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Apportionment of Damages Between the City and the Contractor Who Negligently Set Up Lane Closures for Its Highway Work Was Not Supported by the Weight of the Evidence—New Trial for Apportionment of Damages Ordered/Two-Justice Dissenting Opinion Argued that Plaintiffs’ Counsel’s Vouching for His Own Credibility and Attacking the Credibility of Defense Witnesses In Summation Warranted a New Trial

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined the weight of the evidence did not support a 65%/35% apportionment of damages to the city (65%) and the contractor (35%) who set up lane closures for highway repair work. Plaintiff was severely injured in an accident which the jury found was the result of the failure to adequately warn drivers of upcoming lane closures. Because the lane closures were the responsibility of the contractor, the majority determined the 65%/35% damages apportionment was not supported the weight of the evidence and sent the matter back for a new trial on the apportionment of liability. Much of the opinion, including the entirety of the dissenting opinion, focused on the propriety of remarks made by plaintiffs’ counsel during summation (vouching for his own credibility, attacking the credibility of defense witnesses, etc.):

It is well settled that trial counsel is afforded wide latitude in presenting arguments to a jury in summation … . During summation, an attorney “remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff’s proofs without depriving the plaintiff of a fair trial” … . However, an attorney may not “bolster his case . . . by repeated accusations that the witnesses for the other side are liars” …. .

Although the City failed to object to the bulk of the challenged comments during summation, the City moved for an immediate mistrial based on comments impugning defense counsel, the reference to “Wang and his gang,” and plaintiffs’ counsel’s allegedly vouching for his own credibility. We find that although some of the comments were highly inflammatory, they did not ” create a climate of hostility that so obscured the issues as to have made the trial unfair'” … . The jury had ample reason to question the testimony of Officer Pagano, lessening the danger that they were improperly influenced by plaintiff’s counsel’s remarks. Gregware v City of New York, 2015 NY Slip Op 06408, 1st Dept 8-4-15

 

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Only Documents Relevant to the Order/Judgment Appealed from Should Be in the Record on Appeal—Motion to Settle the Record Denied

The Third Department affirmed Supreme Court’s denial of plaintiff’s motion to settle the record (on appeal) by adding documents (which were deemed not relevant to the appeal). The court described the required contents of the record:

Consistent with the provisions of CPLR 5526, “the record on appeal from a final judgment shall consist of a notice of appeal, the judgment roll, the transcript or a statement in lieu of a transcript if there was a trial or hearing, any exhibits in the court of original instance, any other reviewable order and any opinion in the case” … . The judgment roll, in turn, shall contain, among other things, “the summons, pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final judgment” (CPLR 5017 [b]…). As a result, “[d]ocuments or information that were not before [the trial court] cannot be considered by this Court on appeal” .. . Here, Supreme Court expressly found that the five documents at issue were neither considered in conjunction with nor relevant to the issues that gave rise to its … order and judgment… . Xiaoling Shirley He v Xiaokang Xu, 2015 NY Slip Op 06385, 3rd Dept 7-30-15

 

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agreement to maintain a driveway on a right-of-way ran with the land.

The Third Department held small claims court had properly determined an agreement to maintain a driveway on a right-of-way passing through the grantor’s front parcel to the grantee’s rear parcel ran with the land. The Third Department noted its review of small claims court rulings is confined to whether “substantial justice” was done according to the rules and principals of substantive law. Small claims court correctly held that the original parties to the property transfer intended the maintenance agreement to run with the land and that the agreement “touches and concerns” the land.  Therefore the defendant, the subsequent purchaser of the rear parcel, was bound by the maintenance agreement:

“Appellate review of small claims is limited to determining whether ‘substantial justice has not been done between the parties according to the rules and principles of substantive law'” … . Accordingly, this Court will overturn such a decision only if it is clearly erroneous … . As relevant here, to establish that the 1982 agreement ran with the land and was binding on defendants, plaintiff was required to establish that “(1) the grantor and grantee intended the [agreement] to run with the land, (2) there is privity of estate between the parties to the current dispute, and (3) the [agreement] touches and concerns the land” … . * * *

…[A]n agreement touches and concerns the land “if it affects the legal relations — the advantages and the burdens — of the parties to the [agreement], as owners of particular parcels of land and not merely as members of the community in general”… . Pugliatti v Riccio, 2015 NY Slip Op 06398, 3rd Dept 7-30-15

 

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Re: the Unsealing of the Grand Jury Proceedings Concerning Eric Garner’s Death at the Hands of the Police, a “Compelling and Particularized Need” for Disclosure Had Not Been Demonstrated—the Public Interest in Preserving Grand Jury Secrecy Outweighed the Public Interest in Disclosure

The Second Department, in an extensive, detailed decision (not fully summarized here), determined that the grand jury proceedings concerning the death of (unarmed) Eric Garner at the hands of the police (who were not indicted) should not be unsealed. As a threshold issue, the court found that New York City’s Public Advocate, pursuant to the terms of the City Charter, did not have the capacity to bring the petition. However, the other petitioners, the Legal Aid Society, the New York Civil Liberties Union, and the local branch of the NAACP, had standing to bring the petition. In essence, the court held that petitioners had not demonstrated the requisite “compelling and particularized” need for disclosure and the public interest in preserving grand jury secrecy outweighed the public interest in disclosure. In response to the District Attorney’s argument that the underlying order denying the petition to unseal the records was not appealable, the Second Department explained that the order was civil, not criminal, in nature (and therefore appealable). The court explained the general analytical criteria as follows:

The legal standard that must initially be applied to petitions seeking the disclosure of grand jury materials is whether the party seeking disclosure can establish a “compelling and particularized need” for access to them … . Only if the compelling and particularized need threshold is met must the court then balance various factors to determine whether the public interest in the secrecy of the grand jury is outweighed by the public interest in disclosure … . The decision as to whether to permit disclosure is committed to the trial court’s discretion … . However, “without the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance” … .

A party seeking disclosure will not satisfy the compelling and particularized need threshold simply by asserting, or even showing, that a public interest is involved. The party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding “to advance the actions or measures taken, or proposed (e.g. legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served” … . “[I]f the supposed societal benefit of maximizing the public’s awareness could by itself trump all other considerations,” there would not exist a “legal presumption against disclosure of grand jury evidence, let alone a rule providing that such presumption may be overcome only by a showing of a particularized and compelling need for disclosure” … . Significantly, courts that have permitted disclosure of grand jury evidence have uniformly done so for some purpose other than generalized public interest and dissemination … . Matter of James v Donovan, 2015 NY Slip Op 06348, 2nd Dept 7-29-15

 

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“Outside Influence Upon the Jury” Argument Rejected—“Weight of the Evidence” Review Required New Trial [Editor’s Note—There Appears [to Me] to Be No Difference Between What Can Be Reviewed Under the “Weight of the Evidence” Criteria, Which Need Not Be Preserved by a Motion to Dismiss, and What Can Be Reviewed Under the “Legally Sufficient Evidence” Criteria, Which Must Be Preserved by a Specific Motion to Dismiss]

The Second Department, in applying its “weight of the evidence review,” determined that the counts of the indictment stemming from an alleged burglary or attempted burglary were not supported by evidence the defendant entered the victim’s house illegally. Therefore those counts were dismissed. The court explained how a “weight of the evidence” review is applied. [It seems to this writer that there no longer is a distinction between a “weight of the evidence” review, which need not be preserved by a motion to dismiss, and a “legally sufficient evidence” review, which must be preserved by a specific motion to dismiss.] The court also explained the criteria for determining whether there was undue outside influence on the jury (here alleged discussion of a newspaper article about the trial and defendant’s reputation as a troublemaker).  The “undue outside influence” argument was rejected. Concerning the “weight of the evidence” review, the court wrote:

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]…), we essentially sit as the “thirteenth juror” and “decide[ ] which facts were proven at trial” … . “[W]eight of the evidence review is not limited to issues of credibility” … . “Rather, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt'” … .

Here, the People failed to prove beyond a reasonable doubt that the defendant committed burglary in the first degree and, concomitantly, failed to prove the defendant’s guilt of murder in the second degree (felony murder) under the first count of the indictment, which was predicated upon his commission or attempted commission of burglary. To prove the defendant’s guilt of burglary in the first degree, the People were required to prove, among other things, that the defendant “knowingly enter[ed] or remain[ed] unlawfully in a dwelling” (Penal Law § 140.30). “A person enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00[5]). “In general, a person is licensed or privileged’ to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] the authority to issue such consent” … .

There was no evidence produced at trial as to how the defendant, who was acquainted with Jones, entered Jones’ house. An investigating police detective testified that there was no evidence of forced entry into the house, and neither of two statements the defendant gave to the police, admitting that he was in Jones’ house when Jones was killed, indicate that he entered the premises unlawfully. Under these circumstances, since the People failed to introduce any evidence as to how the defendant gained entry to Jones’ house, they failed to prove that the defendant entered the house unlawfully. People v Marsden, 2015 NY Slip Op 06260, 2nd Dept 7-22-15

 

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Where the Parties’ Intent Can Be Determined from the Four Corners of the Contract, the Interpretation of the Contract is a Purely Legal Question Which Can Be Raised for the First Time on Appeal and Which Can Be Finally Determined by the Appellate Court (No Need for a Trial)

The First Department, reversing Supreme Court, determined defendants were entitled to summary judgment dismissing the breach of contract complaint. Defendants owned an improved parcel of land next to a parcel owned by plaintiff. Plaintiff purchased a portion of defendants’ parcel and the parties entered an agreement which included a promise by the defendants that they would not object to any construction on plaintiff’s parcel, which was interpreted by the court to mean defendants agreed to provide their consent if it was necessary to the construction. Upon an examination of the facts, the court concluded plaintiff did not demonstrate he needed the defendants’ consent to anything related to the construction, and therefore the contract provision requiring defendants to consent was never triggered. The aspect of the case which is worth noting is the court’s determination that a purely legal question of contract interpretation was involved and that the purely legal question could be raised for the first time on appeal. The court explained that “where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the legal effect of the contract…”:

Initially, although defendants’ arguments on appeal differ from those made in support of their motion, they may be considered by this Court because they present a pure legal issue of contract interpretation, which appears on the face of the record and could not have been avoided if raised below … .

“On appeal, the standard of review is for this Court to examine the contract’s language de novo” … . “Our function is to apply the meaning intended by the parties, as derived from the language of the contract in question” … . In interpreting a contract, words should be accorded their “fair and reasonable meaning,” and “the aim is a practical interpretation of the expressions of the parties to the end that there be a realization of [their] reasonable expectations” … . Moreover, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . Although the parties offer conflicting interpretations of a contract, that does not render it ambiguous … . Moreover, “where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the legal effect of the contract” … . Dreisinger v Teglasi, 2015 NY Slip Op 06197, 1st Dept 7-21-15

 

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There Is No Legal or Constitutional Authority for a Pre-Execution Challenge to a Search Warrant—Facebook’s Attempt to Quash Search Warrants Seeking All the Information in 381 Subscribers’ Facebook Accounts Was Rejected

The First Department, in an extensive, full-fledged opinion by Justice Renwick, determined there was no statutory or constitutional authority for Facebook’s motion to quash 381 search warrants which sought all the data from the targets’ Facebook accounts and prohibited disclosure of the warrants to the targets. There is no authority allowing a pre-execution challenge to a search warrant. Facebook’s argument that their motion was analogous to a motion to quash a subpoena, the denial of which can be appealed, was rejected. Facebook’s argument that the bulk warrants were akin to subpoenas issued to Internet Service Providers, which can be challenged under the Federal Stored Communications Act (SCA), was rejected (after a full analysis):

We agree with Facebook that the bulk warrants at issue here are analogous to SCA section 2703(a) warrants to the extent they authorized the federal and state government to procure a warrant requiring a provider of electronic communication service to disclose electronic content in the provider’s electronic storage. However, contrary to Facebook’s allegations, 2703 subsection (d), which gives the ISP the right to object, applies only to court orders or subpoenas issued under subsections (b) or (c). The SCA specifically distinguishes these disclosure devices from warrants, which are governed by its subsection (a). While an order or subpoena obtained pursuant to (b) or (c) requires only that the government show “specific and articulable facts” that there are “reasonable grounds to believe” the information sought will be “relevant and material,” a warrant under subsection (a) requires the government to make the traditional and more stringent showing of “probable cause.” Here, a finding of probable cause was made by the reviewing judge, and thus the warrants are akin to SCA warrants, not SCA subpoenas or orders. Thus, Facebook’s argument that it has the right to contest the warrants based upon the SCA is contradicted by the express terms of the SCA. * * *

Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the District Attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users. Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home. These bulk warrants demanded “all” communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.

Judges, as guardians of our Constitution, play an indispensable role in protecting the rights and liberties of individuals entrenched in the Constitution. Charged with the indispensable responsibility of reviewing warrant applications, they protect the rights and interests of individuals by remaining mindful of the reasonableness embedded in the Fourth Amendment’s delicate balance. The procedural rules attendant to the Fourth Amendment’s warrant requirement both reasonably protect the innocent and permit investigation of suspected criminal conduct. A judge reviewing a warrant request must always balance the nature and quality of the intrusion on an individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Further, this balance invokes carefully weighing the extent to which each level of intrusion in the execution of the warrant is needed. Each level of intrusion involves an implicit assertion by the government that the intrusion is “reasonable” to recover the evidence described in the warrant despite the compromise of the individual’s interests in privacy. Ultimately, to be fair and effective, the overall assessment of reasonableness requires the judge reviewing the warrant to carefully evaluate the need for each additional level of intrusion in the process of seizing evidence. 381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney’s Off., 2015 NY Slip Op 06201, 1st Dept 7-21-15

 

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Supreme Court Abused Its Discretion by Vacating a Judgment Which Was Not Appealed by the Defendant

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court, determined defendant Port Authority’s motion to vacate a judgment should not have been granted. Plaintiff, Nash, was injured in the 1993 World Trade Center bombing and was awarded a multi-million dollar judgment after trial. The Port Authority did not appeal the judgment, but sought to vacate the judgment pursuant to CPLR 5015 (a), based upon the results of an appeal in an unrelated “companion” case (Ruiz), which held the Port Authority immune from such suits. Supreme Court granted the motion and the First Department reversed, explaining that the Port Authority’s failure to appeal could not be “remedied” using Supreme Court’s discretionary “CPLR 5015” powers:

The Port Authority made a strategic decision not to appeal either the liability or the damages determination in Nash, but to prosecute the Ruiz case instead. The Port Authority thereafter abandoned any claim that it was not liable to Nash, and represented to the Court of Appeals that a reversal in Ruiz would not affect cases like Nash’s that had been finally determined. Having failed to seek leave to appeal from Nash’s affirmed final judgment, the Port Authority ought not to profit from its misrepresentations to the detriment of Nash, whose judgment was indisputably final.

As Professor Siegel noted in the Practice Commentaries accompanying CPLR 5513, “[t]he time in which to appeal or to move for leave to appeal if leave is necessary is one of the most rigid in all of procedure. Its passing without the proper step being taken forfeits the appeal and puts an end to the matter . . .” (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5513:1).

While a court under CPLR 5015(a) might possess some limited jurisdiction to vacate a final judgment — for example, where the court purporting to enter judgment lacked subject matter jurisdiction — that discretion must be sparingly exercised lest final judgments be subject to never-ending attack, undermining the sanctity and finality of judgments. As Justice Graffeo noted in her partial dissent, “We generally do not reward litigants for failing to assert arguments in a timely fashion — with few exceptions, claims not promptly advanced are deemed waived or forfeited and this proposition applies to the right to seek reversal of a judgment on the ground that it is erroneous on the facts or law (i.e., the type of argument made on direct appeal) . . . Simply stated, when a party allows its appellate rights to lapse, it forfeits the right to challenge any issue it could have raised on direct appeal” (22 NY3d at 227). The Port Authority’s motion to vacate the Nash judgment was predicated on an issue that had been litigated in Nash and would have been reviewable on appeal. The Port Authority ought not to be permitted a second bite at the apple at the expense of the elderly plaintiff, who suffered traumatic brain injuries over 20 years ago, and will now never see a penny of her $5.2 million final judgment. Nash v Port Auth of NY & NJ, 2015 NY Slip Op 06095, 1st Dept 7-14-15

 

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Trial Judge’s Acceptance of Petitioner’s Expert’s Valuation of the Property Was Against the Weight of the Evidence—the Actual Purchase Price in a Recent Sale and the Actual Rent Should Have Been Part of the Analysis

The Fourth Department, over a dissent, determined that the trial judge’s findings re: the assessed value of a retail property (for property tax purposes) were against the weight of the evidence. Specifically, the trial judge accepted the petitioner’s (Rite Aid’s) expert’s valuation which failed to take into account the actual price paid in a recent arm’s-length sale of the property, comparable sales, the actual rent (negotiated at arm’s length) and comparable rentals:

… [A]n appellate court is empowered to make new findings of value where the trial court ” has failed to give to conflicting evidence the relative weight which it should have’ ” …, giving due deference to the trial court’s power to resolve credibility issues by choosing among conflicting expert opinions … .

It is well settled that real “[p]roperty is assessed for tax purposes according to its condition [and ownership] on the taxable status date, without regard to future potentialities or possibilities and may not be assessed on the basis of some use contemplated in the future” … . Although several methods of valuing real property are acceptable, “the market value method of valuation is preferred as the most reliable measure of a property’s full value for assessment purposes” …, because “[t]he best evidence of value, of course, is a recent sale of the subject property between a seller under no compulsion to sell and a buyer under no compulsion to buy” … . A recent sale has been characterized as evidence of the “highest rank” in determining market value … . The scope of a “market” need not be limited to the locale of the subject property and, depending on the nature of the use, it may encompass national and/or international buyers and sellers … . * * *

… [W]e conclude that the failure of petitioner’s expert to use the recent sale of the subject property as well as readily available comparable sales of national chain drugstore properties in the applicable submarket as evidence of value demonstrates the invalidity of the expert’s conclusion with respect to the sales comparison valuation … . We further conclude that the use of sales not comparable to the subject and outside of the applicable market should have been rejected by the court as unreliable … . Moreover, the failure of petitioner’s expert to use the actual rent, negotiated at arm’s length and without duress or collusion, as well as the failure to use similar rental comparables from the applicable market as evidence of value, demonstrates the invalidity of the expert’s conclusions using the income capitalization method … . Matter of Rite Aid Corp. v Haywood, 2015 NY Slip Op 06049, 4th Dept 7-10-15

Similar issues and result in Matter of Rite Aid Corp. v Huseby, 2015 NY Slip Op 06051, 4th Dept 7-10-15

 

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Assault-Related Convictions Not Supported by the Weight of the Evidence/Prosecution Held to Erroneous Jury Instruction Which Was Not Challenged

The Second Department determined defendant’s convictions were not supported by the weight of the evidence and the prosecution should be held to an erroneous jury instruction which was not challenged. The defendant was acquitted of possession of a weapon and was not charged with acting in concert with others. Absent any evidence the defendant caused the injury to the victim his assault-related convictions could not stand. The jury was erroneously instructed that burglary requires proof the defendant unlawfully entered “and” (not “or”) remained in the victim’s dwelling. Because the erroneous instruction was not challenged, the People are held to it. The burglary conviction could not stand because the defendant was invited into the dwelling:

The evidence presented by the People was that the defendant alone caused serious physical injury to the victim by slashing him with an unidentified dangerous instrument. The jury was not charged that the defendant was acting-in-concert with the others. While the defendant was convicted of two counts of assault in the first degree and gang assault in the first degree, he was acquitted of criminal possession of a weapon in the fourth degree. In conducting our weight of the evidence review, we may consider the jury’s acquittal of the defendant on that count … . Given the victim’s testimony that, during the struggle, he heard the defendant say “no, don’t stab him, don’t stab him,” and that he did not see who slashed him, and considering that testimony along with the jury’s acquittal of the defendant of criminal possession of a weapon in the fourth degree, we find that the evidence, when properly weighed, did not establish that the defendant caused serious physical injury to the victim or that he did so by means of a dangerous instrument.

While a person is guilty of burglary in the first degree when he or she either knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein (see Penal Law § 140.30), here, the trial court, without objection, erroneously instructed the jury that, in order to find the defendant guilty of the two counts of this charge, the People were required to prove that the defendant “unlawfully entered and remained” in the victim’s dwelling (emphasis added). Since the People did not object to this erroneous charge, they were “bound to satisfy the heavier burden” … . Given that the evidence demonstrated that the defendant knocked on the victim’s door and announced his presence, and that the victim voluntarily invited the defendant into the apartment, the People failed to satisfy their burden as to these two counts. People v Samuels, 2015 NY Slip Op 05968, 2nd Dept 7-8-15

 

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