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GRANDMOTHER WHO WITNESSED DEBRIS FROM THE FACADE OF A BUILDING INJURE HER TWO-YEAR-OLD GRANDDAUGHTER IS “IMMEDIATE FAMILY” WITHIN THE MEANING OF “ZONE OF DANGER” JURISPRUDENCE; GRANDMOTHER CAN THEREFORE MAINTAIN AN ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over two concurrences, reversing the Appellate Division, determined that a grandmother who witnesseD the death of her grandchild is “immediate family” such that she may recover damages for emotional distress under the “zone of danger” theory (negligent infliction of emotional distress):

This case begins with the heart-breaking death of a child. Our responsibility is to determine whether plaintiff-grandparent Susan Frierson, who was in close proximity to the decedent-grandchild at the time of the death-producing accident, may pursue a claim for bystander recovery under a “zone of danger” theory.

We have applied the settled “zone of danger” rule to “allow[] one who is . . . threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress” flowing only from the “viewing [of] the death or serious physical injury of a member of [that person’s] immediate family” … . Unsettled at this juncture, however, are “the outer limits” of the phrase “immediate family” … . Once again, we are not asked to fix permanent boundaries of the “immediate family.” Instead, our task simply is to determine whether a grandchild may come within the limits of her grandparent’s “immediate family,” as that phrase is used in zone of danger jurisprudence.

We conclude that the grandchild comes within those limits. Consistent with our historically circumspect approach expanding liability for emotional damages within our zone of danger jurisprudence, our increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense, we conclude that plaintiff’s grandchild is “immediate family” for the purpose of applying the zone of danger rule.

On May 17, 2015, plaintiff Susan Frierson and her two-year-old granddaughter, decedent Greta Devere Greene, were in front of a building when they were suddenly struck by debris that fell from the facade of that edifice. Emergency measures taken to save Greta’s life failed, and she died the next day. Greene v Esplanade Venture Partnership, 2021 NY Slip Op 01092, CtApp 2-18-21

 

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2016 REGULATIONS RESTRICTING ATTORNEY’S FEES FOR CLAIMS MADE TO THE OFFICE OF VICTIM SERVICES (OVS) ARE CONSISTENT WITH THE STATUTORY LANGUAGE (EXECUTIVE LAW) AND RATIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent and a concurrence, reversing the Appellate Division, determined that the Office of Victim Services (OVS) regulations limiting attorney’s fees for crime victim claimants were consistent with the statutory language and rational:

OVS regulations formerly provided that claimants had a “right to be represented . . . at all stages of a claim” … and, “[w]henever an award [was] made to a claimant who [was] represented by an attorney, [OVS was required to] approve a reasonable fee commensurate with the services rendered, up to $1,000,” unless the request for attorneys’ fees was premised on a claim “submitted without legal or factual basis” … . OVS acknowledges that this meant that attorneys’ fees, if reasonable, were available at all stages of a claim. However, effective January 13, 2016, OVS amended 9 NYCRR § 525.9 to provide that “[a]ny claimant . . . may choose to be represented before [OVS], at any stages of a claim, by an attorney-at-law . . . and/or before the Appellate Division upon judicial review of the office’s final determination,” but “only those fees incurred by a claimant during: (1) the administrative review for reconsideration of such decision . . . ; and/or (2) the judicial review of the final decision of [OVS] . . . may be considered for reimbursement” … .

OVS issued a regulatory impact statement indicating that the “purpose of th[e] rule change [wa]s to limit attorneys’ fees pursuant to article 22 of the Executive Law.” OVS stated that the amendments were “designed to conform the regulations to the enacting statute,” explaining that the prior regulations permitted claimants to recover attorneys’ fees that “far exceed[ed]” the “reasonable expenses” specified under Executive Law § 626 (1). OVS indicates that Victim Assistance Programs (VAPs) are federally funded with a state match, and it emphasized in its regulatory impact statement that it “fund[ed] 228 [VAPs] across New York State, distributing in excess of $35 million to these programs to assist and advocate on behalf of victims and claimants.” The required services provided by the VAPs include, among other things, “assist[ing] victims and/or claimants in completing and submitting OVS applications and assist[ing] claimants through the claim process.” OVS determined that the legislature did not intend that attorneys’ fees incurred in relation to assistance within the scope of services provided by VAPs would be considered reasonable under the statute. Matter of Juarez v New York State Off. of Victim Servs., 2021 NY Slip Op 01091, CtApp 2-18-21

 

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PLAINTIFF NYC SANITATION WORKER STEPPED ON A LIVE POWER LINE AFTER HIS SUPERVISOR ALLEGEDLY TOLD HIM THE POWER WAS OFF; QUESTION OF FACT WHETHER THERE WAS A SPECIAL DUTY OWED BY THE CITY DEFENDANTS TO THE PLAINTIFF; CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC and NYC Department of Sanitation’s motions for summary judgment in this electrocution case should not have been granted. Plaintiff, a NYC sanitation department employee was doing clean up after Hurricane Sandy when he stepped on a live power line. Plaintiff alleged he was told by his supervisor the power had been turned off. The court applied the usual analysis for municipal liability for negligence: (1) the city was engaged in a governmental function; (2) there may have been a special relationship between the city defendants and the plaintiff; (3) it does not appear that a discretionary act was involved such that governmental immunity would apply:

… [T]he City defendants met their prima facie burden of establishing that they were engaged in a governmental function at the time that the causes of action arose … . However, the City defendants failed to establish, prima facie, the absence of a special duty to the plaintiff.

In this case, the plaintiff had an employer-employee relationship with the New York City Department of Sanitation. Therefore, the plaintiff cannot be equated with a member of the general public. It appears from this record that there exists a triable issue of fact as to whether the City defendants voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally that generated the plaintiff’s justifiable reliance … .

This Court has applied the doctrine of governmental immunity to an employee of the New York City Department of Sanitation, but in that case, the issue was whether the City of New York engaged in discretionary governmental actions based upon reasoned judgment in selecting equipment … . On this record, it does not appear that this case involves discretionary determinations … . Lewery v City of New York, 2021 NY Slip Op 01035, Second Dept 2-17-21

 

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THE ESTATE IS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION; THE REFEREE’S FINDINGS WERE BASED UPON UNPRODUCED BUSINESS RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the estate was not a necessary party in this foreclosure action and the referee’s finding were based on unproduced business records:

“The rule is that a mortgagor who has made an absolute conveyance of all his [or her] interest in the mortgaged premises, including his [or her] equity of redemption, is not a necessary party to foreclosure, unless a deficiency judgment is sought on his [or her] bond” … . Here, [decedent] conveyed all of the interest in the subject property prior to his death, and prior to the commencement of the instant action. Moreover, the plaintiff moved to amend the complaint to remove any language seeking a deficiency, and the court granted that motion.

However, “the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records” … . Federal Natl. Mtge. Assn. v Home & Prop. Works, LLC, 2021 NY Slip Op 01031, Second Dept 2-17-21

 

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PLAINTIFF MORTGAGE COMPANY DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF NEGOTIATED IN GOOD FAITH PURSUANT TO CPLR 3408 (f) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff mortgage company did not demonstrate standing to bring the foreclosure action and did not establish it had negotiated in good faith pursuant to CPLR 3408 (f):

The plaintiff was not in possession of the note at the time of commencement of the action. Further, the plaintiff failed to submit evidence establishing, prima facie, that it was authorized to act on behalf of FHLBC to commence the foreclosure action, since the plaintiff did not submit any power of attorney, servicing agreement, or other agreement authorizing the plaintiff to commence this action … . Moreover, the affidavits relied upon by the plaintiff contained only conclusory assertions that the plaintiff was the loan servicer, without asserting the existence of any agreement delegating to the plaintiff the authority to commence this action on FHLBC’s behalf in 2012. * * *

… [T]here is no evidence that the plaintiff attempted to obtain a waiver of the investor’s self-employment restriction, which, according to the plaintiff’s own denial letter, was the reason for its denial of the defendant’s first and second loan modification applications. …

Since the defendant’s submissions raise a factual issue as to whether the plaintiff failed to negotiate in good faith and deprived him of a meaningful opportunity to resolve this action through loan modification or other potential workout options … , the Supreme Court should have held a hearing to determine this issue before deciding that branch of the defendant’s cross motion which was to dismiss the complaint insofar as asserted against him … . Citimortgage, Inc. v Lofria, 2021 NY Slip Op 01026, Second Dept 2-17-21

 

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FORBEARANCE CAN BE ADEQUATE CONSIDERATION CREATING A VALID CONTRACT (FIRST DEPT)

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gonzalez, determined summary judgment should not have been awarded dismissing the breach of contract cause of action in the multi-million dollar lawsuit involving Russian oil and gas. The opinion is too detailed to summarize here. On the breach of contract cause of action, the court noted that forbearance can be adequate consideration creating a valid contract:

“A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other” … . Indeed, “any basic contemporary definition would include the idea that [consideration] consists of either a benefit to the promisor or a detriment to the promisee” … . “The slightest consideration is sufficient to support the most onerous obligation” … . …

When plaintiff first agreed to join defendants in the oil business, he allegedly did so as a one-third partner. According to the Undisputed Statement of Facts, the parties disputed their respective obligations and “discussed [for several years] options for compensating [plaintiff] for the stock and cash he caused to be transferred.” In 2001, when the parties drafted the Investment Agreement, plaintiff agreed to a 15% stake and a 15% share of the profits, a marked reduction in what he would have expected to receive as an alleged one-third partner. Plaintiff also agreed to forego any right to profits pre-dating October 2001. …

The record thus suggests … that the 2001 Investment Agreement was a binding contract supported by plaintiff’s forbearance. Notably, … defendants began to perform under the agreement … , … suggesting that it was a binding accord for which plaintiff’s forbearance had supplied consideration. Lebedev v Blavatnik, 2021 NY Slip Op 01002, First Dept 2-16-21

 

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DEFENDANT, A MEMBER OF THE PROUD BOYS, WAS CONVICTED OF ATTEMPTED GANG ASSAULT OF A MEMBER OF ANTIFA; A BOOT IS A DANGEROUS INSTRUMENT; EXPERT TESTIMONY ON THE ANIMOSITY BETWEEN THE PROUD BOYS AND ANTIFA PROPERLY ALLOWED (FIRST DEPT).

The First Department affirmed the conviction of a member of the Proud Boys for the attempted gang assault of an Antifa member. The court held that a boot may constitute a dangerous instrument within the meaning of the assault statutes. In addition, the First Department noted that the People were properly allowed to call an expert witness on extremist groups to explain the animosity between the Proud Boys and Antifa:

Defendants’ intent and attempt to cause physical injury were demonstrated by defendant Kinsman, who while wearing brown leather boots, repeatedly kicked the victim while she was still on the ground and after she had just been repeatedly kicked by another Proud Boy and by defendant Hare who punched the victim and also kicked her multiple times while he was wearing Doc Marten boots … . …

The court providently exercised its discretion in permitting the People to call an expert witness on extremist groups. Some background information regarding the ideology and past conduct of the Proud Boys was permissible to explain the preexisting animosity between the Proud Boys and Antifa at the time of the incident at issue … . … While some of the evidence regarding the Proud Boys’ practices, and in particular racist remarks made by the group’s founder, were immaterial to the issues at trial, and their potential for prejudice outweighed any probative value, the court issued a limiting instruction that the background information provided by the expert was not proof of the defendants’ mental states. People v Kinsman, 2021 NY Slip Op 01009, First Dept 2-15-21

 

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SNATCHING A PURSE DANGLING FROM THE VICTIM’S ARM DID NOT INVOVLE THE PHYSICAL FORCE NECESSARY FOR ROBBERY THIRD, RENDERING THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE; REDUCED TO PETIT LARCENY (FIRST DEPT).

The First Department, reducing defendant’s robbery 3rd conviction to petit larceny, determined that the physical force element was not involved rendering the conviction against the weight of the evidence:

Judgment * * * unanimously modified, on the facts and as a matter of discretion in the interest of justice, to the extent of reducing the robbery conviction to petit larceny and reducing the sentence on that conviction to time served …. .

Defendant’s conduct in snatching the purse that was dangling from the victim’s arm did not involve the physical force required to sustain a conviction of robbery (see People v Dobbs, 24 AD3d 1043 [3d Dept 2005]; People v Middleton, 212 AD2d 809, 810 [2d Dept 1995]; compare People v Santiago, 62 AD2d 572, 579 [2d Dept 1978], aff’d 48 NY2d 1023 [1980]). Accordingly, defendant’s conviction of robbery in the third degree was not supported by legally sufficient evidence, and that verdict was against the weight of the evidence … . People v Kourouma, 2021 NY Slip Op 01011, First Dept 2-16-21

 

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THE TRANSCRIBED RECORD IS WOEFULLY INCOMPLETE; DEFENDANT DID NOT DEMONSTRATE THE RECORD COULD NOT BE RECONSTRUCTED; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, holding the case and reserving decision, remitted the matter for reconstruction of the record which was missing several vital parts:

… [M]issing and otherwise defective transcripts from the trial preclude appellate review of defendant’s conviction. Indeed, the present state of the record on appeal is “deplorable” … inasmuch as it is missing, inter alia, three days of jury selection, opening statements, summations, final jury instructions, County Court’s handling of a jury note, and the verdict. In addition, the transcription of the testimony of some of the witnesses includes irregularities such as notations stating “omitted,” “untranscribable,” and “blah, blah,” and unintelligible strings of characters that appear to be in code. We reject defendant’s contention, however, that summary reversal and a new trial is the appropriate remedy at this point. The “loss of reporter’s minutes is rarely sufficient reason in itself for reversing a conviction” … . The Court of Appeals has held that “the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him [or her] a perfect trial or a perfect appeal” … . “To overcome the presumption of regularity, a defendant must show not only that minutes are missing, but also ‘that there were inadequate means from which it could be determined whether appealable and reviewable issues were present’ ” … . It is only when a defendant shows that a reconstruction is not possible that a defendant is entitled to summary reversal and a new trial … .

Here, we conclude that defendant failed to establish that alternative means to provide an adequate record are not available … .There is no indication that defendant’s former attorneys could not participate in a reconstruction hearing, despite the fact that one of them is now employed by the District Attorney’s Office. There is also no indication that the now-retired trial judge could not participate as well … . People v Meyers, 2021 NY Slip Op 00919, Fourth Dept 2-11-21

 

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ALTHOUGH DEFENDANT ACTED SUSPICIOUSLY THE POLICE DID NOT HAVE A REASONABLE SUSPICION HE WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME DEFENDANT FLED; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the police did not have reasonable suspicion defendant was involved in criminal activity at the time he fled and the police pursued him. Therefore his suppression motion (re: a discarded weapon and statements) should have been granted and the indictment dismissed. Defendant was a passenger in the back seat of a car stopped for a traffic infraction. When the occupants were asked to step out of the car, defendant ran:

… [T]he officers stopped the vehicle for a traffic infraction as opposed to a call related to a particular crime. Although defendant appeared to reach toward his waistband, he never touched his waistband and there was no other indication of a weapon, such as a bulge or the visible outline of a gun … . A suspect’s action in grabbing at his or her waistband, standing alone, is insufficient to establish reasonable suspicion of a crime … .

Defendant’s nervousness, use of a bottle cap, and “blading” do not provide additional specific circumstances indicating that defendant was engaged in criminal activity. There is no doubt that defendant engaged in furtive and suspicious activity and that his pattern of behavior, viewed as a whole, was suspicious, but there is nothing in this record to establish that the officers had a reasonable suspicion of criminal conduct to justify the pursuit … . People v Williams, 2021 NY Slip Op 00983, Fourth Dept 2-11-21

 

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