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DISMISSAL OF ACTIONS STEMMING FROM THE MADOFF PONZI SCHEME AFFIRMED PURSUANT TO THE DOCTRINE OF IN PARI DELICTO (COURT WILL NOT RESOLVE A DISPUTE BETWEEN TWO WRONGDOERS).

The First Department, in a full-fledged opinion too complex for summary here (by Justice Tom), affirmed the dismissal of complaints stemming from the Madoff Ponzi scheme pursuant to the doctrine of in pari delicto (courts will not resolve a dispute between two wrongdoers).

In this case, plaintiff’s claims are precluded under the doctrine of in pari delicto. As the funds’ bankruptcy trustee, plaintiff stands in the funds’ shoes, and is subject to a defense based on the in pari delicto doctrine to the same extent as the funds … . Thus, the doctrine “prevents the trustee from recovering in tort if the corporation, acting through authorized employees in their official capacities, participated in the tort” … .

While a claim of in pari delicto sometimes requires factual development and is therefore not amenable to dismissal at the pleading stage … , the doctrine can apply on a motion to dismiss in an appropriate case … , such as where its application is “plain on the face of the pleadings” … . New Greenwich Litig. Trustee, LLC v Citco Fund Servs. (Europe) B.V., 2016 NY Slip Op 06796, 1st Dept 10-18-16

 

CIVIL PROCEDURE (DISMISSAL OF ACTIONS STEMMING FROM THE MADOFF PONZI SCHEME AFFIRMED PURSUANT TO THE DOCTRINE OF IN PARI DELICTO, COURT WILL NOT RESOLVE A DISPUTE BETWEEN TWO WRONGDOERS)/CORPORATION LAW (DISMISSAL OF ACTIONS STEMMING FROM THE MADOFF PONZI SCHEME AFFIRMED PURSUANT TO THE DOCTRINE OF IN PARI DELICTO, COURT WILL NOT RESOLVE A DISPUTE BETWEEN TWO WRONGDOERS)/IN PAR DELICTO (DISMISSAL OF ACTIONS STEMMING FROM THE MADOFF PONZI SCHEME AFFIRMED PURSUANT TO THE DOCTRINE OF IN PARI DELICTO, COURT WILL NOT RESOLVE A DISPUTE BETWEEN TWO WRONGDOERS)/MADOFF PONZI SCHEME (DISMISSAL OF ACTIONS STEMMING FROM THE MADOFF PONZI SCHEME AFFIRMED PURSUANT TO THE DOCTRINE OF IN PARI DELICTO, COURT WILL NOT RESOLVE A DISPUTE BETWEEN TWO WRONGDOERS)

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DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD.

The Second Department, reversing Supreme Court, determined the doctrine of equitable estoppel should have been applied to deny the NYC Transit Authority’s (NYCTA’s) motion to dismiss for failure to timely serve a notice of claim. The notice of claim had been timely served on the Metropolitan Transit Authority (MTA) and a 50-h hearing had been held:

Although the MTA and NYCTA share an affiliation, they are separate entities … . Thus, service of a notice of claim upon the MTA does not satisfy the condition precedent of serving a notice of claim upon the NYCTA … . However, a municipal corporation may be equitably estopped from asserting lack of notice of claim when it has wrongfully or negligently engaged in conduct that misled or discouraged a party from serving a timely notice of claim or making a timely application for leave to serve a late notice of claim, and when that conduct was justifiably relied upon by that party … . “By applying the doctrine of equitable estoppel to notice of claim situations, the courts may insure that statutes like section 50-e of the General Municipal Law, do not become a trap to catch the unwary or the ignorant'” … .  Konner v New York City Tr. Auth., 2016 NY Slip Op 06683, 2nd Dept 10-12-16

MUNICIPAL LAW (DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/NEGLIGENCE (MUNICIPLA LAW, NOTICE OF CLAIM, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/CIVIL PROCEDURE (EQUITABLE ESTOPPEL, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/NOTICE OF CLAIM (DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/EQUITABLE ESTOPPEL (MUNICIPAL LAW, NOTICE OF CLAIM, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)

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NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY.

The First Department, in a full-fledged opinion by Justice Gische, determined a broad choice of law provision in a contract required the application of New York’s borrowing statute (CPLR 202). Plaintiff is a corporation incorporated under the law of the Province of Ontario Canada. The statute of limitations for breach of contract under Ontario law is two years. New York’s statute of limitations is six years. Because, under the facts, New York’s borrowing statute applies and therefore the Ontario statute of limitations controls, the action is untimely:

The borrowing statute is itself a part of New York’s procedural law and is a statute of limitations in its own right, existing as a separate procedural rule within the rules of our domestic civil practice, addressing limitations of time … . Thus, applying the borrowing statute is perfectly consistent with a broad choice-of-law contract clause that requires New York procedural rules to apply to the parties’ disputes. 2138747 Ontario, Inc. v Samsung C&T Corp., 2016 NY Slip Op 06671, 1st Dept 10-11-16

CIVIL PROCEDURE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CONTRACT LAW (CHOICE OF LAW, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CORPORATION LAW (CHOICE OF LAW CONTRACTUAL PROVISION, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/STATUTE OF LIMITATIONS (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/BORROWING STATUTE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CHOICE OF LAW (CONTRACT, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)

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PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT.

The Fourth Department determined Supreme Court should have sanctioned plaintiff for disregarding a court order and submitted a materially false affidavit:

Pursuant to 22 NYCRR 130-1.1 (a), a court may award to any party fees and costs resulting from frivolous conduct, i.e., conduct that is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; . . . [or that is] undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or . . . asserts material factual statements that are false” (22 NYCRR 130-1.1 [c]). Factors to consider in determining whether the conduct undertaken was frivolous include “the circumstances under which the conduct took place,” and whether “the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party” (id.).

Here, plaintiff’s conduct was clearly frivolous inasmuch as she submitted an affidavit that disregarded a court order and, in response to a second order, she submitted a second affidavit that contained a material falsehood. When that conduct is viewed along with plaintiff’s failure to comply with discovery demands and other orders, we conclude that it was an abuse of discretion for the court to refuse to sanction plaintiff. Place v Chaffee-Sardinia Volunteer Fire Co., 2016 NY Slip Op 06588, 4th Dept 10-7-16

 

CIVIL PROCEDURE (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)/FRIVOLOUS CONDUCT (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)/SANCTIONS (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)

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SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS.

The Second Department, although agreeing with Supreme Court that aspects the damages award in this medical malpractice case were excessive, determined Supreme Court did not have the power to simply reduce the damages amounts. Rather, Supreme Court should have granted the motion to set aside the verdict and ordered a new trial unless the parties stipulate to the reduced damages:

… [I]t was procedurally improper for the Supreme Court to enter a judgment reducing the awards for future medical care, future medications, future physical and occupational therapy from age 21, future speech therapy from age 21, future medical equipment, future medical supplies, future loss of earning capacity, past pain and suffering, and future pain and suffering without granting a new trial on those issues unless the plaintiffs stipulated to reduce the verdict … . Reilly v St. Charles Hosp. & Rehabilitation Ctr., 2016 NY Slip Op 06485, 2nd Dept 10-5-16

CIVIL PROCEDURE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/NEGLIGENCE (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/MEDICAL MALPRACTICE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/DAMAGES (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/VERDICT, MOTION TO SET ASIDE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)

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JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE.

The First Department, in a full-fledged opinion by Justice Saxe, determined defendants’ motion to dismiss breach of contract and breach of fiduciary duty causes of action as untimely was properly denied. The facts, which concern the sale of interests in a Russian oil company, are too complex to summarize here. The court held that the complaint alleged a breach of a 2001 joint venture investment agreement based upon an alleged failure to pay plaintiff a portion of sale proceeds in 2013, making the 2014 lawsuit timely:

 

… [T]he motion court denied defendants’ motion to dismiss plaintiff’s causes of action for breach of their joint venture agreement and the 2001 Agreement, and for breach of defendants’ fiduciary duty. It held that although there was no written investment agreement signed by both defendants … plaintiff sufficiently pleaded the existence of a valid oral agreement by alleging that the parties agreed to the central terms of the unsigned investment agreement. It further held that the oral agreement was not void under the statute of frauds because it was capable of being performed within one year, and because the statute of frauds is generally inapplicable to joint ventures. It also rejected defendants’ argument that plaintiff’s breach of contract and breach of joint venture claims were time barred, reasoning that the claimed breach of the 2001 Agreement was defendants’ failure to pay plaintiff his percentage share of the 2013 … sale proceeds. * * *

This action was commenced within both limitations periods, because defendants “had a recurring obligation to pay plaintiff his . . . share of the profits generated by” the joint venture. … . A new claim accrued when the obligation to do so was allegedly breached in 2013. Lebedev v Blavatnik, 2016 NY Slip Op 06463, 1st Dept 10-4-16

 

CIVIL PROCEDURE (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/CONTRACT LAW (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/CORPORATION LAW (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/JOINT VENTURES (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/STATUTE OF FRAUDS (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)

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EXPERT’S INABILITY TO QUANTIFY THE EXTENT TO WHICH DEFENDANTS’ CONDUCT DIMINISHED PLAINTIFF’S DECEDENT’S CHANCE OF A BETTER OUTCOME DID NOT JUSTIFY GRANTING DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law (on the issue of causation) should not have been granted. Plaintiff alleged the delay in diagnosing or failure to diagnose plaintiff’s decedent’s condition diminished plaintiff’s decedent’s chance of a better outcome. Plaintiff’s expert’s inability to quantify the extent to which defendants’ conduct diminished the chance of a better outcome did not render the proof insufficient:

In order to establish proximate causation, the plaintiff must demonstrate that the defendant’s deviation from the standard of care “was a substantial factor in bringing about the injury” (PJI 2:70…). Where, as here, the plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby “diminished [the patient’s] chance of a better outcome,” in this case, survival … . In that instance, the plaintiff must present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care … . However, “[a] plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the [patient’s] chance of a better outcome . . . , as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the [patient’s] chance of a better outcome’ … . Clune v Moore, 2016 NY Slip Op 06331, 4th Dept 9-30-16

 

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INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT.

The Fourth Department determined a 17-year-old (Taquilo) could be liable for a dog bite, despite the fact that the dog was owned by his father (Rogelio). The court further determined the punitive damages claim against Taquilo properly survived the motion for summary judgment:

We reject defendants’ contention that Taquilo is relieved of potential liability for the child’s injuries based upon Taquilo’s age at the time of the incident. “It is elementary in this State that an infant may be held civilly liable for damages caused by his [or her] tortious acts” … , and defendants cite no authority to support their contention that an infant cannot be subject to strict liability for harm caused by an animal. Nor is it dispositive that the dog was owned by Taquilo’s father, Rogelio. “Strict liability can . . . be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … . Here, defendants’ own submissions raise issues of fact whether Taquilo harbored the dog … , and whether he knew or should have known of the dog’s vicious propensities … . Cruz v Stachowski, 2016 NY Slip Op 06327, 4th Dept 9-30-16

ANIMAL LAW (DOG BITE, INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)/DOG BITE (INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)/PUNITIVE DAMAGES (DOG BITE, INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)

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AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT.

The Second Department affirmed the sanctions/attorney’s fees awarded for frivolous conduct. The court noted that an aggrieved party need not demonstrate pecuniary loss to warrant an award and an attorney who represents himself defending against frivolous conduct is entitled to an award:

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). “In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court’s sound discretion … . * * *

While compensatory sanctions should correspond at least to some degree to the amount of damages, the aggrieved party is not always required to show ” actual pecuniary loss'”… . …

An attorney … , who represents himself, may recover fees for ” the professional time, knowledge and experience . . . which he would otherwise have to pay an attorney for rendering'” … . Board of Mgrs. of Foundry at Wash. Park Condominium v Foundry Dev. Co., Inc., 2016 NY Slip Op 06189, 2nd Dept 9-28-16

 

ATTORNEYS (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/CIVIL PROCEDURE (FRIVOLOUS CONDUCT, AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/FRIVOLOUS CONDUCT (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)

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IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED.

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Acosta, over a two-justice dissent, determined the First Department’s prior ruling that a search warrant was invalid was the law of the case. The trial court had ruled new evidence demonstrated the validity of the warrant and granted a directed verdict in favor of the defendants (the city and police officers who procured and executed the search warrant). The plaintiffs, who had been pushed to the floor at gunpoint, handcuffed, and held for three hours while their apartment was searched (and trashed), sued alleging the violation of their civil rights:

This case gives us the opportunity to emphasize that when an issue is specifically decided on a motion for summary judgment, that determination is the law of the case. As such, the trial court, as well as the parties, are bound by it “absent a showing of subsequent evidence or change of law” … . Applying this rule to the case at hand, we specifically found in Delgado v City of New York (86 AD3d 502, 508 [1st Dept 2011] [Delgado I]), that the no-knock search warrant at issue was not valid. Thus, the trial court was bound by that determination absent the introduction of subsequent evidence to show otherwise. The evidence that was introduced at trial on the validity of the warrant, however, was not significantly different from what was previously before the court on the motion for summary judgment. Accordingly, the trial court erred in deeming the warrant valid and granting defendants’ motion for a directed verdict in their favor. * * *

Whether this Court’s conclusion regarding the validity of the search warrant in Delgado I was erroneously reached is irrelevant. The law of the case precluded the trial court from re-examining the issue (see Carmona, 92 AD3d at 492-493), and it was therefore bound by our conclusion regardless of its views on our analysis … .

At the very least, the issue as to the validity of the search warrant should have gone before the jury since the additional evidence adduced at trial did not significantly alter our analysis. Instead, acting essentially as an appellate court, the trial court effectively reversed this Court’s finding on the validity of the warrant. Delgado v City of New York, 2016 NY Slip Op 06185, 1st Dept 9-27-16

 

CIVIL PROCEDURE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CIVIL RIGHTS LAW (PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CRIMINAL LAW ((IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/LAW OF THE CASE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)

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