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AFTER MAKING THE LIFE INSURANCE PREMIUM PAYMENTS FOR 15 YEARS ON THE PREMIUM DUE DATE (JANUARY 14), PAYMENT WAS NOT TIMELY MADE IN 2018 AND DECEDENT DIED ON FEBRUARY 18, 2018, AFTER THE EXPIRATION OF THE 31-DAY GRACE PERIOD; COVERAGE WAS PROPERLY DENIED; TWO DISSENTERS ARGUED THE POLICY WAS AMBIGUOUS AND SHOULD BE INTERPRETED SUCH THAT THE GRACE PERIOD HAD NOT EXPIRED AT THE TIME OF DEATH (CT APP).

The Court of Appeals, affirming the Appellate Division, over a two-judge dissent, determined the decedent’s life insurance policy was unambiguous about the date premiums were due–January 14 or at the end of the 31-day grace period thereafter. After paying the premiums by January 14 for 15 years, the premium was not paid on time in 2018. The insured died on February 26, 2018, just days after the grace period expired. The insurer denied the claim arguing the coverage had lapsed. The Court of Appeals agreed with the insurer. The dissent argued the policy was ambiguous because it also stated the term of the policy was annual and the very first payment was made on January 31, which would place the decedent’s death within the grace period:

Plaintiff is not entitled to benefits under the policy. The terms of the policy clearly and unambiguously tie the due date of the annual premium to the date of issue, January 14, 2002, and expressly state that January 14 is the premium due date. That the insurance policy uses the term “annual” but the premium payment period—which runs from January 14th, the “Date of Issue” and “premium due date”—may not cover a full year creates no ambiguity in light of the clear policy language identifying January 14th as the “premium due date” … . Furthermore, any claimed ambiguity in the definition of “policy date” is irrelevant inasmuch as the policy does not tie the premium due date to the “policy date” but, rather, the date of issue, which is January 14th. Because the insured failed to pay the 2018 premium by January 14, 2018 or within the 31-day grace period, the policy lapsed prior to the insured’s death. Bonem v William Penn Life Ins. Co. of N.Y., 2022 NY Slip Op 00908. CtApp 2-10-22

 

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THE TOWN LAW STATUTE WHICH AUTHORIZES A TOWN TO REGULATE THE DISCHARGE OF “FIREARMS” DOES NOT AUTHORIZE A TOWN TO REGULATE THE DISCHARGE OF “BOWS” (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the Town Law does not authorize the Town of Smithtown to regulate the discharge of “bows” pursuant to its authority to regulate “firearms:”

Town Law § 130 (27) specifically authorizes certain towns to prohibit the discharge of “firearms” through ordinances that may be more restrictive than other laws where such discharge may be hazardous to the general public, and requires that notice be provided to the Department of Environmental Conservation of any ordinance “changing the five hundred foot [setback] rule” (Town Law § 130 [27]; see Environmental Conservation Law § 11-0931 [4] [a] [2]). While the term “firearm” is undefined in the Town Law, construing it in accordance with its “usual and commonly understood meaning” … , the term “firearm” does not encompass a “bow” … and we are unpersuaded that the Legislature intended otherwise when it used the term in the Town Law. Accordingly, Town Law § 130 (27) does not authorize Smithtown to regulate the discharge of bows. Hunters for Deer, Inc. v Town of Smithtown, 2022 NY Slip Op 00907, CtApp 2-10-22

 

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A JUDGMENT DEBTOR CANNOT BRING AN ACTION IN TORT AGAINST THE CREDITOR OR THE MARSHAL ALLEGING DAMAGES STEMMING FROM THE SEIZURE OF PROPERTY TO BE APPLIED TO THE DEBT; THE JUDGMENT DEBTOR’S REMEDIES ARE CONFINED TO THOSE DESCRIBED IN CPLR 5239 AND 5240 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, and an additional single-judge dissent, determined a judgment debtor cannot bring a action in tort against the creditor or the marshal stemming from the seizure of the judgment debtor’s property. Any such claim must be made pursuant to CPLR 5239, 5240:

“[G]eneral provisions that permit ‘any interested person’—including a judgment debtor—to secure remedies for wrongs arising under the statutory scheme” are set out in CPLR 5239 and 5240 … . CPLR 5239 provides that “[p]rior to the application of property or debt by a sheriff or receiver to the satisfaction of a judgment, any interested person may commence a special proceeding against the judgment creditor or other person with whom a dispute exists to determine rights in the property or debt.” In such a proceeding, “[t]he court may vacate the execution or order, void the levy, direct the disposition of the property or debt, or direct that damages be awarded” … . Section 5240 in turn lays out the court’s power to, “at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.” … CPLR 5240 grants the courts broad discretionary power to control and regulate the enforcement of a money judgment under article 52 to prevent ‘unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts'” … . … CPLR 5240 provides courts with the ability to craft flexible and equitable responses to claims that arise with respect to enforcement of valid money judgments. Plymouth Venture Partners, II, L.P. v GTR Source, LLC, 2021 NY Slip Op 07055, CtApp 12-16-21

 

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CASE 1: THE ACKNOWLEDGMENT OF SIGNATURES ON A NUPTIAL AGREEMENT MUST BE CONTEMPORANEOUS, BUT NOT NECESSARILY SIMULTANEOUS, WITH THE SIGNING; HERE A SEVEN-YEAR DELAY WAS TOO LONG; CASE 2: A DEFECT IN THE ACKNOWLEDGMENTS, HERE THE LAWYERS’ FAILURE TO STATE THE SIGNERS WERE PERSONALLY KNOWN TO THEM, DID NOT INVALIDATE THE AGREEEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined: (1) Pursuant to Domestic Relations Law (DRL) 236 (B) (3), the acknowledgment of signatures on a nuptial agreement must be contemporaneous, but not necessarily simultaneous, with the signing: and (2) if the signing is contemporaneous, but the acknowledgment is defective, the nuptial agreement remains enforceable. Here, in the Anderson case, the husband’s signature was not acknowledged until seven years after the signing (shortly before filing for divorce). In that circumstance the agreement would have to be reaffirmed to be enforceable. In the Koegel case, the lawyers’ acknowledgments failed indicate the undisputed fact that the signers were personally known to them. The defect in the acknowledgments did not affect the validity of the agreement and there was no need for reaffirmation:

[Re: Anderson:] A document that depends on an untimely acknowledgment is the legal and functional equivalent of an unacknowledged document. However, in a case involving such a document, the parties are not without a remedy. When there is an excessive delay rendering an acknowledgment ineffective and the agreement therefore unenforceable, the parties are free to reaffirm their agreement, again based on the information available to them at that time. To comply with DRL § 236 (B) (3), reaffirmation would require that both parties must again sign and acknowledge the agreement. The rule thus places the parties on a fair and equal footing in deciding whether to be bound by the agreement—either initially or at some future date if the agreement is unenforceable because of the delay. * * *

[Re: Koegel:] We … hold that the defect … presented in this appeal may be overcome with adequate evidence that the statutory requirements were met, even if the acknowledgment is not properly documented in the first instance. This limited remedy avoids invalidating a nuptial agreement when the parties have done all that the DRL requires of them. In other words, the signature and acknowledgment may satisfy the statutory mandates if extrinsic evidence supports “that the acknowledgment was properly made in the first instance” even if the certificate fails to “include the proper language” due to the notary’s or other official’s error … . Anderson v Anderson, 2021 NY Slip Op 07058, CtApp 12-16-21

 

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THE SEX TRAFFICKING STATUTE HAS TWO LINKED BUT DISTINCT ELEMENTS WHICH WERE PROPERLY EXPLAINED TO THE JURY IN THE INITIAL JURY INSTRUCTIONS; HOWEVER THE SUPPLEMENTAL INSTRUCTION IN RESPONSE TO A JURY NOTE ERRONEOUSLY COLLAPSED THE STATUTE TO A SINGLE ELEMENT; NEW TRIAL ORDERED ON THE SEX TRAFFICKING COUNTS (CT APP).

The Court of Appeals, in a brief memorandum, vacating the sex trafficking convictions and ordering a new trial, over two lengthy concurrences and a dissent, determined the supplemental jury instruction failed to explain to the jury that the sex trafficking statute has two linked but distinct elements which must be proven to convict. The positions taken by the concurrences differ and are too nuanced to fairly summarize here:

The sex trafficking statute is comprised of two distinct but linked elements, namely the offender must advance or profit from prostitution by one of the enumerated coercive acts (see Penal Law § 230.34). The trial court’s supplemental instruction, in response to a jury note, erroneously severed the required link between those elements. Accordingly, defendant’s sex trafficking convictions should be vacated, and a new trial held on those counts … . * * *

From Judge Singas’s Concurrence:

Collapsing sex trafficking into a single-element crime would cast too small a net, unjustifiably limiting the jurisdiction of this State to prosecute only those cases where the entire crime occurred in New York. Just as significantly, treating the statute’s two elements as unlinked could unjustifiably authorize prosecution of crimes in New York for extraterritorial conduct having no impact on the public safety of the state. Accordingly, we would hold that the sex trafficking statute is comprised of two discrete yet connected elements, to wit, the offender must advance or profit from prostitution through coercive acts taken in furtherance of his or her prostitution enterprise. People v Lamb, 2021 NY Slip Op 07057, CtApp 12-16-21

 

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THIS ACTION INVOLVED THE NAZIS’ CONFISCATION OF A DEGAS PAINTING OWNED BY A GERMAN CITIZEN WHO SUBSEQUENTLY MOVED TO SWITZERLAND AND THEN FRANCE; SUPREME COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING THE ACTION ON FORUM NON CONVENIENS GROUNDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a dissent, determined the action involving a Degas painting confiscated by the Nazis from a German citizen, who then moved to Switzerland and France, was properly dismissed on forum non coveniens grounds. The dismissal presented a matter requiring the exercise of discretion by Supreme Court, which was not abused:

CPLR 327 (a) provides that “[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just.” Generally, “a decision to grant or deny a motion to dismiss on forum non conveniens grounds is addressed to a court’s discretion” … and, if the courts below considered the various relevant factors in making such a determination, “there has been no abuse of discretion reviewable by this [C]ourt,” even if we would have weighed those factors differently … . * * *

… [T]he record reflects that the courts below painstakingly considered the relevant factors, including the public policies at issue, and determined that the balance of factors militated in favor of dismissal … . Thus, plaintiffs’ argument that this is one of the “relatively uncommon” cases in which forum non conveniens can be resolved, and denied, as a matter of law ultimately fails … . Inasmuch as the courts below considered the various relevant factors, “there has been no abuse of discretion reviewable by this [C]ourt” … . Estate of Kainer v UBS AG, 2021 NY Slip Op 07056, CtApp 12-16-21

 

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DEFENDANT FAILED TO CHALLENGE THE PREDICATE FELONY STATEMENT IN THE LOWER COURT; THEREFORE THE ALLEGED ERROR WAS NOT PRESERVED FOR APPEAL (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the alleged error in the CPL 400.21 predicate felony statement was not preserved for appeal:

Because defendant failed to challenge the CPL 400.21 predicate felony statement filed by the People in the court of first instance, her claim that her sentence was illegal due to the failure to include the tolling periods in that document did not present a question of law for purposes of appellate review … .  Defendant’s claim was not reviewable under the narrow illegal sentence exception to the preservation requirement because it was not “readily discernible from the trial record” that the sentence the court imposed was not within the permissible range … . People v Lashley, 2021 NY Slip Op 06938, CtApp 12-14-21

 

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UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, AN OBJECTION WAS NECESSARY TO PRESERVE THE ERROR RELATED TO DEFENDANT’S ABSENCE FROM A SIDEBAR CONFERENCE ABOUT A PROSPECTIVE JUROR; DEFENDANT SUBSEQUENTLY WAIVED HIS RIGHT TO BE PRESENT AND WAS GIVEN THE OPPORTUNITY TO OBJECT TO HIS ABSENCE FROM THE PRE-WAIVER SIDEBAR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined the defendant’s absence from a sidebar conference regarding a prospective juror did not require reversal. Subsequent to the the sidebar, defendant waived his right to be present at sidebar conferences and was given the opportunity to object to the pre-waiver sidebar. Under these circumstance, the Court of Appeals held, although normally not required, an objection was necessary to preserve the error for appeal:

When a defendant is not present at a sidebar conference wherein the court actively solicits answers from a prospective juror which relate to issues of bias or hostility, People v Antommarchi (80 NY2d 247 [1992]) requires a new trial in the absence of defendant’s waiver of the right to be present. Defendant’s protest in the trial court is generally not required. The purpose of the Antommarchi rule, as derived from CPL 260.20, is to provide defendant the opportunity to personally assess the juror’s facial expressions and demeanor in order to provide meaningful input on the prospective juror’s retention or exclusion from the jury. The question presented on this appeal is whether defendant, having explicitly waived his Antommarchi right to be present at sidebars in the middle of the voir dire proceeding involving a prospective juror who was ultimately struck when codefendant exercised a peremptory strike, is entitled to a new trial based on his absence from a pre-waiver sidebar conference with that same prospective juror. We conclude that the claimed error, under these unique circumstances, required defendant’s protest in the trial court given his acquiescence in the post-waiver voir dire of the prospective juror after being invited to express any objection that he may have had regarding the pre-waiver sidebar conference. People v Wilkins, 2021 NY Slip Op 06936, CtApp 12-14-21​

 

WORKERS’ COMPENSATION DEATH BENEFIT CLAIMS CANNOT BE TRANSFERRED TO THE SPECIAL FUND ON OR AFTER JANUARY 1, 2014, EVEN IF THE DISABILITY CLAIM FOR THE SAME INJURY HAD BEEN TRANSFERRED BEFORE THE CUT-OFF (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined Workers’ Compensation death benefit claims which accrued on orf after January 1, 2014, cannot be transferred to the Special Fund for Reopened Cases (Special Fund) even if the disability claim for the same injury had been transferred prior to the cut-off:

Under Workers’ Compensation Law (WCL) § 25-a (1-a), no liability for claims submitted on or after January 1, 2014, may be transferred to the Special Fund for Reopened Cases (the Special Fund). The common issue presented in these appeals is whether WCL § 25-a (1-a) forecloses the transfer of liability for a death benefits claim submitted on or after the cut-off, regardless of the prior transfer of liability for a worker’s disability claim arising out of the same injury. Based on the plain statutory language, which broadly applies to all claims submitted after the deadline, and our established precedent that a death benefits claim accrues at the time of death and “is a separate and distinct legal proceeding” from the worker’s original disability claim … , we conclude that liability for the death benefits claims at issue here could not be transferred to the Special Fund. Matter of Verneau v Consolidated Edison Co. of N.Y., Inc., 2021 NY Slip Op 06531, CtApp 11-23-21

 

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IF QUESTIONING A DEFENDANT ABOUT WHERE HE/SHE LIVES SERVES AN ADMINISTRATIVE PURPOSE AND IS NOT A DISGUISED ATTEMPT TO OBTAIN INCRIMINATING INFORMATION, DEFENDANT’S ANSWER IS SUBJECT TO THE PEDIGREE EXCEPTION TO THE MIRANDA REQUIREMENT; DNA EVIDENCE GATHERED BY THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined: (1) under the facts, the defendant’s answer to the police officer’s question regarding where he lived fell within the “pedigree exception” to the Miranda requirement (and therefore was not suppressible); and (2), the DNA evidence generated by the forensic statistical tool (FST) should not have been admitted without holding a Frye hearing:

We hold that the pedigree exception will not apply even if the pedigree question is reasonably related to police administrative concerns where, under the circumstances of the case, a reasonable person would conclude based on an objective analysis that the pedigree question was a “disguised attempt at investigatory interrogation” … . …

… [T]the pedigree questions were not a disguised attempt at investigatory interrogation … . … [T]he police asked defendant his name, date of birth, and where he lived immediately after their entry to the apartment, before the apartment had been searched and before any contraband had been found. The detective further testified that it is standard practice for all adults found at a location where a search warrant is executed to be handcuffed and asked these pedigree questions, regardless of whether contraband is found during the search. That defendant’s response ultimately turned out to be incriminating does not alter the conclusion that, at the time it was asked, the question was not a disguised attempt at investigatory interrogation by the police … . * * *

Williams [35 NY3d 24] contains our reasoning on the Frye issue with respect to the FST. …

… “FST is a proprietary program exclusively developed and controlled by OCME [New York City Office of Chief Medical Examiner],” and … the approval of the DNA Subcommittee was “no substitute for the scrutiny of the relevant scientific community” … . People v Wortham, 2021 NY Slip Op 06530, CtApp 11-23-21

 

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