You are here: / THE TRIAL JUDGE’S FAILURE TO PUT ON THE RECORD THE REASONS FOR REQUIRING...

Search Results

/ , ,

THE TRIAL JUDGE’S FAILURE TO PUT ON THE RECORD THE REASONS FOR REQUIRING DEFENDANT TO WEAR A STUN BELT WAS NOT A MODE OF PROCEEDINGS ERROR AND COUNSEL’S FAILURE TO OBJECT WAS NOT INEFFECTIVE ASSISTANCE, THE RELEVANT PROCEDURAL REQUIREMENTS WERE NOT ANNOUNCED BY THE COURT OF APPEALS UNTIL EIGHT YEARS AFTER THE TRIAL; THE LOSS OF TRIAL EXHIBITS DEMONSTRATING WHETHER THE PEREMPTORY JUROR CHALLENGES WERE EXHAUSTED IS HELD AGAINST THE DEFENDANT BECAUSE OF HIS FAILURE TO SEEK A TIMELY RECONSTRUCTION HEARING (FOURTH DEPT)

The Fourth Department affirmed defendant’s murder conviction and the denial of his motion to vacate the judgment of conviction in a decision addressing several substantive issues not summarized here. The trial court’s failure to put on the record the reasons for requiring defendant to wear a stun belt during trial was not a mode of proceedings error and the failure to object was not ineffective assistance because the relevant procedural requirements were not announced by the Court of Appeals until eight years after defendant’s trial. The apparent loss of exhibits which would demonstrate whether defendant exhausted the peremptory juror challenges was held against the defendant because of the passage of time and the failure to seek a timely reconstruction hearing:

Assuming, arguendo, that defendant was forced to wear a stun belt, we need not reverse the court’s order denying defendant’s CPL 440.10 motion because defendant failed to object to the use of a stun belt, and the improper use of a stun belt is not a mode of proceedings error … . Thus, the failure to object to the stun belt’s use means that “reversal would not have been required” on a direct appeal … . As a result, even on the merits, there is no basis upon which to vacate the judgment of conviction … . Defendant further contends that trial counsel was ineffective in failing to object to the use of a stun belt. We disagree. The seminal case requiring that a court place findings of fact on the record before requiring a defendant to wear a stun belt is … , which was decided eight years after the judgment in this case. Although the Court’s decision in Buchanan “did not announce “new” rules of law’ “… , we nevertheless conclude that trial counsel was not ineffective in failing to anticipate the procedural requirements established by the Court’s decision in Buchanan … . * * *

… [D]efendant has provided no explanation for the 14-year delay between the judgment and direct appeal, and “there was nothing to prevent [defendant] from pursuing his appeal” … . Moreover, defendant “has not shown that, if he had acted diligently, an adequate reconstruction of those proceedings could not have been achieved” … . Had defendant, through his former, privately retained appellate counsel, perfected his appeal in a timely manner, it is possible that the slips of paper might still have been with the file, and it is highly probable that the relevant parties would have been able to recall whether defendant exhausted his peremptory challenges. Where, as here, the lengthy delay is attributable to a defendant’s action or inaction, the weight of appellate authority holds that the absence of the relevant transcripts or exhibits should be held against the defendant and the judgment affirmed … . People v Osman, 2019 NY Slip Op 05903, Fourth Dept 7-31-19

 

/ ,

PLAINTIFFS DID NOT DEMONSTRATE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department determined defendant’s motion for summary judgment in this dog bit case should have been granted.  The evidence that the dog had barked at a neighbor did not demonstrate defendant was made aware of the incident and did not demonstrate when the incident occurred:

Even assuming, arguendo, that the dog possessed the requisite vicious propensities, we conclude that defendant met her initial burden on the motion by submitting deposition testimony from herself, her son, and her then boyfriend, which established that defendant lacked actual or constructive knowledge that the dog had any vicious propensities, and plaintiffs failed to raise an issue of fact … . In opposition to the motion, plaintiffs submitted the affidavit of one of defendant’s neighbors, who averred that, on at least two prior occasions, she had seen the dog roaming the neighborhood, and that the dog entered into her backyard and started to bark at her in an aggressive and angry way, thereby putting her in fear that she would be bitten by the dog. The neighbor does not aver that she informed defendant of the two incidents, and thus the affidavit does not raise an issue of fact whether defendant had actual knowledge of the dog’s vicious propensities. Furthermore, the neighbor’s affidavit does not detail when the two prior incidents occurred, and thus the affidavit does not raise an issue of fact whether defendant had constructive knowledge of the dog’s vicious propensities, i.e., that the vicious propensities had “existed for a sufficient period of time for a reasonable person to discover them” … . Jennifer M.C.-Y. v Boring, 2019 NY Slip Op 05901, Fourth Dept 7-31-19

 

/ , ,

PLAINTIFF LOAN SERVICING COMPANY WAIVED THE TIME OF THE ESSENCE PROVISION BY ITS RELENTLESS EFFORTS TO PREVENT THE FORECLOSURE SALE TO THE HIGHEST BIDDER (TO EXACT A HIGHER PRICE); THE SANCTIONS IMPOSED ON PLAINTIFF WERE NOT SUPPORTED BY A WRITTEN DECISION AS REQUIRED BY THE CONTROLLING REGULATION; SANCTIONS ASPECT REMITTED (FOURTH DEPT).

The Fourth Department determined plaintiff loan company waived the time of the essence provision in this foreclosure sale to the highest bidder, Fox, by its relentless attempts to prevent the sale from going forward (to exact a higher purchase price). The Fourth Department noted that the sanctions imposed upon plaintiff were not supported by a written decision as required by 22 NYCRR 130-1.1 and remanded for compliance with the regulation:

We reject plaintiff’s contention that the court erred in determining that Fox did not breach the time is of the essence clause. It is well settled that “[a] party may waive timely performance even where the parties have agreed that time is of the essence” … , and that such a waiver may be accomplished by the conduct of a party … . Here, we agree with the court that plaintiff’s relentless attempts to prevent the sale from going forward constituted a waiver of the time is of the essence clause.

We also reject plaintiff’s further contention that the court erred in determining that plaintiff engaged in frivolous conduct and in imposing sanctions for such conduct. We conclude that plaintiff’s conduct was “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law[, and was] undertaken primarily to delay or prolong the resolution of the litigation” (22 NYCRR 130-1.1 [c] [1], [2] …). Nevertheless, we conclude that the court erred in failing to comply with 22 NYCRR 130-1.2 because “it failed to set forth in a written decision the conduct on which . . . the imposition [of sanctions] is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount . . . imposed to be appropriate’ ” … . We therefore modify the order by vacating the fourth ordering paragraph and we remit the matter to Supreme Court for compliance with 22 NYCRR 130-1.2 … . Bayview Loan Servicing, LLC v Strauss, 2019 NY Slip Op 05866, Fourth Dept 7-31-1

 

/

DEFENDANTS’ USE OF DOMAIN NAMES VERY SIMILAR TO PLAINTIFF’S STATED CAUSES OF ACTION FOR UNFAIR COMPETITION AND CYBERSQUATTING (FOURTH DEPT).

The Fourth Department determined plaintiff had stated causes of action for unfair competition and cybersquatting by using domain names similar to plaintiff’s:

… [D[efendants … operate a website accessed at idealyou.com. In 2016, … plaintiff…, established a competing business that operates a website accessed at idealbuff.com. …

… [O]n the day plaintiff opened her business, defendants purchased two domain names, idealbuf.com and idealbuffalo.com, and redirected all web traffic from those addresses to idealyou.com.  …

… As relevant to the cause of action for unfair competition, the statute prohibits using “any word, term, name, symbol, or device . . . or any false designation of origin . . . which . . . is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association . . . as to the origin, sponsorship, or approval of . . . goods, services, or commercial activities by another person” … . We agree with plaintiff that, accepting the allegations in the third-party complaint as true … defendants’ use of the idealbuf.com and idealbuffalo.com domain names could be misleading and thus constitute unfair competition under the statute … . …

“To successfully assert a claim [for cybersquatting], a plaintiff must demonstrate that[:] (1) its marks were distinctive at the time the domain name was registered; (2) the infringing domain names complained of are identical to or confusingly similar to the plaintiff’s mark; and (3) that the defendant has a bad faith intent to profit from that mark” … . The Ideal You Weight Loss Ctr., LLC v Zillioux, 2019 NY Slip Op 05900, Fourth Dept 7-31-19

 

/ , ,

A COURT MAY CONVERT A MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT WITHOUT NOTICE WHERE A PURE QUESTION OF LAW IS INVOLVED; THE STRICTER STANDARDS FOR NON-COMPETITION AGREEMENTS IN THE EMPLOYMENT CONTEXT DO NOT APPLY IN THE CONTEXT OF THE SALE OF A BUSINESS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, noted that Supreme Court properly dispensed with notice when it converted a motion to dismiss to a motion for summary judgment on a contractual-interpretation issue, and further noted the difference between non-competition agreements in the employment context and in the sale-of-a-business context. Here defendant sold his business, including goodwill, to plaintiff and then was employed by plaintiff:

… [A]lthough the court is normally required to give notice to the parties before converting a motion to dismiss to one for summary judgment … , the court properly dispensed with the statutory notice here inasmuch as the issue presented “rested entirely upon the construction and interpretation of an unambiguous contractual provision . . . [that] exclusively involve[d] issues of law which were fully appreciated and argued by the parties’ ” … . …

Because plaintiff sold his business to defendant, including the goodwill of that business, the enforceability of the restrictive covenants must be evaluated pursuant to the standard applicable to the sale of a business rather than the “stricter standard of reasonableness” applicable to employment contracts … . It is well settled that a covenant restricting the right of a seller of a business to compete with the buyer is enforceable if its duration and scope are “reasonably necessary to protect the buyer’s legitimate interest in the purchased asset” … . Frank v Metalico Rochester, Inc., 2019 NY Slip Op 05863, Fourth Dept 7-31-19

 

/ ,

DEFENDANT’S MOTION TO SET ASIDE THE VERDICT, BASED UPON A JUROR’S KNOWLEDGE AND CONDUCT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department determined defendant’s motion to set aside the verdict, based upon a connection between a juror and defendant’s mother, should not have been denied without a hearing:

… [T]he court erred in summarily denying his motion to set aside the verdict pursuant to CPL 330.30 (2). The sworn allegations in support of defendant’s motion, including those in the affidavit of his mother, indicated that a juror may have had an undisclosed, potentially strained relationship with the mother resulting from attending high school and working together, possibly knew about defendant’s criminal history, and purportedly attempted to speak with the mother’s husband during a lunch break at trial, and that the alleged misconduct was “not known to the defendant prior to rendition of the verdict” … . We conclude that the allegations ” required a hearing on the issue whether the juror’s alleged misconduct prejudiced a substantial right of defendant’ ” … . We therefore hold the case, reserve decision and remit the matter to County Court to conduct a hearing on defendant’s CPL 330.30 motion. People v Blunt, 2019 NY Slip Op 05917, Fourth Dept 7-31-19

 

/

DEFENDANT’S PROBATION SHOULD NOT HAVE BEEN REVOKED ABSENT A HEARING OR AN ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s probation should not have been revoked absent a hearing or an admission:

“A court may not revoke a sentence of probation without finding that the defendant has violated a condition [there]of . . . and affording [him or her] an opportunity to be heard (see CPL 410.70 [1]). The statutory requirements may be satisfied either by conducting a revocation hearing pursuant to CPL 410.70 (3) . . . , or through an admission by the defendant of the violation, coupled with a proper waiver of [his or her] right to a hearing” … . Here, as the People correctly concede, defendant never admitted to violating his probation and the court never conducted a revocation hearing. People v Ayotunji A., 2019 NY Slip Op 05916, Fourth Dept 7-31-19

 

/ , ,

PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE/MAILING REQUIREMENTS AND THEREFORE DID NOT DEMONSTRATE PERSONAL JURISDICTION OVER DEFENDANTS, THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because plaintiff did not demonstrate compliance with the notice requirements:

… [T]he Supreme Court should not have confirmed the Referee’s report. The plaintiff failed to submit any evidence at the hearing of compliance with the mailing requirement of CPLR 308(2) and, thus, failed to demonstrate that personal jurisdiction had been obtained over the defendants … . Federal Natl. Mtge. Assn. v Puretz, 2019 NY Slip Op 05958, Second Dept 7-31-19

 

/ , , ,

FIBER OPTIC CABLES AND ENCLOSURES ARE TAXABLE UNDER REAL PROPERTY TAX LAW (RPTL) 102 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the fiber optic cables and equipment at issue constitute taxable property under RPTL 102, in that the statutory exception for radio and television signals was not demonstrated to be applicable:

…  [T]ax exclusions are never presumed or preferred and before [a] petitioner may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion.’ Moreover, a statute authorizing a tax exemption will be construed against the taxpayer unless the taxpayer identifies a provision of law plainly creating the exemption . . . Thus, the taxpayer’s interpretation of the statute must not simply be plausible, it must be the only reasonable construction’ ” … . …

… [P]etitioners contend that their fiber optic installations are not taxable property pursuant to RPTL 102 (12) (i) (D) because, inter alia, petitioners use those properties to some unspecified extent to transmit “news or entertainment radio, television or cable television signals for immediate, delayed or ultimate exhibition to the public” … . We reject that contention. In light of petitioners’ failure to establish the percentage of their fiber optic installations that are used for those purposes, we may accept their contention only if we conclude that any such usage of fiber optic installations, no matter how slight, is sufficient to exclude the properties from the tax. That is not ” the only reasonable construction’ ” of the statute … , indeed, it is “simply [not plausible” … . If we accept that interpretation, based on the proliferation of uses of cell phones to stream video, television, and other programming, all fiber optic cables will be excluded from taxation. That, however, conflicts with the Court of Appeals’ determination in T-Mobile Northeast, LLC that such property is taxable (32 NY3d at 608). Moreover, RPTL 102 (12) (i) provides that taxable property includes all “wires, poles, supports and inclosures for electrical conductors upon, above and underground used in connection with the transmission or switching of electromagnetic voice, video and data signals between different entities.” Matter of Level 3 Communications, LLC v Erie County, 2019 NY Slip Op 05913, Fourth Dept 7-31-19

 

/

87 DAY DELAY ATTRIBUTABLE TO THE PEOPLE DESPITE THE ‘READY FOR TRIAL’ ANNOUNCEMENT AND THE ABSENCE OF A SPECIFIC REQUEST FOR AN ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the indictment on speedy trial grounds, determined the 87 day delay during which the People sought a superseding indictment was attributable to the People despite their “ready for trial” announcement and despite the absence of a specific request for an adjournment:

… [The]period of delay was “attributable to [the People’s] inaction and directly implicate[d] their ability to proceed to trial” on a charge of CPCS in the fifth degree, i.e., the crime that the People sought to add by way of a superseding indictment and the sole crime for which defendant was ultimately convicted … . Contrary to the court’s determination, the 87-day period was not attributable to the court given that it was “the People’s inaction [in securing a superseding indictment that] resulted in a delay in the court’s [trial of the action]” … . Contrary to the People’s contention, it is well established that postreadiness delay may be assessed “notwithstanding that the People have answered ready for trial within the statutory time limit” … and notwithstanding the absence of an explicit prosecutorial request for an adjournment … . Although certain periods of time may be excluded from assessment as postreadiness delay where the People successfully invoke one of the exceptions enumerated in CPL 30.30 (4) … , the People have identified no exception that might excuse the 87-day delay at issue here … . People v Johnson, 2019 NY Slip Op 05920, Fourth Dept 7-31-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy