Court of Appeals – New York Appellate Digest

THE TWO-JUSTICE DISSENT DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE ORDER DENYING SUMMARY JUDGMENT DID NOT NECESSARILY AFFECT THE FINAL JUDGMENT (CT APP).

The Court of Appeals, dismissing the appeal, in a brief memorandum decision, held that the two-justice dissent (which would normally require review by the Court of Appeals) did not present a reviewable question of law:

… [A]ppeal dismissed, with costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law which would be reviewable by the Court of Appeals (see CPLR 5601 [a]; 5501 [a] [1]). The dissent was predicated on an order denying partial summary judgment that did not necessarily affect the judgment from which the appeal was taken (see Bonczar v American Multi-Cinema, Inc., 38 NY3d 1023 [2022]). Shaw v City of Rochester, 2022 NY Slip Op 05197, Ct App 9-15-22

Below is the summary of Bonczar v American Multi-Cinema, Ins. (cited by the Court of Appeals in Shaw, supra):

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

September 15, 2022/0 Comments/by Bruce Freeman

Appeals, Constitutional Law, Criminal Law, Evidence

ON REMAND FROM THE US SUPREME COURT, THE COURT OF APPEALS FOUND THAT THE VIOLATION OF DEFENDANT’S RIGHT OF CONFRONTATION WAS HARMLESS ERROR (CT APP).

The Court of Appeals, on remand from the US Supreme Court, determined the evidentiary error was harmless and affirmed defendant’s conviction. The defendant was convicted of murder. The plea allocution of Morris, who was initially prosecuted for the same murder (but exonerated by DNA evidence). was allowed in evidence in defendant’s trial, a violation of defendant’s right to confront the witnesses against him. The Court of Appeals held the evidence against defendant was overwhelming rendering the violation of defendant’s right of confrontation harmless:

… “[T]here is no reasonable possibility” that the erroneously admitted plea allocution “might have contributed to defendant’s conviction” (People v Crimmins , 36 NY2d 230, 237 [1975]). The plea allocution neither exculpated Morris nor inculpated defendant as the shooter, thus allowing defendant to argue to the jury that Morris was the perpetrator. Indeed, it merely supported a conclusion that Morris possessed a .357 magnum revolver on the day in question, and [a witness] had already testified to that alleged fact. … [T]he prosecutor’s reliance on the plea was exceedingly minimal. Under these circumstances and in light of the other, overwhelming evidence of defendant’s guilt, the error below was “harmless beyond a reasonable doubt” (id. at 237, citing Chapman v California , 386 US 18 [1967]). People v Hemphill, 2022 NY Slip Op 04663, CtApp 7-21-22

Practice Point: It is worth remembering that even a constitutional error, here the violation of defendant’s right to confront the witnesses against him, is subject to a harmless-error analysis.

July 21, 2022/by Bruce Freeman

Criminal Law, Public Health Law

THE MISDEMEANOR COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO DETERMINE WHETHER THE SYNTHETIC CANNABINOID DEFENDANT WAS CHARGED WITH POSSESSING WAS ONE OF THE SYNTHETIC CANNABINOIDS DESIGNATED AS CONTROLLED SUBSTANCES BY THE PUBLIC HEALTH LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Term and dismissing the accusatory instrument, determined the accusatory instrument did not allege that the synthetic cannabinoid defendant was charged with possessing was a controlled substance pursuant to the Public Health Law:

Defendant … was charged with criminal possession of a controlled substance in the seventh degree for allegedly possessing an illegal synthetic cannabinoid. The Public Health Law’s controlled substance schedules criminalize possession of some, but not all, synthetic cannabinoids. Because the misdemeanor [complaint] to which defendant pleaded guilty failed to allege a sufficient factual basis to conclude that the substance defendant possessed was illegal, that count was facially deficient and should be dismissed. * * *

The Public Health Law’s statutory framework, which criminalizes only a subset of synthetic cannabinoids, renders it difficult for both the public and law enforcement alike to reasonably conclude whether a synthetic cannabinoid is a controlled substance without additional facts … . Given this particular statutory framework, the misdemeanor count in this accusatory instrument contains a fundamental defect because it does not sufficiently allege that defendant committed a crime. …

The instrument’s factual assertions gave no basis for concluding that the substance defendant possessed was a controlled substance; that is, an illegal synthetic cannabinoid as listed with precision in Public Health Law § 3306 (g), as opposed to one of the many synthetic cannabinoid substances that are not criminalized in the schedule. People v Ron Hill, 2022 NY Slip Op 03930, CtApp 6-16-22

Practice Point: There are many synthetic cannabinoids in addition to those designated controlled substances by the Public Health Law. Here the misdemeanor complaint did not allege enough facts to determine whether the synthetic cannabinoid allegedly possessed by the defendant was on the Public-Health-Law list. The complaint was therefore facially deficient.

June 16, 2022/by Bruce Freeman

Contract Law, Landlord-Tenant, Real Property Tax Law

THE TENANT (A NET LESSEE), WHICH WAS OBLIGATED BY THE TERMS OF THE LEASE TO PAY PROPERTY TAXES, CAN CHALLENGE A PROPERTY-TAX ASSESSMENT BY FILING A GRIEVANCE PURSUANT TO REAL PROPERTY TAX LAW (RPTL) 524 (3); THE APPELLATE DIVISION HAD RULED ONLY THE PROPERTY OWNER COULD CHALLENGE THE ASSESSMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined a tenant who is obligated to pay property taxes can properly file a grievance contesting a property-tax assessment:

RPTL 524 (3) presents an ambiguity. The clause “person whose property is assessed” is not defined in the RPTL, and it lends itself to more than one reasonable interpretation … . * * *

… [W]e … hold that a grievance complaint filed with the assessor or board of assessment review at the administrative level by a net lessee who is contractually obligated to pay real estate taxes on the subject property satisfies RPTL 524 (3). Matter of DCH Auto v Town of Mamaroneck, 2022 NY Slip Op 03929, CtApp 6-16-22

Practice Point: Clearing up an ambiguity in Real Property Tax Law RPTL section 524, the Court of Appeals held that a tenant (a net lessee), which is obligated by the terms of the lease to pay the property taxes, can file a grievance challenging the property-tax assessment. The Appellate Division had held only the property owner could challenge an assessment.

June 16, 2022/by Bruce Freeman

Criminal Law, Vehicle and Traffic Law

THE AMENDMENT TO THE SPEEDY TRIAL STATUTE WHICH EXTENDED THE STATUTE’S COVERAGE TO TRAFFIC INFRACTIONS JOINTLY CHARGED WITH CRIMES OR VIOLATIONS IS NOT TO BE APPLIED RETROACTIVELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the amendment to the speedy trial statute (CPL 30.30 (1) (e)) which made the statutory time-limits applicable to traffic infractions jointly charged with crimes or violations should not be applied retroactively. The amendment went into effect while defendant’s appeal to the Appellate Term was pending. The Court of Appeals held that the defendant’s motion to dismiss the accusatory instrument (which jointly charged misdemeanors and traffic infractions) on speedy-trial grounds should not have been granted by the Appellate Term:

Defendant was charged in 2014 in a single accusatory instrument with three misdemeanor counts and three traffic infractions under various sections of the Vehicle and Traffic Law. Approximately 17 months later, defendant moved to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 30.30. The court denied the motion, concluding that the statute did not apply to jointly charged traffic infractions and that the People did not exceed the 90-day statutory time limit applicable to the misdemeanor counts. Thereafter, a jury convicted defendant of two misdemeanors and two infractions and acquitted him of the remaining counts. …

The Appellate Term granted defendant’s motion to dismiss the accusatory instrument, including the traffic infractions, concluding that the People exceeded the statutory time limit to state their readiness for trial on the misdemeanor counts and that the amendment applied retroactively … . * * *

… [B]ecause the amended statute was not in effect when the criminal action against defendant was commenced, CPL 30.30 (1) (e) has no application to defendant’s direct appeal from that judgment of conviction. People v Galindo, 2022 NY Slip Op 03928, Ct App 6-16-22

Practice Point: The amendment to the speedy trial statute which extended the statute’s coverage to include traffic infractions jointly charged with crimes or violations is not to be applied retroactively. Here the amendment became effective while defendant’s appeal to the Appellate Term was pending. The Appellate Term should not have ruled the amendment applied to the defendant’s accusatory instrument, which jointly charged misdemeanors and traffic infractions.

June 16, 2022/by Bruce Freeman

Civil Procedure, Securities

ONLY THE ORIGINAL PLAINTIFF CAN TAKE ADVANTAGE OF CPLR 205 (A) WHICH ALLOWS RE-COMMENCEMENT OF A LAWSUIT WITHIN SIX MONTHS OF A DISMISSAL WHICH WAS NOT ON THE MERITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissenting opinion, determined the plaintiff, HSBC, could not take advantage of the six-month extension for commencing an action after a dismissal which was not on the merits (CPLR 205(a)) because HSBC was not the original plaintiff:

When a timely-commenced action has been dismissed on certain non-merits grounds, CPLR 205 (a) allows “the plaintiff” in that action “or, if the plaintiff dies,” the “executor or administrator” of the plaintiff’s estate, six months to commence a new action based on the same transaction or occurrence. The new action will be deemed timely based on the commencement of the prior action. Here, after the dismissal of a prior action brought by two certificateholders … —and after the statute of limitations expired—plaintiff HSBC Bank USA, National Association, in its capacity as trustee of a residential mortgage-backed securities (RMBS) trust, commenced this action against the sponsor, invoking CPLR 205 (a). Because HSBC was not “the original plaintiff” in the prior dismissed action … , we agree with the courts below that HSBC could not invoke CPLR 205 (a) to avoid dismissal of this time-barred claim … .* * *

HSBC is not “the plaintiff” in the prior action and the benefit of CPLR 205 (a) is unavailable to save its untimely complaint. … [T]his conclusion is consistent with the public policy underpinning the savings statute. CPLR 205 (a) is a remedial statute that … is “‘designed to insure to the diligent suitor'” an opportunity to have a claim heard on the merits … when the suitor has “initiated a suit in time” … but the claim was dismissed on some technical, non-merits-based ground. While the savings statute undoubtedly has a “broad and liberal purpose” … to “ameliorate the potentially harsh effect of the [s]tatute of [l]imitations” … , “[t]he important consideration is that, by invoking judicial aid [in the first action], a litigant gives timely notice to [the] adversary of a present purpose to maintain [its] rights before the courts” … . Where, as here, the litigant commencing the second action is not the original plaintiff, application of CPLR 205 (a) would protect the rights of a dilatory—not a diligent—suitor. By failing to bring the action within the statute of limitations, HSBC signaled that it had no intention to pursue its claims in court. CPLR 205 (a) does not apply and HSBC’s failure to commence an action within the statute of limitations is fatal. ACE Sec. Corp. v DB Structured Prods., Inc., 2022 NY Slip Op 03927, CtApp 6-16-22

Practice Point: Only the original plaintiff can take advantage of CPLR 205 (a) which allows re-commencement of a lawsuit within six months of a dismissal which was not on the merits.

June 16, 2022/by Bruce Freeman

Appeals, Criminal Law

THE VALIDITY OF A GUILTY PLEA IS NOT PROPERLY RAISED IN THE COURT OF APPEALS AFTER THE AFFIRMANCE OF A LEGAL SENTENCE BY THE APPELLATE DIVISION; WHERE THE SENTENCE IS LEGAL, AN EXCESSIVE-SENTENCE CLAIM IS BEYOND THE SCOPE OF THE COURT OF APPEALS (CT APP).

The Court of Appeals, over an extensive two-judge dissenting opinion, determined (1) the validity of a guilty plea is not properly raised in the Court of Appeals after the appellate division has affirmed the defendant’s legal sentence, and (2) where a sentence is legal, an excessive-sentence claim is beyond the scope of the Court of Appeals:

Defendant’s challenge to the validity of his plea is not properly raised on this appeal from an Appellate Division order affirming a sentence, pursuant to 22 NYCRR § 670.11 (b) (see CPL 450.30 [1]; 470.35 [1]; People v Pagan, 19 NY3d 368, 370-371 [2012]). Defendant’s sentence—an authorized prison term with post-release supervision—is not illegal, and any excessive sentence claim is beyond the scope of this Court’s review (see People v Veale, 78 NY2d 1022, 1023-1024 [1991]). The many dissenting opinions cited by the dissent provide no support for a different result (see dissenting op at 6, 8-11). People v Laboriel, 2022 NY Slip Op 03863, CtApp 6-14-22

Practice Point: The affirmance of a legal sentence by the appellate division does not give the Court of Appeals the authority to review the validity of a guilty plea.

Practice Point: If a sentence is legal, an excessive-sentence claim is beyond the scope of the Court of Appeals.

June 14, 2022/by Bruce Freeman

Animal Law, Constitutional Law

HAPPY, AN ELEPHANT IN THE BRONX ZOO, IS NOT A “PERSON” ENTITLED TO THE PROTECTION OF A WRIT OF HABEAS CORPUS; THE PETITION SOUGHT HAPPY’S TRANSFER TO AN ELEPHANT SANCTUARY; TWO DISSENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions, determined an elephant at the Bronx Zoo (Happy) was not entitled to the protection of a writ of habeas corpus. The petition sought Happy’s transfer from the zoo to an elephant sanctuary:

For centuries, the common law writ of habeas corpus has safeguarded the liberty rights of human beings by providing a means to secure release from illegal custody. The question before us on this appeal is whether petitioner Nonhuman Rights Project may seek habeas corpus relief on behalf of Happy, an elephant residing at the Bronx Zoo, in order to secure her transfer to an elephant sanctuary. Because the writ of habeas corpus is intended to protect the liberty right of human beings to be free of unlawful confinement, it has no applicability to Happy, a nonhuman animal who is not a “person” subjected to illegal detention. Thus, while no one disputes that elephants are intelligent beings deserving of proper care and compassion, the courts below properly granted the motion to dismiss the petition for a writ of habeas corpus … . Matter of Nonhuman Rights Project, Inc. v Breheny, 2022 NY Slip Op 03859, CtApp 6-14-22

Practice Point: So far, sentient non-humans (like Happy, an elephant in the Bronx Zoo) are not entitled to the protection against “illegal custody” afforded by a writ of habeas corpus.

June 14, 2022/by Bruce Freeman

Criminal Law, Evidence

EXCLUDING EVIDENCE WHICH CONTRADICTED AN IMPORTANT PROSECUTION-WITNESS’S ACCOUNT OF HIS ACTIONS RIGHT UP UNTIL THE TIME OF THE SHOOTING, AND THREE 911 CALLS WHICH QUALIFIED AS PRESENT SENSE IMPRESSIONS, DEPRIVED DEFENDANT OF HIS RIGHT TO PUT ON A DEFENSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Division in this murder case, determined evidentiary rulings excluding evidence which impeached an important witness and 911 calls admissible as present sense impressions deprived defendant of his right to present a defense. R.M. was a crucial prosecution witness. R.M. claimed to have been with his girlfriend, R.J. right up until the time of the shooting. But R.J. would have testified she was not with R.M. that day:

R.J.’s proffered testimony was probative of R.M.’s ability to observe and recall details of the shooting. At trial, R.M. testified that he was with R.J. until “seconds” before he witnessed the shooting, and that he was at the scene to walk R.J. home. Upon the People’s questioning, R.M. explained in detail his relationship with R.J., resulting in many pages of testimony as to where he met up with her that evening, the amount of time they spent together, and when they parted ways. This testimony, introduced and relied upon by the People, made R.J. an integral part of R.M.’s account of why he was in a position to witness the shooting, and placed her with him mere seconds before it occurred. Since the People’s own theory of the case placed R.J. on the scene the instant before the shooting, her testimony cannot be characterized as collateral. …

The court also erred in excluding the three 911 calls. The calls were admissible as present sense impressions. The present sense impression exception to the hearsay rule applies to statements that are “(1) made by a person perceiving the event as it is unfolding or immediately afterward” and “(2) corroborated by independent evidence establishing the reliability of the contents of the statement” … . “[D]escriptions of events made by a person who is perceiving the event as it is unfolding” are “deemed reliable . . . because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory” … . People v Deverow, 2022 NY Slip Op 03362, CtApp 5-24-22

Practice Point: Here an important prosecution witness claimed he was with his girlfriend right up until seconds before the shooting he allegedly witnessed. The girlfriend’s testimony that she was not with the witness that day should not have been excluded as collateral. In addition, three 911 calls which qualified as present sense impressions should not have been excluded. The Court of Appeals held these evidentiary errors deprived defendant of his right to put on a defense.

May 24, 2022/by Bruce Freeman

Civil Procedure, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

ONLY AN EXPRESS ACKNOWLEDEMENT OF THE MORTGAGE DEBT PURSUANT TO GENERAL OBLIGATIONS LAW 17-105 COULD REVIVE OR TOLL THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION; THE REFERENCES TO THE MORTGAGE DEBT IN FINANCIAL STATEMENTS AND TAX RETURNS PROVIDED TO THE MORTGAGOR BY THE MORTGAGEE WERE NOT ENOUGH (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive two-judge dissent, determined that the statute of limitations on the underlying foreclosure action was not tolled based upon acknowledgments of the mortgage debt in financial statements and tax returns. Rather, pursuant to General Obligations Law 17-105, only and express promise to pay the debt would revive an otherwise expired statute of limitations:

The primary question presented by this appeal is which section of article 17 of the General Obligations Law governs the tolling or revival of the statute of limitations period in an action pursuant to Real Property Actions and Proceedings Law (RPAPL) § 1501 (4). RPAPL § 1501 (4) allows a party to cancel a mortgage where the limitations period for commencing a foreclosure action has expired. We hold that General Obligations Law section 17-105, not section 17-101, governs whether the statute of limitations has been tolled or revived in such an action. * * *

Under General Obligations Law § 17-105 (1), the Partnership’s (mortgagee’s) actions in this case could only toll or revive the statute of limitations for the Council (mortgagor) to bring a foreclosure action if the Partnership made an “express” “promise to pay the mortgage debt.” Accordingly, the Appellate Division correctly concluded that the Partnership’s delivery of its financial statements and tax returns to Council did not meet the requirements of section 17-105 (1) because they were not express promises to pay the mortgage debt (189 AD3d at 28). Batavia Townhouses, Ltd. v Council of Churches Hous. Dev. Fund Co., Inc., 2022 NY Slip Op 03361, CtApp 5-24-22

Practice Point: Here references to the mortgage debt in financial statements and tax returns provided to the mortgagor by the mortgagee did not revive or toll the statute of limitations on the underlying foreclosure action. Pursuant to General Obligations Law 17-105, only an express acknowledgement of the mortgage would revive the action.

May 24, 2022/by Bruce Freeman

Posts

THE TWO-JUSTICE DISSENT DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE ORDER DENYING SUMMARY JUDGMENT DID NOT NECESSARILY AFFECT THE FINAL JUDGMENT (CT APP).

ON REMAND FROM THE US SUPREME COURT, THE COURT OF APPEALS FOUND THAT THE VIOLATION OF DEFENDANT’S RIGHT OF CONFRONTATION WAS HARMLESS ERROR (CT APP).

THE MISDEMEANOR COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO DETERMINE WHETHER THE SYNTHETIC CANNABINOID DEFENDANT WAS CHARGED WITH POSSESSING WAS ONE OF THE SYNTHETIC CANNABINOIDS DESIGNATED AS CONTROLLED SUBSTANCES BY THE PUBLIC HEALTH LAW (CT APP).

THE AMENDMENT TO THE SPEEDY TRIAL STATUTE WHICH EXTENDED THE STATUTE’S COVERAGE TO TRAFFIC INFRACTIONS JOINTLY CHARGED WITH CRIMES OR VIOLATIONS IS NOT TO BE APPLIED RETROACTIVELY (CT APP).

ONLY THE ORIGINAL PLAINTIFF CAN TAKE ADVANTAGE OF CPLR 205 (A) WHICH ALLOWS RE-COMMENCEMENT OF A LAWSUIT WITHIN SIX MONTHS OF A DISMISSAL WHICH WAS NOT ON THE MERITS (CT APP).

THE VALIDITY OF A GUILTY PLEA IS NOT PROPERLY RAISED IN THE COURT OF APPEALS AFTER THE AFFIRMANCE OF A LEGAL SENTENCE BY THE APPELLATE DIVISION; WHERE THE SENTENCE IS LEGAL, AN EXCESSIVE-SENTENCE CLAIM IS BEYOND THE SCOPE OF THE COURT OF APPEALS (CT APP).

HAPPY, AN ELEPHANT IN THE BRONX ZOO, IS NOT A “PERSON” ENTITLED TO THE PROTECTION OF A WRIT OF HABEAS CORPUS; THE PETITION SOUGHT HAPPY’S TRANSFER TO AN ELEPHANT SANCTUARY; TWO DISSENTS (CT APP).

EXCLUDING EVIDENCE WHICH CONTRADICTED AN IMPORTANT PROSECUTION-WITNESS’S ACCOUNT OF HIS ACTIONS RIGHT UP UNTIL THE TIME OF THE SHOOTING, AND THREE 911 CALLS WHICH QUALIFIED AS PRESENT SENSE IMPRESSIONS, DEPRIVED DEFENDANT OF HIS RIGHT TO PUT ON A DEFENSE (CT APP).

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