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COUNTY COURT DENIED PETITIONER’S MOTION TO DISMISS AN INDICTMENT ON THE GROUND THE PEOPLE HAD LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE INDICTMENT AT THE TIME HE PLED GUILTY TO A PRIOR INDICTMENT (CPL 40.40); PETITIONER’S REMEDY IS DIRECT APPEAL, NOT THE INSTANT ARTICLE 78 PETITION SEEKING PROHIBITION OR MANDAMUS (THIRD DEPT).

The Third Department determined petitioner must seek review of the denial of a motion to dismiss an indictment pursuant to CPL 40.40 by direct appeal, not by the instant Article 78 action for prohibition or mandamus re: the district attorney and the judge. Petitioner moved to dismiss the indictment on the ground that the People had legally sufficient evidence to support the indictment at the time he pled guilty to a prior indictment. County Court denied that motion without a hearing, even though County Court noted it could not determine whether the People had legally sufficient evidence at the time petitioner pled guilty:

The District Attorney contends that petitioner may not obtain collateral review of County Court’s denial of his motion through a CPLR article 78 proceeding. We agree. “Neither [of the extraordinary remedies of] prohibition nor mandamus lies as a means to obtain collateral review of an alleged error of law particularly where, as here, there is an adequate remedy at law by way of a direct appeal” … . Any error in County Court’s decision denying petitioner’s motion to dismiss indictment No. 3 without a hearing is, at most, a mere error of law that does not justify the invocation of the extraordinary remedies sought … . Matter of Davis v Nichols, 2019 NY Slip Op 04794, Third Dept 6-13-19

 

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BUILDING OWNERS EXPENDED SUFFICIENT FUNDS FOR THE IMPROVEMENT OF AN APARTMENT TO JUSTIFY AN EXEMPTION FROM RENT STABILIZATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, over a two-justice dissenting opinion, determined that the building owners demonstrated the expenditure of sufficient funds for improvements to an apartment to justify an exemption from rent stabilization. The opinions are too extensive to fairly summarize here. What follows is the majority’s summary of the holding:

On this appeal, we are asked to determine whether the record sufficiently demonstrates that defendants Windemere Chateau, Inc. (Chateau), the original owner of a residential building located at 666 West End Avenue in Manhattan, and Windermere Owners, LLC (Owners), the successor owner of the building, expended an amount in qualified individual apartment improvements (IAIs) to apartment 4K in that building sufficient to render that apartment exempt from rent stabilization. Should we answer that question in the negative and conclude that defendants imposed a rent overcharge on the apartment’s tenant, plaintiff Laura DiLorenzo, we are then asked to determine whether there was evidence supporting a finding of willfulness on defendants’ part in doing so, warranting an award of treble damages to plaintiff. Upon our de novo review of the record, we conclude that defendants have substantiated their claims that they have made sufficient expenditures for IAIs performed in the apartment to warrant an exemption from rent stabilization and did not impose a rent overcharge. Thus, we do not reach the issue of whether defendants willfully imposed a rent overcharge. DiLorenzo v Windermere Owners LLC, 2019 NY Slip Op 04779, First Dept 6-13-19

 

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DEFENDANT DID NOT DENY ALLEGATIONS IN THE COMPLAINT WHICH ALLEGED GENERAL JURISDICTION OVER THE DEFENDANT, THEREFORE JURISDICTION WAS CONFERRED ON THE COURT, THE MECHANICS OF SUCCESSFULLY DENYING JURISDICTION EXPLAINED (FIRST DEPT).

The First Department determined defendant’s motion to dismiss the complaint based upon a lack of personal jurisdiction was properly denied because the defense was waived when defendant did not specifically deny an allegation of general jurisdiction made in the complaint. The court explained the mechanics of denying jurisdiction:

… [T]he defendant argues that it asserted a defense of lack of personal jurisdiction in its answer, and thus preserved the issue for adjudication in its present motion.

Personal jurisdiction is not an element of a claim, and matters that are not elements need not be pleaded in the complaint …. Where the plaintiff has not alleged facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant must assert lack of personal jurisdiction as an affirmative defense in order to give plaintiff notice that it is contesting it (see CPLR 3018). Where the plaintiff elects to allege facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant’s denial of those allegations may be sufficient to preserve defendant’s jurisdictional defense … . …

The specific allegations of plaintiff’s complaint … track, almost verbatim, the language of personal jurisdiction in CPLR 302, which provides the bases for specific jurisdiction. Defendant’s denial of these allegations is sufficient to provide notice to plaintiff that it is contesting specific jurisdiction.

The allegations of plaintiff’s complaint paragraphs 83 and 84 purport to establish a basis for general jurisdiction. They were not denied by defendant, rather defendant admitted them to the extent that it “is a duly organized foreign corporation doing business in New York . . .” This answer, interposed in 2004, before the Supreme Court’s ruling in Daimler AG v Bauman, 571 US 117 (2014), would have provided a basis for general jurisdiction. It, therefore, does not qualify as a specific denial that would have put plaintiff on notice that the defendant is contesting general jurisdiction. Defendant’s failure to clearly provide an objection to general jurisdiction in its answer waived the defense and conferred jurisdiction upon the court … . Matter of New York City Asbestos Litig., 2019 NY Slip Op 04777, First Dept 6-13-19

 

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MOTION TO DISQUALIFY COUNSEL SHOULD HAVE BEEN GRANTED BECAUSE OF THE APPEARANCE OF A CONFLICT OF INTEREST (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to disqualify plaintiff’s attorney should have been granted:

Plaintiff’s counsel represented defendant at the time that he commenced this action against defendant on plaintiff’s behalf. Thus, the conflict of interest arose at that time and must be assessed as of that time (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1] …).

Although the matter in which plaintiff’s counsel represented defendant is unrelated to the instant matter, we find that counsel should be disqualified because “an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” … . City & County Paving Corp. v Titan Concrete, Inc., 2019 NY Slip Op 04776, First Dept 6-13-19

 

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PAIN MANAGEMENT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE/WRONGFUL DEATH CASE PROPERLY DENIED, THE DOCTOR PRESCRIBED OPIOIDS FOR PLAINTIFF’S DECEDENT, A DRUG ADDICT (FIRST DEPT).

The First Department determined defendant pain-management doctor’s (Kiri’s) motion for summary judgment in this medical malpractice case was properly denied. Kiri allegedly continued to prescribe high-dosage opioids to plaintiff’s decedent knowing that she was an addict. Plaintiff’s decedent died of a drug overdose. Although plaintiff’s decedent used illicit drugs as well, there was a question of fact about the proximate cause of death and whether the death was a foreseeable consequence of prescribing opioids:

Plaintiff’s theory of liability is that Dr. Kiri’s prescription of high-dose opioid pain killers for more than a year, despite the fact that her medical records showed drug use and drug seeking behavior, escalated, enhanced, or encouraged that behavior. An accidental overdose is not an unforeseeable result of prescribing, or over-prescribing, opioid painkillers to a patient who displays signs of addiction … . More specifically, here, decedent’s procurement and use of illicit drugs were not unforeseeable in light of the indicia of addiction or misuse noted in her medical records. Because decedent’s use of illicit drugs was not unforeseeable, her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death. Halloran v Kiri, 2019 NY Slip Op 04769, First Dept 6-13-19

 

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REPAIRING A LIGHT FIXTURE IS COVERED UNDER BOTH LABOR LAW 240 (1) AND 241 (6), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court) determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240 (1), 241 (6) and 200 causes of action should not have been granted. Plaintiff fell from an A-frame ladder when he was repairing a light fixture at the Nassau Coliseum. Repairing the light fixture is an activity covered by both Labor Law 240 (1) and 241 (6):

Here, the County defendants’ own submissions highlighted rather than eliminated triable issues of fact as to whether the plaintiff was engaged in repairs or routine maintenance at the time of his accident. Among other things, the County defendants submitted the plaintiff’s deposition testimony in support of summary judgment. Although the plaintiff’s testimony demonstrated that some of the lighting poles on which he worked may have only required the tightening or replacement of a lightbulb, he testified that more labor intensive work was performed on other lighting poles in order to make them function, which fell within the scope of “repairing” a light fixture and, concomitantly, within the scope of Labor Law § 240(1) … . …

“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in . . . construction, excavation or demolition work”… . “[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively. Under that regulation, construction work consists of [a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” …. Since the plaintiff was arguably engaged in the repair of the subject lighting fixtures, the County defendants failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to the plaintiff’s activities. Wass v County of Nassau, 2019 NY Slip Op 04748, Second Dept 6-12-19

 

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A PRIOR FORECLOSURE ACTION DISMISSED FOR LACK OF STANDING DID NOT ACCELERATE THE MORTGAGE DEBT, THE STATUTE OF LIMITATIONS, THEREFORE, DID NOT START TO RUN (SECOND DEPT).

The Second Department noted that the prior foreclosure action, which was dismissed on the ground the plaintiff lacked standing, did not accelerate the mortgage debt. Therefore the statute of limitations was not triggered by the dismissed action:

[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due, and the Statute of Limitations begins to run on the entire debt” … . Acceleration occurs, inter alia, “when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due” … . “[A]n acceleration of a mortgaged debt, by either written notice or the commencement of an action, is only valid if the party making the acceleration had standing at that time to do so” … .

Auguste contends that the commencement of the prior action in 2007 accelerated the debt, and that the commencement of the instant action, seven years later, was beyond the statute of limitations. Where, as here, the prior action is dismissed on the ground that the plaintiff lacked standing, the purported acceleration is a nullity, and the statute of limitations does not begin to run at the time of the purported acceleration … . U.S. Bank N.A. v Auguste, 2019 NY Slip Op 04747, Second Dept 6-12-19

 

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COURT MUST CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, A VALID WAIVER OF APPEAL DOES NOT BAR RAISING THE ISSUE (SECOND DEPT).

The Second Department, vacating the sentence and sending the matter back because the court did not consider whether defendant should be afforded youthful offender status, noted that a valid waiver of appeal would not bar raising this issue on appeal (the waiver here was deemed invalid):

CPL 720.20(1) requires that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, even where the defendant fails to request such treatment, or agrees to forgo it as part of a plea agreement . Contrary to the People’s contention, the … defendant’s waiver of his right to appeal was invalid because the Supreme Court failed to confirm that the defendant understood the nature of the right to appeal and the consequences of waiving it … . In any event, a valid waiver would not bar the defendant’s contention that the court failed to consider youthful offender treatment … . People v Ramirez. 2019 NY Slip Op 04727, Second Dept 6-12-19

 

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DEFENSE COUNSEL SUCCESSFULLY PURSUED A MISIDENTIFICATION DEFENSE THROUGHOUT THE TRIAL BUT CONCEDED THE ISSUE IN SUMMATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; A WITNESS MAY IDENTIFY THE DEFENDANT AT TRIAL DESPITE A PROCEDURALLY-DEFECTIVE PRE-TRIAL IDENTIFICATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. During the trial the victim of the robbery twice misidentified the defendant before identifying the defendant, first indicating he did not see the defendant in the courtroom and then indicating a spectator was the assailant. Defense counsel pursued the misidentification defense throughout the trial, successfully challenging the admission of a surveillance video. But in summation defense counsel essentially conceded that defendant was one of the assailants. The Second Department noted that a witness who participated in a procedurally-defective pretrial identification procedure may still identify the defendant at trial if the People demonstrate the in-court identification is based upon the witness’s independent observation of the defendant, here the observations made during the robbery itself:

“A witness may identify the perpetrator of a crime as part of his or her in-court testimony, notwithstanding the existence of a procedurally-defective pretrial identification procedure, provided that the People establish by clear and convincing evidence that the in-court identification is based upon the witness’s independent observation of the defendant” … . Here, contrary to the defendant’s contention, at an independent source hearing, the prosecution proved by clear and convincing evidence that the complainant’s in-court identification of the defendant would be based on his independent observations during the robbery … . * * *

… [D]efense counsel’s confused and contradictory actions, effectively conceding the dispositive issue, deprived the defendant of his right to the effective assistance of counsel … . Given defense counsel’s opening statement and his conduct throughout the course of the trial in advancing his misidentification defense, his decision to abandon his chosen defense midstream in favor of a nebulous and contradictory argument that no forcible taking of property had occurred, “was so unreasonable, inconsistent, and devoid of any possibility of success that it does not even rise to the level of trial strategy” … . Under the circumstances, the defendant was deprived of the effective assistance of counsel and is entitled to a new trial. People v Goondall, 2019 NY Slip Op 04721, Second Dept 6-12-19

 

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THE JUDGE PROPERLY HANDLED A JUROR’S HESITATION WHEN THE JURY WAS POLLED, THE JUROR WAS QUESTIONED BY THE JUDGE OUTSIDE THE PRESENCE OF THE JURY, THE JUDGE DETERMINED THE JUROR WAS NOT UNDER IMPROPER PRESSURE AND SENT THE JURY BACK FOR FURTHER DELIBERATIONS (SECOND DEPT).

The Second Department determined the trial judge properly handled a juror’s (juror number two’s) hesitation when the jury was polled. Outside the presence of the jury, the judge asked the juror about his reasons for hesitation, determined it was not caused by improper pressure, and sent the jury back for more deliberations:

… [T]he Supreme Court providently exercised its discretion in denying his motion for a mistrial based upon juror number two’s hesitation in affirming the verdict. “[T]he jury must, if either party makes such an application, be polled and each juror separately asked whether the verdict announced by the foreman is in all respects his verdict. If . . . any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation” (CPL 310.80). Here, the court appropriately conducted an inquiry, outside the other jurors’ presence, into why juror number two hesitated in affirming the verdict, and further obtained clarification as to the reasons he gave … . Juror number two’s responses clarified that the pressure he perceived did not “[arise] out of matters extraneous to the jury’s deliberations or not properly within their scope” … . Further, his responses established that the “verdict [was] not the product of actual or threatened physical harm” … . Accordingly, we agree with the court’s determination to instruct the jury to continue deliberating … . People v Folkes, 2019 NY Slip Op 04719, Second Dept 6-12-19

 

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