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CLASS ACTION CLAIM BY TENANTS ALLEGING VARIOUS FORMS OF RENT OVERCHARGES PROPERLY SURVIVED A PRE-ANSWER MOTION TO DISMISS AND SHOULD PROCEED TO THE CERTIFICATION STAGE PURSUANT TO CPLR 902 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined the pre-answer motion to dismiss a class action claim by tenants alleging various forms of rent overcharges was properly denied and the matter should move on for a ruling on whether the prerequisites for a class action under CPLR 902 are met:

… [T]here is an element of truth to defendants’ suggestion that the class claims — particularly those based on the alleged misrepresentation and inflation of the costs of IAIs [individual apartment improvements]— may require separate proof with respect to each plaintiff. Along those lines, defendants note that the operative complaint “alleges overcharges for inflated IAI increases of [various] amounts” — 136%, 97%, 82%, 104%, 113%, 33%, or 254% for various apartments — which they contend supports the idea that the alleged overcharges are separate wrongs to separate persons that do not form the basis for a class action … .

That leads to the friction point on this appeal: are we to look at the common basis for a damages claim or the degree of damage alleged? On the one hand, if, as defendants suggest, the differences in the specific means of harm is considered — that is, if at this stage the Court contemplates nuances of how those overcharges allegedly were accomplished — then plaintiffs may struggle to satisfy the factual component of CPLR 901 (a) (2). On the other hand, as plaintiffs note, to focus on potential idiosyncrasies within the class claims — distinctions that speak to damages, not to liability — at this juncture would potentially be to reward bad actors who execute a common method to damage in slightly different ways. * * *

Here the complaint addresses harm effectuated through a variety of approaches but within a common systematic plan … , and its class claims should not be dismissed at this juncture. Maddicks v Big City Props., LLC, 2019 NY Slip Op 07519, CtApp 10-22-19

 

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CITY OF NEW YORK CAN SUE IN NEGLIGENCE FOR DAMAGE TO CITY SIDEWALKS (CT APP).

The Court of Appeals, reversing Supreme Court, determined that the city has the capacity to sue for the negligent destruction of city property. The city sought money damages for injury to trees caused by the sidewalk repairs performed by defendants for the adjacent property owner:

The City has the general capacity to sue for the negligent destruction of its property (see General City Law § 20 [1]; New York City Charter § 394 [c]). Moreover, the provisions upon which defendants rely do not abrogate the City’s claim for damage to its property (see generally Assured Guar. [UK] Ltd. v J.P. Morgan Inv. Mgt. Inc., 18 NY3d 341, 351 [2011]). Defendants have not established that the City lacks a cognizable common law claim. City of New York v Tri-Rail Constr., Inc., 2019 NY Slip Op 07478, CtApp 10-17-19

 

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BRADY MATERIAL WHICH CONTRADICTED THE PEOPLE’S THEORY OF THE CASE SHOULD HAVE BEEN PROVIDED TO THE DEFENSE, CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing defendant’s conviction, determined that defendant should have been provided with exculpatory (Brady) evidence. Eyewitnesses to the assault made statements that there were two perpetrators, which directly contradicted the People’s theory that defendant was the sole perpetrator:

The first two prongs of Brady being satisfied, our inquiry thus turns to whether the suppressed information was material. “In New York, the test of materiality where . . . the defendant has made a specific request for the evidence in question is whether there is a reasonable possibility’ that the verdict would have been different if the evidence had been disclosed” … . … [B]oth witnesses’ statements, if true, would have directly contradicted the People’s theory of the case that defendant was the sole perpetrator. Although the People presented other evidence of defendant’s guilt, the only witness who identified defendant at trial initially told the police that he did not see the perpetrator’s face. Considering that the nightclub owner provided the police with the name of another possible assailant, and based on the other evidence presented at trial, it is clear that access at least to him could have allowed defendant to develop additional facts, which in turn could have aided him in establishing additional or alternative theories to support his defense. Given the substance of the nightclub owner’s statements and the nature of the People’s case, we cannot say—under our less demanding standard—that there was no “reasonable possibility” that the defense’s investigation of the witnesses would not have affected the outcome of defendant’s trial … . People v Rong He, 2019 NY Slip Op 07477, CtApp 10-17-19

 

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT PLAINTIFF’S DEPOSITION TESTIMONY CONTRADICTED THE CONCLUSIONS OF PLAINTIFF’S EXPERT (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over two dissents, determined summary judgment should not have been granted to defendants in this personal injury case stemming from a potholder catching fire. The Appellate Division had reversed because plaintiff’s deposition testimony conflicted with the conclusions of plaintiff’s expert. The facts were not discussed:

The courts below erred in granting defendants’ motions for summary judgment on the basis that plaintiff failed to raise a triable issue of fact sufficient to defeat the motions. Although the plaintiff’s deposition testimony partially contradicted the factual conclusions reached by her expert witnesses, the expert opinions were based upon other record evidence and were neither speculative nor conclusory. Insofar as plaintiff raised genuine issues of fact on the element of causation, summary judgment should not have been granted on that ground … . We remit for Supreme Court to consider the alternative grounds for summary judgment defendants raised in their motions and neither Supreme Court nor the Appellate Division reached.

… Judges ]Rivera, Stein, Fahey and Wilson concur. Chief Judge DiFiore and Judges Garcia and Feinman dissent and vote to affirm for reasons stated in the Appellate Division memorandum decision (Salinas v World Houseware Producing Co., Ltd., 166 AD3d 493 [1st Dept 2018]). Salinas v World Houseware Producing Co., 2019 NY Slip Op 06537, CtApp 9-12-19

 

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PLAINTIFF WAIVED THE PHYSICIAN-PATIENT PRIVILEGE BY PLACING THE CONDITION OF HER KNEES INTO CONTROVERSY IN THIS ACCIDENT CASE, APPELLATE DIVISION REVERSED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determined plaintiff had placed the condition of her knees into controversy in this accident case and defendants were therefore entitled to discovery re: prior treatment of her knees. The facts were not discussed:

Plaintiff affirmatively placed the condition of her knees into controversy through allegations that the underlying accident caused difficulties in walking and standing that affect her ambulatory capacity and resultant damages … . Under the particular circumstances of this case, plaintiff therefore waived the physician-patient privilege with respect to the prior treatment of her knees and the discovery sought by authorizations pertaining to the treatment of plaintiff’s knees is “material and necessary” to defendants’ defense of the action (CPLR 3101 [a]). Accordingly, Supreme Court erred in denying defendants’ motion to compel plaintiff to provide discovery related to the prior treatment of her knees. Brito v Gomez, 2019 NY Slip Op 06452, CtApp 9-10-19

 

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DEFENDANT CHARGED WITH AN A FELONY AND FACING A POTENTIAL LIFE SENTENCE CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION; JURISDICTIONAL ISSUE PROPERLY CONSIDERED ON APPEAL DESPITE GUILTY PLEA AND FAILURE TO RAISE THE ISSUE BELOW (CT APP).

The Court of Appeals, reversing defendant’s conviction by guilty plea, determined that the NYS Constitution and Criminal Procedure Law 195.10[1] prohibited defendant’s waiver of indictment because defendant was charged with an A felony with a potential life sentence. The defendant was charged with second degree murder, waived indictment and pled to a superior court information charging first degree manslaughter. The court noted that this jurisdictional issue could be considered on appeal despite the guilty plea and the failure to raise the issue below:

The New York State Constitution provides that “[n]o person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury” (NY Const, art. 1 § 6). The Constitution contains a limited exception to this jurisdictional requirement: “a person held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” (id. ).

In addition, Criminal Procedure Law § 195.10 provides that a defendant may waive indictment by grand jury when, among other conditions, “the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1]). Accordingly, under both the Constitution and Criminal Procedure Law, a defendant who is held for the action of the grand jury on a class A felony punishable by life imprisonment may not waive indictment by the grand jury and agree to be prosecuted for a lesser included offense in order to facilitate a plea bargain on the homicide offense … . People v Monforte, 2019 NY Slip Op 06451, CtApp 9-5-19

 

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NO REASONABLE VIEW OF THE EVIDENCE SUPPORTED ANYTHING LESS THAN SERIOUS PHYSICAL INJURY, REQUEST FOR A JURY CHARGE ON ASSAULT THIRD WAS PROPERLY DENIED (CT APP). ​

The Court of Appeals, affirming the assault second conviction, determined defendant’s request for a jury charge on assault third as a lesser-included offense was properly denied because of the severity of the victim’s injuries:

Both live and photographic evidence at trial, ten months after the attack, demonstrated that the victim’s face was disfigured with scars above one eyebrow, under the other eye, on her lip and across her neck, and that apart from the scars, her facial structure and appearance had changed significantly. Testimony from her treating physician established that she suffered at least five displaced fractures around her eye sockets and nose, which were left to heal as displaced. Viewed in a light most favorable to defendant … , we agree that no reasonable view of the evidence could support a finding that the victim sustained anything less than a serious physical injury … . People v Sipp, 2019 NY Slip Op 06432, CtApp 8-29-19

 

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CONVICTION AFFIRMED, THREE-JUDGE DISSENT ARGUED THE APPELLATE DIVISION EXCEEDED ITS AUTHORITY BY AFFIRMING ON A SEARCH-RELATED GROUND THAT WAS NOT RULED ON BY SUPREME COURT (CT APP).

The Court of Appeals, over a three-judge dissent, affirmed the suppression determination, without explaining the facts. The dissent mentions the facts briefly but argues that the Appellate Division exceeded its jurisdiction by affirming the conviction on a search-related ground that was not ruled on by Supreme Court:

The present case clearly falls into the category where the trial court’s decision has discrete sections enabling an appellate court to discern which issues it has considered and decided, and yet the Appellate Division reviewed an issue that the trial court had not decided adversely to defendant, offering “an entirely distinct alternative ground for affirmance” … . If a suppression court writes a “fully articulated” decision adverse to a defendant … , but omits discussion of a particular issue raised by the defendant, our law mandates that an appellate court cannot resolve the issue and must remit. Whether our interpretation of CPL 470.15 (1), in LaFontaine [92 NY2d at 474] and its progeny, is “undesirable from a policy point of view” … is a question for another day. LaFontaine is the law and, until such time as that precedent is overruled, “we are constrained by that decision, and . . . cannot be arbitrary in applying it” … . People v Hill, 2019 NY Slip Op 05187, CtApp 6-27-19

 

ANY ERROR IN FAILING TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES WAS HARMLESS BECAUSE DEFENDANT WAS CONVICTED OF THE TOP COUNT AND THE HIGHEST LESSER INCLUDED OFFENSE WAS AVAILABLE TO THE JURY (CT APP).

The Court of Appeals determined denying a request for the jury to be instructed on lesser included offenses in this murder case was harmless error:

Even assuming the court erred in denying defendant’s request to submit the crimes of manslaughter in the second degree and criminally negligent homicide to the jury as lesser included offenses of the charged crimes of murder in the second degree and manslaughter in the first degree, the error was harmless … . The Appellate Division properly concluded that defendant’s conviction of the lesser inclusory count of first-degree manslaughter, which it dismissed as required by CPL 300.40 (3) (b), did not change the harmless error analysis. Under the circumstances presented here, the jury’s guilty verdict on the indictment’s highest count despite the availability of the next lesser included offense for their consideration, “forecloses [defendant’s] challenge to the court’s refusal to charge the remote lesser included offenses” … , because it dispels any speculation as to whether the jury might have reached a guilty verdict on “still lower degree[s] of homicide” … . People v McIntosh, 2019 NY Slip Op 05186, CtApp 6-27-19

 

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DENIAL OF THE REQUEST TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE AND THE ADMISSION OF THE 911 CALL AS AN EXCITED UTTERANCE WERE NOT REVERSIBLE ERRORS (CT APP).

The Court of Appeals, over an extensive dissenting opinion, as well as another brief dissenting opinion, determined the denial of defendant’s request for a jury instruction on the lesser included offense of assault third degree, and the admission of the 911 call as an excited utterance was harmless error. The facts are explained only in the dissent and are not summarized here:

Defendant failed to “show that there [was] a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser included offense but not the greater” … . Although “[i]n determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to [the] defendant” … , charging the lesser included offense here “would [have] force[d] the jury to resort to sheer speculation” … .

Nor does Supreme Court’s admission of the call between the victim and the 911 operator require reversal. “A spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant’ is an exception to the prohibition on hearsay” … . “The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance'” … . Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless … . People v Almonte, 2019 NY Slip Op 05185, CtApp 6-27-19

 

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