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JURY INSTRUCTIONS ALLOWED DEFENDANT TO BE CONVICTED ON A THEORY THAT WAS NOT INCLUDED IN THE INDICTMENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE IN THIS ANIMAL CRUELTY CASE, NEW TRIAL ORDERED DESPITE DEFENDANT’S HAVING COMPLETED HIS SENTENCE (FIRST DEPT).

The First Department, reversing Supreme Court in the interest of justice, determined the jury instructions in this animal cruelty case allowed a conviction on a theory that was not included in the indictment. A new trial was ordered, despite defendant’s having served his sentence:

As the People essentially concede, the court’s jury charge constructively amended the indictment … . The indictment was limited to a theory that defendant personally mistreated his dog. However, the court read Agriculture & Markets Law § 353 to the jury almost in its entirety, including a provision that would allow the jury to convict defendant if he merely permitted another person to mistreat his dog. Unlike ordinary accessorial liability under Penal Law § 20.00, this theory of “permitting” is an entirely different way of committing the crime from personally mistreating the animal. This error was not harmless, because there was evidence from which a reasonable jury could have inferred that defendant took the blame for his dog’s condition to cover for his uncle, who lived with defendant and made inconsistent statements about whether he witnessed defendant beating the dog.

However, the fact that defendant has completed his sentence does not warrant dismissal of the indictment. That approach is suitable only in cases of “relatively minor crimes”  … , and this case involves “serious” allegations  …of abusing an animal. Accordingly, we remand for a new trial. People v Gentles, 2019 NY Slip Op 02623, First Dept 4-4-19

 

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DEFENDANT STATED VALID COUNTERCLAIMS FOR FRAUDULENT INDUCEMENT, BREACH OF FIDUCIARY DUTY AND NEGLIGENT MISREPRESENTATION IN THIS BREACH OF CONTRACT ACTION, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had stated counterclaims for fraudulent inducement, breach of a fiduciary duty, and negligent misrepresentation in this breach of contract action:

Sharbat’s [plaintiff’s] statements that he had “massive investors” who were prepared to invest in defendant and that he “had obtained high-value investors for [defendant] in Israel,” while partially hyperbolic, make concrete factual representations that go beyond mere puffery. Simply stated, Sharbat asserted that he had investors lined up and ready to go, when in fact he had none. Since plaintiffs were retained by defendant to bring investors in, these statements constitute misrepresentations of material facts for purposes of the fraudulent inducement counterclaim … . …

[The] allegations plead a broker-principal relationship sufficient to impose a fiduciary duty on plaintiffs vis-a-vis defendant … . Plaintiffs’ fiduciary role carried with it a duty to disclose material facts … . …

Defendant alleges that plaintiffs negligently misrepresented that they were able to represent it in obtaining investors and facilitating the issuance of securities to raise capital for it, that they were skilled in obtaining financing from “high-value investors,” that they “had qualified, high-value investors who were to invest in [defendant],” and that plaintiffs themselves were qualified to invest in defendant. … These allegations state a counterclaim for negligent misrepresentation … . Solomon Capital, LLC v Lion Biotechnologies, Inc., 2019 NY Slip Op 02621, First Dept 4-4-19

 

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LEGAL MALPRACTICE COUNTERCLAIM SHOULD HAVE BEEN DISMISSED, SPECULATION ABOUT THE RESULT OF A HEARING HAD THE LAW FIRM APPEARED IS NOT ENOUGH TO SUSTAIN A CLAIM FOR LEGAL MALPRACTICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff law firm’s motion for summary judgment dismissing the legal malpractice counterclaim should have been granted. Apparently plaintiff failed to appear at a hearing on a temporary restraining order (TRO):

… [P]laintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date … . Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice … . Salans LLP v VBH Props. S.R.L., 2019 NY Slip Op 02611, First Dept 4-4-19

 

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DEFENDANT WAS HANDCUFFED WHEN THE POLICE SEARCHED A BAG ON THE FLOOR NEAR HIM, THE KNIFE IN THE BAG SHOULD HAVE BEEN SUPPRESSED, JUDGE PROPERLY PROCEEDED TO TRIAL WITHOUT A COMPETENCY EXAM ORDERED BY ANOTHER JUDGE AFTER DEFENDANT REFUSED TO BE EXAMINED (FIRST DEPT).

The First Department determined the warrantless search of a bag next to defendant was not justified as a search of the “grabbable” area because defendant was handcuffed. Admitting the knife in evidence was harmless error, however. Another judge had ordered a sixth CPL article 730 competency exam, but, after the defendant refused to be examined, the trial judge properly commenced the trial without the ordered examination. The defendant had a long history of psychiatric problems, but the most recent exam deemed him competent:

In the circumstances presented, the court did not err when it determined that defendant’s trial would commence notwithstanding that a different judge had ordered a sixth CPL article 730 examination, which had not yet been conducted because the defendant refused to be examined … . The court acted within its discretion to decline to repeatedly issue force orders to compel defendant’s submission to the extant competency examination order. Furthermore, the court considered the long history of examinations in this case and its own observations of defendant over its prolonged history. We find nothing in People v Armlin (37 NY2d 167 [1975]) that prohibits a court from considering changed or extraordinary circumstances in denying a previously granted examination, particularly given defendant’s profound lack of cooperation and a recent examination finding him competent.

We find that the trial court should have suppressed the 12 inch knife recovered by the police during a warrantless search of defendant’s bag. Although at the time of the search the bag was on the floor within the “grabbable area” next to defendant, he was standing with his arms handcuffed behind his back … . These circumstances do not support a reasonable belief that the defendant could have either gained possession of a weapon or destroyed evidence located in the bag. Police did not show any exigency to justify the warrantless search of the bag … . People v Washington, 2019 NY Slip Op 02610, First Dept 4-4-19

 

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GIVING A SECOND ALLEN CHARGE AND ALLOWING THE JURY TO CONTINUE DELIBERATING TO 5 OR 6 PM ON A FRIDAY, KNOWING THAT THREE JURORS HAD TRAVEL PLANS FOR MONDAY, DID NOT CONSTITUTE COERCING THE VERDICT, PROVIDING BOTH WRITTEN AND ORAL JURY INSTRUCTIONS WAS NOT IMPROPER (FIRST DEPT).

The First Department, over an extensive two-justice dissent, determined (1) the trial judge’s giving two Allen charges and allowing the jury to continue deliberations to 5 or 6 pm, at the jury’s request, on a Friday, knowing that three jurors could not continue deliberating on Monday because of travel plans, did not constitute coercing a verdict, and (2) providing the jurors with both written and oral jury instructions, without objection, was not improper:

The substance of an Allen charge is not coercive if it is “appropriately balanced and inform[s] the jurors that they [do] not have to reach a verdict and that none of them should surrender a conscientiously held position in order to reach a unanimous verdict” … . Here, the trial court’s repeated Allen charge included an instruction that the jurors were to “make every possible effort to arrive at a just verdict,” thereby implicitly instructing the jurors that they were not required to reach a verdict if they did not all agree that the verdict was just. Further, the trial court advised the jury that it “was not asking any juror to violate his or her conscience or to abandon his or her best judgment.” …

Defendant … contends that the trial court coerced the verdict by acceding to the request made in Court Exhibit XIII for more time to deliberate on the day of the verdict without immediately addressing the scheduling conflicts set forth in the same jury note in which the request was made. … As the record reflects, the trial court construed Court Exhibit XIII as meaning that the jurors thought that they could quickly resolve any remaining differences among them and agree upon a verdict within hours that same day, and therefore permitted them to do so. Thus, there was no need for the court to address the traveling plans of some jurors for the following week because this did not appear to be a problem at the time. People v Muhammad, 2019 NY Slip Op 02609, First Dept 4-4-19

 

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ALTHOUGH THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL, THERE WAS A QUESTION OF FACT WHETHER THE ICY CONDITION EXISTED PRIOR TO THE STORM, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although defendant demonstrated there was a storm in progress in this slip and fall case, there was a question of fact whether the icy condition existed before the storm:

Under the storm in progress rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition “occurring during an ongoing storm or for a reasonable time thereafter” … . Here, in support of its motion, the defendant submitted, inter alia, the affidavit and report of a meteorologist with attached certified climatological data, which demonstrated that, at the time of the plaintiff’s accident, a wintery mix of freezing rain, sleet, and rain was falling and the temperature may have been at or below freezing. Accordingly, the defendant established, prima facie, that a storm was ongoing at the time of the plaintiff’s fall … .

In opposition, however, the plaintiff raised a triable issue of fact, via her General Municipal Law § 50-h hearing testimony, her deposition testimony, and the affidavit of her brother, as to whether the icy condition that caused her fall existed prior to the storm in progress and whether the defendant had constructive notice of the hazard … . Isabel v New York City Hous. Auth., 2019 NY Slip Op 02506, Second Dept 4-3-19

 

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THE EXCEPTION TO THE FAULTY WORKMANSHIP EXCLUSION IN THE FIRE INSURANCE POLICY APPLIED TO PRESERVE COVERAGE FOR ENSUING LOSS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the fire damage was covered under the policy:

Following an inspection of the property by a fire investigator and an electrical engineer, the defendant issued a letter to the plaintiffs’ claims adjuster disclaiming coverage for “building damage” on the grounds that “improper conditions” related to a junction box “were the direct cause of the fire and instant loss” and the policy specifically excluded coverage for faulty workmanship. … The exclusion provided, in relevant part, “[w]e do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described [in] Coverages A and B not excluded or excepted in this policy is covered. . . c. Faulty, inadequate or defective: . . . (2) design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction . . . of part or all of any property, whether on or off residence premises.”

“Where a property insurance policy contains an exclusion with an exception for ensuing loss, courts have sought to assure that the exception does not supersede the exclusion by disallowing coverage for ensuing loss directly related to the original excluded risk” … . Therefore, “an ensuing loss provision . . . provide[s] coverage when, as a result of an excluded peril, a covered peril arises and causes damage” … . …

We disagree with the Supreme Court’s determination that the plaintiffs did not establish, as a matter of law, that the exception to the faulty workmanship exclusion was applicable to preserve coverage for the damage to their property. The evidence in the record demonstrated that the fire occurred two years after the alleged faulty workmanship related to the junction box, and caused ensuing loss to property “wholly separate from the defective property itself” … . Fruchthandler v Tri-State Consumer Ins. Co., 2019 NY Slip Op 02502, Second Dept 4-3-19

 

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RECORDS SUBMITTED BY THE BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the records submitted by the bank (Deutsche Bank) did not meet the requirements of the business records exception to the hearsay rule:

Here, in support of its motion, Deutsche Bank submitted the mortgage, the note, and the affidavit of Nicholas Collins, a vice president of Ocwen Loan Servicing, LLC (hereinafter Ocwen), Deutsche Bank’s loan servicer, in which Collins averred, inter alia, that the defendant defaulted by failing to make the payments due under the note and mortgage after January 1, 2008. The plaintiff also submitted a limited power of attorney dated June 7, 2012, which demonstrated that Ocwen was authorized to act on Deutsche Bank’s behalf. However, Deutsche Bank failed to demonstrate that the records relied upon by Collins, including those relating to the defendant’s alleged default, were admissible under the business records exception to the hearsay rule, since Collins, who was employed by Ocwen, did not attest that he was personally familiar with the record-keeping practices and procedures of the plaintiff (see CPLR 4518[a] … ). Thus, Collins failed to lay a proper foundation for admission of the records on which he relied, including the records concerning the defendant’s payment history, and therefore, his assertions based on those records were inadmissible … . Deutsche Bank Trust Co. Ams. v Blount, 2019 NY Slip Op 02500, Second Dept 4-3-19

 

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JUDGE’S SUA SPONTE DISMSSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION DEPRIVED PLAINTIFF OF NOTICE AND A CHANCE TO BE HEARD, A VIOLATION OF DUE PROCESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint as abandoned without giving plaintiff a chance to be heard in this foreclosure action:

… [B]y notice of motion dated August 15, 2014, the plaintiff … moved, inter alia, to extend its time to serve a copy of the order of reference with notice of entry … , nunc pro tunc, to March 23, 2007 (hereinafter the second extension of time motion). In an order dated February 26, 2015 (hereinafter the February 2015 order), the Supreme Court denied the second extension of time motion, and, sua sponte, directed the dismissal of the complaint as abandoned, noting, inter alia, that “[t]he order of reference at issue was signed in 2007” and the appointed referee was no longer on the fiduciary list. …

The Supreme Court’s sua sponte determination to direct dismissal of the complaint deprived the plaintiff of notice and opportunity to be heard and amounted to a denial of the plaintiff’s due process rights (see CPLR 3216 … ). Accordingly, the court should have granted that branch of the plaintiff’s motion which was to vacate the February 2015 order. Chase Home Fin., LLC v Plaut, 2019 NY Slip Op 02494, Second Dept 4-3-19

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant did not demonstrate a lack of constructive notice of the sand and debris in a walkway in this slip and fall case. Therefore their motions for summary judgment were properly denied:

 “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . [Defendant’s] submissions in support of its motion failed to demonstrate, prima facie, a lack of constructive notice. The affidavit of its association president merely referenced his general inspection practices and failed to indicate when the area of the walkway where the alleged slip and fall occurred was last inspected or cleaned relative to the accident … . Butts v SJF, LLC, 2019 NY Slip Op 02491, Second Dept 4-3-19

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