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Resident in Hotel Under Contract to Provide Rooms to Homeless Persons Entitled to Rent Stabilization Protection

In finding that the respondent (Pitt) was a “permanent tenant” of a hotel which rented rooms to homeless persons under an agreement with the NYC Human Resources Administration (thereby entitling the respondent to the protections of the Rent Stabilization Code), the First Department explained the “exception to mootness” doctrine:”

As a threshold matter, we find that this appeal is not rendered moot by the fact that Pitt voluntarily vacated the premises before the appeal was perfected. Although, as a general principle, courts are precluded from considering questions which have become moot by a change in circumstances, an exception to the mootness doctrine exists in situations that present the following: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . This matter presents an issue of substantial public interest that is likely to recur and evade review. Specifically, this Court must address the question of what constitutes a legal tenancy under the Rent Stabilization Code, and what rights are vested in a person occupying premises under the contract between a landlord and a social service agency. This is an issue that affects a large number of New Yorkers who declare permanent tenancy in a SRO [single room occupancy facility]. Thus, it presents an exception to the mootness doctrine … . Branic Intl Realty Corp v Pitt, 2013 NY Slip Op 02522, 9453 & 57024/10, 363, 1st Dept, 4-16-13

 

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Appellate Courts Have Jurisdiction Pursuant to Article 78 to Review Denial of Request for Reconsideration of Disciplinary Determination by the Department of Education’s Office of Professional Discipline

The Third Department determined it has jurisdiction, pursuant to CPLR Art. 78, to review the denial of a request for reconsideration of a disciplinary determination by the Director of the Office of Professional Discipline (Department of Education):

Preliminarily, we reject respondent’s assertion that our Court lacks original subject matter jurisdiction over this proceeding. Respondent relies on the fact that only review of “decisions of the board of regents” should be brought to the Appellate Division in the first instance (Education Law § 6510 [5]); all other CPLR article 78 proceedings must be commenced in Supreme Court (see CPLR 7804 [b]; 506 [a], [b]). Here, the Board of Regents never acted upon petitioner’s application because respondent, the Director of OPD, has discretion to determine whether reconsideration of a disciplinary determination is warranted and, only if it is, to then refer the matter to a regents review committee that submits a report to the Board of Regents for a final determination …. We have, however,  previously held that where, as here, respondent  denies an  application for reconsideration, thereby determining  that it does not warrant referral to the Board of Regents, this Court has jurisdiction to review such denial under Education Law § 6510 (5)… .  Matter of Reddy v Catone…, 514467, 3rd Dept 4-11-13

 

 

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Guilty Plea Forfeits All Ineffective Assistance Claims Except those Relating to Plea Bargain

The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining:
…[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. ​People v Barrett, 2013 NY Slip Op 02410, 2011-04637, Ind No 1727/10, 2nd Dept 4-10-13

 

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Appeal Found “Frivilous”

In finding an appeal frivolous, the Third Department wrote:

We also are persuaded that defendant’s pursuit of this appeal is frivolous within the meaning of 22 NYCRR 130-1.1 (c) (2) and, therefore, plaintiff is entitled to an award of reasonable counsel fees incurred in responding thereto.  … [O]nce  plaintiff was  awarded  partial summary  judgment  in February 2011 and secured a judgment in its favor, defendant had several permissible options, such as appealing the underlying order and judgment or paying – in full – the amount awarded to plaintiff.  Instead, defendant continued to dispute the sum due by delaying payment, thereby compelling plaintiff to move for the turnover order and, ultimately, to expend resources responding to the instant appeal seeking $825.55.  Such conduct, in our view, warrants an award of reasonable counsel fees incurred in responding to this appeal, and this matter is remitted to Supreme Court for a determination of the amount of such fees … .  Defendant’s remaining arguments, to the extent not specifically addressed, have been considered and found to be  lacking in merit.  Valley Psychological, PC v … Geico, 514672, 3rd Dept 4-4-13

 

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Failure to Request Jury Charge on Venue Waived Appeal of the Issue

The Third Department determined the failure to request a jury charge on venue waived any related appellate issue:

Initially, to the extent that defendant contends that the People failed to prove by a preponderance of the evidence … that the underlying crimes  occurred  within the  geographical  jurisdiction of  Franklin County, we  note that “unlike territorial jurisdiction[,] which goes to the very essence of the State’s power to prosecute,” questions  regarding  geographical  jurisdiction or  venue are waivable … . Accordingly, inasmuch as defendant failed to request a jury charge on venue, she waived any challenge in this regard … .  People v Beauvais, 104590, 3rd Dept 4-4-13

 

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Criteria for Valid Waiver of Appeal Explained

In finding the defendant did not make a valid waiver of his right to appeal because the colloquy was inadequate, in spite of the defendant’s signing a written waiver, the First Department wrote:

We note that litigation over the validity of appeal waivers, which arises regularly from many courts, can best be avoided if trial judges separately llocate defendants on the waiver of the right to appeal … . We again remind the courts that the better practice is to secure a written waiver, along with a thorough colloquy to ensure the defendant’s understanding of its contents … . It would be best if the court made clear that this is a separate and important right being waived, and that by signing the waiver, the plea and sentence are final, and the defendant agrees to accept the sentence imposed. The court cannot rely solely on defense counsel to explain the significance of the written waiver. People v Oquendo, 2013 NY Slip Op 02320, 9617, 1090/09, 1st Dept 4-4-13

 

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Discharge of Defense Attorney Was Abuse of Discretion; Issue Survives Guilty Plea 

The appellate division determined the trial court had abused its discretion in discharging defendant’s attorney and that the issue had not been forfeited by defendant’s guilty plea.  In affirming the appellate division, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:

Here, the claim to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant’s guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court’s disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny.  People v Griffin, 46. CtApp, 4-2-13

 

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Opposition to Additur or Remittitur After First Trial Can Not Be Appealed After Second Trial

In a full-fledged opinion by Judge Smith, the Court of Appeals dealt with several issues in a multi-million dollar medical malpractice suit that had already gone through two trials.  One of the issues was whether opposition to additur or remittitur with respect to the verdict in an intitial trial must be raised on appeal before retrying the case.  In holding that the issue is not appealable after a second trial, the Court of Appeals wrote:

The Appellate Division regularly reviews, and sometimes accepts, arguments that an additur or remittitur granted by a trial court is either excessive or inadequate … . In no such case, as far as we are aware, has the appellant’s claim been held unpreserved for failure to specify a more reasonable increase or decrease in the damages, and imposing such a requirement would serve little purpose.

But a party that wants to challenge the amount of an additur or remittitur on appeal must do so before a new trial takes place. The chief benefit of the devices known as additur and remittitur is that, when they are accepted, they spare the parties and the court the burden and expense of a second trial. Deferring appellate review until after the second trial destroys that benefit. Such a deferral also gives the party opposing the additur or remittitur an unjustified tactical advantage: if successful on appeal, that party can choose whether to accept the new amount of the additur or remittitur, already knowing what the second jury has awarded.  *  *  *

We see no unfairness in requiring a party dissatisfied with the size of an additur or remittitur to obtain appellate review before any retrial. If there is not time for such review, and neither the trial court nor the appellate court will grant a stay, the party’s remedy is to reject the proffered stipulation and retry the case. Defendants here pursued that remedy. They are not entitled to another remedy because they are displeased with the result.  Oakes … v Patel, 51, CtApp, 4-2-13

 

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Failure to Apply the Merger Doctrine In a Kidnapping Case is not a “Mode of Proceedings” Error—Failure to Object at Trial Precludes Review

n a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that the failure to apply the merger doctrine, where kidnapping is deemed to merge with another substantive crime, is not a “mode of proceedings” error, and therefore is not reviewable in the Court of Appeals absent an objection at trial.  The merger doctrine was created to remedy overcharging by the prosecution where kidnapping was really part of another, less serious, offense.  Here the defendant argued the kidnapping charge, which was based on his briefly restraining a woman while threatening to shoot her, merged with the related reckless endangerment charge.  Because the alleged error was not preserved in the trial court by an objection, the issue before the Court of Appeal was whether the error should be deemed a “mode of proceedings” error which would allow the Court to hear the appeal, despite the lack of preservation.  The Court wrote:

In light of our case law on preservation, all four Appellate Divisions have concluded that a merger claim must be raised in the trial court … …. Defendant has offered no compelling justification for deviating from this established view and we see no valid reason to do so. Consequently, because the preservation rule applies to a merger claim in a kidnapping prosecution, defendant’s failure to assert the claim in Supreme Court precludes review by our Court … . People v Hanley, 45, CtApp 3-28-13

 

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Procedure for Invalidation of a Stipulation to the Record

The Fourth Department noted the criteria for invalidating a stipulation to a record on appeal:

It is undisputed … that plaintiff stipulated to settle the record … prior to seeking leave to reargue or renew and has not sought to be relieved from his stipulation … .  Once plaintiff stipulated to the record on appeal, he was no longer entitled to move to settle the record or, indeed, to seek leave to reargue or renew a motion to settle the record that preceded the stipulation.  “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” …, and plaintiff made no such showing here.  Hale v Meadowood Farms of Cazenovia, LLC, et al, 351, CA 12-01192, 4th Dept. 3-22-13

 

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