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ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department determined the New York City Housing Authority’s (NYCHA’s) motion for summary judgment in this negligent elevator-maintenance case should have been granted. Plaintiff’s decedent had an asthma attack and suffered cardiac arrest in her apartment. When moving plaintiff’s decedent to an ambulance, the building elevator malfunctioned and stopped for at least several minutes. The NYCHA did not demonstrate that the elevator was in good working order or that the NYCHA had no notice the elevator malfunctioned. However, the NYCHA was able to demonstrate the elevator malfunction was not the proximate cause of plaintiff’s decedent’s death. The evidence supported the conclusion death occurred in the apartment:

… NYCHA presented unrefuted evidence demonstrating that the decedent’s cardiac rhythm was asystole, a dire form of cardiac arrest in which the heart stops beating and there is no electrical activity in the heart, and that she showed no signs of life in the hour between the arrival of emergency personnel and her transfer into the elevator, despite the emergency responders’ continuous resuscitative efforts. Furthermore, NYCHA’s medical expert stated that “[t]he prolonged and unsuccessful resuscitative course in an asystolic patient is associated with an extremely poor outcome” and that “the decedent’s obesity made resuscitative efforts more difficult and further reduced [her] likelihood of survival.” Thus, he opined, “within a reasonable degree of medical certainty[,]. .. the outcome for the decedent would [not] have changed had the transport time within the elevator been shorter.”

By these facts and its expert’s opinion, NYCHA demonstrated its prima facie entitlement to judgment as a matter of law by showing that the stoppage of its elevator, and resulting delay of the decedent’s arrival at the hospital, were not a proximate cause of the decedent’s death. Lebron v New York City Hous. Auth., 2018 NY Slip Op 01116, First Dept 2-15-18

NEGLIGENCE (ELEVATOR MAINTENANCE, LANDLORD-TENANT, ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/ELEVATORS (NEGLIGENCE, LANDLORD-TENANT, ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/LANDLORD-TENANT (ELEVATORS, NEGLIGENCE, ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PROXIMATE CAUSE (ELEVATOR MALFUNCTION, LANDLORD-TENANT,  ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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8 TO 12 INCH HEIGHT DIFFERENTIAL NOT ACTIONABLE, LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240 (1) cause of action should have been dismissed. Plaintiff was injured when a cart he was moving slipped off a makeshift ramp. The height differential was 8 to 12 inches, which did not present an actionable elevation-related risk:

Plaintiff was allegedly injured in the course of rolling a four-wheeled cart filled with about 100 to 200 pounds of materials over an unsecured, makeshift plywood ramp which bridged an approximately five- or six-inch gap between a truck bed to a loading dock, when the ramp slipped out of place and landed on the truck bed, and the cart descended, pulling on plaintiff’s arms and causing injuries. Plaintiff admitted that the vertical distance from the surface of the truck bed to the surface of the dock was about 8 to 12 inches, which under the circumstances, does not constitute a physically significant elevation differential covered by Labor Law § 240(1) … . Plaintiff’s injury was not proximately caused by a failure to protect him from any elevation-related risks posed by the distance of almost four feet from the floor to the surface of the dock, since plaintiff remained on the dock while the cart became wedged in the gap between the truck bed and the dock, and there is no evidence that the gap was large enough to pose a significant risk of any hazardous descent to the floor. Sawczyszyn v New York Univ., 2018 NY Slip Op 01120, First Dept 2-15-18

LABOR LAW-CONSTRUCTION LAW (8 TO 12 INCH HEIGHT DIFFERENTIAL NOT ACTIONABLE, LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/ELEVATION-RELATED RISK (LABOR LAW-CONSTRUCTION LAW, 8 TO 12 INCH HEIGHT DIFFERENTIAL NOT ACTIONABLE, LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT THE SORA HEARING, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing County Court, noted that a defendant has the right to be present at a SORA hearing, and here the defendant did not waive that right:

“A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing” … . While a defendant may waive the right to be present at the hearing, in order to establish a valid waiver it must be shown, inter alia, that “the defendant was advised of the hearing date, of his right to be present, and that the hearing would be conducted in his absence”… . Here, there is no evidence that the defendant was notified of the adjourned hearing date. Therefore, as the People correctly concede, the record fails to establish that the defendant voluntarily waived his right to be present at the hearing … . People v Hunt, 2018 NY Slip Op 01087, Second Dept 2-14-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT THE SORA HEARING, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT THE SORA HEARING, NEW HEARING ORDERED (SECOND DEPT))

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EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT).

The First Department determined the proof of serious physical injury in this gang assault case was insufficient:

The evidence was legally insufficient to establish that the injuries sustained by the victim constituted serious physical injury (see Penal Law § 10.00[10]), an element of gang assault in the first degree … . Although there was testimony that the victim still had some physical effects of the assault at the time of trial, the evidence on this was limited and, in any event, the record before the jury did not show that the injury was such that a reasonable observer would find the victim’s appearance distressing or objectionable … . It is also undisputed that the victim’s injuries did not impair his general health … . People v Garay, 2018 NY Slip Op 01117, First Dept 2-15-18

CRIMINAL LAW (EVIDENCE, EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT))/PHYSICAL INJURY (CRIMINAL LAW, EVIDENCE, EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT))

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NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT).

The Third Department determined the superior court information (SCI) charging burglary did not need to specify the crime to be committed during the robbery. The court further found that it was error to impose restitution for a burglary which was not charged in SCI:

Defendant further asserts that the SCI is jurisdictionally defective because it did not identify the underlying crime that he intended to commit during the burglary. We are not persuaded. “A charging instrument that incorporates by reference the statutory provisions applicable to the crime charged has been held to allege the material elements of the crime sufficiently to survive a jurisdictional challenge”… . Here, the SCI specifically referenced Penal Law § 140.20, which defines burglary in the third degree. Significantly, the statute does not specify that the underlying crime must be identified (see Penal Law § 140.20), nor has this been held to be a requirement… . Consequently, we find that the SCI validly charged defendant with two counts of burglary in the third degree, to which he pleaded guilty. …

As for the restitution award, the People concede that County Court erroneously included the amount of $31,000 as compensation to the owner of the Halfmoon restaurant when there was no accusatory instrument filed charging defendant with any crimes related thereto. We must agree. “Penal Law § 60.27 permits a trial court to require restitution arising from ‘the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense'” … . People v Suits, 2018 NY Slip Op 01098, Third Dept 2-15-18

CRIMINAL LAW (SUPERIOR COURT INFORMATION, RESTITUTION, NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))/BURGLARY (SUPERIOR COURT INFORMATION, RESTITUTION, NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))/SUPERIOR COURT INFORMATION (SCI) (BURGLARY, NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))/RESTITUTION (BURGLARY, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT))

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PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge dissent, determined that plaintiff had raised a question of fact about whether the continuous treatment doctrine tolled the statute of limitations in this medical malpractice action, despite a 30-month period between visits. Decision holding that a gap in treatment longer than the statute of limitations precludes the application of the continuous treatment doctrine should not be followed:

Plaintiff saw defendant over the course of four years, underwent two surgeries at his hand, and saw no other doctor for her shoulder during this time. She returned to him after the thirty-month gap, discussed yet a third surgery with him, and accepted his referral to his partner only because defendant was no longer performing such surgeries. Plaintiff’s testimony regarding feeling discouraged with defendant’s treatment does not demonstrate as a matter of law that she never intended to return to his care; in fact, her testimony reveals that she considered defendant her only doctor during this time. Nor does the fact that defendant repeatedly told plaintiff she should return “as needed” foreclose a finding that the parties anticipated further treatment. Notably, Plaintiff’s injury was a chronic, long-term condition which both plaintiff and defendant understood to require continued care. Each of plaintiff’s visits to defendant over the course of seven years were “for the same or related illnesses or injuries, continuing after the alleged acts of malpractice” … . As to the 30-month period between visits, we have previously held that a gap in treatment longer than the statute of limitations “is not per se dispositive of defendant’s claim that the statute has run” … . To the extent that lower courts have held to the contrary … , those cases should not be followed. Lohnas v Luzi, 2018 NY Slip Op 01114, CtApp 2-15-18

NEGLIGENCE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/STATUTE OF LIMITATIONS  (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))

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NYC HOUSING AUTHORITY’S RULES DO NOT ALLOW A SINGLE ADULT AND ADULT CHILD TO RESIDE PERMANENTLY IN A ONE BEDROOM APARTMENT, ADULT CHILD ALLOWED TEMPORARY RESIDENCY TO CARE FOR HIS MOTHER WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS UPON THE DEATH OF HIS MOTHER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion, reversing the appellate division, determined the petitioner’s application for remaining family member (RFM) status allowing him to reside in his late mother’s one bedroom apartment was properly denied. The New York City Housing Authority’s (NYCHA’s) rules do not allow a single adult and and adult child to live together in a one bedroom apartment. Although petitioner could reside in the apartment temporarily to care for his mother, he was not entitled to permanent permission to live in the apartment and therefore he was not entitled to RFM status:

… NYCHA’s rules contemplate that a tenant may require a live-in home-care attendant, either for the duration of a transient illness or the last stages of life, and its rules expressly allow for a live-in home-care attendant as a temporary resident, even if the grant of permission would result in “overcrowding,” without regard to whether the home-care attendant is related to the tenant. Mr. Aponte was, in effect, afforded temporary residency status. Essentially, Mr. Aponte is arguing that NYCHA’s policy is arbitrary and capricious because it does not allow him to bypass the 250,000-household waiting line as a reward for enduring an “overcrowded” living situation while caring for his mother. NYCHA could adopt the policy Mr. Aponte advocates, to encourage people to care for elderly relatives by giving them a succession priority over others, but we cannot say on the record before us that its adoption of a different policy, prioritizing children in need and persons facing homelessness when allocating its insufficient stock of public housing, is arbitrary or capricious. Matter of Aponte v Olatoye, 2018 NY Slip Op 01112, CtApp 2-15-18

LANDLORD-TENANT (NYC HOUSING AUTHORITY’S RULES DO NOT ALLOW A SINGLE ADULT AND ADULT CHILD TO RESIDE PERMANENTLY IN A ONE BEDROOM APARTMENT, ADULT CHILD ALLOWED TEMPORARY RESIDENCY TO CARE FOR HIS MOTHER WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS UPON THE DEATH OF HIS MOTHER (CT APP))/MUNICIPAL LAW (NYC HOUSING AUTHORITY’S RULES DO NOT ALLOW A SINGLE ADULT AND ADULT CHILD TO RESIDE PERMANENTLY IN A ONE BEDROOM APARTMENT, ADULT CHILD ALLOWED TEMPORARY RESIDENCY TO CARE FOR HIS MOTHER WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS UPON THE DEATH OF HIS MOTHER (CT APP))/HOUSING AUTHORITY (NYC) (NYC HOUSING AUTHORITY’S RULES DO NOT ALLOW A SINGLE ADULT AND ADULT CHILD TO RESIDE PERMANENTLY IN A ONE BEDROOM APARTMENT, ADULT CHILD ALLOWED TEMPORARY RESIDENCY TO CARE FOR HIS MOTHER WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS UPON THE DEATH OF HIS MOTHER (CT APP))/REMAINING FAMILY MEMBER (RFM) (NYC HOUSING AUTHORITY’S RULES DO NOT ALLOW A SINGLE ADULT AND ADULT CHILD TO RESIDE PERMANENTLY IN A ONE BEDROOM APARTMENT, ADULT CHILD ALLOWED TEMPORARY RESIDENCY TO CARE FOR HIS MOTHER WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS UPON THE DEATH OF HIS MOTHER (CT APP)).NEW YORK CITY HOUSING AUTHORITY (NYCHA) (NYC HOUSING AUTHORITY’S RULES DO NOT ALLOW A SINGLE ADULT AND ADULT CHILD TO RESIDE PERMANENTLY IN A ONE BEDROOM APARTMENT, ADULT CHILD ALLOWED TEMPORARY RESIDENCY TO CARE FOR HIS MOTHER WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS UPON THE DEATH OF HIS MOTHER (CT APP))

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EVIDENCE OF CONSPIRACY NOT SUFFICIENT TO SUPPORT CONVICTION, PRESENCE WHEN CONSPIRACY DISCUSSED BY OTHER GANG MEMBERS NOT ENOUGH (CT APP).

The Court of Appeals, over a two-judge dissent, affirming the appellate division, determined the evidence was insufficient to support the conviction of conspiracy in the second degree. The defendant’s mere presence when the conspiracy was discussed by other gang members was not enough:

… [A]t the core of the People’s case is evidence of defendant’s presence at various gang meetings at which the crime intended was discussed by gang members other than defendant. Under the circumstances of this case, to conclude that defendant’s presence at such gatherings alone was sufficient to establish agreement to join a plot would be to equate his passive act of “being present” with the affirmative act of “agreeing” to engage in a criminal conspiracy discussed at those assemblies. The law does not contain a presumption of agreement based on sheer presence at a meeting at which a conspiracy is discussed … , and we share the view of the federal courts that mere “[k]nowledge of the existence and goals of a conspiracy does not itself make one a coconspirator” … . People v Reyes, 2018 NY Slip Op 01113, CtApp 2-15-18

CRIMINAL LAW (CONSPIRACY, EVIDENCE OF CONSPIRACY NOT SUFFICIENT TO SUPPORT CONVICTION, PRESENCE WHEN CONSPIRACY DISCUSSED BY OTHER GANG MEMBERS NOT ENOUGH (CT APP))/EVIDENCE (CRIMINAL LAW, CONSPIRACY, EVIDENCE OF CONSPIRACY NOT SUFFICIENT TO SUPPORT CONVICTION, PRESENCE WHEN CONSPIRACY DISCUSSED BY OTHER GANG MEMBERS NOT ENOUGH (CT APP))/CONSPIRACY (CRIMINAL LAW, EVIDENCE OF CONSPIRACY NOT SUFFICIENT TO SUPPORT CONVICTION, PRESENCE WHEN CONSPIRACY DISCUSSED BY OTHER GANG MEMBERS NOT ENOUGH (CT APP))

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DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, reversing the appellate division, determined that defendant was entitled to dismissal of the second degree murder indictment (to which he pled guilty) on constitutional speedy trial grounds. The opinion is fact-based, covers several significant legal issues (i.e. CPL 30.30 is not applicable, speedy trial is not a mixed question of law and fact, pre versus post-indictment delay, inter alia), and cannot be fairly summarized here. ” … [T]he People pursued a cooperation agreement with [codefendant] Armstead for approximately 2½ years. After that effort proved unsuccessful, they spent the next three years attempting to convict Armstead, trying him separately from defendant. After three mistrials, Armstead had been convicted of only criminal possession of a weapon in the second degree, he had been acquitted on the top count of second-degree murder, and the People were no closer to securing his testimony against defendant. The time between defendant’s arrest on May 28, 2008 and defendant’s plea on September 23, 2014 spanned six years, three months, and 25 days, from when defendant was 16 years old until he was 22. Defendant spent the entirety of that period incarcerated.” The opinion goes through each of the Taranovich factors:

We analyze constitutional speedy trial claims using the five factors set forth in People v Taranovich (37 NY2d 442 [1975]): “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (id. at 445). These factors are similar, but not identical, to the factors used in evaluating speedy trial claims under the federal constitution, which include the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant” … . “[N]o one factor or combination of the factors . . . is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it” … . People v Wiggins, 2018 NY Slip Op 01111, CtApp 2-15-18

CRIMINAL LAW (SPEEDY TRIAL, APPEALS, DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))/SPEEDY TRIAL (DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))/APPEALS (CRIMINAL LAW, SPEEDY TRIAL, EFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))/MIXED QUESTION OF LAW AND FACT (CRIMINAL LAW, APPEALS, SPEEDY TRIAL, DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))

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CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two partial dissenting opinions, determined the city was not a third-party beneficiary of a contract between the Dormitory Authority of the State of New York (DASNY) and defendant architects (Perkins) and the negligence cause of action (professional malpractice) by DASNY against Perkins was duplicative of the the breach of contract cause of action. Perkins had contracted with DASNY to construct a building. During excavation a neighboring building, sidewalks, sewers, etc. settled. The building gradually settled about eight inches. The majority explained when a tort action, in addition to a breach of contract action, is viable in the context of architectural malpractice:

With respect to construction contracts, we have generally required express contractual language stating that the contracting parties intended to benefit a third party by permitting that third party “to enforce [a promisee’s] contract with another” … . In the absence of express language, “[s]uch third parties are generally considered mere incidental beneficiaries” … . This rule reflects the particular nature of construction contracts and the fact that — as is the case here — there are often several contracts between various entities, with performance ultimately benefitting all of the entities involved. * * *

… [T]here are circumstances where a professional architect may be subject to a tort claim for failure to exercise due care in the performance of contractual obligations. In seeking to “disentangl[e] tort and contract claims,” we focused in Sommer both on potential catastrophic consequences of a failure to exercise due care and on the nature of the injury, the manner in which it occurred, and the resulting harm (79 NY2d at 552). We distinguished between the situation where the harm was an “abrupt, cataclysmic occurrence” not contemplated by the contracting parties and one where the plaintiff was essentially seeking enforcement of contract rights (79 NY2d at 552). Here, the … building settled during the course of several months, damaging adjacent structures. However, even if any “abrupt” or “catastrophic” consequences either could have or did result from Perkins’ alleged negligence, the fact remains that the only damages alleged appear to have been within the contemplation of the parties under the contract — and … are identical for both claims. Put another way, there was no injury alleged here that a separate negligence claim would include that is not already encompassed in DASNY’s contract claim. Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 2018 NY Slip Op 01115, CtApp 2-15-18

CONTRACT LAW (CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/THIRD PARTY BENEFICIARY (CONSTRUCTION CONTRACT, CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/CONSTRUCTION CONTRACTS (THIRD PARTY BENEFICIARY, CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/NEGLIGENCE (ARCHITECTURAL MALPRACTICE, CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/ARCHITECTURAL MALPRACTICE (CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))

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