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Acquittal on Assault Charges in First Trial Did Not Preclude Presentation of Evidence of the Assaults in Second Trial—Collateral Estoppel Doctrine Could Not Be Successfully Invoked Because the Meaning of the Acquittals Was Nearly Impossible to Discern

In a second trial, the defendant moved to preclude the prosecution from introducing evidence of two assaults which were the subjects of acquittals in the first trial.  The trial court allowed evidence of the two assaults.  On appeal the defendant argued that evidence of the assaults of which she was acquitted was precluded by the doctrine of collateral estoppel.  The Fourth Department disagreed and affirmed the trial court’s admission of the evidence, noting that the exact meaning of an acquittal in a criminal trial is often impossible to demonstrate:

“The doctrine of collateral estoppel, or issue preclusion, operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” …. Thus, the doctrine applies in a situation such as this, where at a prior trial there was a mixed verdict in which the jury acquitted a defendant of certain charges, but was unable to reach a verdict on the remaining charges ….  “Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment . . . The rule is easily stated but frequently difficult to implement because the meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous.  Nevertheless, the court must assume the jury reached a rational result . . . , and a defendant claiming the benefit of estoppel carries the burden of identifying the particular issue on which he [or she] seeks to foreclose evidence and then establishing that the fact finder in the first trial, by its verdict, necessarily resolved that issue in his [or her] favor” …. “Defendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions . . . ‘[I]t will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial’ ” …. People v Brandie E…, KA 09-01366, 202, 4th Dept, 4-26-13

 

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Dismissal as Time-Barred Is a Dismissal On the Merits for Purposes of Res Judicata

In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes:  “It is well established that a dismissal of a proceeding as time-barred “ ‘is equivalent to a determination on the merits for res judicata purposes’”… . Matter of Buffalo Professional Firefighters Association, Inc…, CA 12-02126, 371, 4th Dept, 4-26-13

 

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Grant of Motion to Dismiss Based on Forum Non Conveniens Upheld

Plaintiff, a British citizen, was injured in England when he was a passenger on an all-terrain vehicle manufactured by a New York company, RII.  The Fourth Department affirmed the grant of RII’s motion to dismiss pursuant to CPLR 327 (forum non conveniens) and to have the proceeding moved to England.  Plaintiffs’ objections that contingency-fee arrangements are not allowed in England and loss of consortium damages are not recognized in England did not warrant denial of the motion.  The Fourth Department wrote:

…[T]he court properly determined that “the action, although jurisdictionally sound, would be better adjudicated elsewhere” …. Plaintiffs are both British citizens residing in Scotland. The accident occurred in England, and other witnesses, including the driver of the ATV, are located there. As the trial court in the federal action between the same parties noted, “highly material evidence, such as the eyewitness testimony, accident investigation documents and witnesses, the scene of the accident, and the vehicle itself, which will not be readily within plaintiffs’ control in this court, would be more accessible to both sides in a British forum” ….  Moreover, RII is amenable to service of process in Scotland or England, and it does not take issue with the conditions imposed by the court concerning the waiver of defenses based on jurisdiction and the statute of limitations.  Emslie v Recreative Industries, Inc., CA 12-01246, 139, 4th Dept, 4-26-13

 

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In Lead Paint Exposure Case, Court’s Order to Provide Medical Report Linking Injuries to Exposure Before Depositions Upheld

In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of discovery, to produce a medical report linking the injuries to lead exposure before depositions.  The Fourth Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the very outset of the litigation:

Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are conducted.  As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological, psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood] lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59, 4th Dept, 4-26-13

 

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Jurisdiction Was Gained Over Out-of State Manufacturer Under Two Provisions of CPLR 302

Plaintiff was injured when he fell from a tree stand made by an out-of-state manufacturer and distributed in New York through Dick’s Sporting Goods.  In denying defendant’s motion to dismiss for lack of jurisdiction, the Fourth Department outlined the statutory and due process requirements for good service upon a foreign corporation under CPLR 302.  The court wrote:

Here, defendant had an exclusive distributorship agreement with Dick’s, and maintained a website that provided information relating to its products, directed consumers to retail locations where they could purchase the products, and allowed for the direct purchase of the products through a credit card. Therefore, defendant was transacting business in New York through the use of its website, and the court properly concluded that there is long-arm jurisdiction under CPLR 302 (a) (1).

… [D]efendant is subject to long- arm jurisdiction pursuant to CPLR 302 (a) (3) (ii). Under that provision, courts “may exercise personal jurisdiction over any non-domiciliary . . . who . . . commits a tortious act without the state causing injury to person . . . within the state . . . if he .expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” “The conferral of jurisdiction under [that] provision rests on five elements: First, that defendant committed a tortious act outside the State; second, that the cause of action arises from that act; third, that the act caused injury to a person or property within the State; fourth, that defendant expected or should reasonably have expected the act to have consequences in the State; and fifth, that defendant derived substantial revenue from interstate or international commerce” ….  Halas v Dick’s Sporting Goods…Big Dog Treestands, Inc, CA 12-01868, 336, 4th Dept, 4-26-13

 

E-Mail Service to Defendant Living in Iran Deemed Valid

The Fourth Department held that service by e-mail upon the defendant in a matrimonial action was valid.  The defendant was living in Iran and the trial judge (Supreme Court, Monroe County, Dollinger, J.) ordered that service be accomplished by e-mail pursuant to CPLR 308 (5).  The Fourth Department wrote:

“CPLR 308 (5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308 (1), (2), and (4) are ‘impracticable’ ” …. “Although the impractability standard is not capable of easy definition” …, “[a] showing of impracticability under CPLR 308 (5) does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4) of CPLR 308” ….“The meaning of ‘impracticable’ will depend upon the facts and circumstances of the particular case” ….

Here, we conclude that plaintiff made a sufficient showing that service upon defendant pursuant to CPLR 308 (1), (2), or (4) was impracticable, and thus that the court providently exercised its discretion in directing an alternative method of service …. Plaintiff submitted evidence that defendant left the United States with the parties’ child and declared her intention to remain in Iran with her family … . Further, plaintiff established that Iran and the United States do not have diplomatic relations and that Iran is not a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (20 UST 361, TIAS No. 6638). Plaintiff thus requested alternative service upon defendant’s parents in Iran, with whom defendant was residing.

In light of those unique circumstances, we conclude that the court properly determined that service upon defendant was “impracticable by any method of service specified in CPLR 308 (1), (2), and (4).”

“Once the impracticability standard is satisfied, due process requires that the method of service be ‘reasonably calculated, under all the circumstances, to apprise’ the defendant of the action” ….

“In order to be constitutionally adequate, the method of service need not guarantee that the defendant will receive actual notice” ….

Here, the court initially ordered service of the summons by (1) personal service upon defendant’s parents; (2) mail service upon defendant at her parents’ address in Iran; and (3) service upon defendant by plaintiff’s Iranian attorneys in accordance with Iranian law.

Pursuant to that order, plaintiff mailed the summons and notice to defendant at her parents’ last known address in Tehran and submitted a declaration by his Iranian attorney that at least two attempts were made to effect personal service upon defendant at that address.

Although defendant contended that the address used for service was “bogus,” the record reflects that the address was in fact used by defendant and/or her parents in some capacity.

Indeed, defendant supplied that address to the child’s pediatrician in requesting the child’s medical records, and she averred that her father ultimately received the documents from a “tenant” who lived at that address.

When plaintiff was unable to effect personal service upon defendant’s parents pursuant to the court’s order, the court relieved him of that obligation and instead permitted service “via email at each email address that [p]laintiff knows [d]efendant to have.” Although service of process by email “is not directly authorized by either the CPLR or the Hague Convention, it is not prohibited under either state or federal law, or the Hague Convention” … and, indeed, “both New York courts and federal courts have, upon application by plaintiffs, authorized [e]mail service of process as an appropriate alternative method when the statutory methods have proven ineffective” … .
Contrary to the contention of defendant, we conclude that plaintiff made the requisite showing that service by email was “reasonably calculated to apprise defendant of the pending lawsuit and thus satisfie[d] due process” … .
The record reflects that, for several months prior to the application for alternative service, the parties had been communicating via email at the two email addresses subsequently used for service. Although defendant claimed that she did not receive either of the emails, she acknowledged receipt of a subsequent email from plaintiff’s attorney sent to the same two email addresses.
We thus conclude that, under the circumstances of this case, the court properly determined that service of the summons with notice upon defendant by email was an appropriate form of service … .  Safadjou v Mohammadi, CA 12-00271, 359, 4th Dept, 4-26-13

 

 

Leave To Amend Complaint Should Have Been Granted

The Fourth Department reversed the trial court’s denial of a motion to amend a complaint, noting:

“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit… “.

… A “court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … .  Holst…v Liberatore…, CA 12-01575, 243, 4th Dept, 4-26-13

 

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Question of Fact Raised by Verified Pleadings Re When Accident Happened

The Court of Appeals (with a dissent) held that a question of fact about when an accident occurred had been raised by plaintiff’s verified pleadings.  The defendant submitted evidence the accident occurred on February 5, making plaintiff’s action untimely.  Plaintiff’s verified pleadings stated the accident occurred on February 10, making plaintiff’s action timely.  In light of the question of fact raised by the verified pleadings, the Court of Appeals reversed the grant of summary judgment to the defendant.  Sanchez v National Railroad Passenger Corp, No 76, CtApp, 4-25-13

 

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Product Warranty Does Not Extend Statute of Limitations

In finding that a 10-year warranty on windows and doors did not extend the relevant statute of limitations, the First Department wrote:

Although initially it may seem somewhat unfair for defendant to have given plaintiffs a 10-year warranty and then argue that plaintiffs cannot sue for breach of warranty at any time during that 10-year period, the case law is clear on when this cause of action accrues …. Katopodis v Marvin Windows & Doors, 2013 NY Slip Op 02817, 1st Dept, 4-25-13

 

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Class Certification Properly Granted; Rent Overcharge and Attorney’s-Fees Claims Did Not Seek “Penalties” In Violation of CPLR 901

The First Department affirmed the grant of class certification in a landlord-tenant action finding that plaintiff’s rent overcharge claim and attorney’s-fees claim did not seek “penalties” in violation of CPLR 901.  There was a dissent.  The First Department wrote:

Although plaintiff did not waive her right to reimbursement for alleged overcharges and interest, these claims did not render her action an action for a penalty for purposes of CPLR 901(b), even though such recovery is denominated a penalty by the RSL [Rent Stabilization Law], because they lack a punitive, deterrent and litigation-incentivizing purpose ….

Nor did the attorneys’ fees request seek a penalty, as the general right to attorneys’ fees in landlord-tenant proceedings (Real Property Law § 234) does not apply to administrative proceedings …, and the RSL provision should be understood as having the same nonpunitive purpose as the statute applicable to actions and summary proceedings. Notably, the reference in Rent Stabilization Code (9 NYCRR) § 2526.1(d) to attorneys’ fees as an “additional penalty,” while otherwise not dispositive, is absent from the attorney fee provision in the legislatively enacted RSL. Gudz v Jemrock Realty Co, LLC, 2013 NY SlipOp 02814, 1st Dept, 4-25-13

 

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