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SORA Hearing—Insufficient Proof of Drug or Alcohol Abuse

Proof was insufficient to demonstrate “drug or alcohol abuse” under the SORA guidelines.  The SORA assessment was therefore improper. People vs. Palmer, People vs Long, Nos. 14 & 15, CtApp, 2-12-13

 

Consecutive Nature of Sentence is Collateral Consequence of Conviction

…[T]he consecutive nature of defendant’s sentence pursuant to Penal Law [section] 70.25 (2-a) is a collateral consequence of his conviction. …[T]he failure of the trial court to address the impact of Penal Law [section] 70.25 (2-a) during the plea colloquy does not require vacatur of the plea.”  People vs Belliard, No. 5, CtApp 2-12-13

 

a follow the settlement clause in a reinsurance treaty requires deference to the allocation of reinsurance proceeds by the insured, but does not render the allocation immune from scrutiny for reasonableness.

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined there were questions of fact whether the insured’s, USF&G’s, allocation of reinsurance proceeds in this billion dollar asbestos case was reasonable in that, inter alia, it ignored “bad faith” claims not covered by the the reinsurance:

We conclude … that there is an issue of fact as to whether  USF&G [the insurance company, called a cedent in this context], in allocating the settlement amount, reasonably attributed nothing to the so called “bad faith” claims made against it. We also find a factual issue as to whether certain claims were given unreasonable values for settlement purposes. * * *

Having settled the coverage case, USF&G turned to its reinsurers, defendants in this case, with whom it had entered into a “treaty” of reinsurance applicable to the years 1956 through 1962. The reinsurance was of the type known as “excess of loss”: the reinsurers agreed to pay to USF&G the amount over $100,000 of any loss occurring during the period covered by the treaty. Since USF&G’s loss in the asbestos litigation could not, under its policies, exceed $200,000 per claimant, the reinsurers’ liability was in effect capped at $100,000 per loss. But the reinsurance treaty, like the underlying policies, had no aggregate limit—the reinsurers could be liable for any number of losses, up to $100,000 each. * * *

… [W]e find it impossible to conclude, as a matter of law, that parties bargaining at arm’s length, in a situation where reinsurance was absent, could reasonably have given no value to the bad faith claims. This issue must be decided at trial. …

Whether the values assigned to lung cancer, asbestosis, pleural thickening and other cancer claims could reasonably have been agreed on in arm’s length bargaining in the absence of reinsurance presents an issue of fact. United States Fid. & Guar. Co. v American Re-Ins. Co., 2013 NY Slip Op 00784 [20 NY3d 407], CtApp 2-7-13

 

 

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plaintiff entitled to a potential bias jury instruction when fact witness called by defendant receives a fee much higher than the minimum fee required by cplr 8001.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the plaintiff in this personal injury action was entitled to a potential bias jury instruction. The fact witness subpoenaed by the defendant (CSI) was paid $10,000 and the high fee was not explained:

Plaintiff testified that she stepped into a “dip in the trench” that caused her to fall. To rebut this testimony, CSI subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor was called merely as a fact witness to testify concerning his entry in the “history” section of his consultation note that plaintiff “tripped over a dog while walking last night in the rain” (emphasis supplied). He testified consistently with his documented note. During cross-examination, plaintiff’s counsel elicited from the doctor that CSI had paid him $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to “testify[ ] to my records.” His testimony consisted only of his verification that he made the entry into the emergency room record. No professional opinion was sought nor given. Plaintiff’s counsel requested that the court strike the doctor’s entire testimony or, in the alternative, issue either a curative instruction or a jury charge concerning monetary influence.

The following day, before summations, plaintiff’s counsel asked that the court charge the jury that, pursuant to CPLR 8001, the doctor, as a fact witness, was entitled to a witness fee of $15 per day and $.23 per mile to and from the place where he was served with the subpoena. Defense counsel countered that the witness fee was the statutory minimum and that [*3]there was no prohibition against paying a fact witness for time missed from work. * * *

We agree with plaintiff that Supreme Court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor. Supreme Court generally instructed the jury that bias or prejudice was a consideration that it should consider in weighing the testimony of any of the witnesses, but this was insufficient as it pertained to CSI’s payment to the doctor. To be sure, Supreme Court properly acted within its discretion in concluding that the fee payment was fertile ground for cross-examination and comment during summation. But because CSI did not even attempt to justify the $10,000 payment for one hour of testimony, Supreme Court should have also crafted a charge that went beyond the CPLR 8001 requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business. Should the [*5]jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony (see PJI 1:904) … . Caldwell v Cablevision Sys. Corp., 2013 NY Slip Op 00783 [20 NY3d 365], CtApp 2-7-13

 

general business law 627-a, which requires that a health club have an automated external defibrillator and a person qualified to use it does not impose tort liability on the club for failure to use it.

The Court of Appeals, in a full-fledged opinion by Judge Read, over a partial dissent, determined that General Business Law 627-a, which requires a health club to have an automated external defibrillator (AED) and a person qualified to use it, does not impose tort liability based upon a failure to use the device. Here plaintiff’s decedent collapsed and the health club employee did not use the AED because plaintiff’s decedent was breathing. Subsequently a doctor and a medical student attended to plaintiff’s decedent. When the ambulance personnel used a AED, plaintiff’s decedent could not be revived. A wrongful death action was brought against the club (Bally) and defendant’s moved to dismiss:

… [W]e hold that General Business Law § 627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained on site.

The dissent objects that our interpretation renders section 627-a “virtually meaningless” (dissenting op at 352) and “purposeless” … . On the contrary, there is nothing meaningless or purposeless about a statute that seeks to insure the availability of AEDs and individuals trained in their use at locations—i.e., health clubs—where there is a population at higher risk of sudden cardiac arrest. Obviously, though, AEDs are not meant to be employed mindlessly. …

A law that mandates the presence of AEDs and trained individuals at health clubs is easy to obey and enforce. The implied duty envisioned by the dissent is neither; such a duty… would engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty. The legislature is unlikely to have imposed such a new duty absent an express statement, especially given the remedy of treble damages provided by General Business Law § 628. Miglino v Bally Total Fitness of Greater N.Y., Inc., 2013 NY Slip Op 00780 [20 NY3d 342], CtApp 2-7-13

 

 

 

 

 

 

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Defendant’s Behavior Did Not Justify Arrest for Disorderly Conduct

The defendant’s arrest for “disorderly conduct” was not supported by probable cause.  Specifically, the proof was insufficient to support the “public harm” element of the offense.  “During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. …[T]he public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct … . And there is no basis to infer that [the officer] felt threatened by the statements.”  The “risk to public order” was not sufficient to justify the arrest.  People vs. Baker, No. 16, CtApp 2-7-13

 

Father Estopped from Denying Paternity

Before a party can be estopped from denying paternity the court must be convinced applying equitable estoppel is in the best interest of the child.  Here the child was eight years old, knew the respondent as her father, with his encouragement, and relied on respondent to be her father.  Family Court’s finding the respondent was equitably estopped from asserting nonpaternity was correct.  Commissioner of Social Services vs. Julio, J., No. 57, SSM 44, CtApp, 1-10-13

 

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