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Constructive Trust Causes of Action Should Not Have Been Dismissed on the Merits, Criteria Explained (Some Constructive Trust Causes of Action Were Properly Dismissed as Time-Barred, However)/Procedure Re: Motion to Dismiss for Failure to State a Cause of Action Described/Application of Statute of Limitations to Constructive Trusts Explained/”Dead Man’s” Statute Not Applicable to Certain Evidence, at Least at this Stage of the Proceedings

The Fourth Department determined causes of action alleging the existence of constructive trusts on behalf of petitioners re: real property and stock owned by decedent should not have been dismissed on the merits.  (However, in a second related appeal addressed in the same decision, the Fourth Department determined the real-property constructive trust actions were time-barred). Re: the company stock, respondent, the executor, alleged he was the sole owner but could not support the allegation with documentary evidence. Petitioners alleged the stock should be distributed as one of the assets of decedent’s estate.  The Fourth Department held that the petitioners had stated a valid constructive-trust cause of action. The court discussed in some depth the consideration of evidence submitted re: a motion to dismiss pursuant to CPLR 3211(a)(7), the nature of a constructive trust, the inapplicability of the “dead-man’s” statute (CPLR 4519) to certain evidence, and the application of the six-year statute of limitations to constructive trusts.  With respect to the nature of constructive trusts, the court wrote:

We agree with petitioners that the petition sufficiently states a cause of action for a constructive trust with respect to the NGR property, the Manitou Road property and NYSFC stock. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . We accept the facts as alleged in the [petition] as true, accord [the petitioners] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . In assessing a motion under CPLR 3211 (a) (7), . . . a court may freely consider affidavits submitted by the [petitioner] to remedy any defects in the [petition] . . . and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” … .

“[I]t is well settled that [a] constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest . . . In order to invoke the court’s equity powers, [a petitioner] must show a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, a breach of the promise, and [the respondent’s] unjust enrichment . . . Inasmuch as a constructive trust is an equitable remedy, however, courts do not rigidly apply the elements but use them as flexible guidelines . . . In this flexible spirit, the promise need not be express, but may be implied based on the circumstances of the relationship and the nature of the transaction” … .

The facts as alleged in the petition and set forth in the corresponding affidavits establish the existence of a confidential and fiduciary relationship between respondent and decedents. The facts with respect to the NGR and Manitou Road properties establish that respondent promised to pay decedents for the NGR property and to reconvey the Manitou Road property to decedents after it was subdivided by respondent. The petition further alleges that the properties were transferred to respondent as a result of those promises, and that respondent breached those promises and was thereby unjustly enriched.

With respect to the NYSFC stock, the petition and corresponding affidavits allege that Anthony believed, until the day that he died, that he still owned the company and that respondent had made promises to “allow all of [decedents’] children to share in NYSFC.” While the allegations of an express promise are lacking, “[e]ven without an express promise, . . . courts of equity have imposed a constructive trust upon property transferred in reliance upon a confidential relationship. In such a situation, a promise may be implied or inferred from the very transaction itself. As Judge Cardozo so eloquently observed: Though a promise in words was lacking, the whole transaction, it might be found, was “instinct with an obligation” imperfectly expressed’ ” (Sharp, 40 NY2d at 122). Based on the circumstances of the relationship between respondent and decedents and the nature of their multiple transactions, we conclude that there are sufficient facts from which we can conclude that there was an implied promise made by respondent to decedents; that the transfer of stock, if indeed there was a transfer, was made in reliance upon that promise; and that the promise was thereafter broken, resulting in an unjust enrichment to respondent. Matter of Thomas, 2015 NY Slip Op 00017, 4th Dept 1-2-15

 

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(Harmless) Error to Admit Voice Identification Testimony—The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory

The Fourth Department noted that voice identification testimony should not have been allowed because the people did not provide notice of it and it was not merely confirmatory.  The error was deemed harmless however:

We agree with defendant that the court erred in allowing one of the victims to offer voice identification testimony at trial. Prior to trial, the prosecutor had the victim listen to recordings of telephone calls allegedly made by defendant from jail, and the victim identified the voice of the person making the calls as belonging to defendant. The victim offered similar testimony at trial over defendant’s objection. Because the People failed to provide defendant with notice of the pretrial voice identification procedure as required by CPL 710.30 (1) …, the voice identification testimony was admissible at trial only if the identification was merely confirmatory as a matter of law … . Contrary to the People’s contention, the victim’s identification of defendant’s voice was not merely confirmatory inasmuch as the victim acknowledged that, although he had heard defendant speak a number of times in the neighborhood, he and defendant had never actually spoken to each other. We thus conclude that the People did not establish as a matter of law that the victim was so familiar with defendant’s voice that “the identification at issue could not be the product of undue suggestiveness” … . People v Ramos, 2015 NY Slip OOp 00049, 4th Dept 1-2-15

 

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Failure to Make a Motion to Suppress Constituted Ineffective Assistance

The Fourth Department determined defendant was denied his right to effective assistance of counsel because counsel failed to move to suppress drugs seized during a traffic stop and the motion was likely to succeed.  The police questioning defendant whether he had anything illegal on him was not prompted by a reasonable suspicion of criminal activity:

In a supporting deposition, a police officer stated that he stopped defendant’s vehicle after observing defective brake lights, in violation of Vehicle and Traffic Law § 375 (40). He observed that defendant was nervous, and defendant gave responses to questions concerning where he was coming from and where he was going that did not make sense considering the direction in which he was traveling. The officer ordered defendant out of the vehicle and asked him “if he had anything illegal on him,” and defendant responded that he had “coke” in his pocket. The officer then searched defendant’s pocket and retrieved what was later determined to be cocaine.

We conclude that defendant established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence … . The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot … . Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot … . We further conclude that defendant’s contention survives his guilty plea inasmuch as defense counsel’s error infected the plea bargaining process … . People v Dealmeida, 2015 NY Slip Op 00169, 4th Dept 1-2-15

 

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Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant’s Lawyer’s Phone Number from Defendant’s Wallet—Subsequent Statements Should Have Been Suppressed/Defense Counsel’s Failure to Move to Suppress Weapon Seized from Defendant’s Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant’s lawyer’s phone number from the defendant’s wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel’s failure to move to suppress the weapon seized from defendant’s person:

“Whether a particular request [for counsel] 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 [and] manner of expression[,] and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant’s attorney from defendant’s wallet. The hearing testimony further established that an investigator acknowledged defendant’s request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. ” [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant’s request for his attorney’s phone number]’ ” … ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  … .

We agree with defendant … that he was denied effective assistance of counsel based on defense counsel’s errors with respect to suppression … . We note that defense counsel moved to suppress evidence seized from defendant’s residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant’s person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing “approximately 8-10 houses away” from the location of reported gunfire. According to a police report, “[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody,” and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity … . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant’s person and that was the factual basis for the charges in the indictment … . We further conclude that defense counsel’s errors prejudiced defendant and deprived him of the right to effective assistance of counsel … . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15

 

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Even If Initial Frisk of Defendant Was Unlawful, the Defendant’s Pushing the Officer and Running Away Justified the Defendant’s Arrest (for Harassment of the Officer) and Seizure of Drugs

The Fourth Department determined defendant’s motion to suppress evidence was properly denied.  Defendant was a passenger in a vehicle stopped by the police.  A police officer told defendant to get out of the vehicle and proceeded to frisk him.  The defendant then pushed the officer and ran away.  He was captured and drugs were subsequently found.  The Fourth Department determined that, even if the frisk was unlawful, the defendant’s pushing the officer and running away were not precipitated by the frisk:

Even assuming, arguendo, that the frisk was unlawful, we conclude that defendant’s act of pushing the frisking officer was not “spontaneous and precipitated by the illegality . . . [but] was a calculated act not provoked by the unlawful police activity and thus attenuated from it” … . We therefore conclude that there was probable cause for defendant’s subsequent arrest for harassment of the frisking officer … . Consequently, the drugs seized from defendant’s person and the backseat of the patrol car were discovered incident to a lawful arrest … . People v Fox, 2015 NY Slip Op 00034, 4th Dept 1-2-15

 

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Insufficient Evidence Defendant Shared the Intent of the Seller of Heroin—Conviction Under an “Acting in Concert” or “Accomplice” Theory Reversed

Using its “interests of justice” jurisdiction over an unpreserved error, the Fourth Department determined the evidence was insufficient to support defendant’s conviction under an “acting in concert” or “accomplice” theory.  There was insufficient evidence the defendant shared the intent to sell heroin:

“To establish an acting-in-concert theory in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but also that defendant, in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime . . . The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise–—the illegal sale of a narcotic drug” … .

We conclude that the evidence is legally insufficient to establish that defendant acted in concert with the codefendant to sell heroin to the buyer inasmuch as he did nothing “more than simply direct the [buyer] to a location where [she] could purchase [heroin]” … . “While this evidence certainly demonstrated that the defendant was able to identify a local purveyor of narcotics, it did not show . . . that he shared the seller’s intent to bring the transaction about . . . [Indeed], by merely responding to the [buyer’s] inquiry as to who had drugs for sale, the defendant did nothing to solicit or request, much less demand[,] importune[, or assist in] the illicit sale” … . We therefore reverse the judgment of conviction and dismiss the indictment. People v Davila, 2015 NY Slip Op 00016, 4th Dept 1-2-15

 

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In reversing Family Court in a custody proceeding and sending the matter back for complete forensic evaluations of the parties and a de novo hearing, as well as ordering the appointment of a new attorney for the child, the Second Department noted several significant evidentiary errors, including inadmissible hearsay, a violation of the Health Insurance Portability and Accountability Act (HIPAA), and the failure to order forensic evaluations of the parties:

Before a hearing on the petitions was held, the attorney for the subject child, based on the out-of-court statements of the day care provider, made an application for the father to be awarded temporary custody of the subject child. The Family Court granted that application. Such an award was improper, as it was based on the disputed hearsay allegations … .

During the hearing on the petitions, the Family Court erred in permitting the father to testify that the subject child told him that the mother's other daughter “did it.” The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration… . * * *

The Family Court also erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 (hereinafter HIPAA) for disclosure of her other daughter's medical information was not met (see 45 CFR 164.512[e][1][i], [ii]). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony … . * * *

The Family Court erred in failing to order forensic evaluations of the parties, their living environments, and the subject child prior to issuing a decision on the petitions. “In custody disputes, the value of forensic evaluations of the parents and children has long been recognized” … . “Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final determination” … . Here, in the absence of such evaluations, the record in this case is inadequate to support the court's finding that it was in the best interest of the subject child for the father to be awarded sole custody of her… .

Moreover, “[an attorney for the child] should not have a particular position or decision in mind at the outset of the case before the gathering of evidence” … . It is only appropriate for an attorney for a child to form an opinion as to what would be in the child's best interest, after such inquiry … . Here, it was inappropriate for the attorney for the subject child to have advocated for a temporary change in custody without having conducted a complete investigation. The attorney for the subject child acknowledged that his application was based solely on his discussion with the father and the subject child's day care provider, which was located near the father's residence, and that he did not speak to the mother or the subject child's other day care provider closer to the mother's residence. Matter of Brown v Simon, 2014 NY Slip Op 09127, 2nd Dept 12-31-14


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Survey Without Surveyor’s Affidavit Insufficient to Support Plaintiff’s Summary Judgment Motion/Inadmissible Evidence (Survey) May Be Considered to Defeat Defendant’s Summary Judgment Motion/Nuisance Cause of Action Dismissed Because Duplicative of Negligence Cause of Action

In an action stemming from the collapse of a retaining wall between the plaintiff’s and defendant’s properties, the First Department noted that a survey map without an affidavit from the surveyor is insufficient to support plaintiff’s motion for summary judgment, but was sufficient to support the denial of defendant’s motion for summary judgment.  The court also noted that where negligence and nuisance causes of action are duplicative, the nuisance action should be dismissed:

… [A] survey alone, without an accompanying affidavit from the surveyor, does not constitute competent evidence of the location of property lines and fences or retaining walls … . Plaintiff has therefore failed to tender sufficient evidence to demonstrate entitlement to a declaratory judgment on its claim brought pursuant to Administrative Code of City of NY § 28-305.1.1.

Defendant met its prima facie burden as cross movant by submission of the affidavit of a land surveyor who inspected and measured the property subsequent to the collapse of the retaining wall in June 2013, and concluded that no portion of the wall had been upon defendant’s property. That plaintiff’s two surveys indicate that the wall was “on [the] line” of both properties, is sufficient, however, to raise a question as to the location of the wall relative to the two properties; we have long held that otherwise inadmissible evidence may be considered to defeat an application for summary judgment … .

… [W]e find that the claim of negligence is expressed throughout plaintiff’s papers, and there is a question of fact as to whether defendant owed a duty of care to plaintiff, if the retaining wall is found to rest on both parties’ premises. The claim of nuisance, based on allegations that defendant’s ongoing refusal to participate in the repairs and maintenance of the retaining wall substantially interferes with plaintiff’s ability to use and enjoy its property, arises solely from plaintiff’s claim of negligence. Where nuisance and negligence elements are “so intertwined as to be practically inseparable,” a plaintiff may recover only once for the harm suffered … . Upon a search of the record, we conclude that the third cause of action, nuisance, should be dismissed as duplicative of the negligence cause of action, although this argument was not previously made or considered … . 70 Pinehurst Avenue LLC v RPN Mgt Co Inc, 2014 NY Slip Op 09029, 1st Dept 12-30-14

 

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Testimony Insufficient to Overcome Presumption Photo Arrays, Which Were Not Preserved, Were Unduly Suggestive—Subsequent Line-Up, Which Included Persons Much Older than Defendant, Was Unduly Suggestive—New Trial Ordered

The Second Department determined both identification procedures were unduly suggestive and ordered a new trial.  The People did not preserve the photo arrays and the testimony about the photo arrays was insufficient to overcome the presumption the arrays were suggestive.  The subsequent line-up included persons much older that the 18-year-old defendant and, therefore, was unduly suggestive:

The Supreme Court erred in denying that branch of the defendant's omnibus motion which was to suppress identification testimony. The People's failure to preserve the original photographic arrays viewed by the complainants gave rise to a presumption of suggestiveness, and the People did not present sufficient evidence to rebut that presumption … . The fact that the police failed to preserve the arrays viewed by the complainants does not warrant suppression in and of itself. However, the detective's testimony at the suppression hearing as to how the computerized procedure operated was insufficiently detailed to establish its fairness … . The detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array. Furthermore, he did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification. Therefore, the evidence did not overcome the presumption that the arrays were suggestive … . Although the police had not yet focused on any particular suspect, it cannot be said that the sheer volume of photographs viewed was sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants … .

We need not address whether the subsequent lineup was sufficiently attenuated in time from the photo identification procedure to nullify any possible taint, because the lineup procedure was also unduly suggestive … . While there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance, the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification … . Upon our review of a photograph of the lineup viewed by the complainants, it is apparent that the defendant and one of the fillers appear to be of similar ages, but the other three fillers appear visibly older than the defendant … . The age disparity was sufficiently apparent as to orient the viewer toward the defendant as a perpetrator of the crimes charged … . People v Robinson, 2014 NY Slip Op 09024, 2nd Dept 12-24-14

 

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Evidence of General Cleaning Practices Is Not Sufficient to Demonstrate the Absence of Constructive Notice

The Second Department noted that the absence of construction notice of a dangerous condition in a slip and fall case cannot be demonstrated by evidence of general cleaning procedures, as opposed to specific evidence when the area in question was inspected and cleaned:

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . With respect to the issue of constructive notice, to meet its initial burden, “the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.” “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Sesina v Joy Lea Realty LLC, 2014 NY Slip OP 08976, 2nd Dept 12-24-14

 

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