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CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (CML’s) motion for summary judgment in this slip and fall case should have been granted because the cause of plaintiff’s fall could not be established without resort to speculation. Plaintiff alleged the her foot went under a mat which had been lifted up by a leaf blower. However she did not see anyone operating a leaf blower and did not see the mat lift up off the ground:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall…  A plaintiff’s inability to identify the cause of his or her fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation … .

Here, CML established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the injured plaintiff’s deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation … . The injured plaintiff testified at her deposition that when she exited the convenience store, her left foot went underneath the floor mat, causing her to trip and fall. While the injured plaintiff assumed that a leaf blower operated by an employee of CML caused the mat to lift up immediately prior to her fall, she did not see anyone in the area using a leaf blower prior to her fall and she never observed the mat lift up from the ground … . Razza v LP Petroleum Corp., 2017 NY Slip Op 06202, Second Dept 8-16-17

 

NEGLIGENCE (SLIP AND FALL, CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL,  CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined documents sought from a nursing home were not shielded from discovery by the Public Health Law. The documents concerned plaintiff’s decedent’s falls:

Public Health Law § 2805-j requires nursing homes, among other healthcare-related entities, to maintain a program for the identification and prevention of medical malpractice, including the establishment of a quality assurance committee which, among other things, is required to insure that information gathered pursuant to the program is utilized to review and to revise hospital policies and procedures. A New York State Department of Health regulation also requires nursing homes to establish and maintain a quality assessment and assurance program (see 10 NYCRR 415.27). Public Health Law § 2805-m and Education Law § 6527(3) both protect from disclosure documents created “by or at the behest of a quality assurance committee for quality assurance purposes” … . “It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes” … . The party asserting the privilege ” is required at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure”‘… . Records that are duplicated or used by a quality assurance committee are not necessarily privileged … .

Here, in support of its cross motion for a protective order shielding the reports from disclosure, the Nursing Home submitted, among other things, the affidavit of its administrator, a privilege log, and, in camera, the three reports it was able to locate. Contrary to the determination of the Supreme Court, the Nursing Home’s showing was insufficient to demonstrate that the reports were generated by or at the behest of the Nursing Home’s Quality Assurance Committee. Robertson v Brookdale Hosp. Med. Ctr., 2017 NY Slip Op 06204, Second Dept 8-16-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/MEDICAL MALPRACTICE (PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/PRIVILEGE (PUBLIC HEALTH LAW,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, PRIVILEGE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/NURSING HOMES (PUBLIC HEALTH LAW, PRIVILEGE,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/QUALITY ASSURANCE (PUBLIC HEALTH LAW, MEDICAL MALPRACTICE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))

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COMMON-INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR FACTUAL EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT).

The Second Department determined that, although the common interest privilege applied to the allegedly defamatory statements, the allegations of malice were sufficient to overcome the privilege in the context of a motion to dismiss. The court noted that no evidence of malice need be presented at the motion-to-dismiss stage:

“To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se”…. . “A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege”… . However, this “common-interest privilege” may be overcome by a showing of malice … . “To establish the malice’ necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will,’ or may show actual malice,’ i.e., knowledge of falsehood of the statement or reckless disregard for the truth” … .

Here, * * * the common-interest privilege applies to the allegedly defamatory communications… . However, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference …, the amended complaint sufficiently alleges malice to overcome the privilege… . “[A] plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7) … . Ferrara v Bank, 2017 NY Slip Op 06161, Second Dept 8-16-17

 

DEFAMATION (COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/EVIDENCE (DEFAMATION, MALICE, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/MALICE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))

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FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT).

The Second Department determined handguns found inside the console of an SUV were properly suppressed. The police stopped the SUV based upon a report of a shooting involving a similar vehicle. After the defendants were handcuffed and removed from the SUV, but before the eyewitnesses to shooting arrived, the police opened the center console and found a firearm. The eyewitnesses subsequently told the police the defendants were not involved in the shooting:

On January 14, 2015, just before 9:30 p.m., two police officers responded to a report of a shooting involving a white Infiniti SUV with several occupants, including one female. Approximately 15 minutes later and eight or nine blocks away from the location of the reported shooting, the officers observed an SUV matching that description parked in a strip mall parking lot, and a woman standing next to it. As the officers approached in their vehicle, the woman walked away, and the driver of the SUV began to drive away. The officers pulled the SUV over, exited their vehicle, and approached the SUV on foot, one officer on each side of it. The officers observed that the two male occupants, the defendants herein, were leaning toward each other, and each had an elbow on the SUV’s center console. The officers did not observe any contraband or firearms inside the SUV. The driver complied with the officers’ request to provide his license and registration, following which the defendants were removed from the SUV, frisked, handcuffed, and seated on a nearby curb to wait for eyewitnesses to the shooting to arrive. Additional officers arrived, one of whom approached the SUV and, noticing that the center console was slightly elevated, opened it and found a handgun. The defendants were then arrested. The eyewitnesses subsequently arrived and confirmed that the defendants were not the persons who had committed the shooting. A second handgun was later found in the center console.

“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … .

Under the circumstances here, where the defendants had been removed from the SUV, the police lacked probable cause for a warrantless search of its center console, and the weapons found as a result were properly suppressed … . People v Morris, 2017 NY Slip Op 06194, Second Dept 8-16-17

 

CRIMINAL LAW (SUPPRESSION, FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW,  FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, SUPPRESSION, FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))

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DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s statement providing the searching parole officers with the combination to a safe and the guns found in the safe should have been suppressed. The search of defendant’s girlfriend’s apartment was conducted after defendant, who was present in the apartment, violated parole. Defendant was handcuffed and in his underwear when the officer asked for the combination. The officers had already found other weapons and counterfeit DVD’s in the apartment. The People unsuccessfully argued the request for the combination was not designed to elicit an incriminating response:

The question—which arose after the parole officers had found counterfeit DVDs, a box filled with daggers, and a .22 caliber revolver—had only one logical purpose: to elicit a response from the defendant disclosing the combination to the safe, which would possibly lead to the discovery of incriminating evidence, and which would link the safe to the defendant … . Therefore, the Supreme Court should have granted that branch of the defendant’s motion which was to suppress his statement to law enforcement officials as to the combination to the safe, and should have suppressed the two handguns recovered from the safe, as well as a handwritten statement the defendant later made to the police about the handguns, as fruits of the poisonous tree … . Without this evidence, there could not be legally sufficient evidence to support convictions of criminal possession of a weapon in the third degree based on those two handguns, or based on the defendant’s possession of three or more firearms. Accordingly, the convictions of those three offenses must be vacated, and those three counts of the indictment must be dismissed. People v Blacks, 2017 NY Slip Op 06186, Second Dept 8-16-17

CRIMINAL LAW (SUPPRESSION, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE ( DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS, ALTHOUGH NOT RAISED BELOW THE DOCUMENTARY EVIDENCE ISSUE WAS A PROPER BASIS FOR REVERSAL ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letters evincing a “time of the essence” notification in the underlying real estate transaction did not constitute “documentary evidence” which would support a motion to dismiss. Although he “documentary evidence” argument was not raised below, the court properly considered it as the basis for reversal as a matter of law:

“A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law”… . “The evidence submitted in support of such motion must be documentary or the motion must be denied” … . “In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence,’ it must be unambiguous, authentic, and undeniable'”… .

“[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “At the same time, [n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)'” … .

Here, the letters submitted by the defendant did not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and should not have been relied upon by the Supreme Court as a basis for granting the defendant’s motion to dismiss the complaint. The only documentary evidence submitted in support of the defendant’s motion was the purchase agreement, which did not “utterly refute” the plaintiffs’ allegations or conclusively establish a defense as a matter of law. Contrary to the defendant’s contention, the issue of whether the letters constitute documentary evidence within the intendment of CPLR 3211(a)(1) can be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture … . Feldshteyn v Brighton Beach 2012, LLC, 2017 NY Slip Op 06160, Second Dept 8-16-17

CIVIL PROCEDURE (MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/EVIDENCE (MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/APPEALS (LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS, ALTHOUGH NOT RAISED BELOW THE DOCUMENTARY EVIDENCE ISSUE WAS A PROPER BASIS FOR REVERSAL ON APPEAL (SECOND DEPT))/REAL ESTATE (LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS, ALTHOUGH NOT RAISED BELOW THE DOCUMENTARY EVIDENCE ISSUE WAS A PROPER BASIS FOR REVERSAL ON APPEAL (SECOND DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE,  (LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/DOCUMENTARY EVIDENCE (CIVIL PROCEDURE, MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/EVIDENCE (MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))

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ATTORNEY LETTERS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT A MOTION TO DISMISS (SECOND DEPT).

The Second Department determined attorney letters did not constitute documentary evidence which would support a motion to dismiss in this insurance-coverage dispute:

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law … . In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable … . Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1) … . Accordingly, the letters from the attorney and claims services relied upon by [the insurer] do not constitute documentary evidence for the purposes of CPLR 3211(a)(1). Additionally, the insurance policy, which does constitute documentary evidence, did not utterly refute the factual allegations of the complaint and did not conclusively establish a defense to the claims as a matter of law. Fox Paine & Co., LLC v Houston Cas. Co., 2017 NY Slip Op 06162, Second Dept 8-16-17

CIVIL PROCEDURE (MOTION TO DISMISS, DOCUMENTARY EVIDENCE, ATTORNEY LETTERS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT A MOTION TO DISMISS (SECOND DEPT))/DISMISS, MOTION TO (EVIDENCE, ATTORNEY LETTERS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT A MOTION TO DISMISS (SECOND DEPT))/EVIDENCE (MOTION TO DISMISS, DOCUMENTARY EVIDENCE, ATTORNEY LETTERS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT A MOTION TO DISMISS (SECOND DEPT))/DOCUMENTARY EVIDENCE (MOTION TO DISMISS, ATTORNEY LETTERS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT A MOTION TO DISMISS (SECOND DEPT))/INSURANCE LAW (CIVIL PROCEDURE, MOTION TO DISMISS, ATTORNEY LETTERS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT A MOTION TO DISMISS (SECOND DEPT))

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PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT).

The Second Department determined the “substantial evidence” standard did not apply to review of the Unified Court System’s finding that the court assistant (petitioner) was not asked to do out-of-title work. The “arbitrary and capricious” standard was the proper one:

Contrary to the petitioner’s contention, “a substantial evidence’ question is presented only where a quasi-judicial evidentiary hearing has been held”… . The fact that the petitioner had the “right to be heard . . . and to present facts in support of [his] position” at a grievance meeting …did not render the grievance meeting “a quasi-judicial proceeding involving the cross-examination of witnesses and the making of a record within the meaning of CPLR 7803(4)”… . Since the administrative determination in this case was made after a grievance meeting, as opposed to a quasi-judicial evidentiary hearing, the court properly concluded that the relevant standard of review was whether the “determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion” … .

The petitioner further contends that the Deputy Director’s determination was arbitrary and capricious. “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” … . “In applying the arbitrary and capricious’ standard, a court inquires whether the determination under review had a rational basis” … . Matter of Manning v New York State-Unified Ct. Sys., 2017 NY Slip Op 06077, Second Dept 8-9-17

 

ADMINISTRATIVE LAW (EVIDENCE, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/ARBITRARY AND CAPRICIOUS (ADMINISTRATIVE LAW,  PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/QUASI-JUDICIAL (ADMINISTRATIVE LAW,  PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))

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ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT).

Although the facts of the case were not spelled out, the Second Department determined the introduction of a chart showing the structure and membership of a gang was (harmless) error:

We agree with the defendant that under the circumstances here, it was improper to admit into evidence a summary chart depicting the gang hierarchy and membership of the gang, which identified the gang’s members by name and their associated arrest photos … .  Nevertheless, the error was harmless, as the proof of the defendant’s guilt of arson in the first degree and conspiracy in the second degree was overwhelming, and there is no significant probability that, but for the error, the verdict would have been less adverse … . People v Burkette, 2017 NY Slip Op 06082, Second Dept 8-9-17

CRIMINAL LAW (EVIDENCE, GANGS, ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, GANGS, ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE,  ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))

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IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the written consulting (retainer) agreement was complete and evidence of an oral agreement to form a joint venture should not have been considered. Defendant’s motion to dismiss founded on documentary evidence (the written retainer agreement), therefore, should have been granted. Plaintiff had alleged defendant breached the oral agreement:

“To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim”… . A written agreement that is complete, clear, and unambiguous on its face must be enforced to give effect to the meaning of its terms and the reasonable expectations of the parties, and the court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities … . The parol evidence rule generally operates to preclude evidence of a prior or contemporaneous communication during negotiations of an agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties’ entire agreement and intentions … . Where, as here, there is no merger clause, the court must examine the surrounding circumstances and the writing itself to determine whether the agreement constitutes a complete, integrated instrument … .

Here, both a reading of the written retainer agreement and a consideration of the surrounding circumstances lead to the conclusion that the written retainer agreement is a complete written instrument, and, thus, evidence of what may have been agreed orally between the parties prior to the execution of this integrated written instrument cannot be received to vary the terms of the writing … . Hoeg Corp. v Peebles Corp., 2017 NY Slip Op 06066, Second Dept 8-9-17

 

CONTRACT LAW (PAROL EVIDENCE RULE, IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (DISMISSAL FOUNDED ON DOCUMENTARY EVIDENCE,  IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (PAROL EVIDENCE RULE, IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PAROL EVIDENCE RULE (IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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