You are here: / PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF...

Search Results

/ ,

PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT).

The Third Department determined petitioner was entitled to the renewed statute of limitations under the Son of Sam Law to seek earned and unearned income in the account of an inmate convicted of murder in 1986:

Generally, a crime victim of a violent felony offense has 10 years from the date of the crime to bring a civil action against the individual convicted of said crime to recover money damages for any injury or loss resulting therefrom (see CPLR 213-b [2]; Executive Law § 632-a [1] [d], [e] [i] [A]; Penal Law § 70.02 [1] [a]). The Son of Sam Law, however, creates a renewed limitations period whereby a crime victim may bring an action within three years of the discovery of “funds of a convicted person” (Executive Law § 632-a [3]). Here, the subject crimes occurred in 1986 … , thus, the statute of limitations has long since passed. Contrary to respondent’s assertion, however, the applicability of the extended statute of limitations provided for in Executive Law § 632-a (3) is not tethered to the $10,000 requirement that triggers the notice provisions of the statute… . Moreover, although Executive Law § 632-a does not statutorily mandate the type of notice that was provided for here, it does not prohibit it either. Thus, having received notice of newly discovered “funds of a convicted person” … , respondent’s victims are entitled to the benefit of the extended limitations period, without regard to the amount of funds in respondent’s inmate account.

Next, to the extent that respondent argues that his earned income should be excluded from any future recovery, and, thus, excluded from the purview of the subject preliminary injunction, this Court has previously held that “[t]he distinction between earned and unearned income is relevant only to determine whether petitioner must be notified, and has no effect on the ability of a crime victim or a victim’s representative to recover such income in a civil action” … . Matter of New York State Off. of Victim Servs. v Vigo, 2018 NY Slip Op 04608, Third Dept 6-21-18

​CRIMINAL LAW (SON OF SAM LAW, PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))/SON OF SAM LAW (PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))/CIVIL PROCEDURE (SON OF SAM LAW,  PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))

/

THE RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT WAS NOT CLOSE ENOUGH TO ALLOW AN UNJUST ENRICHMENT ACTION, DEFENDANT’S ACTIONS COULD NOT HAVE CAUSED PLAINTIFF’S RELIANCE OR INDUCEMENT (SECOND DEPT

The Second Department determined the relationship between plaintiff and defendant (Trovato) was not close enough to allow an unjust enrichment suit. Plaintiff had paid for shares in a corporation which were later sold to defendant. Plaintiff alleged the price paid by defendant was reduced by the amount plaintiff had already paid:

To recover for unjust enrichment, a plaintiff must show that (1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered… . “Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated” … . The relationship must be one that could have caused reliance or inducement … . Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff and Trovato did not have a relationship that could have caused reliance or inducement on the plaintiff’s part. Crescimanni v Trovato, 2018 NY Slip Op 04529, Second Dept 6-20-28

​UNJUST ENRICHMENT (THE RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT WAS NOT CLOSE ENOUGH TO ALLOW AN UNJUST ENRICHMENT ACTION, DEFENDANT’S ACTIONS COULD NOT HAVE CAUSED PLAINTIFF’S RELIANCE OR INDUCEMENT (SECOND DEPT))/PRIVITY (UNJUST ENRICHMENT, THE RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT WAS NOT CLOSE ENOUGH TO ALLOW AN UNJUST ENRICHMENT ACTION, DEFENDANT’S ACTIONS COULD NOT HAVE CAUSED PLAINTIFF’S RELIANCE OR INDUCEMENT (SECOND DEPT))

/ , ,

BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank was required to provide notice of its motions for an order of reference and a judgment of foreclosure which were made more than a year after defendant’s default. Therefore defendant’s motion to vacate the order of reference and judgment of foreclosure should have been granted. The court noted that the failure of notice was properly raised for the first time on appeal:

The defendant was entitled to notice of the plaintiff’s motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215(g)(1), which provides, in relevant part, that such notice to a defendant who has not appeared is required “if more than one year has elapsed since the default.” Here, the defendant defaulted in November 2009, and the plaintiff moved for an order of reference in March 2013, more than three years later. Contrary to the plaintiff’s contention, the issue of its failure to comply with CPLR 3215(g)(1) may be raised for the first time on appeal … . The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void … . Citimortgage, Inc. v Reese, 2018 NY Slip Op 04527, Second Dept 6-20-18

​FORECLOSURE (BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))/CPLR 3215 (FORECLOSURE, BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))

/

ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT).

The Second Department determined defendant (Koonin), the owner/operator of a car involved in an accident with plaintiff, had violated discovery orders and was guilty of willful or contumacious conduct warranting sanction. Supreme Court both struck Konnin’s answer and precluded Koonin from submitting any evidence at trial. The Second Department held that striking the answer was an abuse of discretion:

“The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion” … . “The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that” … . This Court is vested with corresponding power to substitute its own discretion for that of the motion court, even in the absence of abuse… .

In light of Koonin’s failure to comply with multiple court orders and so-ordered stipulations directing him to appear for the EBT, the Supreme Court properly concluded that Koonin engaged in willful and contumacious conduct… . However, under the circumstances, it was an improvident exercise of discretion to grant those branches of the motion and cross motion which were to strike Koonin’s answer in light of the fact that the court also granted those branches of the motion and cross motion which were to preclude Koonin from offering any evidence at the time of trial … . Chowdhury v Hudson Val. Limousine Serv., LLC, 2018 NY Slip Op 04526, Second Dept 6-20-18

​CIVIL PROCEDURE (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/CPLR 3126 (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/DISCOVERY (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/WILLFUL OR CONTUMACIOUS CONDUCT (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/PRECLUDE, MOTION TO  (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/ANSWER, MOTION TO STRIKE  (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))

/ , , , ,

PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for leave to replead a private nuisance and trespass action should have been granted. Plaintiffs alleged defendants had negligently planted and watered on their side of plaintiffs’ retaining wall, damaging the wall:

… [T]he court improvidently exercised its discretion in denying the plaintiffs’ motion, in effect, for leave to replead … . The standard to be applied on such a motion “is consistent with the standard governing motions for leave to amend pursuant to CPLR 3025″… . In particular, such motions “should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient”… .

The proposed amended complaint alleged that the defendants had (1) engaged in “digging, excavating, grading and altering the soil, past the property line with [the] plaintiffs’ property and abutting [the plaintiffs’] property and wall,” (2) planted bushes, shrubs, and trees, and added significant amounts of mulch on the plaintiffs’ property, near the property line, and along the plaintiffs’ wall, and (3) excessively watered the location where the work was performed. The amended complaint further alleged that the “lateral load and pressure has been increased as a result of the planting of trees, bushes, shrubs and plants and the lack of drainage” so as to damage the plaintiffs’ retaining wall. The complaint alleges that this conduct was negligent, and that it constituted a private nuisance and trespass. Contrary to the defendants’ contention, these amended causes of action were neither palpably insufficient nor patently devoid of merit … , and no unfair prejudice or surprise to the defendants would arise from permitting the amendment … . Chaikin v Karipas, 2018 NY Slip Op 04525, Second Dept 6-20-18

​REAL PROPERTY (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3025  (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRESPASS (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NUISANCE  (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/RETAINING WALL  (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

/

PARTY MOVING TO PRECLUDE THE OTHER PARTY FROM PRESENTING EVIDENCE BASED UPON VIOLATIONS OF DISCOVERY ORDERS HAS THE BURDEN OF PROVING WILLFUL OR CONTUMACIOUS CONDUCT, BURDEN NOT MET HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to preclude the plaintiff from presenting evidence at trial should not have been granted. Plaintiff had failed to provide discovery and failed to appear for her court ordered deposition three times. A so-ordered stipulation was entered requiring plaintiff to be deposed on or before March 16, 2015, at a time and place to be agreed upon. Defendant moved to preclude when plaintiff did not appear on March 16, 2015. The court noted that no date for the deposition had been agreed to and therefore preclusion was not warranted:

When a litigant fails to comply with the terms of a conditional order of preclusion, the terms of that order become absolute … . However, the burden of establishing noncompliance rests with the party seeking preclusion … . Because the remedy of preclusion is the functional equivalent of striking a party’s pleading… , it may not be granted where the party can demonstrate a justifiable excuse and a potentially meritorious cause of action or defense … .

ere, the so-ordered stipulation did not set a time, date, or place for the plaintiff’s deposition, instead stating merely that the plaintiff’s deposition was to be held “on or before” March 16, 2015, “at a time and location to be agreed upon.” In light of this, the defendants’ minimal assertion that the plaintiff failed to appear, which relied on the hearsay assertion of an unnamed employee of defense counsel, was insufficient to demonstrate that the plaintiff willfully and contumaciously violated the so-ordered stipulation … . Similarly, the defendants did not allege in their motion that the plaintiff had failed to provide the outstanding written discovery that was included in the so-ordered stipulation. Therefore, since the defendants failed to demonstrate that the plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct … . Cannon v 111 Fulton St. Condominium, Inc., 2018 NY Slip Op 04523, Second Dept 6-20-18

​CIVIL PROCEDURE (PRECLUDE, MOTION TO, PARTY MOVING TO PRECLUDE THE OTHER PARTY FROM PRESENTING EVIDENCE BASED UPON VIOLATIONS OF DISCOVERY ORDERS HAS THE BURDEN OF PROVING WILLFUL OR CONTUMACIOUS CONDUCT, BURDEN NOT MET HERE (SECOND DEPT))/DISCOVERY (PRECLUDE, MOTION TO, PARTY MOVING TO PRECLUDE THE OTHER PARTY FROM PRESENTING EVIDENCE BASED UPON VIOLATIONS OF DISCOVERY ORDERS HAS THE BURDEN OF PROVING WILLFUL OR CONTUMACIOUS CONDUCT, BURDEN NOT MET HERE (SECOND DEPT))/PRECLUDE, MOTION TO (PARTY MOVING TO PRECLUDE THE OTHER PARTY FROM PRESENTING EVIDENCE BASED UPON VIOLATIONS OF DISCOVERY ORDERS HAS THE BURDEN OF PROVING WILLFUL OR CONTUMACIOUS CONDUCT, BURDEN NOT MET HERE (SECOND DEPT))/CPLR 3126  (PRECLUDE, MOTION TO, PARTY MOVING TO PRECLUDE THE OTHER PARTY FROM PRESENTING EVIDENCE BASED UPON VIOLATIONS OF DISCOVERY ORDERS HAS THE BURDEN OF PROVING WILLFUL OR CONTUMACIOUS CONDUCT, BURDEN NOT MET HERE (SECOND DEPT))/WILLFUL OR CONTUMACIOUS CONDUCT  (PRECLUDE, MOTION TO, PARTY MOVING TO PRECLUDE THE OTHER PARTY FROM PRESENTING EVIDENCE BASED UPON VIOLATIONS OF DISCOVERY ORDERS HAS THE BURDEN OF PROVING WILLFUL OR CONTUMACIOUS CONDUCT, BURDEN NOT MET HERE (SECOND DEPT))

/

DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should have been granted. Defendant had not changed the address for service on file with the Secretary of State and did not receive the summons and complaint. Plaintiff knew where defendant’s place of business was and had communicated with defendant at that address:

A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see CPLR 317 …). …

There is no evidence in the record that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action … . Although the defendant did not explain why it failed to update its address with the Secretary of State, “there is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse’ for its delay” … . …

… [T]hrough the affidavit of the defendant’s principal averring that the plaintiff failed to comply with the terms of the parties’ oral lease, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Benchmark Farm, Inc. v Red Horse Farm, LLC, 2018 NY Slip Op 04522, Second Dept 6-20-18

​CIVIL PROCEDURE (DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT))/CPLR 317 (DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT))/DEFAULT JUDGMENT, MOTION TO VACATE (DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT))

/ , ,

COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT).

The Second Department, in a comprehensive and informative analysis, determined plaintiff had stated a negligence cause of against the town for the shooting death of plaintiff’s decedent, Nigro. The town police had responded to Nigro’s residence where she told the police her live-in companion, Groesbeck, had assaulted her. She also told the police Groesbeck, a former New Jersey police officer, had an unlicensed handgun. The police did not arrest Groesbeck, but took possession of the handgun. The police later returned the handgun to Groesbeck who subsequently shot and killed Nigro with it. The Second Department found that the complaint adequately alleged a special relationship between Nigro and the town, and further found that the town did not demonstrate the doctrine of governmental immunity applied as matter of law:

… [C]onstruing the complaint liberally and according the plaintiff the benefit of every possible favorable inference, it was sufficient to allege the existence of a special relationship between the Town and Nigro. The complaint adequately alleged “direct contact” between the agents of the Town and Nigro … , and that the Town police department undertook “through promises or actions” an affirmative duty, on behalf of Nigro, to safeguard Groesbeck’s handgun … . In addition, the complaint adequately alleged circumstances indicating that the Town, through its agents, knew that the return of the handgun to Groesbeck “could lead to harm” … . The Town’s evidentiary submissions failed to “utterly refute” these factual allegations as a matter of law … .

… [T]he complaint was also sufficient to allege Nigro’s “justifiable reliance” on the Town’s affirmative undertaking to safeguard Groesbeck’s handgun … .  * * *

… [A] factfinder could reasonably conclude that Groesbeck’s use of the allegedly illegal handgun to harm Nigro was a “foreseeable consequence of the situation created by the [Town’s] negligence” … . * * *

The issue of whether a defendant is entitled to governmental immunity is distinct from the issue of whether a special duty exists in a particular case… . The doctrine of governmental immunity refers to “an affirmative defense on which [a defendant] bears the burden of proof” … . * * *

Even assuming that the allegedly negligent act of returning the handgun was discretionary in nature, it cannot be said, as a matter of law, that “the discretion possessed by [the Town] was in fact exercised” … , or that any such exercise of discretion was “in compliance with the municipality’s procedures” … . Santaiti v Town of Ramapo, 2018 NY Slip Op 04584, Second Dept 6-20-18

​MUNICIPAL LAW (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/GOVERNMENTAL IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/POLICE (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/THIRD PARTY ASSAULT, LIABILITY FOR (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))

/

THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT).

The Second Department determined there was good cause for a 31 year delay in indicting the defendant for murder:

Cecil Schiff (hereinafter the decedent) was murdered in September 1980 during a robbery of his apartment. With no eyewitnesses and no match to latent fingerprints that were recovered from the crime scene, the investigation stalled. In 2008, a detective with the New York City Police Department’s Latent Print Unit randomly selected the case for fingerprint analysis, and determined that the defendant’s fingerprints matched three fingerprints recovered from a jewelry box and two other boxes found in the decedent’s bedroom. Further investigation revealed that the defendant, who was a 17-year-old high school student at the time of the murder, was absent from school on the day of the murder. The defendant was arrested and indicted in 2012, more than 31 years after the crime was committed.  * * *

… [A] significant amount of the delay was due to a lack of evidence identifying a viable suspect. After the defendant’s fingerprints were matched to the fingerprints recovered from the three boxes in the decedent’s bedroom, further investigation was conducted. The People had a good-faith basis to wait until they had sufficient evidence to arrest the defendant. Accordingly, we agree with the Supreme Court’s determination that the People met their burden of demonstrating good cause for the delay … . The reasons for the delay establishing the People’s good cause, the nature of the crime, and the fact that there was no period of pre-indictment incarceration in connection with this matter outweigh the extent of the delay. The court appropriately balanced the requisite factors in denying the defendant’s motion to dismiss the indictment … . People v Mattison, 2018 NY Slip Op 04569, Second Dept 6-20-18

​CRIMINAL LAW (PRE-INDICTMENT DELAY, THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))/PRE-INDICTMENT DELAY (THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))/DELAY, PRE-INDICTMENT (THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))

/

CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT).

The Second Department vacated defendant’s conviction of attempted assault in the second degree, noting that the crime is a legal impossibility:

The crime of attempted assault in the second degree is a legal impossibility (see Penal Law § 120.05[3]; People v Campbell, 72 NY2d 602, 605…). As correctly conceded by the People, the inclusion of that nonexistent crime in the superior court information constituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant’s conviction of attempted assault in the second degree, vacatur of the sentence imposed thereon, and dismissal of that count of the superior court information … . People v Jones, 2018 NY Slip Op 04565, Second Dept 6-20-18

​CRIMINAL LAW (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ASSAULT (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ATTEMPTED ASSAULT  (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))

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