JUST RELEASED

October Page I

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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ARBITRATION (STATUTORY RIGHT TO ATTORNEY'S FEES IN A SUCCESSFUL ACTION FOR THE PAYMENT OF WAGES PURSUANT TO LABOR LAW 198 WAS VALIDLY WAIVED BY THE ARBITRATION AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (LABOR LAW, STATUTORY RIGHT TO ATTORNEY'S FEES IN A SUCCESSFUL ACTION FOR THE PAYMENT OF WAGES PURSUANT TO LABOR LAW 198 WAS VALIDLY WAIVED BY THE ARBITRATION AGREEMENT (FOURTH DEPT))/LABOR LAW (UNPAID WAGES, (STATUTORY RIGHT TO ATTORNEY'S FEES IN A SUCCESSFUL ACTION FOR THE PAYMENT OF WAGES PURSUANT TO LABOR LAW 198 WAS VALIDLY WAIVED BY THE ARBITRATION AGREEMENT (FOURTH DEPT))/ATTORNEYS (LABOR LAW, UNPAID WAGES, ATTORNEY'S FEES, STATUTORY RIGHT TO ATTORNEY'S FEES IN A SUCCESSFUL ACTION FOR THE PAYMENT OF WAGES PURSUANT TO LABOR LAW 198 WAS VALIDLY WAIVED BY THE ARBITRATION AGREEMENT (FOURTH DEPT))/WAIVER (LABOR LAW 198, ATTORNEY'S FEES, STATUTORY RIGHT TO ATTORNEY'S FEES IN A SUCCESSFUL ACTION FOR THE PAYMENT OF WAGES PURSUANT TO LABOR LAW 198 WAS VALIDLY WAIVED BY THE ARBITRATION AGREEMENT (FOURTH DEPT))

ARBITRATION, EMPLOYMENT LAW, LABOR LAW, ATTORNEYS.

STATUTORY RIGHT TO ATTORNEY'S FEES IN A SUCCESSFUL ACTION FOR THE PAYMENT OF WAGES PURSUANT TO LABOR LAW 198 WAS VALIDLY WAIVED BY THE ARBITRATION AGREEMENT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, determined the right to statutory attorney's fees in a wage dispute pursuant to Labor Law 198 was validly waived in the arbitration agreement. Here the arbitration agreement allowed, but did not require, the arbitrator to award the statutory attorney's fees. The arbitrator awarded more than $40,000 in unpaid wages, but did not award attorney's fees. The opinion is substantive and provides a clear explanation of the extent to which courts can review arbitration awards, which are creatures of contract:

Arbitration is a creature of contract, and arbitrators draw their power from the consent of the arbitrants, not from the sovereignty of the State. It is thus "well settled that judicial review of arbitration awards is extremely limited"... . Indeed, "courts are obligated to give deference to the decision of the arbitrator . . . even if the arbitrator misapplied the substantive law" ... . An arbitration award is not immune from judicial scrutiny, however, and it will be vacated if, inter alia, the arbitrator "exceeded his power"... . An arbitrator can exceed his or her power in a variety of ways, three of which are relevant to this appeal.

First, an arbitrator exceeds his or her power by transgressing a "specifically enumerated limitation" on their authority ... . * * *

Second, an arbitrator exceeds his or her power by rendering an award that contravenes a "strong public policy" of this State ... . * * *

Third, an arbitrator exceeds his power when he "manifestly disregard[s]" the substantive law applicable to the parties' dispute ... . * * *

Plaintiff validly waived his right to the attorney's fees afforded by Labor Law § 198. He therefore cannot prevail on his present claim that the arbitrator violated public policy and manifestly disregarded the law by exercising the very discretion validly conferred by the arbitration agreement. Schiferle v Capital Fence Co., Inc., 2017 NY Slip Op 07059, Fourth Dept 10-6-17

 

 

 

 

 

 

 

CIVIL PROCEDURE (JURY TRIAL, IN THE FOURTH DEPARTMENT, UNLIKE THE OTHER DEPARTMENTS, A DEFENDANT'S EQUITABLE COUNTERCLAIM DOES NOT WAIVE THE RIGHT TO A JURY TRIAL (FOURTH DEPT))/JURY TRIAL (CIVIL PROCEDURE, IN THE FOURTH DEPARTMENT, UNLIKE THE OTHER DEPARTMENTS, A DEFENDANT'S EQUITABLE COUNTERCLAIM DOES NOT WAIVE THE RIGHT TO A JURY TRIAL (FOURTH DEPT))/EQUITABLE CLAIMS (JURY TRIAL, IN THE FOURTH DEPARTMENT, UNLIKE THE OTHER DEPARTMENTS, A DEFENDANT'S EQUITABLE COUNTERCLAIM DOES NOT WAIVE THE RIGHT TO A JURY TRIAL (FOURTH DEPT))/COUNTERCLAIMS (EQUITABLE, JURY TRIAL, IN THE FOURTH DEPARTMENT, UNLIKE THE OTHER DEPARTMENTS, A DEFENDANT'S EQUITABLE COUNTERCLAIM DOES NOT WAIVE THE RIGHT TO A JURY TRIAL (FOURTH DEPT))

CIVIL PROCEDURE.

IN THE FOURTH DEPARTMENT, UNLIKE THE OTHER DEPARTMENTS, A DEFENDANT'S EQUITABLE COUNTERCLAIM DOES NOT WAIVE THE RIGHT TO A JURY TRIAL (FOURTH DEPT).

The Fourth Department, in affirming the denial of plaintiff's motion to strike defendants' demand for a jury trial, noted that the Fourth Department, unlike the other departments, does not hold that a defendant waives a jury trial by asserting a counterclaim which sounds in equity:

We have declined to apply the prevailing rule in the other Departments of the Appellate Division that a defendant waives his or her right to a jury trial on jury-triable causes of action in the complaint by interposing an equitable counterclaim based on the same transaction (see id.). The plain text of CPLR 4102 (c) does not address that issue, and the rule that prevails in the other Departments would force defendants to commence separate actions to assert equitable counterclaims, thereby encouraging the prosecution of inefficient and wasteful parallel actions ... . We conclude, however, that "[t]he need for a full relitigation of the equitable claims and the possibility of inconsistent results can be avoided by permitting the legal action and the equitable claims to be tried at the same time" ... . Pittsford Canalside Props., LLC v Pittsford Vil. Green, 2017 NY Slip Op 07052, Fourth Dept 10-6-17

 

 

 

 

 

CIVIL PROCEDURE (ARTICLE 78 PETITION, RETURN DATE, IT IS NO LONGER A JURISDICTIONAL DEFECT TO FAIL TO INCLUDE A RETURN DATE IN AN ARTICLE 78 PETITION (FOURTH DEPT))/ARTICLE 78 (RETURN DATE, IT IS NO LONGER A JURISDICTIONAL DEFECT TO FAIL TO INCLUDE A RETURN DATE IN AN ARTICLE 78 PETITION (FOURTH DEPT))/RETURN DATE (ARTICLE 78 PETITION,  IT IS NO LONGER A JURISDICTIONAL DEFECT TO FAIL TO INCLUDE A RETURN DATE IN AN ARTICLE 78 PETITION (FOURTH DEPT))

 

CIVIL PROCEDURE.

IT IS NO LONGER A JURISDICTIONAL DEFECT TO FAIL TO INCLUDE A RETURN DATE IN AN ARTICLE 78 PETITION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that the failure to include a return date in an Article 78 petition is no longer a jurisdictional defect:

Supreme Court dismissed the petition on jurisdictional grounds because the notice of petition served and filed by petitioner omitted a return date in violation of CPLR 403 (a). We now reverse.

 

In dismissing the petition, the court relied on a line of cases, all from the Third Department, holding that such an omission constitutes a jurisdictional defect ... . Those cases, however, were all decided before CPLR 2001 was amended in 2007 "to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition" ... , and the Third Department has since held that "the rule articulated in [its] prior decisions—a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001—is no longer tenable" ... . We agree inasmuch as "the purpose behind amending CPLR 2001 was to allow courts to correct or disregard technical defects, occurring at the commencement of an action [or proceeding], that do not prejudice the opposing party' and to fully foreclose dismissal of actions for technical, non-prejudicial defects' " ... .

 

We therefore reverse the judgment, reinstate the petition, and remit the matter to Supreme Court to exercise the discretion afforded to it under CPLR 2001. Matter of Kennedy v New York State Off. for People With Dev. Disabilities, 2017 NY Slip Op 07082, Fourth Dept 10-6-17

 

 

 

 

 

CIVIL PROCEDURE (APPEALS, DENIAL OF A MOTION TO DISMISS WITHOUT PREJUDICE IS APPEALABLE (FOURTH DEPT))/APPEALS (CIVIL PROCEDURE, DENIAL OF A MOTION TO DISMISS WITHOUT PREJUDICE IS APPEALABLE (FOURTH DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE, APPEALS,  DENIAL OF A MOTION TO DISMISS WITHOUT PREJUDICE IS APPEALABLE (FOURTH DEPT)

 

CIVIL PROCEDURE, APPEALS.

DENIAL OF A MOTION TO DISMISS WITHOUT PREJUDICE IS APPEALABLE (FOURTH DEPT).

The Fourth Department determined Supreme Court should have granted defendants' motion to dismiss the complaint because the causes of action were inadequately pled or were defeated by the language of a contract. The case is mentioned here because it noted that the denial of a motion to dismiss without prejudice is appealable:

Concluding that the motion was "premature" in the absence of discovery, Supreme Court denied it without reviewing the substantive contentions advanced therein. We conclude that the court erred in denying the motion.

 

... [C]ontrary to plaintiff's contention, the order is appealable despite the fact that the court denied the motion without prejudice ... . Barrett v Grenda, 2017 NY Slip Op 07031, Fourth Dept 10-6-17

CIVIL PROCEDURE (EVIDENCE, SPOLIATION, PRECLUDING EXPERT TESTIMONY WAS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE IN THIS CONTRACT ACTION (SECOND DEPT))/EVIDENCE (SPOLIATION, PRECLUDING EXPERT TESTIMONY WAS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE IN THIS CONTRACT ACTION (SECOND DEPT))/SPOLIATION (EVIDENCE, PRECLUDING EXPERT TESTIMONY WAS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE IN THIS CONTRACT ACTION (SECOND DEPT))

 

CIVIL PROCEDURE, EVIDENCE.

PRECLUDING EXPERT TESTIMONY WAS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE IN THIS CONTRACT ACTION (SECOND DEPT).

The Second Department determined precluding defendant from presenting expert testimony in this contract action was not justified as a sanction for spoliation. Plaintiff did construction work for defendant. Defendant was not satisfied with plaintiff's work, terminated plaintiff's employment, and had the work redone. Plaintiff paid an expert to inspect what he had done, but plaintiff's work could no longer be evaluated. The court properly ordered defendant to pay plaintiff's expert's fee:

"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind,' and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'"... . Where evidence has been intentionally or willfully destroyed, its relevance is presumed ... . However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party's claim or defense ... . The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence and may, under appropriate circumstances, impose a sanction even if "the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation"... .

Here, although the plaintiff demonstrated that the defendant hired contractors to alter and redo the plaintiff's work, the plaintiff failed to demonstrate that the defendant's conduct rose to the level of being intentional or willful ... . Nevertheless, it was undisputed that the evidence was relevant to the plaintiff's claim ... .

 

Under the circumstances of this case, the appropriate sanction was to give an adverse inference charge at trial against the defendant with respect to the spoliation of physical evidence ... . Likewise, to the extent the defendant appeals from so much of the order as directed him to reimburse the plaintiff the sum of $2,695, which the plaintiff had paid his expert to inspect the premises and issue a report, we find that this sanction was properly imposed. Smith v Cunningham, 2017 NY Slip Op 06938, Second Dept 10-4-17

 

 

 

 

 

CIVIL PROCEDURE (MOTION TO AMEND THE COMPLAINT TO ADD NAMED DEPUTIES TO SUBSTITUTE FOR JOHN DOES AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED, RELATION BACK DOCTRINE APPLIED (SECOND DEPT))/MUNICIPAL LAW (JOHN DOES, MOTION TO AMEND THE COMPLAINT TO ADD NAMED DEPUTIES TO SUBSTITUTE FOR JOHN DOES AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED, RELATION BACK DOCTRINE APPLIED (SECOND DEPT))/RELATION BACK (CIVIL PROCEDURE, MUNICIPAL LAW, MOTION TO AMEND THE COMPLAINT TO ADD NAMED DEPUTIES TO SUBSTITUTE FOR JOHN DOES AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED, RELATION BACK DOCTRINE APPLIED (SECOND DEPT))

 

CIVIL PROCEDURE, MUNICIPAL LAW.

MOTION TO AMEND THE COMPLAINT TO ADD NAMED DEPUTIES TO SUBSTITUTE FOR JOHN DOES AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED, RELATION BACK DOCTRINE APPLIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff's motion to amend the complaint to substitute named sheriff deputies for John Does, after the statute of limitations had run, should have been granted. The relation back doctrine applied:

"The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well" ... . Here, the claims against the individual defendants arise out of the same conduct, transaction, or occurrence as claims asserted against the defendant County of Suffolk, and the individual defendants and the County are united in interest ... . Moreover, the individual defendants cannot claim prejudice, given that they were parties to a separate federal action brought by the estate of the plaintiff's brother. The parties stipulated to consolidate this action with the federal action, and although the federal court declined to consolidate the actions, discovery in both actions nevertheless proceeded in a coordinated manner. Thus, the individual defendants should have known that, but for the plaintiff's mistake, the action would have been brought against them as well ... . Eriksen v County of Suffolk, 2017 NY Slip Op 06974, Second Dept 10-4-17

 

 

 

 

 

 

 

CIVIL PROCEDURE (COUNTY COULD NOT BE SUED UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR BASED UPON THE ACTIONS OF A DEPUTY SHERIFF, THE COMPLAINT COULD NOT BE AMENDED TO ADD THE DEPUTY UNDER THE RELATION BACK DOCTRINE (FOURTH DEPT))/MUNICIPAL LAW (CIVIL PROCEDURE, COUNTY COULD NOT BE SUED UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR BASED UPON THE ACTIONS OF A DEPUTY SHERIFF, THE COMPLAINT COULD NOT BE AMENDED TO ADD THE DEPUTY UNDER THE RELATION BACK DOCTRINE (FOURTH DEPT))/SHERIFFS (CIVIL PROCEDURE, COUNTY COULD NOT BE SUED UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR BASED UPON THE ACTIONS OF A DEPUTY SHERIFF, THE COMPLAINT COULD NOT BE AMENDED TO ADD THE DEPUTY UNDER THE RELATION BACK DOCTRINE (FOURTH DEPT))/RELATION BACK DOCTRINE (MUNICIPAL LAW, SHERIFFS, COUNTY COULD NOT BE SUED UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR BASED UPON THE ACTIONS OF A DEPUTY SHERIFF, THE COMPLAINT COULD NOT BE AMENDED TO ADD THE DEPUTY UNDER THE RELATION BACK DOCTRINE (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, SHERIFFS, COUNTY COULD NOT BE SUED UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR BASED UPON THE ACTIONS OF A DEPUTY SHERIFF, THE COMPLAINT COULD NOT BE AMENDED TO ADD THE DEPUTY UNDER THE RELATION BACK DOCTRINE (FOURTH DEPT))

CIVIL PROCEDURE, MUNICIPAL LAW, EMPLOYMENT LAW.

COUNTY COULD NOT BE SUED UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR BASED UPON THE ACTIONS OF A DEPUTY SHERIFF, THE COMPLAINT COULD NOT BE AMENDED TO ADD THE DEPUTY UNDER THE RELATION BACK DOCTRINE (FOURTH DEPT).

The Fourth Department determined the county could not be sued under the doctrine of respondeat superior based on the alleged actions of a deputy sheriff. The court further determined the complaint could not be amended to add the deputy under the relation back doctrine:

We reject plaintiff's challenges to the viability of our prior decisions holding that "[a] county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior, in the absence of a local law assuming such responsibility"... .  Although "[t]he 1989 amendment to New York Constitution, article XIII, § 13 (a) . . . allows a county to accept responsibility for the negligent acts of the Sheriff[,] it does not impose liability upon the county for the acts of the Sheriff or his [or her] deputies on a theory of respondeat superior" ... . Here, defendant established that it did not assume such responsibility by local law... . 

 

Plaintiff contends that defendant nonetheless assumed responsibility for the acts of its Sheriff's deputies when it entered into a collective bargaining agreement (CBA) with the Seneca County Sheriff's Police Benevolent Association. We reject that contention. Plaintiff's rationale is that the CBA provides for indemnification of employees from judgments and settlements upon claims arising from actions taken within the scope of such employees' public employment and duties. We note, however, that a CBA is not a local law and, in any event, the language of the CBA here does not expressly provide that defendant will assume responsibility for the tortious acts of its Sheriff's deputies ... . We reject plaintiff's further contention that General Municipal Law § 50-j (1) renders defendant liable for the actions of its Sheriff's deputies ... .

 

Inasmuch as plaintiff asserted against defendant causes of action based only on respondeat superior, we conclude that the complaint "was properly dismissed against it because [defendant] did not assume liability for the acts of the Sheriff or his deputies, and plaintiff has alleged no other theory of liability against [defendant]" ... .

 

Contrary to plaintiff's further contention, we conclude that the court properly denied her motion seeking leave to amend her complaint to add respondent as a defendant. Plaintiff failed to establish that respondent and defendant are united in interest, and thus plaintiff is not entitled to the benefit of the relation back doctrine ... . Here, respondent and defendant are not united in interest inasmuch as defendant cannot be held vicariously liable for the acts of its Sheriff's deputies ... . Jones v Seneca County, 2017 NY Slip Op 07084, Fourth Dept 10-6-17

 

 

 

 

 

 

CONTRACT LAW (ENERGY LAW, NOT CLEAR WHETHER WIND POWER CONTRACT INCLUDED RENEWABLE ENERGY CREDITS AS PART OF THE REVENUE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/ENERGY LAW (WIND POWER, RENEWABLE ENERGY CREDITS, NOT CLEAR WHETHER WIND POWER CONTRACT INCLUDED RENEWABLE ENERGY CREDITS AS PART OF THE REVENUE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/RENEWABLE ENERGY CREDITS  (ENERGY LAW, NOT CLEAR WHETHER WIND POWER CONTRACT INCLUDED RENEWABLE ENERGY CREDITS AS PART OF THE REVENUE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/WIND POWER (RENEWABLE ENERGY CREDITS, NOT CLEAR WHETHER WIND POWER CONTRACT INCLUDED RENEWABLE ENERGY CREDITS AS PART OF THE REVENUE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

 

CONTRACT LAW, ENERGY LAW.

NOT CLEAR WHETHER WIND POWER CONTRACT INCLUDED RENEWABLE ENERGY CREDITS AS PART OF THE REVENUE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a contract governing the revenue from a wind power installation in Maine was ambiguous about whether renewable energy credits (REC's) were part of the agreed compensation:

This breach of contract action arises from a "Project Fee Agreement" (the PFA) by which plaintiff transferred to defendant its interest in developing a wind energy facility located near Kibby Mountain in Maine (the Kibby Project) in exchange for certain payments, including an annual "Operating Fee." Plaintiff claims that defendant breached the PFA by improperly calculating two components of the fee - "gross electricity sales revenue" and "Royalty Rate."

 

Plaintiff argues that defendant wrongfully failed to include in "gross electricity sales revenue" revenue from sales of environmental attributes associated with the energy generated by the Kibby Project that are known as renewable energy credits (RECs). We find that the PFA is ambiguous as to the meaning of the term "gross electricity sales revenue" and that the extrinsic evidence submitted by the parties to prove their intent is inconclusive ... .

 

Plaintiff emphasizes that the PFA does not expressly exclude REC revenue from "gross electricity sales revenue." Defendant counters that it does not expressly include REC revenue either. However, the question is what someone in the renewable energy industry would generally understand the term "gross electricity sales revenue," standing alone, to include, and the answer to that question is not clear as a matter of law from the face of the PFA. DKRW Wind Holdings, LLC v Transcanada Energy, Ltd., 2017 NY Slip Op 06907, First Dept 10-3-17

 

 

 

 

 

 

CONTRACT LAW (STIPULATION WAS AMBIGUOUS ABOUT WHETHER IT EXTENDED THE TIME FOR FILING OF CERTAIN NOTICES OF CLAIM IN THIS CONSTRUCTION CONTRACT DISPUTE, SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE CLAIMS AT THE PLEADING STAGE (SECOND DEPT))/STIPULATIONS  (STIPULATION WAS AMBIGUOUS ABOUT WHETHER IT EXTENDED THE TIME FOR FILING OF CERTAIN NOTICES OF CLAIM IN THIS CONSTRUCTION CONTRACT DISPUTE, SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE CLAIMS AT THE PLEADING STAGE (SECOND DEPT))/CIVIL PROCEDURE (STIPULATION WAS AMBIGUOUS ABOUT WHETHER IT EXTENDED THE TIME FOR FILING OF CERTAIN NOTICES OF CLAIM IN THIS CONSTRUCTION CONTRACT DISPUTE, SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE CLAIMS AT THE PLEADING STAGE (SECOND DEPT))/MUNICIPAL LAW (CONSTRUCTION CONTRACT, STIPULATION, NOTICES OF CLAIM, STIPULATION WAS AMBIGUOUS ABOUT WHETHER IT EXTENDED THE TIME FOR FILING OF CERTAIN NOTICES OF CLAIM IN THIS CONSTRUCTION CONTRACT DISPUTE, SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE CLAIMS AT THE PLEADING STAGE (SECOND DEPT))

 

CONTRACT LAW, CIVIL PROCEDURE, MUNICIPAL LAW.

STIPULATION WAS AMBIGUOUS ABOUT WHETHER IT EXTENDED THE TIME FOR FILING OF CERTAIN NOTICES OF CLAIM IN THIS CONSTRUCTION CONTRACT DISPUTE, SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE CLAIMS AT THE PLEADING STAGE (SECOND DEPT). 

The Second Department, reversing Supreme Court, determined a stipulation extending the time for filing of notices of claim in this construction contract dispute did not distinguish between claims that were timely when the stipulation was entered and claims that were untimely when the stipulation was entered. Therefore Supreme Court should not have dismissed the untimely claims:

... [T]he Supreme Court improperly granted that branch of the defendant's motion which was to dismiss for untimeliness. "The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent [and] the best evidence of what parties to a written agreement intend is what they say in their writing"... . "Whether or not a writing is ambiguous is a question of law to be resolved by the courts" ... .. Ambiguity exists when, looking within the four corners of the document, terms are reasonably susceptible of more than one interpretation ... . 

 

Here, the parties agreed to extend the plaintiff's time to serve notices of claim and commence an action without distinguishing between timely and untimely claims. Absent a "strong countervailing public policy" ... , " [p]arties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights'" ... . The parties' extension agreement was subject to more than one reasonable interpretation, as they may have intended it to apply to the plaintiff's untimely claims as well as its timely claims. In light of this ambiguity, dismissal of the plaintiff's untimely claims pursuant to CPLR 3211 was improper ... . AMCC Corp. v New York City Sch. Constr. Auth., 2017 NY Slip Op 06934, Second Dept 10-4-17

 

 

 

 

 

 

 

 

COOPERATIVES (ACTION BY COOPERATIVE APARTMENT OWNER CONTESTING RULES PROMULGATED BY THE COOPERATIVE BOARD MUST BE BROUGHT UNDER ARTICLE 78, ATTEMPT TO BRING A PLENARY ACTION DISMISSED AS TIME-BARRED (FIRST DEPT))/CIVIL PROCEDURE (COOPERATIVES, (ACTION BY COOPERATIVE APARTMENT OWNER CONTESTING RULES PROMULGATED BY THE COOPERATIVE BOARD MUST BE BROUGHT UNDER ARTICLE 78, ATTEMPT TO BRING A PLENARY ACTION DISMISSED AS TIME-BARRED (FIRST DEPT))/ARTICLE 78 (COOPERATIVES, ACTION BY COOPERATIVE APARTMENT OWNER CONTESTING RULES PROMULGATED BY THE COOPERATIVE BOARD MUST BE BROUGHT UNDER ARTICLE 78, ATTEMPT TO BRING A PLENARY ACTION DISMISSED AS TIME-BARRED (FIRST DEPT))

COOPERATIVES, CIVIL PROCEDURE.

ACTION BY COOPERATIVE APARTMENT OWNER CONTESTING RULES PROMULGATED BY THE COOPERATIVE BOARD MUST BE BROUGHT UNDER ARTICLE 78, ATTEMPT TO BRING A PLENARY ACTION DISMISSED AS TIME-BARRED (FIRST DEPT).

The First Department determined the cooperative owner's complaint was properly dismissed because the plenary action should have been brought as an Article 78 and was time-barred. The plaintiff alleged new cooperative rules concerning the allowed use of a terrace violated the terms of the proprietary lease. The court explained that disputes about rules promulgated by a cooperative board are properly the subject of a special proceeding (Article 78). The plaintiff's attempt to amend the complaint to allege a cause of action that might fly as a plenary action was rejected as violating the law of the case. The court had previously ruled a special proceeding was the appropriate vehicle for the dispute:

Supreme Court properly dismissed, as time-barred, so much of the third cause of action that sought a declaratory judgment that the house rules enacted by the co-op, concerning use of the roof/terrace adjoining plaintiff's penthouse unit, were contrary to the terms of the proprietary lease. Plaintiff's allegations were in the nature of a dispute over the house rules pertaining to the use of the terrace. Where, as here, a cooperative shareholder seeks to challenge a co-op board's action, such challenge is to be made in the form of an article 78 proceeding ... .

 

The cases of Shapiro v 350 E. 78th St. Tenants Corp. (85 AD3d 601 [1st Dept 2011]), and Estate of Del Terzo v 33 Fifth Ave. Owners Corp. (136 AD3d 486 [1st Dept 2016], affd 28 NY3d 1114 [2016]) do not dictate a different result, and indeed, have no application here because they do not involve a challenge to any bylaws or house rules, or other rules promulgated by the board. Shapiro concerned the board's failure to maintain the roof appurtenant to the plaintiff's unit, and a finding that this failure "deprived plaintiff of its use, in violation of the offering plan and proprietary lease" ... . Similarly, Estate of Del Terzo involved the board's "unreasonabl[e] withholding [of] its consent to an assignment of the lease and shares to a member of a lessee's family," which the court determined to be a violation of the proprietary lease ... . In contrast here, plaintiff takes issue with the new house rules promulgated by the board, and any attempt to repackage his grievances as a breach of the proprietary lease must fail. Musey v 425 E. 86 Apts. Corp., 2017 NY Slip Op 06880, First Dept 10-3-17

 

CRIMINAL LAW (FAILURE TO CLARIFY WHETHER DEFENDANT WAS A CITIZEN REQUIRED VACATION OF THE GUILTY PLEA (FIRST DEPT))/GUILTY PLEA (DEPORTATION, FAILURE TO CLARIFY WHETHER DEFENDANT WAS A CITIZEN REQUIRED VACATION OF THE GUILTY PLEA (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, GUILTY PLEA, FAILURE TO CLARIFY WHETHER DEFENDANT WAS A CITIZEN REQUIRED VACATION OF THE GUILTY PLEA (FIRST DEPT))

 

CRIMINAL LAW.

FAILURE TO CLARIFY WHETHER DEFENDANT WAS A CITIZEN REQUIRED VACATION OF THE GUILTY PLEA (FIRST DEPT).

The First Department, vacating defendant's guilty plea, determined the court did not clarify whether defendant was a citizen and did not inform the defendant that deportation of a non-citizen was a consequence of the plea:

During the plea proceeding, the court asked defendant whether he was a United States citizen, and defendant answered "No." Rather than advising defendant that if he was not a United States citizen, he could be deported as a result of his plea, ... the court asked defendant, "You are not a U.S. citizen?" to which defendant answered, "Oh yeah, yeah." Given the phrasing of the question in the negative, the response could be interpreted as asserting either citizenship or noncitizenship. The court did not inquire further into defendant's answers or advise him of the immigration consequences of his plea, and the record is devoid of any indication that defendant was otherwise aware, such as through defense counsel, of those consequences. Nor does this exchange, in the context of the plea allocution, suggest that defendant affirmatively misrepresented his immigration status, as he accurately answered the court's question ... . Thus, his responses, even if contradictory, did not absolve the court of the obligation to state briefly that the guilty plea could render defendant deportable.

 

Therefore, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a "reasonable probability" that he would not have pleaded guilty had the court advised him of the possibility of deportation... . Accordingly, we remit for the remedy set forth in Peque (22 NY3d at 200-201), and we hold the appeal in abeyance for that purpose. People v Bermudez, 2017 NY Slip Op 06888, First Dept 10-3-17

 

CRIMINAL LAW (RESENTENCING, COURT WILL NOT LOSE JURISDICTION OVER A CASE DUE TO A DELAY BETWEEN SENTENCING AND RESENTENCING UNLESS PREJUDICE RESULTS FROM THE DELAY, NO PREJUDICE HERE (FOURTH DEPT))/SENTENCING (DELAY, COURT WILL NOT LOSE JURISDICTION OVER A CASE DUE TO A DELAY BETWEEN SENTENCING AND RESENTENCING UNLESS PREJUDICE RESULTS FROM THE DELAY, NO PREJUDICE HERE (FOURTH DEPT))/JURISDICTION (CRIMINAL LAW, DELAY IN SENTENCING, COURT WILL NOT LOSE JURISDICTION OVER A CASE DUE TO A DELAY BETWEEN SENTENCING AND RESENTENCING UNLESS PREJUDICE RESULTS FROM THE DELAY, NO PREJUDICE HERE (FOURTH DEPT))

 

CRIMINAL LAW.

COURT WILL NOT LOSE JURISDICTION OVER A CASE DUE TO A DELAY BETWEEN SENTENCING AND RESENTENCING UNLESS PREJUDICE RESULTS FROM THE DELAY, NO PREJUDICE HERE (FOURTH DEPT).

The Fourth Department determined the court had not lost jurisdiction of defendant's case because of a delay between sentencing and resentencing. A federal court had granted a habeas corpus petition and ordered retrial on one ount of the indictment and resentencing on the indictment if the count was not retried. Although there was a long delay before resentencing, defendant was unable to show any prejudice. Unlike a delay between conviction and sentencing, which will cause the court to lose jurisdiction without a showing of prejudice, a delay between sentencing and resentencing requires a showing of prejudice before jurisdiction will be deemed lost. Here, because defendant was still incarcerated for convictions on other counts, there was no prejudice:

Contrary to defendant's contention, the court properly concluded that it had not lost jurisdiction over the case because of the delay in resentencing. The Court of Appeals has stated that " [s]entence must be pronounced without unreasonable delay' "  and, "unless excused[, such a delay] result[s] in a loss of jurisdiction requiring dismissal of the indictment" (Drake, 61 NY2d at 367). This Court has "conclude[d] that the analysis in People v Drake applies to delays in resentencing as well as to those between conviction and sentencing, but with one salient difference. Prejudice is presumed to result from delays between conviction and sentence[ . . . but, as] with other postjudgment delay . . . , defendant must demonstrate prejudice resulting from the delay between sentencing and resentencing" ... . Applying that principle here, we note that there was a "long and unexplained" delay between the Federal District Court's order and resentencing ... , but we conclude that defendant failed to demonstrate any prejudice resulting therefrom. The order of the Federal District Court merely directed that defendant be retried upon a single count of the indictment or be resentenced without respect to that count. The order had no impact on his incarceration on the remaining counts of the indictment, and County Court resentenced defendant simply by eliminating the sentence on the bribery count. In light of defendant's failure to demonstrate any prejudice with respect to the remaining counts of the indictment, we see no reason to conclude that the court lost jurisdiction over them because of the delay in resentencing ... . People v Robinson, 2017 NY Slip Op 07073, Fourth Dept 10-6-17

 

CRIMINAL LAW (SECOND FELONY OFFENDER, SENTENCING, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER, CURRENT OFFENSE BEGAN BEFORE DEFENDANT WAS SENTENCED ON THE PRIOR FELONIES, ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER, CURRENT OFFENSE BEGAN BEFORE DEFENDANT WAS SENTENCED ON THE PRIOR FELONIES, ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION (FOURTH DEPT))/SENTENCING (SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER, CURRENT OFFENSE BEGAN BEFORE DEFENDANT WAS SENTENCED ON THE PRIOR FELONIES, ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION (FOURTH DEPT))/SECOND FELONY OFFENDER (ILLEGAL SENTENCE, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER, CURRENT OFFENSE BEGAN BEFORE DEFENDANT WAS SENTENCED ON THE PRIOR FELONIES, ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION (FOURTH DEPT))

 

CRIMINAL LAW, APPEALS.

DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER, CURRENT OFFENSE BEGAN BEFORE DEFENDANT WAS SENTENCED ON THE PRIOR FELONIES, ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION (FOURTH DEPT).

The Fourth Department determined defendant was not validly sentenced as a second felony offender rendering the sentence illegal, an error that need not be preserved for appeal. The prior felony convictions did not qualify as predicate offenses because defendant was sentenced on those felony convictions after he had begun, and while he was still in the midst of committing, the present felony. The matter was remitted for sentencing as a first time offender, which may result in less than the agreed upon sentence. In that circumstance the People can back out of the deal and start over:

To qualify as a second felony offense, the sentence for the prior felony conviction must have been imposed before the commission of the present felony ... . Defendant's present felony conviction arises from the filing of 93 false unemployment certificates, which resulted in defendant unlawfully obtaining more than $10,000 in unemployment benefits during a 32-month period between November 2011 and June 2014. Defendant accepted a plea bargain in which he would waive indictment and plead guilty by superior court information to a single count of grand larceny in the third degree covering the entire 32-month period, in exchange for a sentence to a mandatory indeterminate term of incarceration as a second felony offender, based on two prior felony convictions. We conclude, however, that those two prior felony convictions do not qualify as predicate offenses for second felony offender purposes inasmuch as defendant was sentenced on those predicate felony convictions after he had begun, and while he was still in the midst of committing, the present felony ... . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

 

Upon remittal, the court must impose a lawful sentence on defendant as a first felony offender, which may result in a lesser sentence than that bargained for by the People and defendant. "[I]n that event, the court must entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" ... . "Further, should the People be so disposed, they may withdraw their consent to the waiver of indictment" ... . People v Jones, 2017 NY Slip Op 07072, Fourth Dept 10-6-17

 

CRIMINAL LAW (APPEALS, COURT DID NOT MAKE SURE DEFENDANT KNEW HE WAS PLEADING GUILTY TO A DWELLING, AS OPPOSED TO A COMMERCIAL, BURGLARY, PLEA VACATED DESPITE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/APPEALS (CRIMINAL LAW, COURT DID NOT MAKE SURE DEFENDANT KNEW HE WAS PLEADING GUILTY TO A DWELLING, AS OPPOSED TO A COMMERCIAL, BURGLARY, PLEA VACATED DESPITE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/BURGLARY (PLEA VACATED, COURT DID NOT MAKE SURE DEFENDANT KNEW HE WAS PLEADING GUILTY TO A DWELLING, AS OPPOSED TO A COMMERCIAL, BURGLARY, PLEA VACATED DESPITE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/GUILTY PLEA (APPEALS, COURT DID NOT MAKE SURE DEFENDANT KNEW HE WAS PLEADING GUILTY TO A DWELLING, AS OPPOSED TO A COMMERCIAL, BURGLARY, PLEA VACATED DESPITE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))

 

CRIMINAL LAW, APPEALS.

COURT DID NOT MAKE SURE DEFENDANT KNEW HE WAS PLEADING GUILTY TO A DWELLING, AS OPPOSED TO A COMMERCIAL, BURGLARY, PLEA VACATED DESPITE FAILURE TO PRESERVE THE ERROR (FIRST DEPT).

The First Department, vacating defendant's guilty plea, determined this was a rare case in which the adequacy of the plea could be reviewed on appeal despite the failure to preserve the error. Supreme Court did not make sure the defendant knew he was pleading guilty to a dwelling, as opposed to a commercial, burglary:

The preservation requirement for challenges to guilty pleas does not apply in this "rare case" where "defendant's factual recitation negate[d] an essential element of the crime pleaded to" and the court "accept[ed] the plea without making further inquiry to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered." Depending on the particular facts, the burglary of a store in a mixed commercial and residential building may, or may not, constitute second-degree burglary ... . Viewing the plea allocution as a whole, we conclude that defendant's responses consistently asserted that he only committed commercial burglaries, notwithstanding that other portions of the buildings were residential, and that these responses thus tended to negate the "dwelling" element of second—degree burglary. The court's followup questions failed to establish that defendant understood he was admitting that the dwelling requirement was satisfied, and that he was giving up his right to litigate that factual issue.

 

The fact that defendant attempted to raise this issue in an unsuccessful motion under CPL article 440 and failed to obtain leave to appeal does not foreclose review on direct appeal, but only limits it to review of the plea allocution record itself... . The issue is amply reviewable on the plea minutes themselves, and neither expansion of the record nor resort to anything extrinsic to the plea colloquy is necessary. People v Ortiz, 2017 NY Slip Op 06990, First Dept 10-5-17

 

 

 

 

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO ANTICIPATE THE HARASSMENT STATUTE WOULD BE DECLARED UNCONSTITUTIONAL SIX YEARS AFTER DEFENDANT'S PLEA (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO ANTICIPATE THE HARASSMENT STATUTE WOULD BE DECLARED UNCONSTITUTIONAL SIX YEARS AFTER DEFENDANT'S PLEA (THIRD DEPT))/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO ANTICIPATE THE HARASSMENT STATUTE WOULD BE DECLARED UNCONSTITUTIONAL SIX YEARS AFTER DEFENDANT'S PLEA (THIRD DEPT))

 

CRIMINAL LAW, ATTORNEYS.

DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO ANTICIPATE THE HARASSMENT STATUTE WOULD BE DECLARED UNCONSTITUTIONAL SIX YEARS AFTER DEFENDANT'S PLEA (THIRD DEPT).

The Third Department determined defense counsel was not ineffective in allowing defendant to satisfy a harassment charge by plea simply because the harassment statute was declared unconstitutionally vague six years later:

... [D]efense counsel cannot be found to have provided ineffective representation based upon the failure to predict or anticipate that the underlying statutory provision would be ruled unconstitutional six years later. That is, even if counsel advised defendant to make those admissions, such advice did not, at the time, constitute an egregious error or a denial of meaningful representation so as to amount to ineffective representation under either the federal or state constitutional standards ... . Further, and as County Court accurately concluded, defendant is incorrect insofar as he asserts that the statutory provision had been ruled unconstitutional by federal courts. * * *

Further, "in the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ... . Here, a review of the proceedings demonstrates that counsel secured a favorable agreement that limited defendant's prison time and also resolved the new charges, and that defendant indicated at the time that he was satisfied with counsel's representation. Given the foregoing, we find that County Court properly denied defendant's motion to vacate, without a hearing ... . People v Rapp, 2017 NY Slip Op 07006, Second Dept 10-5-17

 

 

 

CRIMINAL LAW (INVENTORY SEARCH, PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF DEFENDANT'S VEHICLE WAS VALIDLY EXECUTED, HANDGUN FOUND IN THE SEARCH SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, INVENTORY SEARCH, PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF DEFENDANT'S VEHICLE WAS VALIDLY EXECUTED, HANDGUN FOUND IN THE SEARCH SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE (INVENTORY SEARCH, PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF DEFENDANT'S VEHICLE WAS VALIDLY EXECUTED, HANDGUN FOUND IN THE SEARCH SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/INVENTORY SEARCH (CRIMINAL LAW,  PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF DEFENDANT'S VEHICLE WAS VALIDLY EXECUTED, HANDGUN FOUND IN THE SEARCH SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, INVENTORY SEARCH, PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF DEFENDANT'S VEHICLE WAS VALIDLY EXECUTED, HANDGUN FOUND IN THE SEARCH SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

 

CRIMINAL LAW, EVIDENCE.

PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF DEFENDANT'S VEHICLE WAS VALIDLY EXECUTED, HANDGUN FOUND IN THE SEARCH SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department reversed defendant's firearm convictions because the inventory search of defendant's car was not demonstrated to have been validly executed. The conviction for possession of a gravity knife, which was discovered on defendant's person after a vehicle stop was affirmed. However, the dissenting justice argued the People also failed to prove the vehicle stop was lawful. The stop, which was made at night, was based upon the officer's inability to see inside the car, which was alleged to constitute a tinted-window violation:

To further the goals justifying the exception, "an inventory search should be conducted pursuant to an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably'" ... . The police procedure must be standardized so as to "limit the discretion of the officer in the field" ... . "Thus, two elements must be examined: first, the relationship between the search procedure adopted and the governmental objectives that justify the intrusion and, second, the adequacy of the controls on the officer's discretion" (id.). In other words, there must be evidence of the policy as to inventory searches and that the particular inventory search at issue complied with that policy, and the court must evaluate the adequacy of the policy itself, to ensure that it furthers the proper goals of and limits on inventory searches ... . The written policy itself need not be entered into evidence, but there must be some evidence of what the procedure requires ... , and the officer's compliance with it ... .

 

Here, no testimony was given at the suppression hearing about the content of any New York City Police Department policy regarding the conduct of inventory searches, or the officer's compliance with it. In the absence of any evidence satisfying the People's burden of establishing the lawfulness of the search of the defendant's automobile, the Supreme Court should have granted that branch of the defendant's motion which sought suppression of the handgun found during that search ... . People v Bacquie, 2017 NY Slip Op 06924, Second Dept 10-4-17

 

 

 

 

 

 

CRIMINAL LAW (VARIANCE BETWEEN THE ALLEGATIONS IN THE INDICTMENT AND BILL OF PARTICULARS AND THE PROOF AT TRIAL REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, VARIANCE BETWEEN THE ALLEGATIONS IN THE INDICTMENT AND BILL OF PARTICULARS AND THE PROOF AT TRIAL REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/INDICTMENTS VARIANCE BETWEEN THE ALLEGATIONS IN THE INDICTMENT AND BILL OF PARTICULARS AND THE PROOF AT TRIAL REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/BILL OF PARTICULARS (CRIMINAL LAW, VARIANCE BETWEEN THE ALLEGATIONS IN THE INDICTMENT AND BILL OF PARTICULARS AND THE PROOF AT TRIAL REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/VARIANCE (CRIMINAL LAW, VARIANCE BETWEEN THE ALLEGATIONS IN THE INDICTMENT AND BILL OF PARTICULARS AND THE PROOF AT TRIAL REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT (FOURTH DEPT))

 

CRIMINAL LAW, EVIDENCE.

VARIANCE BETWEEN THE ALLEGATIONS IN THE INDICTMENT AND BILL OF PARTICULARS AND THE PROOF AT TRIAL REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant's conviction and dismissing the indictment, determined defendant was not tried on the allegations made in the indictment and bill of particulars. The defendant had a seizure while driving and struck two children, killing one of the them. He was charged with reckless manslaughter (and other charges) and was convicted of criminally negligent homicide and assault in the third degree:

 

Prior to trial, defendant served multiple demands for a bill of particulars requesting, inter alia, that the People specifically describe how defendant was reckless. In response, the People specified only that "[t]he ingestion of marihuana and a failure to take medication were both factors that contributed to the defendant's recklessness." Despite defendant's objections during the course of the trial, including a motion for a trial order of dismissal at the close of the People's case and renewal of that motion at the close of all proof ... , the People presented evidence that defendant was reckless based upon not only marihuana use and failure to take medication, but also based upon, inter alia, his lack of sleep, failure to inform his doctors of his syncope events, and failure to control his alcohol consumption. ...

... A conviction is supported by legally sufficient evidence "when, viewing the facts in [the] light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt' "... . "Where the charge against a defendant is limited either ... by a bill of particulars or the indictment itself, the defendant has a fundamental and nonwaivable right to be tried only on the crimes charged"... . Here, because the People specifically narrowed their theory of recklessness in the bill of particulars, County Court was " obliged to hold the prosecution to this narrower theory alone' "... .

 

The People did not present any evidence that marihuana use, in general, may cause seizures or that marihuana use caused defendant's specific seizure herein. In addition, the People did not present any evidence that defendant had been prescribed anti-seizure medication and that he had failed to take it. Inasmuch as there was a variance between the People's trial evidence and the indictment as amplified by the bill of particulars, and that evidence was insufficient to support the theories of defendant's recklessness set forth in the bill of particulars, defendant was essentially tried and convicted on charges for which he had not been indicted ... . People v Bradley, 2017 NY Slip Op 07032, Fourth Dept 10-6-17

 

 

 

 

CRIMINAL LAW (EVIDENCE OF DEFENDANT'S CONSTRUCTIVE POSSESSION OF COCAINE WAS CIRCUMSTANTIAL, FAILURE TO INSTRUCT THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS REVERSIBLE ERROR (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, EVIDENCE OF DEFENDANT'S CONSTRUCTIVE POSSESSION OF COCAINE WAS CIRCUMSTANTIAL, FAILURE TO INSTRUCT THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS REVERSIBLE ERROR (FOURTH DEPT))/CONSTRUCTIVE POSSESSION  (EVIDENCE OF DEFENDANT'S CONSTRUCTIVE POSSESSION OF COCAINE WAS CIRCUMSTANTIAL, FAILURE TO INSTRUCT THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS REVERSIBLE ERROR (FOURTH DEPT))/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, EVIDENCE OF DEFENDANT'S CONSTRUCTIVE POSSESSION OF COCAINE WAS CIRCUMSTANTIAL, FAILURE TO INSTRUCT THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS REVERSIBLE ERROR (FOURTH DEPT))/JURY INSTRUCTION (CRIMINAL LAW, CIRCUMSTANTIAL EVIDENCE, EVIDENCE OF DEFENDANT'S CONSTRUCTIVE POSSESSION OF COCAINE WAS CIRCUMSTANTIAL, FAILURE TO INSTRUCT THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS REVERSIBLE ERROR (FOURTH DEPT))

CRIMINAL LAW, EVIDENCE.

EVIDENCE OF DEFENDANT'S CONSTRUCTIVE POSSESSION OF COCAINE WAS CIRCUMSTANTIAL, FAILURE TO INSTRUCT THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS REVERSIBLE ERROR (FOURTH DEPT).

The Fourth Department, reversing defendant's conviction and ordering a new trial, determined County Court should have given the circumstantial evidence jury instruction. Defendant was present in an apartment where cocaine was found. The evidence whether defendant constructively possessed the cocaine was circumstantial:

While executing a search warrant in an apartment leased to defendant's girlfriend, but in which defendant was present, police officers found baggies of cocaine in a bedroom. The baggies were located variously in a jacket pocket, in a dresser drawer, and on the floor behind the headboard of the bed. None of the baggies was in plain view. The officers also recovered a dilutant commonly used in the drug trade in a kitchen cabinet, numerous small baggies commonly used in the drug trade in a kitchen cabinet and a dresser drawer in the bedroom, and three cellular phones in a dresser drawer with one of the baggies of cocaine. On top of the dressers in the bedroom, in plain view, were a scale and a box of sandwich bags. Inside the box of sandwich bags were a smaller scale and a credit or debit card in defendant's name. In different locations in the apartment, police officers recovered documents in defendant's name. One had been mailed to defendant at the apartment, but a more recent document had been mailed to defendant at a different address. * * *

We conclude that reversal is required based on the court's refusal to provide a circumstantial evidence instruction. "Constructive possession can be proven directly or circumstantially" ... , and "[a] circumstantial evidence charge is required [only] where the evidence against a defendant is wholly circumstantial' " ... . Here, although there was direct evidence of defendant's dominion and control over the apartment based on his presence in the apartment, "there was no direct evidence of his dominion or control over the drugs . . . found in the apartment" ... . Contrary to the People's contention, the cocaine and most of the paraphernalia were not in plain view... . As a result, "to find that defendant had control over the contraband, the drawing of an additional inference was required. For this reason, the circumstantial evidence charge requested by defense counsel was required" ... . People v Ayala, 2017 NY Slip Op 07041, Fourth Dept 10-6-17

 

LABOR LAW-CONSTRUCTION LAW (DECKING WHICH WAS TO BECOME A PERMANENT FLOOR COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION BECAUSE WORK REMAINED TO COMPLETE THE FLOOR (FIRST DEPT))

 

LABOR LAW-CONSTRUCTION LAW.

DECKING WHICH WAS TO BECOME A PERMANENT FLOOR COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION BECAUSE WORK REMAINED TO COMPLETE THE FLOOR (FIRST DEPT). 

The First Department, reversing Supreme Court, determined plaintiff's motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff fell through decking to the floor below:

Plaintiff ironworker ... was walking across an installed steel "q-decking" floor on a construction site, when two sheets of the decking floor collapsed, causing him to fall to the floor below. Even though the decking was to become a permanent part of the floor of the building under construction, it is undisputed that, at the time of the accident, additional work needed to be done, including the pouring of concrete, before the floors would be complete. Cross v CIM Group, LLC, 2017 NY Slip Op 06912, First Dept 10-3-17

DEBTOR-CREDITOR (PLAINTIFF ENTITLED TO A RENEWAL JUDGMENT PLUS ACCRUED INTEREST DESPITE MORE THAN TEN YEAR DELAY IN ENFORCEMENT (FIRST DEPT))/CIVIL PROCEDURE (RENEWAL JUDGMENT, LACHES, (PLAINTIFF ENTITLED TO A RENEWAL JUDGMENT PLUS ACCRUED INTEREST DESPITE MORE THAN TEN YEAR DELAY IN ENFORCEMENT (FIRST DEPT))/RENEWAL JUDGMENT (PLAINTIFF ENTITLED TO A RENEWAL JUDGMENT PLUS ACCRUED INTEREST DESPITE MORE THAN TEN YEAR DELAY IN ENFORCEMENT (FIRST DEPT))/LACHES (RENEWAL JUDGMENT, PLAINTIFF ENTITLED TO A RENEWAL JUDGMENT PLUS ACCRUED INTEREST DESPITE MORE THAN TEN YEAR DELAY IN ENFORCEMENT (FIRST DEPT))

 

DEBTOR-CREDITOR, CIVIL PROCEDURE.

PLAINTIFF ENTITLED TO A RENEWAL JUDGMENT PLUS ACCRUED INTEREST DESPITE MORE THAN TEN YEAR DELAY IN ENFORCEMENT (FIRST DEPT).

The First Department determined plaintiff was entitled to a renewal judgment plus interest. The more than ten-year delay in enforcing the judgment did not constitute laches:

Plaintiff judgment creditor timely commenced this action for a renewal judgment more than ten years after the docketing of the original judgment as a lien against appellant's property (CPLR 5014[1]). Plaintiff made a prima facie showing of its entitlement to a renewal judgment by demonstrating that defendants have not satisfied any part of the judgment ... . In opposition, appellant argued that plaintiff was not entitled to a renewal judgment because it had unreasonably delayed in enforcing the original judgment, while interest accumulated on the judgment and tax liens were imposed. On appeal, he argues that the equitable doctrine of laches applies since his circumstances have worsened during the ten years since the judgment was docketed.

 

The "mere delay" in enforcement of a judgment, without actual prejudice resulting from the delay, does not constitute laches ... . Appellant relies on facts outside the record which, in any event, do not constitute injury or prejudice resulting from plaintiff's delay. The accumulation of postjudgment interest does not support a claim of laches, since plaintiff is entitled by statute to interest on the unpaid amount of the original judgment, which is valid for twenty years (CPLR 211[b], 5004), regardless of whether the judgment is renewed. C.T. Holdings, Ltd. v Schreiber Family Charitable Found., Inc., 2017 NY Slip Op 06914, First Dept 10-3-17

 

 

 

 

 

 

 

DISCIPLINARY HEARINGS (INMATES) (UNEXPLAINED UNAVAILABILITY OF VIDEOTAPE ALLEGEDLY DEPICTING CHARGED BEHAVIOR REQUIRED ANNULMENT AND EXPUNGEMENT OF THE DETERMINATION (FOURTH DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES) (UNEXPLAINED UNAVAILABILITY OF VIDEOTAPE ALLEGEDLY DEPICTING CHARGED BEHAVIOR REQUIRED ANNULMENT AND EXPUNGEMENT OF THE DETERMINATION (FOURTH DEPT))

DISCIPLINARY HEARINGS (INMATES), EVIDENCE.

UNEXPLAINED UNAVAILABILITY OF VIDEOTAPE ALLEGEDLY DEPICTING CHARGED BEHAVIOR REQUIRED ANNULMENT AND EXPUNGEMENT OF THE DETERMINATION (FOURTH DEPT).

The Fourth Department determined the unexplained unavailability of videotapes allegedly depicting the charged behavior required the annulment and expungement of the determination:

... [T]he determination that petitioner violated inmate rules 101.10 (7 NYCRR 270.2 [B] [2] [i] [engaging in sexual acts]) and 180.10 (7 NYCRR 270.2 [B] [26] [i] [violating a visitation procedure]) must be annulled. Petitioner was deprived of his right to reply to the evidence against him with respect to those charges because of the unexplained unavailability for use at the disciplinary hearing of the videotape that allegedly depicted his violations thereof ... . Matter of Hubbard v Annucci. 2017 NY Slip Op 07036, Fourth Dept 10-6-17

 

 

FAMILY LAW (NEGLECT, EVIDENCE OF MOTHER'S DRUG USE PRESENTED A PRIMA FACIE CASE OF CHILD NEGLECT (SECOND DEPT))/NEGLECT (EVIDENCE OF MOTHER'S DRUG USE PRESENTED A PRIMA FACIE CASE OF CHILD NEGLECT (SECOND DEPT))/DRUG USE (FAMILY LAW, NEGLECT, EVIDENCE OF MOTHER'S DRUG USE PRESENTED A PRIMA FACIE CASE OF CHILD NEGLECT (SECOND DEPT))

 

FAMILY LAW.

EVIDENCE OF MOTHER'S DRUG USE PRESENTED A PRIMA FACIE CASE OF CHILD NEGLECT (SECOND DEPT).

The Second Department, reversing Family Court, determined that the evidence of mother's drug use presented a prima facie case of child neglect:

Unlike other forms of neglect, which require a showing that a child's well-being has been impaired or is in imminent danger of becoming impaired, proof that a parent " repeatedly misuses a drug or drugs . . . , to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality'" ... , is prima facie evidence that a child of such a parent is a neglected child, unless the parent is "voluntarily and regularly participating in a recognized rehabilitative program" ... .

 

Here, contrary to the Family Court's determination, viewing the evidence in the light most favorable to the petitioner and affording it the benefit of every favorable inference which could be reasonably drawn from the evidence... , the petitioner presented a prima facie case of neglect. At the fact-finding hearing, the evidence demonstrated that Isiah tested positive for cocaine at the time of his birth, and that the mother tested positive for cocaine and marijuana at that time. Additionally, the mother admitted to the petitioner's caseworker that she had been using drugs since she was a teenager, and that she had never attended any drug treatment program. The mother, who had been suffering from depression since she was a teenager, reported that in the four months preceding Isiah's birth, she stayed in bed all day until about 10:00 p.m., and barely interacted with her children. She further told the caseworker that shortly before Isiah's birth, she started using cocaine to help her get out of bed, and smoking marijuana to help her appetite. She also admitted that she used cocaine three days prior to Isiah's birth. This evidence established a prima facie case of neglect pursuant to Family Court Act § 1046(a)(iii) and, therefore, neither actual impairment of the children's physical, mental, or emotional condition, nor specific risk of impairment, needed to be established ... . Matter of Isiah L. (Terry C.), 2017 NY Slip Op 06954, Second Dept 10-4-17

 

 

 

 

 

 

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, EVEN THOUGH THE CHILD TURNED 21 FAMILY COURT HAD JURISDICTION TO MAKE CHANGES IN ITS SPECIAL IMMIGRANT JUVENILE STATUS FINDINGS (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) EVEN THOUGH THE CHILD TURNED 21 FAMILY COURT HAD JURISDICTION TO MAKE CHANGES IN ITS SPECIAL IMMIGRANT JUVENILE STATUS FINDINGS (SECOND DEPT))/GUARDIANSHIP (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, EVEN THOUGH THE CHILD TURNED 21 FAMILY COURT HAD JURISDICTION TO MAKE CHANGES IN ITS SPECIAL IMMIGRANT JUVENILE STATUS FINDINGS (SECOND DEPT))

 

FAMILY LAW.

EVEN THOUGH THE CHILD TURNED 21 FAMILY COURT HAD JURISDICTION TO MAKE CHANGES IN ITS SPECIAL IMMIGRANT JUVENILE STATUS FINDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court was not divested of subject matter jurisdiction to make changes in its findings for special immigrant juvenile status (SIJS) simply because the child turned 21 after his father was appointed guardian:

Where a child who consented to the appointment of a guardian after his or her 18th birthday turns 21, the court is divested of subject matter jurisdiction in the guardianship proceeding ... . However, where the guardianship petition was granted prior to the child's 21st birthday, there is no jurisdictional impediment to the issuance of an order making the requisite declaration and specific findings to enable the child to petition for SIJS ... . Here, since the guardianship petition was granted ... prior to the child's 21st birthday, the Family Court improperly determined that it lacked subject matter jurisdiction to entertain the father's motion to amend the special findings order. Matter of Juan R.E.M. (Juan R.E.), 2017 NY Slip Op 06977, Second Dept 10-4-17

 

 

FAMILY LAW (ALTHOUGH THE CHILD SHOULD NOT HAVE BEEN REMOVED FROM PETITIONERS' HOME FOR PLACEMENT IN ANOTHER FOSTER HOME WITH THE CHILD'S SIBLINGS, SO MUCH TIME HAS ELAPSED A HEARING MUST BE HELD TO DETERMINE WHICH PLACEMENT IS NOW IN THE BEST INTERESTS OF THE CHILD (FOURTH DEPT))/FOSTER CARE  (ALTHOUGH THE CHILD SHOULD NOT HAVE BEEN REMOVED FROM PETITIONERS' HOME FOR PLACEMENT IN ANOTHER FOSTER HOME WITH THE CHILD'S SIBLINGS, SO MUCH TIME HAS ELAPSED A HEARING MUST BE HELD TO DETERMINE WHICH PLACEMENT IS NOW IN THE BEST INTERESTS OF THE CHILD (FOURTH DEPT))/OFFICE OF CHILDREN AND FAMILY SERVICES (FOSTER CARE, ALTHOUGH THE CHILD SHOULD NOT HAVE BEEN REMOVED FROM PETITIONERS' HOME FOR PLACEMENT IN ANOTHER FOSTER HOME WITH THE CHILD'S SIBLINGS, SO MUCH TIME HAS ELAPSED A HEARING MUST BE HELD TO DETERMINE WHICH PLACEMENT IS NOW IN THE BEST INTERESTS OF THE CHILD (FOURTH DEPT))

 

FAMILY LAW.

ALTHOUGH THE CHILD SHOULD NOT HAVE BEEN REMOVED FROM PETITIONERS' HOME FOR PLACEMENT IN ANOTHER FOSTER HOME WITH THE CHILD'S SIBLINGS, SO MUCH TIME HAS ELAPSED A HEARING MUST BE HELD TO DETERMINE WHICH PLACEMENT IS NOW IN THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined the child, born March 2015, should not have been removed from petitioners' foster home in June, 2016, and placed in another foster home with the child's siblings. However, so much time had passed during the court proceedings, the Fourth Department required that a hearing be held at this point to determine what placement is in the child's best interests:

This case ... presents unique difficulties because well over a year has elapsed since the child's removal from petitioners' home and the subsequent fair hearing. We acknowledge that petitioners' expert testified at the hearing that the damage caused to the child could be mitigated or reversed if she were "swiftly" or "urgently" returned to petitioners' care, but the child has been living in the foster home with her siblings since June 1, 2016. It would be conjecture for us to conclude now that disrupting the child's life again and returning her to petitioners' home would be more consistent with her best interests than having her remain in her present foster home. Despite our conclusion that the court adjudicated this matter appropriately, the relief sought by petitioners, i.e., the immediate return of the child, is inappropriate at this juncture. In the exercise of our discretion, we therefore modify the judgment accordingly, and we remit the matter to OCFS [Office of Children and Family Services] to conduct a hearing forthwith to determine the best interests of the child and to fashion an appropriate remedy consistent with the evidence presented at the hearing ... . Should petitioners be aggrieved by OCFS's subsequent decision, they may seek review through another CPLR article 78 proceeding. Matter of Schneiter v New York State Off. of Children & Family Servs., 2017 NY Slip Op 07035, Fourth Dept 10-6-17

 

 

 

 

 

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT))/STANDING (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT))

 

FORECLOSURE.

BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate it had standing to bring the foreclosure action:

Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. The copy of the note, which was not annexed to the complaint but was submitted by the plaintiff in support of its motion, inter alia, for summary judgment, contained an undated endorsement to the plaintiff ... . Furthermore, although the document control officer of the plaintiff's loan servicer stated in his affidavit that the plaintiff was the holder of the note, he never stated that the plaintiff was the holder of the note at the time the action was commenced ... . Wells Fargo Bank, N.A. v Allen, 2017 NY Slip Op 06922, Second Dept 10-4-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DRIVER'S NEGLIGENCE IS NOT ALWAYS A QUESTION OF FACT WHEN THE DRIVER IS AWARE OF THE POSSIBILITY CHILDREN ARE PRESENT, PLAINTIFFS' CHILD WAS STRUCK BY DEFENDANT'S CAR, SUMMARY JUDGMENT PROPERLY AWARDED TO DEFENDANT DRIVER (FIRST DEPT))/TRAFFIC ACCIDENTS (CHILD STRUCK, DRIVER'S NEGLIGENCE IS NOT ALWAYS A QUESTION OF FACT WHEN THE DRIVER IS AWARE OF THE POSSIBILITY CHILDREN ARE PRESENT, PLAINTIFFS' CHILD WAS STRUCK BY DEFENDANT'S CAR, SUMMARY JUDGMENT PROPERLY AWARDED TO DEFENDANT DRIVER (FIRST DEPT))/CHILDREN (TRAFFIC ACCIDENTS, DRIVER'S NEGLIGENCE IS NOT ALWAYS A QUESTION OF FACT WHEN THE DRIVER IS AWARE OF THE POSSIBILITY CHILDREN ARE PRESENT, PLAINTIFFS' CHILD WAS STRUCK BY DEFENDANT'S CAR, SUMMARY JUDGMENT PROPERLY AWARDED TO DEFENDANT DRIVER (FIRST DEPT))

 

NEGLIGENCE.

DRIVER'S NEGLIGENCE IS NOT ALWAYS A QUESTION OF FACT WHEN THE DRIVER IS AWARE OF THE POSSIBILITY CHILDREN ARE PRESENT, PLAINTIFFS' CHILD WAS STRUCK BY DEFENDANT'S CAR, SUMMARY JUDGMENT PROPERLY AWARDED TO DEFENDANT DRIVER (FIRST DEPT).

The First Department determined summary judgment was properly awarded to defendant in this traffic accident case. Plaintiffs' child was struck by the defendant's car. Defendant was driving between 5 and 10 miles per hour and the child ran out from between parked cars. The court noted that there is no requirement that extra care be exercised because of the presence of children:

"A driver in an area where children are playing need not exercise extreme care or caution,' although [he] must exercise the care that a reasonably prudent person would exercise under the circumstances"... . Here, defendant established his entitlement to judgment as a matter of law by producing evidence that he was not speeding, driving only about 5-10 miles per hour, and that the infant plaintiff ran out from between two parked cars into the side of his vehicle ... .

 

No issues of fact exist as to whether defendant's speed was excessive under the circumstances ... . Contrary to plaintiffs' argument, Ferrer v Harris (55 NY2d 285 [1982]) does not stand for the broad proposition that a driver's negligence is always a question of fact when the driver was aware that children were possibly present. Plaintiffs failed to raise a triable issue of fact as to whether defendant ought to have seen the infant plaintiff before the impact. Accordingly, the point of impact was not a material issue of fact warranting denial of summary judgment ... . A.C. v Ajisogun, 2017 NY Slip Op 06894, First Dept 10-3-17

 

 

 

 

 

NEGLIGENCE (ALTHOUGH DEFENDANT HAD RIGHT OF WAY AND ON-COMING CAR RAN A RED LIGHT, DEFENDANT FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH DEFENDANT HAD RIGHT OF WAY AND ON-COMING CAR RAN A RED LIGHT, DEFENDANT FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT HAD RIGHT OF WAY AND ON-COMING CAR RAN A RED LIGHT, DEFENDANT FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUMMARY JUDGMENT (NEGLIGENCE, TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT HAD RIGHT OF WAY AND ON-COMING CAR RAN A RED LIGHT, DEFENDANT FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

 

NEGLIGENCE.

ALTHOUGH DEFENDANT HAD RIGHT OF WAY AND ON-COMING CAR RAN A RED LIGHT, DEFENDANT FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants' motion for summary judgment in this intersection accident case should not have been granted. Although the defendant driver demonstrated she had the right of way in making a left turn and the on-coming car which struck her ran a red light, defendant driver did not demonstrate freedom from comparative fault:

Defendants moving for summary judgment in a personal injury action must demonstrate, prima facie, that they did not proximately cause the plaintiff's injuries. Since, however, there can be more than one proximate cause of a plaintiff's injuries, defendants do not carry their burden simply by establishing that another party's actions were a proximate cause; they must establish their own freedom from comparative fault ... . Moreover, although the operators of vehicles with the right-of-way are entitled to anticipate that other operators will yield in compliance with the Vehicle and Traffic Law ... ,drivers with the right-of-way may nonetheless be found to have proximately caused the happening of an accident if they did not use reasonable care to avoid the accident ... . Fargione v Chance, 2017 NY Slip Op 06965, Second Dept 10-4-17

 

 

 

 

 

 

NEGLIGENCE (DEFENSE COUNSEL DID NOT CREATE THE IMPRESSION DEFENDANT DID NOT HAVE INSURANCE IN THIS TRAFFIC ACCIDENT CASE, DISSENT DISAGREED (FOURTH DEPT))/ATTORNEYS (TRAFFIC ACCIDENT CASE, INSURANCE COVERAGE, DEFENSE COUNSEL DID NOT CREATE THE IMPRESSION DEFENDANT DID NOT HAVE INSURANCE IN THIS TRAFFIC ACCIDENT CASE, DISSENT DISAGREED (FOURTH DEPT))/TRAFFIC ACCIDENTS (ATTORNEYS, INSURANCE COVERAGE, (DEFENSE COUNSEL DID NOT CREATE THE IMPRESSION DEFENDANT DID NOT HAVE INSURANCE IN THIS TRAFFIC ACCIDENT CASE, DISSENT DISAGREED (FOURTH DEPT))/INSURANCE COVERAGE (TRAFFIC ACCIDENT, ATTORNEYS, DEFENSE COUNSEL DID NOT CREATE THE IMPRESSION DEFENDANT DID NOT HAVE INSURANCE IN THIS TRAFFIC ACCIDENT CASE, DISSENT DISAGREED (FOURTH DEPT))

 

NEGLIGENCE, ATTORNEYS.

DEFENSE COUNSEL DID NOT CREATE THE IMPRESSION DEFENDANT DID NOT HAVE INSURANCE IN THIS TRAFFIC ACCIDENT CASE, DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined defendant's attorney did not imply that the defendant did not have insurance in this traffic accident case. The dissent would have granted a new trial because defense counsel created the impression defendant had no money and no insurance:

Plaintiff contends that she is entitled to a new trial because defense counsel repeatedly made statements to the jury implying that defendant had no insurance. We reject that contention. References to insurance coverage are generally irrelevant to the issues and are improper because of their prejudicial nature (see Leotta v Plessinger, 8 NY2d 449, 461, rearg denied 9 NY2d 688, mot to amend remittitur granted 9 NY2d 686; Rendo v Schermerhorn, 24 AD2d 773, 773; see also Salm v Moses, 13 NY3d 816, 817-818). Contrary to plaintiff's contention, defense counsel's references to defendant as her "client" were not improper, and her statements that defendant should not be held "responsible" for certain medical expenses were in response to plaintiff's testimony and the arguments of plaintiff's counsel. Defense counsel never stated or implied that defendant lacked insurance coverage for the accident or would have to pay out of pocket ... . * * *

FROM THE DISSENT:

At the outset of his opening statement, defense counsel, referring to defendant, said, "You know, he's an immigrant, he works full time, he has two jobs, and just trying to make a living." Although defendant did in fact have insurance coverage for the accident and defense counsel had been retained by the carrier, defense counsel went on to say that defendant "hired me to defend him in this lawsuit," and that plaintiff, who "wasn't working at the time of the accident," is "trying to get money from my client." Defense counsel further stated in his opening: "I don't think it's my client's responsibility to pay this woman;" "Should my client be responsible for paying this woman's [medical] bills?;" and "[defendant] shouldn't have to pay for plaintiff's pain medication." Plaintiff's counsel objected three times to these comments, but the court overruled the objections and declined to give a curative instruction. In his summation, defense counsel again suggested that defendant himself would have to satisfy a judgment with his own funds, stating, "I don't think my client should have to pay for" certain of plaintiff's claimed expenses arising from the accident.

 

In my view, the above comments "may very well have engendered sympathy [for defendant] in the jurors' minds" ... , thus depriving plaintiff of a fair trial.  Boehm v Rosario, 2017 NY Slip Op 07049, Fourth Dept 10-6-17

 

 

 

 

 

 

NEGLIGENCE (PLAINTIFF'S DECEDENT DIED AFTER BECOMING INTOXICATED AT A PARTY HELD BY CO-WORKERS, THE PARTY WAS NOT SANCTIONED BY THE EMPLOYER, EMPLOYER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/EMPLOYMENT LAW (DUTY OF CARE, OFF DUTY EMPLOYEES, PLAINTIFF'S DECEDENT DIED AFTER BECOMING INTOXICATED AT A PARTY HELD BY CO-WORKERS, THE PARTY WAS NOT SANCTIONED BY THE EMPLOYER, EMPLOYER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/DUTY OF CARE (EMPLOYMENT LAW, PLAINTIFF'S DECEDENT DIED AFTER BECOMING INTOXICATED AT A PARTY HELD BY CO-WORKERS, THE PARTY WAS NOT SANCTIONED BY THE EMPLOYER, EMPLOYER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/INTOXICATION (NEGLIGENCE, EMPLOYMENT LAW, PLAINTIFF'S DECEDENT DIED AFTER BECOMING INTOXICATED AT A PARTY HELD BY CO-WORKERS, THE PARTY WAS NOT SANCTIONED BY THE EMPLOYER, EMPLOYER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

NEGLIGENCE, EMPLOYMENT LAW.

PLAINTIFF'S DECEDENT DIED AFTER BECOMING INTOXICATED AT A PARTY HELD BY CO-WORKERS, THE PARTY WAS NOT SANCTIONED BY THE EMPLOYER, EMPLOYER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff's negligence and wrongful death action against plaintiff's decedent's employer (MSK) should have been dismissed because MSK owed no duty of care to plaintiff's decedent. Decedent was at a party for employees who worked together, but the party was not sanctioned by the employer and all employees were off duty. Plaintiff's decedent became intoxicated and was picked up by his wife (the plaintiff) who was a nurse. Plaintiff's decedent's co-workers placed him in the car. Plaintiff drove home an left plaintiff's decedent in the car to sleep it off. He died in the car:

Decedent, plaintiff's husband and an employee of MSK, became intoxicated at a holiday party organized by workers in MSK's facilities department. The party was not sanctioned by MSK, held on MSK property, or paid for by MSK, and all employees there were off duty. Coworker friends of the decedent contacted plaintiff, a registered nurse at MSK, and then helped decedent into her car. Plaintiff drove home and left decedent in the car, parked in their driveway, to sleep off his condition. Approximately one hour later, plaintiff checked on decedent, and found him now on the floor of the back seat, unresponsive. The autopsy report lists the cause of the death as alcohol intoxication and positional asphyxia.

 

The motion court erred in denying summary judgment to MSK. Their employees, in assisting decedent and placing him in his wife's care, did not assume a duty, and nothing they did placed him in a worse or different position of danger ... . Any opinions rendered about medical attention being unnecessary were nonactionable gratuitous commentary ... . Moreover, placing decedent into the car was not the proximate cause of his death; it merely furnished the occasion for the unfortunate occurrence ... . Gillern v Mahoney, 2017 NY Slip Op 06979, First Dept 10-5-17

 

UNEMPLOYMENT INSURANCE (REAL ESTATE BROKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT))/REAL ESTATE BROKERS (UNEMPLOYMENT INSURANCE, REAL ESTATE BROKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT))

 

UNEMPLOYMENT INSURANCE.

 

REAL ESTATE BROKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT).

The Third Department determined a real estate broker was an employee of a real estate services firm (Cushman & Wakefield) and was entitled to unemployment benefits:

 

Cushman & Wakefield recruits experienced real estate brokers to provide real estate services to its clients, and, prior to retaining those brokers, it conducts a criminal background check. Cushman & Wakefield requires the brokers that it retains to then execute a written broker-salesperson agreement, which governs their relationship ... . Pursuant to the agreement, Cushman & Wakefield provided its brokers with an office, various equipment — including a desk, telephone, stationary and business cards bearing the company's name — and secretarial and other support services deemed by Cushman & Wakefield to facilitate the brokers' transactional work. The agreement also specified that Cushman & Wakefield would furnish the brokers with advice, information and assistance that it deemed necessary for the brokers' assigned real estate activities and required the brokers to follow its written policies and procedures. Cushman & Wakefield also provided its brokers with fringe medical and dental benefits and reported these benefits as taxable income for the brokers and retained the right, at any time and in its sole discretion, to modify these benefits.

 

The agreement required brokers to faithfully devote their full business time and best efforts to aid and assist Cushman & Wakefield with the transaction of its business and, through the performance of their services, to promote the business and reputation of Cushman & Wakefield. * * *

In addition, Cushman & Wakefield had the sole discretion to determine the commission or fee charged to a client when a real estate transaction was completed, and the brokers were required to use only real estate forms approved by Cushman & Wakefield.  Matter of Cushman & Wakefield, Inc. (Commissioner of Labor), 2017 NY Slip Op 07022, Third Dept 10-5-17

 

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