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THE FEDERAL DRUG CONVICTION WAS NOT THE EQUIVALENT OF A VIOLATION OF PENAL LAW 220.39 FOR SECOND-FELONY-OFFENDER PURPOSES; IT IS NOT CLEAR WHETHER THIS DECISION OVERRULED FIRST DEPARTMENT PRECEDENT, OR WHETHER A REVIEW OF THE FEDERAL ACCUSATORY INSTRUMENT WOULD HAVE DEMONSTRATED THE TWO OFFENSES WERE EQUIVALENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the federal drug conviction was not the equivalent of a violation of Penal Law 220.39, Therefore the federal conviction could not be the basis for second felony offender status. It is not clear whether this decision overruled other First Department decisions to the contrary, or whether a review of the federal accusatory instrument would demonstrate an equivalency:

Defendant was adjudicated a second felony offender based on a federal conviction for distribution and possession with intent to distribute cocaine under 21 USC § 841(a)(1). That provision is not equivalent to Penal Law § 220.39 because the federal crime has a broader knowledge element, requiring only that the defendant “knowingly or intentionally . . . possess with intent to . . . distribute . . . a controlled substance,” as opposed to having particular knowledge of the drug type actually possessed … . The cases in which this Court has upheld 21 USC § 841(a)(1) as the equivalent of a New York felony did not address this discrepancy in the breadth of the knowledge element; other equivalency issues were raised in those cases … . People v Campanioni, 2021 NY Slip Op 06105, First Dept 11-9-21

 

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THE EMAIL EXCHANGE BETWEEN THE ATTORNEYS IN THIS PERSONAL INJURY ACTION CONSTITUTED AN ENFORCEABLE SETTLEMENT WHICH WAS UNAFFECTED BY THE SUBSEQUENT GRANTING OF DEFENDANTS’ SUMMARY JUDGMENT MOTION (SECOND DEPT).

The First Department, reversing Supreme Court, determined the email exchange between attorneys constituted an enforceable settlement of the personal injury action which was unaffected by the subsequent granting of summary judgment to the defendants:

The settlement agreement was stated in an email communication in which plaintiffs’ counsel stated, “This is to confirm settlement in the sum of $275,000. Please send release language and parties to be released.” Later that day, plaintiffs’ counsel sent a follow-up email, stating, “Please confirm we are settled.” Sea Crest’s counsel responded, “Confirmed. I’ll have release information to you ASAP.” …

The emails, which reduced the settlement to a writing in accordance with CPLR 2104, were “subscribed” within the meaning of the statute, as the sender was identifiable and there was no contention that Sea Crest’s counsel did not send any of the emails intentionally … . Rawald v Dormitory Auth. of the State of N.Y., 2021 NY Slip Op 06109, First Dept 11-9-21

 

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THE PLEA AGREEMENT COULD NOT BE FULFILLED BECAUSE THE DEFENDANT WAS NOT ELIGIBLE FOR THE PROMISED SHOCK INCARCERATION PROGRAM; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; ALTHOUGH THE ISSUE WAS NOT PRESERVED BY A MOTION, THE MATTER WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was invalid because the plea agreement could not be fulfilled. Defendant was promised participation in the shock incarceration program, but a prior violent felony conviction rendered him ineligible. The court noted that the argument the plea was not voluntary (because the promise could not be fulfilled) was not preserved for appeal by a postallocution motion. The appeal was considered in the interest of justice:

There is no dispute that, in light of defendant’s prior violent felony conviction, he was not in fact eligible for participation in a shock incarceration program … . Nor is there any question that a judicial mandate for shock incarceration was part and parcel of defendant’s plea agreement … . “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . As the promise made here cannot be honored, and given defendant’s insistence that his plea was involuntary, we deem vacatur of the plea and remittal to County Court for further proceedings to be the appropriate remedy  … . People v Regan, 2021 NY Slip Op 06007, Third Dept 11-4-21

 

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DEFENSE COUNSEL SUBMITTED EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL BUT COUNTY COURT DID NOT RULE ON IT; MATTER REMITTED FOR FINDINGS OF FACT AND CONCLUSIONS (THIRD DEPT).

The Third Department, remitting the matter, noted that defense counsel submitted evidence in support of a downward departure from the presumptive risk level but County Court made no findings on the request:

The record reflects that defendant’s counsel submitted various evidence, including a letter from a social worker who apparently was treating defendant and information regarding, among other things, defendant’s consistent compliance with probation, in support of the request for a downward departure. As County Court did not set forth on the record any findings or conclusions on that request, we are unable to assess the court’s reasoning. As such, we reverse and remit the matter for County Court to determine whether a departure from the presumptive risk level indicated by defendant’s point total is warranted and to set forth its requisite findings of fact and conclusions … . People v Hoffman, 2021 NY Slip Op 06013, Third Dept 11-4-21

 

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THE RECORD DOES NOT DEMONSTRATE THE HEARING OFFICER MADE REASONABLE EFFORTS TO SECURE THE TESTIMONY OF AN EYEWITNESS TO THE FIGHT WHICH RESULTED IN THE MISBEHAVIOR REPORT CHARGING THE PETITIONER; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, annulling the determination and ordering a new hearing, determined the hearing officer did not make reasonable efforts to have a witness to the fight, Johnson, testify at petitioner’s misbehavior hearing. Petitioner requested the witness’s testimony as part of his defense:

The record reflects that, although Johnson agreed to testify at the hearing, the Hearing Officer denied Johnson as a witness stating, without any elaboration, that Johnson was unavailable. Although the Hearing Officer indicated that he made four attempts to procure Johnson as a witness, the record does not indicate, other than on that particular day and time, when those attempts were made by the Hearing Officer or the nature thereof. Furthermore, the Hearing Officer did not complete a witness denial form setting forth any further detail regarding his attempts to contact Johnson or the reasons for Johnson’s unavailability. Under these circumstances, we find that the record does not sufficiently reflect whether reasonable and diligent efforts were made by the Hearing Officer to secure Johnson as a witness … . Because the Hearing Officer articulated a good-faith reason for denying the witness, we find that petitioner’s regulatory right to call a witness was violated and, therefore, remit the matter for a new hearing … . Matter of Douglas v Annucci, 2021 NY Slip Op 06020, Third Dept 11-4-21

 

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THE WORKERS’ COMPENSATION BOARD ABUSED ITS DISCRETION BY IGNORING UNCONTRADICTED EVIDENCE OF THE EXTENT OF CLAIMANT’S IMPAIRMENT (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the uncontested evidence demonstrated claimant’s shoulder was 35% impaired, not 15% impaired as found by the Board:

Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board’s discretion and our review of that decision is limited to whether there was an abuse of that discretion … . Upon our review of the Board’s decision, we find that such discretion was abused here. Although the C-4.3 form notes that claimant’s left shoulder is 15% impaired, it directs that the orthopedic surgeon’s findings are set forth in the attached medical narrative. The substance of the attached medical narrative clearly sets forth in detail that claimant sustained a 35% SLU of the left shoulder — attributing 15% to full thickness rotator cuff tear, 10% distal clavicle excision and 10% mild loss of internal and external rotation. The carrier, who received the medical narrative along with the C-4.3 form, specifically accepted the medical opinion without objection. “Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered” … . Matter of Taylor v Buffalo Psychiatric Ctr., 2021 NY Slip Op 06021, Third Dept 11-4-21

 

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DEFENDANT WAS NOT SHOWN TO BE NEGLIGENT OR TO HAVE EXERCISED SUPERVISION AND CONTROL OVER THE INJURY-PRODUCING WORK; SCHEDULING AND COORDINATING WORK DOES NOT CONSTITUTE SUPERVISON AND CONTROL; THE COMMON-LAW INDEMNIFICATION AND CONTRIBUTION CLAIMS SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the common-law indemnification action against defendant Ergonomic should have been granted because Ergonomic was not shown to be negligent or to have exercised supervisory control over the injury-producing work. Portions of the floor were removed to access cables. Plaintiff alleged a leg of his ladder went into an area where the floor had been removed, causing him to fall. The First Department noted that coordinating and scheduling work does not rise to the level of supervision and control:

Ergonomic’s motion for summary judgment dismissing Owner Defendants’ third-party claims for common-law indemnification and contribution should have been granted. There was no evidence that Ergonomic was negligent or that it exercised actual supervision or control over the injury-producing work. Ergonomic did not perform any of the physical work and was not onsite at the time of the accident. To the extent it might have had authority to supervise the injury producing work, it never exercised such authority, but rather, had subcontracted such contractual duties to Quick, which actually directed and supervised the work … . The fact that Ergonomic scheduled and coordinated Quick’s and Atlas’s work is insufficient to give rise to liability, as the coordinating and scheduling of trades at work sites do not rise to the level of supervision and control necessary to impose liability under a negligence theory … . Balcazar v Commet 380, Inc., 2021 NY Slip Op 06030, First Dept 11-4-21

 

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PLAINTIFF-RELATOR BROUGHT A QUI TAM ACTION (ON BEHALF OF THE GOVERNMENT) AGAINST A BANK ALLEGING VIOLATION OF THE STATE FINANCE LAW; THE QUI TAM ACTION WAS DISMISSED FOR FAILURE TO STATE A CLAIM; EVEN THOUGH THE CITY SETTLED WITH THE BANK IN A RELATED ACTION, PLAINTIFF-RELATOR WAS NOT ENTITLED TO A PERCENTAGE OF THE SETTLEMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined the plaintiff-relator, who brought a qui tam action against a bank alleging the bank violated the State Finance Law (re: foreign currency exchanges), was not entitled to a percentage of the related settlement reached by the bank and the city. The plaintiff-relator’s qui tam action had been dismissed for failure to state a claim which, pursuant to the terms of the relevant statute, precluded sharing in the settlement:

… [T]he City reached a $30 million settlement with defendants. The City made an offer of payment to relator. Relator rejected the offer, asserting that under the NYFCA, it was entitled to no less than 15% of the monies received. …

The NYFCA [New York False Claims Act] tracks the federal False Claims Act (31 USC § 3729 et seq.) (the Federal FCA). Accordingly, it is appropriate to look to federal law to interpret the NYFCA … . Federal authority holds that a relator who fails to state a viable claim under the Federal FCA is not entitled to recovery in an action brought by the government, even where that recovery stems from claims that overlap with the dismissed qui tam claims … . We are persuaded by this precedent and find that relator may not receive compensation under the NYFCA when its claims have been dismissed for failure to state a cause of action. Comptroller of the City of N.Y. v Bank of N.Y. Mellon Corp., 2021 NY Slip Op 06033, First Dept 11-4-21

 

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ROBBERY CONVICTIONS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF PHYSICAL INJURY; SEVERAL CONVICTIONS, ALTHOUGH SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE, WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction on several counts, determined the evidence the robbery complainants suffered physical injury was legally insufficient, and the weakness of the identification evidence rendered several convictions against the weight of the evidence:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Here, both complainants testified at trial that they were hit from behind on the head. Neither of the complainants sought medical attention. One complainant testified that he had pain that lasted two days, and did not testify that he took any medication to treat his pain. The other complainant testified that his pain lasted for about one week and that he treated it with ice and Advil. Under these circumstances, there was insufficient evidence that either of the complainants suffered a physical injury within the meaning of Penal Law § 10.00(9) … . Accordingly, we vacate the defendant’s convictions of robbery in the second degree … .  * * *

Neither of the complainants who were robbed on February 28, 2016, was able to identify the defendant as one of their assailants, and their descriptions of their assailants as young Hispanic/Latino men about five foot six inches tall wearing dark clothing was not sufficiently distinctive to support an inference that the defendant committed the February 28, 2016 crimes. The modus operandi of the crimes committed on February 28, 2016, and February 29, 2016, was likewise not sufficiently distinctive to support an inference that, because the evidence supported an inference that the defendant committed the February 29, 2016 crimes, he also committed the February 28, 2016 crimes. People v Rodriguez, 2021 NY Slip Op 05990, Second Dept 11-3-21

 

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THE PRE-ANSWER, PRE-DISCOVERY MOTION TO DISMISS SHOULD NOT HAVE BEEN CONVERTED TO A SUMMARY JUDGMENT MOTION; QUESTIONS OF FACT ABOUT WHETHER THERE WAS A DE FACTO MERGER OF TWO CORPORATIONS; QUESTION OF FACT WHETHER PART PERFORMANCE BY INACTION SATISFIED THE STATUTE OF FRAUDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the pre-answer, pre-discovery motion to dismiss should not have been converted to a summary judgment motion; (2) there were questions of fact about whether there was a de facto merger of two defendant corporations; and (3) there was a question of fact whether the breach of contract action was barred by the statute of frauds (part performance). The “de facto merger” and “part performance” discussions are substantive and too detailed to summarize here. The Second Department noted that even inaction will satisfy part performance of a contract when inaction is a term of the oral agreement:

Supreme Court erred in converting the motion to dismiss to one for summary judgment (see CPLR 3211[c] … ). The plaintiff objected to this procedure on the ground that he had not received any discovery, and no preliminary conference had taken place due to the pendency of the motion to dismiss, which was made only one month after this action was commenced. Indeed, a motion for summary judgment is premature when a party had no reasonable opportunity to conduct discovery, and discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f] … ). Here, issue was not yet joined and there had been no opportunity to engage in discovery regarding the plaintiff’s allegations of successor liability and fraud with respect to the apparent transformation of [defendant] Labs into [defendant] Diagnostics. Therefore, converting the motion to dismiss into a motion for summary judgment was premature.

… The defendants’ evidence did not establish as a matter of law that Diagnostics was not the de facto continuation of Labs … . * * *

Part performance in the form of inaction may … suffice to invoke the doctrine, if inaction is pleaded as a term of the oral agreement and alleged to be unequivocally referable to the oral agreement, and the element of detrimental reliance is present … . … [D]efendants failed to demonstrate … that the plaintiff did not partially perform by refraining from seeking to confirm the arbitration award, thereby rendering the statute of frauds inapplicable. Menche v CDx Diagnostics, Inc., 2021 NY Slip Op 05964, Second Dept 11-3-21

 

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