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THE EXECUTIVE ORDERS SUSPENDING OR MODIFYING THE LAW IN RESPONSE TO COVID-19 TOLLED THE TIME-LIMIT FOR FILING AN APPEAL UNTIL WITHIN 30 DAYS OF NOVEMBER 2, 2020 (SECOND DEPT).

The Second Department determined the Executive Orders suspending or modifying laws to accommodate the disruption caused by COVID-19 tolled the time limitation for the taking of an appeal until within 30 days of November 2, 2020:

The respondents contend that even though Executive Order (A. Cuomo) No. 202.8 … purported to toll the limitations periods, Governor Cuomo did not have the statutory authority to do so, as Executive Law § 29-a, while expressly granting the Governor the authority to suspend statutes, does not expressly grant the Governor the authority to “toll” them. This contention is unpersuasive. … Executive Law § 29-a(2)(d) provides that an order issued pursuant thereto “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.” This language in Executive Law § 29-a(2)(d) indicates that the Governor is authorized to do more than just “suspend” statutes during a state disaster emergency; he or she may “alter[ ]” or “modif[y]” the requirements of a statute, and a tolling of time limitations contained in such statute is within that authority … .

Furthermore, although the seven executive orders issued after Executive Order (A. Cuomo) No. 202.8 … did not use the word “toll,” those executive orders all either stated that the Governor “hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive,” made in the prior executive orders … or contained nearly identical language to that effect … . Since the tolling of a time limitation contained in a statute constitutes a modification of the requirements of such statute within the meaning of Executive Law § 29-a(2)(d), these subsequent executive orders continued the toll that was put in place by Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8). Brash v Richards, 2021 NY Slip Op 03436, Second Dept 6-2-21

 

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THE JURY’S FINDING THAT PLAINTIFF IN THIS SLIP AND FALL CASE WAS NEGLIGENT BUT THAT DEFENDANT WAS 100% RESPONSIBLE WAS AGAINST THE WEIGHT OF THE EVIDENCE; ALLOWING PLAINTIFF’S DOCTOR TO TESTIFY DEFENDANT’S DOCTOR WAS HIRED BY AN INSURANCE COMPANY, WITHOUT GIVING A CURATIVE INSTRUCTION, WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department, ordering a new trial on liability and damages in this slip and fall case, determined the finding that plaintiff was negligent but that defendant was 100% responsible was against the weight of the evidence. In addition, allowing plaintiff’s physician to mention that defendant’s physician was hired by an insurance company was reversible error. Both parties had requested Pattern Jury Instruction (PJI) 2:36 on comparative fault. The judge denied that request and instructed the jury with PJI 2:90 which addresses comparative fault. The First Department did not find the denial of the request for PJI 2-36 was error, but noted that the jury clearly misunderstood the concept of comparative fault. Plaintiff alleged she tripped over a stool which was two-feet high:

It is clear that the jury’s verdict, finding that plaintiff was negligent, but that her negligence was not a substantial factor in causing the accident was against the weight of the evidence, and indicates that the jury had a fundamental misunderstanding of the concept of comparative negligence. In this case, “the issues of negligence and proximate cause are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” * * *

Evidence that a defendant carries liability insurance is generally inadmissible, as it is both collateral and prejudicial … . The passing reference to insurance or similar benefits will not necessarily result in reversal … . However, if the testimony goes beyond mere mention of insurance, then a mistrial may be warranted … . Here, plaintiff’s doctor’s testimony, together with the court’s failure to immediately give a curative instruction was prejudicial, and constituted reversible error, further warranting a new trial. Campbell v St. Barnabas Hosp., 2021 NY Slip Op 03404, First Dept 6-1-21

 

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THE GUARANTEES QUALIFED AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY AND SUPPORTED SUMMARY JUDGMENT IN LIEU OF COMPLAINT; ONLY PURELY LEGAL ARGUMENTS RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED (FIRST DEPT).

The First Department determined the plaintiffs were entitled to summary judgment in lieu of complaint based upon guarantees which met the definition of instruments for the payment of money only. The court noted that two arguments raised for the first time on appeal (documents not qualified as business records and failure to include a payment schedule) could not be considered because they were not purely legal arguments. A third argument, which was purely legal, was considered:

Defendants’ contention that the guaranties do not qualify as instruments for the payment of money only, as required by CPLR 3213, because they guarantee performance as well as payment and reference must be made to documents outside the guaranties to determine if the debt service coverage ratio (DSCR) conditions have been met, is unavailing. Although this argument was raised for the first time on appeal, since these are “legal issues appearing on the face of the record which could not have been avoided” if they had been raised earlier, we will address the argument … .

The guaranty at issue in 27 West 72nd St. qualifies as an instrument for the payment of money only because it guarantees only payment and not performance. … [T]he … operative provision of the guaranty says, “Guarantor guarantees the payment of the Guaranteed Obligations.”

The guaranty at issue in 31 East 28th St. also qualifies as an instrument for the payment of money only. Although it says, “Guarantor guarantees the payment and performance of the Guaranteed Obligations as and when due and payable,” the mere addition of the words “and performance” does not necessarily remove the guaranty from the category of instruments for the payment of money only, particularly when the sentence ends with “as and when due and payable.”  27 W. 72nd St. Note Buyer LLC v Terzi, 2021 NY Slip Op 03364, First Dept 5-27-21

 

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DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS INVALID BECAUSE DEFENDANT WAS NOT AWARE OF HIS SENTENCING EXPOSURE AND THE JUDGE DID NOT CONDUCT A SEARCHING INQURY; THE EVIDENCE OF CRIMINAL MISCHIEF AND AUTO STRIPPING WAS LEGALLY INSUFFICIENT AND THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the waiver of defendant’s right to counsel was invalid and the evidence of criminal mischief and auto stripping was legally insufficient, and the convictions were against the weight of the evidence:

Defendant’s waiver of his right to counsel was invalid, because the record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … . “The critical consideration is defendant’s knowledge at the point in time when he first waived his right to counsel”; the court’s subsequent warnings about sentencing “were incapable of retrospectively ‘curing’ the . . . court’s error” … . Moreover, the court “improperly granted defendant’s request to proceed pro se without first conducting a searching inquiry regarding defendant’s mental capacity to waive counsel” … , in light of his history of mental illness, as well as his statement, in response to the court’s reference to the “tremendous pitfalls of representing yourself,” that “[n]one of that has been explained,” even after the court had warned him of a number of such risks.

Defendant’s conviction of third-degree criminal mischief as to one of the vehicles he damaged (count four), and his conviction of first-degree auto stripping, were unsupported by legally sufficient evidence (a claim we review in the interest of justice), and were also against the weight of the evidence … . The People failed to establish that particular charge of criminal mischief because the evidence did not show that “the reasonable cost of repairing the damaged property” … . Such costs “may not be established by hearsay”… . The People relied on a nonexpert witness who was not the owner of the vehicle and did not pay for the repairs, but testified that he looked at a receipt and that the repair costs were $600 … , and the People do not invoke any exception to the hearsay rule. In the absence of admissible evidence as to the repair costs for that vehicle, the People also failed to establish that the aggregate damage to all the vehicles exceeded $3,000, the minimum value for first-degree auto stripping … . People v Jackson, 2021 NY Slip Op 03288, First Dept 5-25-21

 

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UNDER THE CIRCUMSTANCES OF THE TRAFFIC STOP, THE CORRECT STANDARD TO APPLY TO THE CANINE SNIFF OF DEFENDANT’S PERSON WAS REASONABLE SUSPICION, NOT PROBABLE CAUSE; THE SUPPRESSION MOTION WAS PROPERLY DENIED; THE DISSENT DISAGREED (THIRD DEPT).

The Third Department, over a concurrence and a dissent, determined the canine sniff after a traffic stop was justified by reasonable suspicion. The concurrence argued the court could not reach the proper standard for the canine sniff because the motion court did not rule on it. The dissent argued the probable cause standard should apply:

Defendant correctly asserts that the canine’s contact sniff of his person intruded upon his personal privacy as secured under both the Fourth Amendment of the US Constitution and article 1, § 12 of the NY Constitution … . The question presented is whether the search ran afoul of either constitutional provision and what standard applies to make that assessment — an issue of first impression for this Court.

Considering the context of a vehicle traffic stop and how events unfolded, we conclude that a reasonable suspicion standard should apply, not one of probable cause … . A canine sniff is a minimal intrusion compared to a full-blown search of a person, intended only to detect the possession of narcotics … . Without prompting from [officer] Bracco, the canine twice was “in odor” of its own accord, providing a reasonable and articulable basis for Bracco to suspect that defendant possessed narcotics on his person. Given the necessity for prompt action, it was not unreasonable for Bracco to allow the canine to approach defendant. There was contact between the canine and defendant’s person, but the record suggests that contact was brief and the canine quickly alerted. In these circumstances, we conclude that the search was valid and the suppression motion properly denied. People v Butler, 2021 NY Slip Op 03222, Third Dept 5-20-21

 

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THE ARBITRATION AWARD IS VALID EVEN IF BASED ON AN ERROR OF LAW OR FACT; THE FAILURE TO PROVIDE A LETTER OF ENGAGEMENT DID NOT PRECLUDE THE ATTORNEY’S ACTION FOR BREACH OF CONTRACT; CPLR 5225 DOES NOT REQUIRE A SPECIAL PROCEEDING TO ENFORCE THE JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the arbitrator’s award was valid even if an error of law or fact was made; (2) the failure to provide a letter of engagement did not preclude the petitioner-attorney’s action for breach of contract; (3) petitioner was not required to commence a special proceeding to enforce the judgment; (4) the motions to enforce the judgement do not violate the Commercial Division rules:

… [E]ven if the arbitrator had made an error of law or fact in concluding that respondents had breached the retainer agreements, this alone would not justify vacating the award … . …

… [T]he court improperly denied the motions [to enforce the judgment] based upon its finding that petitioner had failed to commence a separate special proceeding to enforce the judgment. The language of CPLR 5225 clarifies that the court had jurisdiction to resolve the turnover motion. While CPLR 5225(a) provides that a judgment creditor seeking turnover of money or personal property “in possession or custody” of the judgment debtor does so “[u]pon motion of the judgment creditor,” CPLR 5225(b) provides that a judgment creditor seeking turnover of money or personal property in a third party’s possession or custody does so “[u]pon a special proceeding commenced by the judgment creditor” … Given that petitioner brought the motions against the judgment debtor as opposed to a third party, it was not required to commence a separate proceeding. Matter of Gibson, Dunn & Crutcher LLP v World Class Capital Group, LLC, 2021 NY Slip Op 03252, First Dept 5-20-21

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT BECAUSE PLAINTIFF MISSED A STATUS CONFERENCE; THE SUA SPONTE ORDER IS NOT APPEALABLE; PLAINTIFF CORRECTLY MOVED TO VACATE THE ORDER AND APPEALED THE DENIAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint because plaintiff missed a status conference. The First Department noted that the sua sponte dismissal order was not appealable as of right. Therefore plaintiff correcting moved to vacate the order and then appealed the denial of that order:

Contrary to defendant Hudson’s argument, the status conference order sua sponte dismissing the complaint was not appealable as of right (CPLR 5701[a][2] …). Plaintiff followed proper procedure by “apply[ing] to vacate the order and then appeal[ing] from the denial of that motion so that a suitable record [could] be made and counsel afforded the opportunity to be heard on the issues” … .

The court improvidently exercised its discretion in imposing the extreme penalty of dismissal without giving plaintiff notice that such a sanction might be imminent … . Further, the sanction of dismissal was not warranted, and would not have been warranted even upon a motion on notice, based on plaintiff’s noncompliance with one order … . MJC Elec., Inc v Hudson Meridian Constr. Group, LLC, 2021 NY Slip Op 03258, First Dept 5-20-21

 

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THE EVIDENCE IDENTIFYING DEFENDANT AS ONE OF THE ROBBERS WAS LEGALLY SUFFICIENT BUT DEFENDANT’S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the evidence identifying defendant as one of the robbers was legally sufficient but the conviction was against the weight of the evidence:

… [T]he police officer who spoke with the complainant outside the deli testified that the only description given of the perpetrators was four male Hispanics, one with a bleach-blond beard, and that the complainant never mentioned that one of the perpetrators was wearing a bandana. After speaking with the complainant, the officer, accompanied by the complainant, crossed the street and entered the park where the robbery had occurred. The defendant, who was wearing a black shirt and sitting on a bench approximately 100 feet from where the crime took place, was the only person in the park. The officer walked up to the defendant, who did not flee or offer any resistance, told him to stand, and placed him in handcuffs. Upon searching the defendant, the officer found a bandana depicting the Mexican flag in his pocket. According to the arresting officer, upon seeing the bandana, the complainant told the officer for the first time that one of the perpetrators had been wearing a similar bandana. The complainant’s wallet and its contents were never recovered. * * *

In this single-witness identification case, an acquittal would not have been unreasonable. While the defendant was found in possession of a distinctive-looking bandana in close spatial and temporal proximity to the scene of the robbery, none of the police witnesses testified that the complainant had mentioned the existence of such a bandana prior to the defendant’s arrest. Moreover, the record evidence does not explain why the police would have expected to find one of the suspects in the park, when the complainant himself testified that the four suspects left together after the robbery. We also find it significant that the complainant testified that he had seen the man with the bandana on two occasions prior to the night of the robbery, yet he also testified that he had never seen the defendant before the night of the robbery, and in fact identified one of the codefendants in court as the man with the bandana. People v Garcia, 2021 NY Slip Op 03196, Second Dept 5-19-21

 

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DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HE SHOULD BE OFFERED ALCOHOL AND SUBSTANCE ABUSE TREATMENT AS AN ELEMENT OF HIS SENTENCE; THE ISSUE SURVIVED DEFENDANT’S GUILTY PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on whether he is eligible for judicial diversion, i.e., alcohol or substance abuse treatment as an element of sentencing:

… “[A]ppellate review of the defendant’s claim that his application for judicial diversion was improperly denied is not foreclosed by his plea of guilty” … .

Pursuant to CPL 216.05(3)(a), upon receipt of a completed alcohol and substance abuse evaluation report … either the People or an “eligible defendant” … , may request a hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment … .

… [T]he Supreme Court improvidently exercised its discretion in denying the defendant’s motion without first conducting a hearing pursuant to CPL 216.05(3)(a) on the issue of whether the defendant should be offered alcohol or substance abuse treatment. It is undisputed that the defendant is an “eligible defendant” as defined in CPL 216.00(1), and that an “alcohol and substance abuse evaluation” as defined in CPL 216.00(2) was completed. Based upon the conclusions contained in that evaluation, the court should have granted that branch of the defendant’s motion which was for a hearing on the issue of whether he should be offered alcohol or substance abuse treatment … . People v Commissiong, 2021 NY Slip Op 03193, Second Dept 5-19-21

 

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THE ARGUMENT THAT THE PROBATION OFFICER’S SEARCH OF DEFENDANT’S RESIDENCE WAS UNLAWFUL AND UNREASONABLE BECAUSE IT WAS BASED SOLELY ON AN UNCORROBORATED ANONYMOUS TIP WAS NOT PRESERVED FOR APPEAL, THE DISSENT DISAGREED; DEFENDANT DID NOT DEMONSTRATE DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE ISSUE (FOURTH DEPT).

The First Department, over a dissent, determined the issue whether the probation officer’s search of defendant’s residence was improperly based solely on an anonymous tip was not preserved for appeal. In addition, the defendant did not demonstrate defense counsel was ineffective for failing to preserve the issue. The dissent argued the record did not support the motion court’s finding the warrantless search was lawful and reasonable:

Contrary to defendant’s contention, he did not preserve that issue for our review through either that part of his omnibus motion seeking to suppress the evidence or his posthearing memorandum. A question of law with respect to a ruling of a suppression court is preserved for appeal when “a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal” (CPL 470.05 [2] …). In his omnibus motion, defendant sought, inter alia, suppression of the evidence seized during the search on the ground that the evidence “was taken in violation of . . . defendant’s constitutional rights” inasmuch as it was done without “a search warrant or probable cause.” Those “broad challenges” are insufficient to preserve defendant’s present contention … . In defendant’s posthearing memorandum, he argued that the search was invalid because there was no warrant or consent to search, that the search was not rationally related to the duties of the officer, and that the parole officers were acting as police officers when conducting the search. He did not raise his present contention that the People were required to prove that the information provided to the officer satisfied the Aguilar-Spinelli test in order for the search to be lawful, even though he was then aware of the basis for the search … . Nor did the court expressly decide that issue … . People v Murray, 2021 NY Slip Op 02896, Fourth Dept 5-7-21

 

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