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TO FACILITATE APPELLATE REVIEW THE JUDGE WHO AWARDED PLAINTIFFS SUMMARY JUDGMENT, ATTORNEY’S FEES AND COSTS SHOULD HAVE WRITTEN A DECISION EXPLAINING THE BURDENS OF PROOF AND REASONING; ISSUING ORDERS WITHOUT AN EXPLANATORY DECISION IS AN “UNACCEPTABLE PRACTICE;” PLAINTIFFS DID NOT SHOW THEIR INTERPRETATION OF THE CONTRACT WAS THE ONLY REASONABLE ONE; THE FRAUDULENT MISREPRESENTATION CAUSE OF ACTION CANNOT BE BASED UPON AN ALLEGED INTENT TO BREACH THE CONTRACT AND WAS NOT SUFFICIENTLY PLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) to facilitate appellate review, the court should have written a decision explaining the burdens of proof and its reasoning in granting plaintiffs summary judgment and awarding attorney’s fees and costs; (2)  the plaintiffs did not demonstrate the contract was unambiguous and therefore were not entitled to summary judgment on the breach of contract claims; and (3) summary judgment should not have been awarded on plaintiffs’ fraudulent misrepresentation cause of action. A fraudulent misrepresentation cause of action cannot be based upon an alleged intent to breach a contract:

Although the court granted plaintiffs’ motion insofar as it sought summary judgment, it failed to address the burdens of proof or any specific cause of action. In addition, the court awarded costs and attorneys’ fees without providing the basis therefor. As noted, this case involved a motion for summary judgment and for costs, attorneys’ fees, and sanctions, and the court chose not to write. This is an unacceptable practice … .. To maximize effective appellate review, we must remind our colleagues in the trial courts to provide their reasoning instead of simply issuing orders.  …

… [P]laintiffs did not meet their initial burden on those parts of the motion seeking summary judgment … inasmuch as plaintiffs failed to submit sufficient evidence to establish that their interpretation of the relevant contracts is the only reasonable interpretation thereof. …

… “[F]ar from being collateral to the contract, the purported misrepresentation was directly related to a specific provision of the contract” … .. In addition, CPLR 3016 (b) provides that, “[w]here a cause of action . . . is based upon . . . fraud, the circumstances constituting the wrong shall be stated in detail,” and we conclude that the cause of action here failed to satisfy that requirement … . Wilsey v 7203 Rawson Rd., LLC, 2022 NY Slip Op 02905, Fourth Dept 4-29-22

Practice Point: Here not only was the judge wrong to award plaintiffs summary judgment, attorney’s fees and costs on the breach of contract and fraudulent misrepresentation causes of act, but the judge made appellate review difficult by issuing orders without a decision explaining the burdens of proof and reasoning, characterized as an “unacceptable practice” by the Fourth Department.

 

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FOR PURPOSES OF A PERMANENT NEGLECT/TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, DIRECT PLACEMENT OF THE CHILD WITH A SUITABLE PERSON MEETS THE DEFINITION OF PLACEMENT IN THE “CARE OF AN AUTHORIZED AGENCY” SUCH THAT A PERMANENT NEGLECT PROCEEDING IS AVAILABLE AFTER DIRECT PLACEMENT FOR ONE YEAR; ALTHOUGH RESPONDENT’S PARENTAL RIGHTS HAD BEEN TERMINATED WHEN THIS APPEAL WAS CONSIDERED, THE “EXCEPTION TO THE MOOTNESS DOCTRINE” WAS INVOKED (THIRD DEPT).

The Third Department, considering the appeal as an exception to the mootness doctrine in this neglect/termination-of-parental rights proceeding, determined that direct placement of the child with a suitable person met the definition of placement in the “care of an authorized agency” for purposes of the pre-requisite for a permanent neglect proceeding seeking to terminate parental rights. Family Court had ruled placement with a suitable person was not placement in the “care of an authorized agency” and dismissed the permanent neglect proceeding on that ground. The Third Department, after finding the permanent neglect proceeding should not have been dismissed, went ahead and ruled on the merits, finding that mother had permanently neglected the child:

… [W]e find Family Court’s interpretation of Social Services Law § 384-b too narrow and calling for a result that is “unnecessarily circuitous” … and ultimately contrary to the stated legislative intent (see generally Social Services Law § 384-b [1] [a]-[b]). A proceeding for termination of parental rights may be originated by an “authorized agency” such as petitioner … , seeking an order for guardianship and custody when a child is a permanently neglected child … . A “permanently neglected child” is defined as “a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or [15] out of the most recent [22] months . . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child” … .

Regarding the phrase “care of an authorized agency,” courts have consistently held that a direct placement authorized by Family Court, like the order of fact-finding and disposition issued … pursuant to Family Ct Act § 1055, falls within the purview of Social Services Law § 384-b. Matter of Frank Q. (Laurie R.), 2022 NY Slip Op 02843, Third Dept 4-28-22

Practice Point: For purposes of the prerequisite for a permanent neglect/termination-of-parental rights proceeding, a child’s direct placement with a suitable person meets the definition of placement in the “care of an authorized agency” such that the permanent neglect proceeding is available after direct placement for one year. Here, the mother’s parental rights had been terminated at the time the appeal was considered, but the “exception to the mootness doctrine” was invoked because the issue was deemed likely to recur.

 

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THE ELECTRONICALLY RECORDED HEARING INCLUDED 80 QUESTIONS POSED TO A WITNESS BY COUNSEL BUT ONLY FOUR ANSWERS WERE AUDIBLE; NEW HEARING WITH A STENOGRAPHER ORDERED (THIRD DEPT).

The Third Department determined the record on appeal was insufficient and ordered a new hearing with a stenographer. The hearing was electronically recorded. Counsel ask a witness 80 questions but only four answers were audible. Matter of Jereline Z. v Joseph AA., 2022 NY Slip Op 02848, Third Dept 4-28-22

Practice Point: If a hearing is electronically recorded but most of a significant witness’s answers are inaudible, the appeal cannot be considered. Here a new hearing with a stenographer was ordered.

 

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THE APPELLATE DIVISION INITIALLY REVERSED SUPREME COURT AND HELD PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; THERE WAS A DEFENSE VERDICT AFTER TRIAL; THE ORDER DENYING SUMMARY JUDGMENT IS NOT APPEALABLE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

 

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THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s murder, assault and weapon-possession convictions in the interest of justice, determined the judge improperly restricted defense counsel’s summation and evidence submissions, and improperly allowed hearsay identification evidence which supported the People’s theory. Identification of the shooter was the key issue, and the eyewitness accounts were inconsistent and contradictory. The judge prohibited defense counsel from questioning the fairness of the identification procedure (line up) in summation and repeatedly interposed “objections” during the defense summation, in the absence of any objection by the prosecutor:

The Supreme Court’s limitation of the defendant’s cross-examination of the police witness and its sua sponte admonishments to defense counsel during summation improperly limited the defendant’s right to challenge the lineup procedures as unfair and suggestive … . Moreover, the court erred in informing the jury and the parties in front of the jury that it had already determined that the pretrial identification procedure was fair and not suggestive, and that the lineup was “constitutional,” wrongly intimating that those facts were not within the jury’s province to determine … . …

The Supreme Court also substantially impaired the defendant’s right “to make an effective closing argument” … through sua sponte “objection sustained” interruptions without any actual objection being posited by the People…. . …

The Supreme Court also erred in admitting into evidence the hearsay statement of an unidentified woman that a man “wearing all gray had the firearm” as an excited utterance exception to the hearsay rule … .. The record contained no evidence from which a trier of fact could reasonably infer that the statement was based on the woman’s personal observation … . …

… [T]he Supreme Court should have granted the defendant’s application to admit into evidence the photographs of the defendant and Cruzado [who was also at the scene] to allow the jury to compare their likenesses, since, under the circumstances of this case, such evidence was highly probative of the defense of third-party culpability and plainly outweighed any danger of delay, prejudice, and confusion … .People v Aponte, 2022 NY Slip Op 02813, Second Dept 4-27-22

Practice Point: In this case, where identification of the shooter was the central issue, the judge improperly prohibited defense counsel from questioning the fairness of the line-up procedure in summation. This and other substantial interference and evidentiary errors by the judge required reversal of the murder conviction in the interest of justice.

 

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THE MAJORITY CONCLUDED (1) THE RECORD SUPPORTED THE FINDING THAT DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST FOR COUNSEL, AND (2) WHETHER A REQUEST FOR COUNSEL IS UNEQUIVOCAL IS A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP). ​

The Court of Appeals, over a two-judge extensive dissenting opinion, determined (1) the record supported the finding that the defendant’s request for counsel was not unequivocal and (2) whether the request was unequivocal presents a mixed question of law and fact which is not reviewable by the Court of Appeals:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to counsel may not be waived outside the presence of counsel … . But “[a] suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to unequivocally invoke the indelible right to counsel … . Furthermore, “[w]hether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .

Here, there is support in the record for the lower courts’ determination that defendant—whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police—did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court … .

From the dissent:

Here, Mr. Dawson [defendant] unequivocally invoked his right to counsel — the record supports no other conclusion. As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson’s phone so he could call counsel. People v Dawson, 2022 NY Slip Op 02772, CtApp 4-26-22

​Practice Point: Whether a defendant’s request for counsel in “unequivocal,” thereby requiring police interrogation to cease, is a mixed question of law and fact. As long as there is support in the record for the lower court’s finding the request was not unequivocal, the issue cannot be reviewed by the Court of Appeals.

 

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ALTHOUGH THE ISSUE WAS NOT PRESERVED, DEFENDANT’S GUILTY PLEA WAS VACATED BECAUSE IT WAS INDUCED BY THE JUDGE’S PROMISE THAT ALL THE COURT’S ORDERS COULD BE APPEALED; IN FACT, THE DEFENDANT’S CONTENTION THAT TWO COUNTS OF THE INDICTMENT WERE DUPLICITOUS COULD NOT BE RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence in the interest of justice, determined the defendant’s guilty plea was induced by the judge’s promise that defendant could appeal from all the court’s orders. In fact, however, by pleading guilty defendant could not appeal the order rejecting his argument that the first two counts of the indictment were duplicitous:

We agree … with defendant that his plea was not knowingly, voluntarily, and intelligently entered. Although defendant failed to preserve that contention for our review … , we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … , and where “a guilty plea has been induced by an unfulfilled promise, the plea must be vacated or the promise must be honored” … . Here, the court repeatedly promised defendant, who was proceeding pro se, that he would retain the right to appeal from all of its orders. The court reiterated that promise during the plea colloquy and did not advise defendant that he was forfeiting any challenge by pleading guilty. We conclude, however, that “[b]y pleading guilty, defendant forfeited his . . . contention that the first two counts of the indictment were duplicitous” … . Consequently, “[i]nasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea” … . People v Mothersell, 2022 NY Slip Op 02661, Fourth Dept 4-22-22

Practice Point: Here the defendant’s guilty plea was induced by the judge’s promise all the court’s orders could be appealed. In fact, the guilty plea precluded raising on appeal defendant’s contention two indictment counts were duplicitous. Even though the issue was not preserved for appeal, the Fourth Department vacated the guilty plea.

 

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BECAUSE OF A LACK OF PLACEMENT OPTIONS, A CHILD REMOVED FROM SCHOOL WHEN SHE BECAME UNMANAGEABLE REMAINED IN A HOSPITAL EMERGENCY ROOM FOR WEEKS; THE PETITION SOUGHT HER RELEASE FROM THE EMERGENCY ROOM; THE APPEAL WAS DEEMED MOOT BECAUSE THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES HAD FOUND SUITABLE PLACEMENT AND INSTITUTED A PROGRAM TO ENSURE THE PROBLEM WOULD NOT RECUR (CT APP).

The Court of Appeals, dismissing the appeal as moot, over an extensive dissent, determined the exception to the mootness doctrine should not be applied because the problem at the heart of the petition had been adequately addressed by the NYS Office for People with Developmental Disabilities (OPWDD). The subject child had been removed from school and sent to a hospital emergency room because she had become unmanageable. The child ended up staying in the emergency room for weeks because suitable placement was not available. The habeas corpus petition sough her release from the emergency room. During the weeks the child was in the emergency room programs were instituted to facilitate prompt suitable placement of children facing similar circumstances:

… [D]uring the pendency of petitioner’s appeal to this Court, OPWDD developed a new program, Crisis Services for Individuals with Intellectual and/or Developmental Disabilities ([CSIDD] 14 NYCRR 635-16.1 et seq.), aimed at preventing persons with developmental disabilities from experiencing a crisis that may result in hospitalization and thereby reducing the likelihood of these issues recurring. At oral argument before this Court, counsel for OPWDD and DOH represented that the services provided by CSIDD are now available throughout the entirety of the State of New York, and particularly in the region where the child resided. Matter of Mental Hygiene Legal Serv. v Delaney, 2022 NY Slip Op 02578, CtApp 4-21-22

Practice Point: An appeal may be dismissed as moot if the appellate court is presented with evidence the underlying issue has been adequately addressed while the appeal was pending. Here a child removed from school because she became unmanageable had been held in a hospital emergency room for weeks because suitable placement was not available. At the time of oral argument, the child had been placed and a program to prevent recurrence of the problem had been instituted.

 

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CHANGED CIRCUMSTANCES BROUGHT TO THE APPELLATE COURT’S ATTENTION BY THE ATTORNEYS FOR THE CHILDREN RENDERED THE RECORD INSUFFICIENT FOR REVIEW OF THE CUSTODY RULING; MATTER REMITTED (SECOND DEPT).

The Second Department determined changed circumstances brought to the Second Department’s attention by the attorneys for children rendered the appellate record insufficient for review of Family Court’s custody ruling. The matter was remitted:

… [T]he Family Court determined that it was in the best interests of the children for the mother to have sole residential custody. However, the respective attorneys for the children, in their briefs submitted to this Court, have brought to this Court’s attention certain alleged new developments since the order under review was issued in June 2019. As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the children … . Matter of Fitzsimmons v Fitzsimmons, 2022 NY Slip Op 02411, Second Dept 4-13-22

Practice Point: In a child custody case, changed circumstances may render the record on appeal insufficient. Here the attorneys for the children brought the changed circumstances to the attention of the appellate court in their briefs and the court remitted the matter to Family Court.

 

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PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22​

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

 

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