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THERE WAS NO SHOWING THAT THE DEPARTMENT OF SOCIAL SERVICE’S (DSS’S) VIOLATION OF A COURT ORDER LIMITING THE CHILD’S VISITATION WITH STEPMOTHER PREJUDICED THE CHILD’S RIGHTS, THEREFORE FAMILY COURT SHOULD NOT HAVE HELD DSS IN CONTEMPT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined that the Department of Social Services (DSS) should not have been held in contempt for violation of an order limiting the child’s visitation with the stepmother. DSS acknowledged it was aware of the order and acknowledged violating it. But there was no showing of prejudice to the child’s rights:

“A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party’s rights” … . DSS does not dispute that it was aware of the court’s order limiting visitation with the stepmother, nor does it dispute that it did not follow that order, thereby establishing the first two elements for a civil contempt finding. Notably, however, DSS contacted the court immediately after receiving the order to advise that the stepmother had been certified as a foster parent and that the child was residing [*3]with her in that capacity. The AFC’s petition, filed shortly thereafter, alleged that DSS had violated the order and sought to have the child placed with the foster parents, but failed to allege or present evidence establishing, by clear and convincing evidence, that DSS’s failure to comply with the December 2016 order had “prejudiced the [child’s] rights” … . Matter of Nilesha RR. (Loretta RR.), 2019 NY Slip Op 04063, Third Dept 5-23-19

 

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THE TERM ‘AUTOMATIC OVERRIDE’ DOES NOT MANDATE THAT AN OFFENDER WITH A PRIOR SEX-CRIME FELONY BE CLASSIFIED A LEVEL THREE SEX OFFENDER, BOTH COUNTY COURT AND DEFENSE COUNSEL MISUNDERSTOOD THE TERM (THIRD DEPT). ​

The Third Department, reversing County Court, determined that both County Court and defense counsel misunderstood the meaning of “automatic override” in the context of whether an offender who has a prior felony sex-crime conviction mandates a level three classification:

… [T]he use of the words “automatically” or “automatic override” does not mandate that a particular individual be classified as a risk level three sex offender; rather, the “automatic” nature of the override results in a presumptive risk level three classification — a classification from which a court indeed may depart based upon the evidence presented … . Thus, “the application of the override for a prior felony sex crime is presumptive, not mandatory or automatic” … , and “[t]reating the presumptive override as mandatory is a ground for reversal” … .  …

Defense counsel’s misunderstanding of the override — as evidenced by his erroneous statement that defendant’s prior felony conviction for a sex crime resulted in “an automatic override” to a risk level three classification — deprived defendant of the opportunity to present factors in support of a downward departure; similarly, County Court’s misapplication of the override — premised upon the court’s mistaken belief that “a mandatory override to a risk level [three] status” was “required” — foreclosed any inquiry into whether the presumptive risk level three classification was in fact warranted … . People v Jones, 2019 NY Slip Op 04060, Third Dept 5-22-19

 

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SENTENCING COURT MUST MAKE A THRESHOLD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS IN THIS FIRST DEGREE RAPE CASE, SENTENCE VACATED (THIRD DEPT).

The Third Department vacated defendant’s sentence for rape first degree and remitted the matter for a determination of defendant’s eligibility for youthful offender status:

… [A] “youth” is defined as “a person charged with a crime alleged to have been committed when he [or she] was at least [16] years old and less than [19] years old” (CPL 720.10 [1]), and an “eligible youth” is “a youth who is eligible to be found a youthful offender” (CPL 720.10 [2]). “Every youth is so eligible” (CPL 720.10 [2]) — subject to certain statutory exceptions including, as pertinent here, a conviction for “rape in the first degree . . ., except as provided in [CPL 720.10 (3)]” … . To that end, CPL 720.10 (3) provides, in relevant part, that “a youth who has been convicted of . . . rape in the first degree . . . is an eligible youth if the court determines that one or more [statutory] factors exist,” including “mitigating circumstances that bear directly upon the manner in which the crime was committed” … . …

Defendant was 17 years old at the time of the underlying offense and, despite his conviction of rape in the first degree, he was not statutorily precluded from being found to be an eligible youth (see CPL 720.10 [3]). Where, as here, a defendant has been convicted of an enumerated sex offense … , the sentencing court, “in order to fulfill its responsibility under CPL 720.20 (1) to make a youthful offender determination for every eligible youth, . . . must make the threshold determination as to whether the defendant is an eligible youth by considering the factors set forth in CPL 720.10 (3)” … — “‘even where the defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ pursuant to a plea bargain” … . People v Robertucci, 2019 NY Slip Op 04057, Third Dept 5-23-19

 

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THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the Superior Court Information (SCI) to which defendant pled guilty was jurisdictionally defective because it did not include an offense that was charged in the felony complaint or a lesser included offense:

… [T]he waiver of indictment and SCI are jurisdictionally defective because they did not charge an “offense for which the defendant was held for action of a grand jury” (CPL 195.20 …). Pursuant to CPL 195.20, a waiver of indictment must contain “each offense to be charged in the [SCI]” which “may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable.” To that end, “a defendant is held for the action of a [g]rand [j]ury on both the offense charged in the felony complaint as well as its lesser included offenses” … , because, “[f]or purposes of waiver of indictment, a charge that is a lesser included offense of a crime charged in the felony complaint is viewed as the ‘same offense’ and may be substituted for the original charge in a waiver of indictment and SCI”… . Accordingly, “a defendant may waive indictment and plead guilty to an SCI that names a different offense from that charged in the felony complaint only when the crime named in the SCI is a lesser included offense of the original charge” … . …

Inasmuch as it is possible to commit the crime charged in the felony complaint — possession of a loaded weapon — without committing the crime charged in the SCI — possession with intent to use the weapon unlawfully — the crime charged in the SCI is not a lesser included offense of the former and the SCI could not serve as a proper jurisdictional predicate for defendant’s guilty plea … . People v Diego, 2019 NY Slip Op 04054, Third Dept 5-22-19

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NEITHER THE VICTIM WITNESS PROTECTION ACT NOR THE MANDATORY VICTIM RESTITUTION ACT PROVIDES A PRIVATE RIGHT OF ACTION FOR A JUDGMENT BASED SOLELY UPON RESTITUTION ORDERED IN A CRIMINAL CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that neither the Victim Witness Protection Act (VWPA) nor the Mandatory Victim Restitution Act (MVRA) provided for a private right of action for a judgment based solely upon restitution ordered in a criminal case:

… [T]he VWPA makes civil remedies available to collect restitution but does not make restitution a civil judgment that can simply be enforced in a private suit … . Rather, a victim may pursue a civil action for damages in connection with the injuries that resulted in a restitution order, and the restitution order may provide assistance in proving liability, but the petitioner may not rely entirely on the restitution order and the amount ordered in the criminal action. Thus, the petitioner can separately plead and prove liability and damages under either a statutory or a common-law cause of action if the restitution order fails to satisfy the victim … . …

Some cases may support the conclusion that under the MVRA, a victim who has obtained a lien on property based on a restitution order may enforce that lien in a special court proceeding … . However, these cases provide no support for the conclusion that a victim may enforce the abstract judgment itself without obtaining a lien, especially given that this would contradict the language of 18 USC § 3664(m), explicitly requiring a lien. Petitioner has obtained an abstract of judgment, but never recorded it as a lien on defendant’s property or brought an action to enforce it. … [T]he MVRA does not provide a cause of action for a private victim to enforce an abstract judgment on a restitution order, which is exactly what petitioner is seeking to do. Therefore, petitioner has no standing under the MVRA. Matter of Mikhlov v Festinger, 2019 NY Slip Op 04046, First Dept 5-23-19

 

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NUISANCE COUNTERCLAIM BASED UPON PLAINTIFF’S PLAYING PIANO IN HER CONDOMINIUM SHOULD HAVE BEEN DISMISSED, NO SHOWING THE SOUND LEVEL WAS UNREASONABLE (FIRST DEPT).

he First Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment dismissing defendant’s (Harlan’s) nuisance counterclaim should have been granted. The nuisance counterclaim was based upon plaintiff’s playing piano in her condominium:

Plaintiff made a prima facie showing that her piano playing and piano lessons were reasonable by averring that these activities usually occurred during business hours on weekdays, they usually totaled less than 4½ hours a day, and her sound technician concluded that the noise emanating from her piano was within acceptable boundaries … . Harlan failed to raise a triable issue of fact in opposition because she did not submit any evidence showing that the level of sound that entered her apartment from plaintiff’s piano was unreasonable. Harlan’s reliance on the recordings by plaintiff’s sound technician is unavailing; the expert did not take any volume measurements in Harlan’s apartment and the recording taken in the condominium stairwell did not exceed that of a normal conversation. Leon v Harlan, 2019 NY Slip Op 04045, First Dept 5-23-19

 

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COMPLAINT STATED CAUSES OF ACTION FOR BREACH OF REAL ESTATE BROKERAGE CONTRACT, QUANTUM MERUIT, UNJUST ENRICHMENT AND PROMISSORY ESTOPPEL, STATUTE OF FRAUDS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiffs’ complaint stated causes of action for breach of contract, quantum meruit, unjust enrichment and promissory estoppel. The contract between plaintiff, a real estate broker, and defendant, a real estate developer, gave plaintiff the exclusive right to broker sales of luxury apartments in return for a reduced commission rate. The complaint alleged defendant accepted plaintiff’s services for two years but refused to pay after defendant received the benefits of the bargain:

Plaintiffs’ failure to identify in the complaint the specific national real estate sales and marketing agency with which plaintiffs were going to partner, along with the terms of such partnership, is not fatal to plaintiffs’ breach of contract claim. The alleged contract would imply a covenant of good faith and fair dealing pursuant to which plaintiffs would propose reasonable entities and defendants would reasonably accept or reject those proposals … . … As to the start and end date of the agreement, it can be inferred from the allegations in the complaint … . With regard to the identity of the promisor, the complaint indicates that all negotiations and interactions were with defendant Kuzinez. …

The complaint should not have been dismissed pursuant to the statute of frauds. As an initial matter, defendants did not move to dismiss based on the statute of frauds and plaintiffs were not afforded the opportunity to address the issue … . Moreover, the statute of frauds is inapplicable here as General Obligations Law § 5-701(a)(10) specifically exempts contracts to pay compensation to licensed real estate brokers, which is the type of contract alleged by plaintiffs.

The declaratory judgment cause of action, which seeks a declaration that plaintiffs have the right to serve as exclusive broker for all residential sales for the subject development, should be reinstated based on our finding that the complaint sufficiently alleges a claim for breach of contract.

Additionally, the quantum meruit, unjust enrichment, and promissory estoppel claims state causes of action. As to quantum meruit, the complaint alleges that plaintiffs provided services to defendants at a reduced cost or no cost, based on the promiseof the oral agreement …. As to promissory estoppel, the complaint alleges that defendants promised plaintiffs that they would serve as exclusive broker and that, in reasonable reliance on that promise, plaintiffs agreed, among other things, to substantially reduced commissions … . Elhanani v Kuzinez, 2019 NY Slip Op 04042, First Dept 5-23-19

 

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DEFENDANT RESTAURANT CAN BE LIABLE FOR THE NEGLIGENCE OF THE VALET PARKING SERVICE WITH WHICH IT CONTRACTED IF THE RESTAURANT HAD THE ABILITY AND OPPORTUNITY TO CONTROL THE CONDUCT OF THE CONTRACTOR, IF ESPINAL EXCEPTIONS APPLY, AND UNDER AN AGENCY THEORY, THE RESTAURANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (FIRST DEPT).

The First Department determined the restaurant’s (Dolphin’s) motion for summary judgment in this action alleging negligence on the part of a valet parking service (APV) with which the restaurant had contracted was properly denied:

A restaurant providing valet parking services can be held liable for the negligence of the service whose attendants are alleged to have caused an accident to a third party. This is the case even where the service is an independent contractor with which the restaurant has contracted … .

This duty arises [under Espinal] when there is an ability and opportunity to control the conduct of the restaurant’s contractors and an awareness of the need to do so. Thus, Dolphin cannot assert that it signed a contract with the valet parking service and then “covered its eyes with a blindfold”; rather, Dolphin was required to select a company “with, at the minimum, both appropriate insurance and competent drivers”. Defendant restaurant w … as able to decline to enter into any contract for valet services it felt insufficient, and therefore in the best position to protect against the risk of harm.

Dolphin similarly failed to demonstrate that it did not create an unreasonable risk of harm to others or that APV entirely displaced its duty to maintain the valet parking area safely … . Indeed, the evidence showed, inter alia, that the restaurant and the valet service communicated on a daily basis to determine proper staffing. The restaurant, further, obtained parking spots for the valet service to utilize on its behalf. The restaurant informed the valet service in advance of functions so that staffing could be arranged. The parties’ agreement similarly provided that service was provided “as requested” by the restaurant, and that it was the restaurant’s obligation to provide the schedule for each week.

Dolphin may also be liable under the doctrine of ostensible agency or apparent authority and thus estopped from denying liability for an entity it held out as its agent … . Evans v Norecaj, 2019 NY Slip Op 04029, First Dept 5-23-19

 

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911 CALL MADE FIVE MINUTES AFTER THE ASSAULT PROPERLY ADMITTED AS AN EXCITED UTTERANCE, AN EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department determined the victim’s 911 call was properly admitted as an excited utterance, even though the call was made about five minutes after the assault with a butcher knife:

“A spontaneous declaration or excited utterance— made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant is an exception to the prohibition on hearsay” … . The determination of admissibility of a statement as an excited utterance is entrusted in the first instance to the trial court, which “must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” … . Here, the evidence demonstrated that the 911 calls qualified as excited utterances. First, the nature of the attack on the complainant was the type of startling event that would cause “physical shock or trauma” … . Further, the 911 calls were made only approximately five minutes after the event, and in those intervening minutes, the complainant ran across the street from the scene of the incident to his apartment to bandage his wound. Under these circumstances, this short interval of time did not “detract[ ] from [the] spontaneity” of the statements … . People v Jaber, 2019 NY Slip Op 03988, Second Dept 5-22-19

 

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PLAINTIFF HAD NO MEMORY OF THE ACCIDENT AND THE JURY WAS GIVEN THE NOSEWORTHY CHARGE, DEFENDANT’S MOTION TO SET ASIDE THE VERDICT IN THIS TRAFFIC ACCIDENT CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the motion to set aside the verdict in this traffic accident case was properly denied. Plaintiff had no memory of the accident and testified about his habit or routine practice of riding his bicycle home from work. The court had given the Noseworthy jury instruction:

The plaintiff testified that, while he did not recall the accident, he did recall leaving work and getting on his bicycle with the intent of taking the route he usually took home, which route he detailed, explaining that he took the same route every day, except for when he took the bus. While that route would have had the plaintiff traveling with traffic at the time of the accident, the defendant testified, inter alia, that the plaintiff was traveling against traffic … . …

The jury could have credited the plaintiff’s testimony as to his habit or routine practice, as to which the plaintiff submitted sufficient evidence “to allow the inference of its persistence” at the time of this accident … , while also making reasonable inferences based on the defendant’s own testimony that, inter alia, the defendant failed to see that which through proper use of the driver’s senses she should have seen, for which the defendant could be found liable even if the plaintiff, as the defendant here argues, could not establish that he obeyed all the rules of the road … . Ortega v Ting, 2019 NY Slip Op 03977, Second Dept 5-22-19

 

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