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FEDERAL CUSTOMS AND BORDER PATROL MARINE INTERDICTION AGENT IS NOT A PEACE OFFICER UNDER NEW YORK LAW; THEREFORE THE AGENT MADE A VALID CITIZEN’S ARREST OF AN ERRATIC DRIVER HE OBSERVED WHILE ON THE HIGHWAY; MOTION TO SUPPRESS THE WEAPON FOUND IN DEFENDANT’S CAR SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, over a dissent, determined the federal marine interdiction agent with US Customs and Border Protection (CBP) was not a peace officer under New York law and, therefore, could effect a citizen’s arrest. The federal agent observed defendant driving erratically and putting other drivers in danger so he activated his emergency lights and pulled the driver over. The agent stayed in his vehicle and called the Buffalo police. After the Buffalo police arrived, the agent left. The police found a weapon in defendant’s car and he was charged with criminal possession of a weapon. Supreme Court granted defendant’s motion to suppress and the Fourth Department affirmed. Both courts relied on People v Williams (4 NY3d 535 [2005]) which held that peace officers could not make a citizen’s arrest. The Court of Appeals reasoned that Williams did not control because the federal agent in this case was not a peace officer under the relevant New York statutory definitions and therefore could make a citizen’s arrest:

Because the agent who stopped defendant in this case is not considered a federal law enforcement officer with peace officer powers pursuant to CPL 2.10 and 2.15, he could not have improperly circumvented the jurisdictional limitations on the powers reserved for those members of law enforcement under CPL 140.25, as the peace officers in Williams did. In other words, the agent’s conduct here did not violate the Legislature’s prescribed limits on a peace officer’s arrest powers because he is not, in fact, a peace officer. …

… [A]side from the clear limits as to the justifiable use of physical force that may be applied during an arrest by a private citizen (CPL 35.30 [4]; CPL 140.35 [3]), as well as the requirement that “[s]uch person must inform the person whom he [or she] is arresting of the reason for such arrest unless he [or she] encounters physical resistance, flight or other factors rendering such procedure impractical” (CPL 140.35 [2]), nothing in the citizen’s arrest statutes themselves set forth the methods that must be employed when, as here, a crime is committed in the responding citizen’s presence (see CPL 140.30, 140.40 …). We reiterate that whether this stop comported with constitutional principles or the express terms of the arrest statutes is simply not before us, as defendant failed to raise any such arguments before the suppression court. People v Page, 2020 NY Slip Op 03265, CtApp 6-11-20

 

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COURT’S ERRORS IN DEALING WITH NOTES FROM THE JURY, INCLUDING SUBSTITUTING THE WORD ‘INITIALLY’ FOR ‘INTENTIONALLY,’ REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court’s handling of jury notes constituted reversible error:

… [I]n a note marked as court exhibit 8, the jury posited a question about the elements of resisting arrest. When reading that note into the record, the Supreme Court substituted the word “initially” in place of the word “intentionally,” forming a substantively different question than that posed by the jury. The court again substituted the word “initially” in place of the word “intentionally” when it read the note aloud later in the proceedings. Since there is no indication in the record that court exhibit 8 was shown to the parties, the court’s erroneous use of a substantively different word than that used by the jury when it read the note into the record, and its repetition of that same error later in the proceedings, constituted mode of proceedings errors. In addition, although the jury submitted to the court a note marked as court exhibit 10 to clarify which portions of the testimony of certain witnesses the jury wished to have read back, the court did not read court exhibit 10 into the record at any point, and the record does not show that the court ever informed the parties that this note had been received. As a result of the errors regarding these jury notes, we must reverse the defendant’s conviction of resisting arrest … . People v Petrizzo, 2020 NY Slip Op 03251, Second Dept 6-10-20

 

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EVEN THOUGH THE US SUPREME COURT CASE REQUIRING WARRANTS FOR CELL SITE LOCATION DATA WAS NOT DECIDED AT THE TIME OF TRIAL, PRESERVATION OF THAT ISSUE FOR APPEAL IS STILL NECESSARY; A DEFENDANT MAY BE INDICTED FOR BOTH DEPRAVED INDIFFERENCE AND INTENTIONAL MURDER; CONSECUTIVE SENTENCES FOR THE SHOOTINGS AND POSSESSION OF A WEAPON WERE APPROPRIATE (FIRST DEPT). ​

The First Department, affirming defendant’s murder, assault and weapon-possession convictions, and affirming the denial of defendant’s motion to vacate the convictions, determined: (1) the issue re: the warrantless procurement of cell site location data was not preserved, and preservation was necessary despite the fact that the US Supreme Court case requiring warrants was not decided at the time of trial; (2) the defendant was properly indicted, by different grand juries, for both depraved indifference and intentional murder; and (3) consecutive sentences for possession of a weapon and the shootings were appropriate:

At trial, defendant did not preserve any claim relating to cell site location information obtained without a warrant, and the motion court providently exercised its discretion under CPL 440.10(2)(b) when it rejected defendant’s attempt to raise this issue by way of a postconviction motion. Defendant asserts that it would have been futile for trial counsel to raise the issue because the Supreme Court of the United States had not yet decided Carpenter v United States (585 US __, 138 S Ct 2206 [2018]), a case that we assume, without deciding, applies here because defendant’s direct appeal was pending at the time that case was decided. We conclude that defendant should not be permitted to avoid the consequences of the lack of preservation. Although Carpenter had not yet been decided, and trial counsel may have reasonably declined to challenge the cell site information, defendant had the same opportunity to advocate for a change in the law as did the litigant who ultimately succeeded in doing so … . In the closely related context of preservation, the Court of Appeals has expressly rejected the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come” … . * * *

A grand jury’s indictment of defendant for depraved indifference murder, after a prior grand jury had indicted him for intentional murder, did not violate CPL 170.95(3). The second presentation did not require permission from the court, because the first indictment cannot be deemed a dismissal of the depraved indifference count in the absence of any indication that the first grand jury was aware of or considered that charge … . The rule that a person may not be convicted of both intentional and depraved indifference murder … applies to verdicts after trial, not indictments. These charges may be presented to a trial jury in the alternative (as occurred in this case, where defendant was acquitted of depraved murder but nevertheless claims a spillover effect). Furthermore, the People were not required to present both charges to the same grand jury … . People v Crum, 2020 NY Slip Op 03282, First Dept 6-11-20

 

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VENUE WAS IMPROPER; DEFENDANTS FOLLOWED THE STATUTORY PROCEDURE AND MOVED FOR A CHANGE OF VENUE; NO OTHER PARTY MOVED FOR A CHANGE OF VENUE; THE MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ (Transit Authorities’) motion to change venue should have been granted. Venue was improper, the Transit Authorities followed the correct procedure, and no other party made a motion to change venue:

After plaintiffs commenced this action in Bronx County, the Transit Authorities timely served a demand for a change of venue as of right to New York County, where one of them has its principal office (see CPLR 505[a]; 511). Plaintiffs did not respond to the demand, and the Transit Authorities timely moved to change venue (see CPLR 510[1]; 511[b]). In opposition to the motion, plaintiffs did not dispute that their choice of venue was improper, but requested that venue be placed in Kings County, where the accident occurred. No other defendant timely appeared in opposition to the motion, although the City defendants submitted a belated affirmation asserting that venue should be placed in Kings County under CPLR 504(3).

By failing to respond to the Transit Authorities’ demand to change venue to a proper forum, plaintiffs forfeited their right to select venue … . Further, no party moved to transfer venue to an alternate county … . Thus, once the Transit Authorities had followed the procedure set forth in CPLR 511 and established that the county chosen by plaintiffs was improper, their motion to change venue to New York County as of right should have been granted … . Richardson v City of New York, 2020 NY Slip Op 03281, First Dept 6-11-20

 

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PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON LABOR LAW 240 (1), LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION IN THIS FALLING OBJECT CASE, EVEN IF PLAINTIFF SHOULD NOT HAVE BEEN WHERE HE WAS AT THE TIME OF THE ACCIDENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment against the general contractor (Sweeney) on his Labor Law 240 (1) cause of action in this falling object case, even if plaintiff was not supposed to be in the area when he was struck (comparative negligence is inapplicable). Plaintiff was also entitled to summary judgment on his Labor Law 200 and common-law negligence claims against the subcontractor (Structure Tech) whose employee caused the object to fall. There was a question of fact whether the Structure Tech employee was instructed by Sweeney to cut the object which fell, which would make Sweeney liable for the Labor Law 200 and negligence causes of action as well:

Plaintiff should have been awarded summary judgment on the issue of liability on his Labor Law § 240(1) claim as against Sweeney because there was no overhead protection provided to plaintiff … . Thus even if, as Structure Tech’s superintendent testified, plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident, this would at most constitute comparative negligence which is not a defense to a Labor Law § 240(1) claim … . …

Plaintiff also should have been awarded summary judgment on his Labor Law § 200 and common-law negligence claims as against Structure Tech. As a subcontractor and, therefore, the statutory agent of the general contractor, Structure Tech may be held liable pursuant to Labor Law § 200 and under common-law negligence for injuries caused by a dangerous condition that it caused or created or of which it had actual or constructive notice … . Since no party disputes that a Structure Tech employee was responsible for dislodging the baluster and allowing it to fall and strike plaintiff, Structure Tech is liable to plaintiff under Labor Law § 200 and common-law negligence.

However, an issue of fact exists as to Sweeney’s liability to plaintiff under these claims based on the testimony of Structure Tech’s superintendent that it was, in fact, Sweeney’s superintendent who instructed Structure Tech to cut the baluster that ultimately struck plaintiff. If credited, this testimony could support a finding that Sweeney actually exercised supervisory control over the worksite so as to trigger liability under these claims … . Hewitt v NY 70th St. LLC, 2020 NY Slip Op 03280, First Dept 6-11-20

 

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ASBESTOS-INJURY CASE SHOULD NOT HAVE BEEN GRANTED, PROPER BURDEN OF PROOF EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this asbestos -injury case should not have been granted and, alternatively, even if the motion were properly granted, leave to renew should have been granted based on additional evidence:

In connection with a motion for summary judgment in an action based on exposure to asbestos, defendant has the initial burden of showing “unequivocally” that its product could not have contributed to the causation of decedent’s asbestos-related injury … .

Defendant Burnham failed to sustain its initial burden of demonstrating that its products could not have contributed to decedent’s mesothelioma. Decedent’s testimony identified defendant as the manufacturer of greenhouses in which he worked and cited three possible sources of asbestos: transite benches in the greenhouses, window glazing and the greenhouse boiler. Burnham provided no evidence demonstrating that its products could not have been the source of the asbestos that caused decedent’s illness. It only pointed to gaps in plaintiffs’ proof, which was insufficient to meet its burden … . Even if the burden had shifted, plaintiffs’ evidence in opposition raised an issue of fact as to whether Burnham had sold, distributed, and recommended asbestos-containing products such as those used in plaintiffs’ family’s gardening business. While hearsay, that evidence could be considered by the court since it was not the sole basis of the opposition … .

Alternatively, even if the summary judgment motion had been properly granted, the court should have granted leave to renew in the interests of fairness and justice since plaintiffs presented an affidavit of decedent’s estranged brother, which supplied crucial evidence linking decedent’s illness to Burnham’s products. Fischer v American Biltrite, Inc., 2020 NY Slip Op 03277, First Dept 6-11-20

 

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MOTION FOR CLASS CERTIFICATION BASED UPON ALLEGEDLY ADULTERATED FUEL OIL SHOULD NOT HAVE BEEN GRANTED BECAUSE THE NUMEROSITY REQUIREMENT WAS NOT SUPPORTED BY ADMISSIBLE EVIDENCE; DISMISSAL WAS WITHOUT PREJUDICE AND LEAVE TO RENEW WAS GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion for class certification should have been denied because the proof of the numerosity prerequisite was not in admissible form. The dismissal was without prejudice because it appeared the evidence could be properly presented:

The gravamen of plaintiffs’ claim, and that for which they seek class certification, is that defendant provided them and others similarly situated “with inferior, adulterated heating oil, i.e. that the fuel oil that was delivered to them contained oils of lesser value mixed into the ordered grade of fuel oil, so that the delivered product did not meet the standards of the parties’ contracts” … . Contrary to defendant’s contention, this is the predominant question of law and fact in this case, and it is common among the class. In any event, “the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action” … . Moreover, “CPLR article 9 affords the trial court considerable flexibility in overseeing a class action,” and the court could even “decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inappropriate” … . Supreme Court is more than able to recognize if its class certification becomes unduly cumbersome, and, if so, how best to fashion a remedy.

Nevertheless, “[t]he proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a) and must do so by tender of evidence in admissible form” … . Here, plaintiffs failed to submit admissible evidence demonstrating that the numerosity prerequisite to class certification was satisfied. However, the record suggests that such evidence is in plaintiffs’ possession but simply was not submitted in connection with their motion. Accordingly, plaintiffs are given leave to renew their motion for class certification, upon admissible evidence providing a sufficient basis for determining the size of the potential class. Mid Is. LP v Hess Corp., 2020 NY Slip Op 03270, First Dept 6-11-20

 

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ACCOUNTING CAUSE OF ACTION IN THIS SHAREHOLDERS’ DERIVATIVE SUIT SHOULD NOT HAVE BEEN DISMISSED; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; PROPER WAY TO HANDLE A SUA SPONTE ORDER IS TO MOVE TO VACATE AND THEN APPEAL (FIRST DEPT).

The First Department, reversing Supreme Court in this shareholders’ derivative action against a low-income Housing Development Fund Corporation (HDFC), determined: (1) although a sua sponte order is not appealable, the appeal of the dismissal of the cause of action for an accounting is heard in the interest of justice; (2) the proper way to handle a sua sponte order is to move to vacate it and then appeal; (3) there was no need to amend the complaint because the accounting cause of action included the right to damages for wrongdoing (here the alleged failure to account for the sale of an apartment for $90,000):

An order issued sua sponte is not appealable as of right (see CPLR 5701[a][2] …). Plaintiffs’ remedy is to move to vacate the court’s order, and, if the motion is denied, appeal from that order (CPLR 5701[a][3] …). …

… [W]e find that Supreme Court erred in dismissing the complaint because the cause of action for an equitable accounting was not moot. Supreme Court conflated the first cause of action for the inspection of the HDFC’s books and records with the second cause of action for an equitable accounting … . Defendants failed to demonstrate what happened to the $90,000 from the sale of Apartment 6A, and the funds do not appear in the HDFC’s financials. Defendants’ affidavits did not address this glaring deficiency.

… An equitable accounting involves a remedy “designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession” … . Available relief includes a personal judgment against the wrongdoer … . Hall v Louis, 2020 NY Slip Op 03268, First Dept 6-11-20

 

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ALTHOUGH THE REAL ESTATE PURCHASE AGREEMENT ALLOWED THE SELLER TO CANCEL THE CONTRACT IF SELLER COULD NOT CONVEY TITLE, THAT PROVISION REQUIRES THE SELLER TO ACT IN GOOD FAITH; THE COMPLAINT ALLEGED THE SELLER FALSELY CLAIMED TO BE THE SOLE OWNER OF THE PROPERTY WHEN IN FACT SHE OWNED 50%; THE SELLER’S MOTION TO DISMISS THE COMPLAINT SEEKING SPECIFIC PERFORMANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Surrogate’s Court, determined the motion to dismiss the complaint seeking specific performance of a real estate purchase agreement should not have been granted. Although the contract allowed the seller to refund the down payment and cancel the contract if the seller is unable to convey title, the seller must do so only in good faith and only if the buyers reject the defective title. Here the complaint alleged the seller fraudulently claimed she was the sole owner of the property, when in fact she owned only 50%:

“Where, as here, a contract for the sale of real property provides that in the event the seller is unable to convey title in accordance with the terms of the contract, the seller may refund the buyer’s down payment and cancel the contract without incurring further liability, that limitation contemplates the existence of a situation beyond the parties’ control and implicitly requires the seller to act in good faith'” … . Contrary to the Surrogate’s Court’s determination, the … complaint set forth cognizable causes of action sounding in breach of contract, fraud, and unjust enrichment, among other things, upon allegations that the seller wilfully failed to supply good and marketable title and rescinded the contract of sale even though the buyer and the appellants did not reject the defective title … . Matter of Valderrama, 2020 NY Slip Op 03236, Second Dept 6-10-20

 

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THE EVIDENCE DID NOT SUPPORT THE EXISTENCE OF A FATHER-CHILD RELATIONSHIP WITH MOTHER’S HUSBAND OR PETITIONER’S ACQUIESCENCE IN THE DEVELOPMENT OF SUCH A RELATIONSHIP; THE BIOLOGICAL FATHER’S PETITION FOR A DECLARATION OF PATERNITY SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE DOCTRINE OF EQUITABLE ESTOPPEL (SECOND DEPT).

The Second Department, reversing Family Court, determined the doctrine of equitable estoppel should not have been invoked to dismiss the petition for a declaration petitioner is the father of a child born in 2016. Mother did not deny petitioner was the father but claimed the child had developed a father-child relationship with her husband, Joseph T. The Second Department held that the evidence did not demonstrate a father-child relationship with Joseph T and did not demonstrate petitioner acquiesced in the creation of a father-child relationship with Joseph T:

The doctrine of equitable estoppel may “preclude a man who claims to be a child’s biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” … . ” The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship'” … , and has been applied “[i]n situations where an individual has assumed the role of a father and where the petitioner putative father has neglected to assume such a role” … . …

We agree with the petitioner that the respondents failed to demonstrate the existence of an operative parent-child relationship between the child and Joseph T. The only evidence of such a relationship came from the child’s foster mother, with whom he has lived since he was one year old. The foster mother testified that the child called Joseph T. “daddy” during weekly supervised visits, and that they were affectionate with each other at the visits … . … Joseph T. never appeared in court on the petition and did not testify at the hearing. Further, we disagree with the Family Court that the petitioner acquiesced in the establishment of a relationship between the child and Joseph T. The petitioner testified at the hearing that, until the child was removed from the mother’s care, he did not know she married to Joseph T. Matter of Luis V. v Laisha P. T., 2020 NY Slip Op 03235, Second Dept 6-10-20

 

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