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THE EVIDENCE OF PHYSICAL INJURY WAS SUFFICIENT TO SUPPORT THE ASSAULT SECOND CONVICTION (CT APP).

The Court of Appeals, reversing the appellate division, determined the evidence was sufficient to support the conviction of assault second:

The victim testified that defendant delivered a very hard blow to his face, that he felt pain, and that he experienced bleeding and swelling. Hospital records describe the victim’s pain as “aching” and indicate he was directed to take over-the-counter painkillers. Viewing the evidence in the light most favorable to the People, it was sufficient to establish physical injury for the purposes of Penal Law § 120.05 (3) … . People v Wheeler, 2023 NY Slip Op 02736. CtApp 5-18-23

Practice Point: The Court of Appeals, reversing the appellate division, found the evidence of physical injury sufficient to support the assault second conviction.

 

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THE INDICTMENT COUNT CHARGING AGGRAVATED FAMILY OFFENSE DID NOT SPECIFY WHICH OF THE LISTED OFFENSES WAS THE BASIS OF THE CHARGE, RENDERING THE COUNT JURISDICTIONALLY DEFECTIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the count of the indictment charging aggravated family offense (Penal Law 240.75) was jurisdictionally defective because it did not specify which of the offenses listed in the statute was the basis of the charge:

A defendant commits the crime of aggravated family offense pursuant to Penal Law § 240.75 when the defendant “commits a misdemeanor defined in subdivision two of this section as a specified offense and [the defendant] has been convicted of one or more specified offenses within the immediately preceding five years” (Penal Law § 240.75 [1]). Subdivision two of the statute contains 54 “specified offense[s],” 36 felonies and 18 misdemeanors … . To qualify as a specified offense, the defendant and the person against whom the offense was committed must be members of the same family or household as defined in CPL 530.11 (1) (see id. § 240.75 [2]) … . Thus, to commit the crime of aggravated family offense, a defendant must have been convicted of one or more of the specified offenses in subdivision two of the statute within the previous five years, the defendant must have currently committed one of the misdemeanor offenses listed in subdivision two, and both offenses must be committed against a member of the same family or household as the defendant.

Defendant contends that the failure to specify the current misdemeanor offense in the count of the indictment charging him with aggravated family offense rendered that count jurisdictionally defective … . We agree. People v Saenger, 2023 NY Slip Op 02735, CtApp 5-18-23

Practice Point: The aggravated family offense count did not specify the current misdemeanor offense on which the count was based, rendering the count jurisdictionally defective.

 

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THE DEFENDANT’S ACTIONS OBSERVED BY THE POLICE OFFICERS IN THIS STREET STOP DID NOT MEET THE “REASONABLE SUSPICION DEFENDANT HAD COMMITTED A CRIME OR WAS IN POSSESSION OF A WEAPON” STANDARD; THE FRISK WAS THEREFORE ILLEGAL AND THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, in a full-fledged opinion by Judge Wilson, and an extensive concurring opinion by Judge Rivera, determined the police did not have reasonable suspicion defendant had committed a crime or was in possession of a weapon at the time defendant was frisked. The drugs found on defendant’s person should have been suppressed:

Mr. Johnson’s [defendant’s] actions, as observed by Officer Pike, do not meet the minimum standard required to justify a stop and frisk under De Bour. Prior to the frisk, Officer Pike observed Mr. Johnson: (1) move from the driver’s seat to the passenger seat of his parked car; (2) move his upper torso back toward the driver’s seat; (3) pull up his pants and attempt to buckle his belt; and (4) appear nervous while being questioned. These circumstances do not support a reasonable view that Mr. Johnson was armed or that he had committed or was about to commit a crime. These actions “constituted [nothing] other than ‘innocuous behavior,’ sole reliance on which would impermissibly reduce the foundation for [this] intrusion to nothing but ‘whim or caprice’ ” … . People v Johnson, 2023 NY Slip Op 02734, CtApp 5-18-23

Practice Point: Here the Court of Appeals determined the defendant’s actions prior to the stop and frisk did not rise to the “reasonable suspicion” standard. The police observed defendant move to the passenger seat in his parked car, move his upper torso back toward the driver’s seat, pull up his pants and attempt to buckle his belt, and appear nervous when questioned. The stop and frisk was illegal and the seized drugs should have been suppressed.

 

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THE COURT OF APPEALS UPHELD THE VIABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE AS IT APPLIES TO SCHOOL SPORTS; AN EXTENSIVE DISSENT ARGUED THE DOCTRINE SHOULD BE ABANDONED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over two dissenting opinions, one of which argued the implied assumption of risk doctrine should be abandoned, determined the dismissal of one of the school-sports-assumption-of-risk cases before it (Stecky) should be affirmed and the dismissal of the other (Grady) should be reversed because it raised unresolved questions of fact:

In Secky, the primary assumption of risk doctrine applies, and we affirm the Appellate Division order granting defendants’ motion for summary judgment. Plaintiff, who had played basketball at the highest amateur student level, was injured during a drill in which the players competed to retrieve a rebound. Plaintiff’s coach had explained that the boundary lines of the court would not apply during the drill and that only major fouls would be called. At the time of the drill, bleachers stationed near the court were retracted. Plaintiff was injured when, pursuing a loose ball from the top of the key towards the bleachers, another player collided with him, causing plaintiff to fall into the bleachers and sustain an injury to his right shoulder. Plaintiff, through his mother, sued the coach and the school district, and defendants moved for summary judgment. * * *

… [P]laintiff’s injury is one inherent in the sport of basketball and so he assumed the risk of the injury he sustained. …

In Grady, by contrast, material issues of fact remain to be resolved by a jury. Plaintiff, a senior on the Chenango Valley High School varsity baseball team, was injured during his participation in a fast-moving, intricate drill. The drill involved two coaches hitting balls to players stationed in the infield, with one coach hitting to the third baseman, who would then throw to first base, while another coach hit to the shortstop, who would throw to the second baseman who would, in turn, throw to a player at “short first base,” positioned a few feet from regulation first base. Because the drill required baseballs from two parts of the infield to be thrown to two players in the same area by first base, the coaches had positioned a protective screen, measuring seven by seven, between the regulation first baseman and the short first baseman. Plaintiff, in the group of players assigned to first base, was injured when an errant ball, intended for the short first baseman, bypassed the short first baseman and the protective screen and hit him on the right side of his face, causing serious injury to his eye including significant vision loss. …

… [P]laintiff has raised triable questions of fact regarding whether the drill, as conducted here and with the use of the seven-by-seven-foot screen, “was unique and created a dangerous condition over and above the usual dangers that are inherent” in baseball … , and whether plaintiff’s awareness of the risks inherent in both the game of baseball and the practices that are a necessary part of participation in organized sports encompassed the risks arising from involvement in the drill performed here. Grady v Chenango Val. Cent. Sch. Dist., 2023 NY Slip Op 02142, CtApp 4-27-23

Practice Point: The majority rejected the dissenter’s argument that the assumption of risk doctrine should be abandoned.

 

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IN THIS SUIT BY YELLOW CAB MEDALLION OWNERS AGAINST THE NYC TAXI AND LIMOUSINE COMMISSION, PLAINTIFFS DID NOT STATE A CLAIM FOR BREACH OF AN IMPLIED COVENANT OF GOOD FAITH OR DECEPTIVE BUSINESS PRACTICES; PLAINTIFFS’ CLAIMS WERE BASED UPON DEFENDANTS’ ALLEGED FAILURE TO REGULATE COMPETING SERVICES LIKE UBER AND LYFT (CT APP).

The Court of Appeals determined the lawsuit against the NYC Taxi and Limousine Commission (TLC) and New York City by taxi services which purchased yellow cab medallions at an auction in 2013 failed to state a claim. The plaintiffs argued defendants breached an implied covenant of good faith by failing to regulate competing services like Uber and Lyft and engaged in deceptive business practices under General Business Law 349:

… [T]he covenant cannot be used to “imply obligations inconsistent with other terms of the contractual relationship,” and encompasses only those “promises which a reasonable person in the position of the promisee would be justified in understanding were included” … . * * *

… [P]laintiffs acknowledged in the bid forms that defendants made no representations or warranties “as to the present or future value of a taxicab medallion.” As plaintiffs concede on this appeal, that language is flatly inconsistent with any suggestion that defendants guaranteed the value of their medallions. …

… [P]laintiffs acknowledged in the bid forms that defendants made no representations or warranties “as to the present or future application or provisions of the rules of the [TLC] or applicable law.” The plain language of that disclaimer put plaintiffs on notice that they—not defendants—bore the risk that either TLC’s rules or its “application” thereof might change after the sale of the medallions. * * *

Section 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” (General Business Law § 349 [a] …). …. [T]he government’s issuance of a taxicab license is not a consumer-oriented transaction protected by section 349 … . Singh v City of New York, 2023 NY Slip Op 02141, CtApp 4-25-23

Practice Point: Yellow cab medallion holders, when the purchased the medallions at auction, agreed the bid included disclaimers stating the future value of the medallions was not guaranteed. Therefore the breach-of-a-covenant-of-good-faith cause of action failed. In addition, the deceptive business practices (General Business Law 349) cause of action the purchase of yellow cab medallions is not a consumer-oriented transaction subject to the statute.

 

THE TRANSFER OF REAL PROPERTY TO DECEDENT’S CHILDREN WAS A VALID EXERCISE OF THE POWER OF ATTORNEY; THE TRANSFER WAS COMPENSATION FOR CARE, NOT A GIFT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER THE TRANSFER WAS A GIFT AND THE POWER OF ATTORNEY DID NOT AUTHORIZE GIFTS (CT APP). ​

The Court of Appeals, over a dissent, determined that the transfer of real property to decedent’s children as compensation for the care given decedent was allowed under the operative power of attorney. The power of attorney did not include the power to make gifts. The dissent argued there was a question of fact whether the property transfer was a gift. Matter of Maika, 2023 NY Slip Op 02092, CtApp 4-25-23

Practice Point: The question here was whether the transfer of decedent’s property to his children was compensation for care, which was authorized by the power of attorney, or, as argued by the dissent, a gift, which was not authorized by the power of attorney.

 

THE PLAINTIFF, AFTER ASSIGNING HIS RIGHTS TO A STRUCTURED SETTLEMENT IN RETURN FOR LUMP SUM PAYMENTS, COULD NOT SUE THE INSURER PAYING THE SETTLEMENT ANNUITY FOR FAILING TO OBJECT TO THE ASSIGNMENT, WHICH WAS PROHIBITED BY THE SETTLEMENT AGREEMENT; PLAINTIFF UNSUCCESSFULLY ARGUED THE INSURER’S FAILURE TO OBJECT TO HIS ASSIGNMENT OF THE SETTLEMENT PAYMENTS CONSTITUTED A BREACH OF AN IMPLIED COVENANT OF GOOD FAITH (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissent, determined that the plaintiff, Cordera, who had received a settlement award for lead poisoning, could not sue the insurer for failing to stop him from “selling” the rights to his 30-years-of-monthly-settlement-payments worth about $950,000 for about $270,000. The transactions were approved by a Florida court. Plaintiff unsuccessfully argued the defendant insurer’s failure to enforce the non-assignment provision of the settlement agreement (which prohibited the assignment of the settlement proceeds) was a breach of an implied covenant of good faith:

The United States Court of Appeals for the Eleventh Circuit certified to this Court a question requiring us to consider whether a plaintiff sufficiently pleads a cause of action for breach of the implied covenant of good faith and fair dealing under New York law by alleging that, during a Structured Settlement Protection Act proceeding, defendants (i.e., the structured settlement obligor and the issuer of an annuity funding the settlement) failed to enforce the anti-assignment provisions contained in structured settlement and qualified assignment agreements. Based on our reformulation of the question, we conclude that such allegations do not state a cognizable cause of action for breach of the implied covenant. * * *

Cordero claims that the anti-assignment provisions provide that reasonable expectation because they can be read to require issuers and obligors to protect plaintiffs from their own actions by objecting to their attempts to make further assignments. This theory is, of course, dependent on the view that the anti-assignment provisions in structured settlement and qualified assignment agreements are, at least in part, for a plaintiff’s benefit. Even assuming that is true, however, a reasonable person in the position of such a plaintiff would not be justified in believing, at the time the agreements were made, that the anti-assignment provisions required the issuer and obligor to object to any attempt the plaintiff made to execute prohibited assignments as part of [a] proceeding in which the court is charged with determining whether the transfer is “in the best interest of the payee” … . Cordero v Transamerica Annuity Serv. Corp., 2023 NY Slip Op 02091, CtApp 4-25-23

Practice Point: The insurer paying out settlement proceeds to an injury plaintiff is not obligated to object to the injured parties assignment of the settlement payments in return for a lump sump, even though the settlement agreement prohibits such an assignment. Here the plaintiff unsuccessfully argued the insurer’s failure to object was a breach of an implied covenant of good faith.

 

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​ IN A DISPUTE INVOLVING THE TELECAST RIGHTS FOR TWO MAJOR LEAGUE BASEBALL TEAMS, THE ARBITRATOR EXCEEDED ITS POWERS, WHICH WERE SPELLED OUT IN THE SETTLEMENT AGREEMENT, BY IMPOSING A MONEY JUDGMENT; THE ARBITRATOR’S RULING WAS AFFIRMED BUT THE MONEY JUDGMENT WAS VACATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Justice Singas, determined that the settlement agreement controlled the limits of the arbitrator’s powers in this dispute between two major league baseball team and their co-owned sports network about the value of telecast rights. Pursuant to the settlement agreement the arbitrator had the power to decide the fees associated with the telecast rights, but did not have the power to impose a money judgment:

New York’s well-established rules of contract law, which apply to arbitration agreements, provide that courts will enforce a commercial contract between sophisticated and counseled parties according to the contract’s terms. In this case, two Major League Baseball (MLB) teams and their co-owned regional sports network are in a dispute regarding the fair market value of certain telecast rights. By affirming the confirmation of the second arbitration award and directing that the money judgment be vacated, we hold the highly sophisticated parties to the terms of their agreement. * * *

Although the courts below correctly confirmed the second arbitration award, the order appealed from must be modified because Supreme Court erred by awarding the Nationals prejudgment interest and rendering a money judgment in the Nationals’ favor. The settlement agreement grants the RSDC [the arbitrator] the power only to determine “the fair market value” of the telecast rights fees. The parties did not agree that the RSDC could resolve disputes over nonpayment of such fees. Instead, remedies for … nonpayment of those fees are governed by a different provision of the settlement agreement, which sets forth certain requirements, including a cure period. Only after that cure period expires do the Nationals “have a right to seek money damages.” Further, disputes over nonpayment of the fees appear to be governed by the settlement agreement’s more general dispute resolution provisions. Matter of TCR Sports Broadcasting Holding, LLP v WN Partner, LLC, 2023 NY Slip Op 02090, CtApp 4-25-23

Practice Point: Sophisticated parties (here major league baseball teams and a regional sports network) must be held to the terms of the underlying commercial contract. The arbitrator exceeded its powers by imposing a money judgment after deciding the fee dispute. The settlement agreement did not empower the arbitrator to impose the money judgment.

 

A SUPERIOR COURT INFORMATION (SCI) FILED AFTER INDICTMENT IS A NULLITY (CT APP).

​The Court of Appeals noted that a superior court information (SCI) filed after indictment is a nullity:

A defendant may waive their constitutional right to grand jury presentment and indictment and proceed by SCI in accordance with the strict technical requirements of CPL 195.10 (2). Here, the SCI was filed after the grand jury indicted defendant and thus the SCI failed to comply with the statutory prerequisites. Accordingly, the SCI is a nullity and was properly dismissed (see CPL 195.10 [2] …). People v Solomon, 2023 NY Slip Op 02030, CtApp 4-20-23

Practice Point: A superior court information (SCI) filed after indictment is a nullity.

 

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TEXT EXCHANGES WITH AND PHOTOGRAPHS OF THE RAPE AND SEXUAL-ABUSE VICTIM DELETED BY DEFENDANT FROM HIS CELL PHONE AND SUBSEQUENTLY RECOVERED DO NOT CONSTITUTE “NEWLY DISCOVERED” EVIDENCE WHICH WILL SUPPORT A MOTION TO VACATE THE CONVICTION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined defendant’s motion to vacate his conviction based on newly discovered evidence was properly denied without a hearing. Defendant was convicted of multiple counts of rape and sexual abuse of the fifteen-year-old victim. The newly discovered evidence was deleted by the defendant and subsequently recovered on defendant’s cell phone:

… [T]he evidence proffered is far from newly discovered—it is evidence the defendant knew about, was involved in the creation of, and believed he destroyed well before trial in an effort to conceal criminal activity. As defendant affirmed, he “deleted the photographs and/or text messages because [he] did not want anyone to see them.” This is unsurprising given that the material, including nude photographs he took of the victim, was compelling evidence of his sexual contact with a minor. Defendant cannot now claim that because certain “technology” was not available to recover the incriminating texts and photographs that he attempted to destroy, that material, now recovered, somehow qualifies as “newly discovered evidence.”

Nor has defendant met CPL 440.10 (g)’s due diligence prong, which requires that defendant show that the evidence could not have been produced at the trial even with due diligence on the part of defendant. Nowhere in defendant’s conclusory submissions is there any showing that the evidence was inaccessible before trial, or any indication that defendant tried to obtain it. People v Hartle, 2023 NY Slip Op 02029, CtApp 4-20-23

Practice Point: Text messages and photos of the sexual abuse and rape victim deleted from defendant’s cell phone and subsequently recovered cannot be deemed “newly discovered” evidence which will support a motion to vacate the conviction.

 

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