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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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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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Evidence Did Not Support Conviction for Attempted Possession of Burglar’s Tools— Conviction Was Against the Weight of the Evidence

The First Department determined the evidence was not sufficient to support a conviction for attempted possession of burglar’s tools (the conviction was against the weight of the evidence). The defendant had tools in his possession and stopped his bicycle to look inside two or three cars (in broad daylight).  However the defendant did not touch the tools. Therefore the element of the offense which requires circumstances indicating the tools were about to be used to commit a burglary was not supported:

“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00.) “While the statutory formulation of attempt would seem to cover a broad range of conduct—anything tend[ing] to effect’ a crime—case law requires a closer nexus between defendant’s acts and the completed crime” … . The accused must engage in conduct that comes “dangerously close” to a completed crime before it can be combined with a criminal intent to constitute an attempted crime …

“A person is guilty of attempted possession of burglar’s tools when, with the intent to possess burglar’s tools, he tries to possess any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving larceny by a physical taking, and the surrounding circumstances evince an intent to use same in the offense of such character” … .

Although the element of intent may be satisfied by circumstantial evidence …, under the particular circumstances of this case the officer’s testimony that he observed defendant, in broad daylight, stopping his bicycle between two or three cars and looking through the driver’s side front window, is not, in and of itself, sufficient to support the inference that defendant intended to use the tools to steal any items from the cars. The officer admitted, inter alia, that during the 15 seconds that he observed defendant, he never saw him touch either a tool in the pouch or any of the cars and that the screwdriver set had to be assembled to be usable … . People v Pannizzo, 2015 NY Slip Op 05894, 1st Dept 7-7-15

 

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Failure to Make Clear in the Jury Instructions that the Acquittal on the Top Count Based Upon the Justification Defense Required Acquittal on the Lesser Counts As Well Rendered the Verdict “Ambiguous”—New Trial Ordered in the Interest of Justice

The First Department, in a full-fledged opinion by Justice Tom, exercising the court’s “interest of justice” jurisdiction, determined defendant was entitled to a new trial because the jury instructions did not make clear that, if the jury found the defendant’s actions justified (self-defense), acquittal on all counts was mandatory. The defendant was charged with attempted murder, attempted assault in the first degree, and assault second degree stemming from a stabbing. There was evidence defendant may have acted in self-defense.  Therefore the jury was given the justification-defense instruction. The jury found the defendant not guilty of attempted murder, but guilty of the lesser two counts. If the not guilty verdict was based on the justification defense, then the defendant should have been acquitted of all charges. The jury instructions did not make the effect of finding the defendant’s acts justified clear. Because it could not be discerned whether the jury acquitted the defendant of attempted murder based on the justification defense, the verdict was ambiguous and a new trial was required, notwithstanding that the error in the jury instructions was not preserved:

On this record, review of the issue in the interest of justice is warranted because it is impossible to discern whether acquittal of the top count of attempted murder in the second degree was based on the jurors’ finding of justification so as to mandate acquittal on the two lesser counts. While lack of justification was included as an element of each crime, the verdict sheet and the court’s accompanying explanation created confusion, because they indicated among other things that the jurors “must consider” count three irrespective of their disposition of higher counts and they failed to explicitly convey that a finding of justification on the top count precluded further deliberation. While the trial court did follow the CJI justification instruction in its charge, it also included as an element of each offense “[t]hat the defendant was not justified,” which may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted the defendant of the top count of attempted murder in the second degree based on justification. People v Velez, 2015 NY Slip Op 05619, 1st Dept 6-30-15

 

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Stipulation of Forfeiture of a Sum of Money Was Part of the Judgment of Conviction and Therefore Was Reviewable on Appeal from the Judgment of Conviction

The First Department, over a dissent, determined a stipulation of forfeiture of a sum of money entered by the defendant was part of the judgment of conviction, and was therefore reviewable on appeal. The dissent argued that appeal should have been dismissed because the forfeiture was not part of the judgment of conviction and was therefore not reviewable.  The forfeiture was ultimately affirmed on the merits:

At the outset, we reject the People’s contention, adopted by the dissent, that this appeal is not properly before us because the forfeiture was not part of the judgment of conviction. Pursuant to Penal Law § 60.30, a court has the authority to order a forfeiture of property, and any order exercising that authority “may be included as part of the judgment of conviction.” In People v Detres-Perez (127 AD3d 535 [1st Dept 2015]), relying on Penal Law § 60.30, this Court recently found that a forfeiture agreement was part of the judgment of conviction and thus reviewable on the appeal from the judgment. Likewise here, the court’s so-ordering of the stipulation at the time of sentencing rendered it part of the judgment of conviction and reviewable on this appeal as of right (see CPL 450.10). Contrary to the dissent’s position, we do not conclude that Penal Law § 60.30 authorizes the inclusion of forfeiture as part of a defendant’s sentence. Rather, that provision allows a court to order forfeiture as a separate component of the judgment of conviction… . … Finally, the omission of the forfeiture order from the sentence and commitment sheet does not render the order unreviewable since a forfeiture, although not a component of a criminal sentence, can nevertheless be part of the judgment of conviction … . People v Burgos, 2015 NY Slip Op 05600, 1st Dept 6-30-15

 

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No Appeal to the Court of Appeals Lies from the Appellate Division’s Affirmance of the Denial of Resentencing Pursuant to the 2004 Drug Law Reform Act (DLRA)

The Court of Appeals determined no appeal lies from the Appellate Division’s affirmance of the denial of resentencing pursuant to the 2004 Drug Law Reform Act (DLRA). The fact that the order (denying resentencing) was consolidated with appealable orders did not confer jurisdiction to hear the appeal upon the Court of Appeals:

“It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute,” and courts “may not resort to interpretative contrivances to broaden the scope and application of statutes” governing the availability of an appeal … . [W]e have held that no statutory provision authorizes a defendant to appeal from an Appellate Division order affirming the denial of the defendant’s resentencing application pursuant to the 2005 Drug Law Reform Act … . The 2004 DLRA includes similar language relating to appeals; accordingly, no appeal lies from an order of the Appellate Division affirming the denial of a resentencing application under the 2004 DLRA … . Faced with this barrier to our review, defendant contends that the Appellate Division’s consolidation of the order denying resentencing with other, appealable orders, transformed the nonappealable order into one that we may consider. We disagree. The Appellate Division’s authority to consolidate appeals stems from its inherent authority to administer and manage its proceedings. The Appellate Division’s use of this inherent authority does not expand or modify the scope of our jurisdiction, which is established by statute. People v Lovett, 2015 NY Slip Op 05512, CtApp 6-25-15

 

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No Interlocutory Appeal Lies from a Pre-Trial Ruling on the Admissibility of Evidence Which Did Not Limit the Scope of the Issues or Theories of Liability to Be Tried

Defendant was intoxicated when her vehicle collided with plaintiff’s decedent’s vehicle.  Plaintiff, the administrator of decedent’s estate, sought to introduce expert testimony demonstrating that, based upon defendant’s blood-alcohol content six hours after the accident, she would have been visibly intoxicated and had a higher blood-alcohol content when she was served at defendant tavern.  The tavern moved to preclude the expert testimony and, after a Frye hearing, the court granted the motion.  The Third Department determined the court’s ruling on the evidentiary issue did not limit the scope of the issues or theories of liability to be tried and was not, therefore, appealable as of right or by permission. Appeal would have to wait until the trial is concluded:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Supreme Court precluded plaintiff from offering an expert opinion as to “the extrapolated blood alcohol content [and] the physiological condition” of [defendant] while she was at the tavern, crediting the testimony of [the tavern’s] expert that such an opinion could not be reliably drawn from the available proof. Regardless of whether Supreme Court abused its discretion in making that determination, it was plainly an evidentiary ruling that did not “limit[] the scope of the issues or the theories of liability to be tried” … . Indeed, counsel for plaintiff acknowledged at oral argument that the preclusion of the proffered expert evidence is not fatal to his claims and that a trial will occur even if the evidence is not allowed. Appellate review thus must wait until after trial, when the relevance of the evidence and the effect of the evidentiary ruling may be properly assessed … . Hurtado v Williams, 2015 NY Slip Op 04912, 3rd Dept 6-11-15

 

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Seizure of Evidence from the Pocket of the Defendant After a Pat-Down Search on the Street Not Justified Under the “Inevitable Discovery” Exception to the Warrant Requirement—the Doctrine Does Not Apply to “the Very Evidence Obtained in the Illegal Search”—A Justification for the Search and Seizure Not Relied Upon by the People Below Can Not Be Raised on Appeal

The Second Department determined defendant’s motion to suppress jewelry taken from his pocket after pat-down search on the street should have been granted.  At the suppression hearing, the People did not argue that the officer who stopped the defendant had probable cause to arrest the defendant at the time of the pat-down search.  Therefore, the Second Department noted, that argument could not be raised by the People on appeal. At the suppression hearing, the People argued that the jewelry was admissible under the “inevitable discovery” exception to the warrant requirement. However, the “inevitable discovery” exception does not apply to “the very evidence obtained in the illegal search:”

At the suppression hearing, the People expressly disclaimed reliance on the theory that the search of the defendant and the seizure of the jewelry from his pants pocket was justified because the police had probable cause to arrest the defendant at the moment he was stopped, and the hearing court did not address that theory. Thus, the People may not assert this theory on appeal … . Instead, the People argued that the jewelry inevitably would have been discovered, and the Supreme Court relied on that theory in denying that branch of the defendant’s motion which was to suppress the jewelry. The court properly determined that the record does not support a finding that the police officer legitimately believed that the jewelry might be some kind of weapon … . However, as the People now correctly concede, the court erred in its determination that the jewelry inevitably would have been discovered through normal police procedures, as the inevitable discovery doctrine does not apply to primary evidence, that is, “the very evidence obtained in the illegal search,” such as the jewelry at issue here … . Accordingly, that branch of the defendant’s motion which was to suppress the jewelry should have been granted. People v Henagin, 2015 NY Slip Op 04864, 2nd Dept 6-10-15

 

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