondary evidence “is a reliable and accurate portrayal of the original” … . Once such threshold showings have been made, “final determination” of the weight to be given to the secondary evidence is “left to the trier of fact” … . …

… [T]he reliability of the photocopies turned on the court’s credibility determinations, which we find no reason to disturb. Defendants’ handwriting expert acknowledged that the images of the parents’ signatures on the photocopy of the lease were consistent with their known signatures and he found no evidence that the images of their signatures or the document itself was manipulated. Rather, he merely speculated that such a danger of manipulation always exists. Casanas v Carlei Group, LLC, 2021 NY Slip Op 06787, First Dept 12-2-21

 

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IF A DEBT IS ACCELERATED, THE SIX-YEAR STATUTE OF LIMITATIONS FOR RECOVERY OF THE DEBT IS TRIGGERED; IF THE DEBT IS NOT ACCELERATED, THE INSTALLMENTS DUE WITHIN THE SIX YEARS PRIOR TO COMMENCING SUIT ARE RECOVERABLE (THIRD DEPT).

The Third Department determined that, because the debt was never accelerated, recovery of the installments due during the six years prior to commencement of the action is not time-barred:

The claim alleges that the [defendants] stopped making monthly payments as required by the 1988 agreement in December 2003, 15 years before the commencement of this action. “Without acceleration of the entire debt by” [plaintiff], however, “a cause of action for portions of the indebtedness” owed would only accrue when each of the individual installments became due … . The … defendants did not demonstrate that [plaintiff] accelerated the debt and, as a result, failed to sustain their burden of showing that the claim was time-barred to the extent that it sought to recover installments that became due after December 2012. DiCenzo v Mone, 2021 NY Slip Op 06734, Third Dept 12-2-21

 

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DEFENDANT’S MOTION TO COMPEL PLAINTIFF, WHO SUED UNDER THE NAME MARGARET DOE, TO AMEND THE CAPTION TO INCLUDE HER LEGAL NAME SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF PRESENTED EVIDENCE SUING UNDER HER OWN NAME WOULD HAVE SEVERE MENTAL-HEALTH CONSEQUENCES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to compel plaintiff to amend the pleadings to include her legal name (the caption reads “Margaret Doe”) should not have been granted:

The presumption in favor of open trials and the potential prejudice to defendant did not outweigh plaintiff’s privacy interest … . In addition to her own affidavit attesting to the psychological harm it would cause to disclose her name publicly, plaintiff submitted affidavits from her treating psychologist and psychiatrist, both of whom opined that forcing plaintiff to proceed with the litigation under her legal name would have severe consequences for her mental health. This particularized medical evidence corroborating plaintiff’s claims of personal harm is compelling … . Doe v Bloomberg L.P., 2021 NY Slip Op 06754, First Dept 12-2-21

 

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THE MOTION TO DISMISS THE ARBITRATION IN THIS ACTION ALLEGING NONPAYMENT FOR CONSTRUCTION WORK SHOULD NOT HAVE BEEN GRANTED; THE ARBITRATOR RULES ON PAYMENT FOR LABOR AND MATERIALS; COURTS RULE ON THE VALIDITY OF MECHANIC’S LIENS (FIRST DEPT).

The First Department noted that an arbitrator’s ruling on the value of labor an materials is conclusive for all parties, but it is not conclusive on the validity of the underlying mechanic’s lien itself. Here the contactor, Flowcon, filed mechanic’s lens alleging defendant, Andiva, failed to pay for construction work on Andiva’s townhouse. The construction contract required arbitration and granted the arbitrator broad powers. Supreme Court granted Andiva’s motion to dismiss the arbitration and the First Department reversed, compelled arbitration and stayed the LIen Law counterclaims:

The AAA’s Construction Industry Arbitration Rules provide that the arbitration tribunal shall rule on its own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement. Thus, the threshold issue of the arbitrability of Flowcon’s claims alleging nonpayment is one for the arbitrator, not the courts, particularly given the parties’ broad arbitration clause … . To the extent Andiva argues that arbitration would usurp the court’s “gatekeeper” role of ruling upon the validity of a lien and undermine the public policy underlying the remedies afforded a lienee under Lien Law §§ 39 and 39-a since its allegation of lien exaggeration would be effectively resolved by an arbitrator rather than a court, the argument is unavailing. This Court has held that an arbitrator’s decision as to the value of labor and materials is conclusive as to all parties to the arbitration but not conclusive as to the validity of the mechanic’s lien itself … . Flowcon, Inc. v Andiva LLC, 2021 NY Slip Op 06756, First Dept 12-2-21

 

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PLAINTIFF IN A LABOR LAW 240 (1) AND 241 (6) ACTION NEED NOT SUBMIT AN AFFIDAVIT TO MAKE OUT A PRIMA FACIE CASE; THE HEARSAY STATEMENTS REFERENCING OR ATTRIBUTED TO PLAINTIFF DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court and granting plaintiffs’ summary judgment motion on the Labor Law 240 (1) and 241 (6) causes of action, determined: (1) plaintiff need not submit an affidavit to make out a prima facie case; and (2) defendant’s reliance on hearsay, including statements referenced in the certified medical records, did not raise a question of fact:

Plaintiffs established prima facie that defendant Choice is liable to them under Labor Law § 240(1) and Labor Law § 241(6) predicated on Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) through plaintiff Bledar Greca’s (plaintiff) testimony that he was injured while working on the fifth floor of defendant Choice’s property when a piece of wood that had been placed as a temporary path shifted, causing him to fall through an open area between beams. …

Although plaintiff’s medical records were certified, Choice [defendant] did not establish that the statements contained in them on which it relied either were germane to plaintiff’s diagnosis and treatment or are directly attributable to plaintiff … . The handwritten statement ostensibly by defendant Cekaj Construction Corp.’s principal and the affidavit by the owner of second third-party defendant Donato Plumbing Group, Inc. as to what Cekaj’s principal told him about plaintiff’s accident are both inadmissible hearsay, and do not qualify as admissions by an opposing party … . Greca v Choice Assoc. LLC, 2021 NY Slip Op 06759, First Dept 12-2-21

 

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PETITIONER’S FOIL REQUEST FOR A POLICE MANUAL WAS AT FIRST DENIED, BUT WAS GRANTED AFTER THE ARTICLE 78 PROCEEDING WAS BROUGHT; RESPONDENT DID NOT HAVE A GOOD REASON FOR FIRST DENYING THE REQUEST; PETITIONER “SUBSTANTIALLY PREVAILED” AND WAS ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined petitioner in this FOIL proceeding “substantially prevailed” and was therefore entitled to attorney’s fees:

Upon petitioner’s FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, respondents, relying on Public Officers Law § 87(2)(d) among other sections of the statute, produced only the manual’s cover, title page, and table of contents, maintaining that they lacked the necessary permission from the manual’s developer to release the rest of the manual. After petitioner commenced this article 78 proceeding, however, respondents produced the rest of the manual in unredacted form, except for the appendices, with their response to the petition. Under these circumstances, petitioner substantially prevailed within the meaning of Public Officers Law § 89(4)(c) … .

… [R]espondents have not established that they had a “reasonable basis” for withholding production under Public Officers Law § 87(2)(d). Respondents concede that they sought permission from the manual’s developer to release the information only after receiving the article 78 petition, suggesting that the disclosure was prompted solely by petitioner’s resort to litigation and that respondents could have sought permission in response to the FOIL request itself. This fact militates against a finding that the agency had a “reasonable basis” for withholding production … . Matter of Jaskaran v City of New York, 2021 NY Slip Op 06762, First Dept 12-2-21

 

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THE INSURED, SPACE NEEDLE, LLC, IS LOCATED IN WASHINGTON STATE; ALTHOUGH THE INSURANCE POLICY NAMED NEW YORK AS THE FORUM AND REQUIRED THE APPLICATION OF NEW YORK LAW FOR ANY LAWSUITS, THE WASHINGTON INSURANCE CODE RENDERED SUCH PROVISIONS VOID; THEREFORE THE INSURER WAS NOT ENTITLED TO AN ANTI-SUIT PRELIMINARY INJUNCTION IN NEW YORK (FIRST DEPT).

he First Department determined plaintiff Elite Insurance Company did not demonstrate a likelihood of success or a balancing of the equities in its favor in its attempt to have a preliminary injunction issued in New York to prevent a suit by the insured, Space Needle of Seattle, Washington, after the COVID-related business-loss claim was denied: Although the insurance contract indicated New York would be the forum and New York law would apply, the Washington Insurance Code rendered such provisions void. The decision includes extensive discussions of the leading cases in these areas:

… [P]laintiff did not demonstrate either a likelihood of success on the merits of its claim for an anti-suit injunction based on the contractual choice-of-law and forum selection clauses of the parties’ insurance contract, or a balancing of the equities in its favor. As an insurance company authorized to sell insurance in Washington, plaintiff was required to comply with the Washington Insurance Code’s prohibition against choice-of-law and forum selection clauses in insurance policies sold in Washington (Wash Rev Code Chapter 48). The Code (RCW) expressly provides that no insurance contract delivered or issued for delivery in this state (Washington) . . . “shall contain any condition, stipulation or agreement (a) requiring it to be construed according to the laws of any other state or country. . .; or (b) depriving the courts of this state of the jurisdiction of action against the insurer . . .” (RCW 48.18.200 [1]). RCW further specifies that any such agreement violating this prohibition “shall be void, but such voiding shall not affect the validity of the other provisions of the contract” (RCW 48.18.200 [2]). Thus, plaintiff has not demonstrated that the equities tip in its favor where it is attempting, as Supreme Court stated, “a blatant end run around” Washington’s prohibition against choice-of-law and forum selection clauses. North Am. Elite Ins. Co. v Space Needle, LLC, 2021 NY Slip Op 06769, First Dept 12-2-21

 

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