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IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that, although the image of a person (an avatar) in a video game can constitute a portrait within the meaning of the Civil Rights Law, the image in this case was not recognizable as the plaintiff, Lindsay Lohan. “Inasmuch as she did not provide written consent for the use of what she characterizes as her portrait and her voice in GTAV [Grand Theft Auto V], plaintiff commenced this action seeking, among other things, compensatory and punitive damages for invasion of privacy in violation of Civil Rights Law §§ 50 and 51:”

The primary questions on this appeal are whether an avatar (that is, a graphical representation of a person, in a video game or like media) may constitute a “portrait” within the meaning of Civil Rights Law §§ 50 and 51 and, if so, whether the images in question in the video game central to this matter are recognizable as plaintiff. We conclude a computer generated image may constitute a portrait within the meaning of that law. We also conclude, however, that the subject images are not recognizable as plaintiff, and that the amended complaint, which contains four causes of action for violation of privacy pursuant to Civil Rights Law §§ 50 and 51, was properly dismissed. Lohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, CtApp 3-29-18

CIVIL RIGHTS LAW (IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/PORTRAITS (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/VIDEO GAMES (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/AVATARS  (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))

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PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge Fahey, over a two-judge partial dissenting opinion, determined that the defendant’s attempt to dissolve a partnership violated the partnership agreement, the plaintiffs were not entitled to attorney’s fees, the reduction for goodwill was supported by the record, the lack-of-marketability discount issue was not preserved, and the minority discount was applicable. The dissent agreed with everything except the applicability of the minority discount:

… [Parties to a partnership agreement generally have the right to contract around a provision of the Partnership Law, provided of course they do so in language that is “clear, unequivocal and unambiguous”… . No particular magic words need be recited, provided that the parties’ intent is clear.  * * *

Here, the Agreement stated that the Partnership “shall continue until it is terminated as hereinafter provided,” and, in a subsequent provision, stated that the Partnership would dissolve upon “[t]he election by the Partners to dissolve the Partnership” or “[t]he happening of any event which makes it unlawful for the business of the Partnership to be carried on or for the Partners to carry it on in Partnership.” The partners clearly intended that the methods provided in the Agreement for dissolution were the only methods whereby the partnership would dissolve in accordance with the Agreement, and by implication that unilateral dissolution would breach the Agreement. In other words, the Agreement contemplated dissolution only in two instances, leaving no room for other means of dissolution that would be in accordance with its terms. * * *

We conclude … that to award fees to plaintiffs would be to contradict New York’s well-established adoption of the American Rule that “the prevailing litigant ordinarily cannot collect . . . attorneys’ fees from its unsuccessful opponents” … . Contrary to Supreme Court, the standard is not which party was “more responsible” for the litigation. Attorneys’ fees are treated as “incidents of litigation” … . * * *

A minority discount is a standard tool in valuation of a financial interest, designed to reflect the fact that the price an investor is willing to pay for a minority ownership interest in a business, whether a corporation or a partnership, is less because the owner of a minority interest lacks control of the business. Congel v Malfitano, 2018 NY Slip Op 02119, CtApp 3-27-18

PARTNERSHIP LAW (PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP))/DISSOLUTION OF PARTNERSHIP (PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP))/ATTORNEYS (ATTORNEY’S FEES, PARTNERSHIP LAW, PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP))/GOODWILL REDUCTION (PARTNERSHIP LAW, PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP))/LACK OF MARKETABILITY DISCOUNT (PARTNERSHIP LAW, PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP))/MINORITY DISCOUNT (PARTNERSHIP LAW, PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP))

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IN THIS LONG TERM ENVIRONMENTAL CONTAMINATION CASE, THE INSURER IS NOT LIABLE TO THE INSURED FOR LOSSES ATTRIBUTABLE TO TIME PERIODS WHEN LIABILITY INSURANCE WAS UNAVAILABLE (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Stein, determined the insured, Keyspan Gas, not the insurer, Century, bore the risk of damages from environmental contamination during the years that coverage for such damage was not available:

The liability underlying this insurance dispute emanates from environmental contamination caused by manufactured gas plants (MGPs) owned and operated by KeySpan’s predecessor … .Gas production at the sites began in the late 1880s and early 1900s. After operations ceased decades later, the New York Department of Environmental Conservation (DEC) determined that there had been long-term, gradual environmental damage at both sites due to contaminants, such as tar, seeping nto the ground and leeching into groundwater. The DEC required KeySpan to undertake costly remediation efforts … . …

… [Environmental contamination] coverage was not available to utilities until approximately 1925, and … a “sudden and accidental pollution exclusion” was later generally adopted by the insurance industry sometime in or after October 1970. Thus, KeySpan argued, the allocation should not take into account any years prior to the availability, or after the unavailability, of the applicable coverage. * * *

… [T]he Appellate Division … [held] that “under the insurance policies at issue, Century does not have to indemnify KeySpan for losses that are attributable to time periods when liability insurance was otherwise unavailable in the marketplace” … . * * *

The policyholder is the one who allegedly caused the injury and, therefore, who ultimately will be financially responsible should insurance prove insufficient” … . …

… “[T]he very essence of pro rata allocation is that the insurance policy language limits indemnification to losses and occurrences during the policy period” … . Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 2018 NY Slip Op 02116, CtApp 3-27-18

INSURANCE LAW (IN THIS LONG TERM ENVIRONMENTAL CONTAMINATION CASE, THE INSURER IS NOT LIABLE TO THE INSURED FOR LOSSES ATTRIBUTABLE TO TIME PERIODS WHEN LIABILITY INSURANCE WAS UNAVAILABLE (CT APP))/ENVIRONMENTAL LAW (INSURANCE LAW, IN THIS LONG TERM ENVIRONMENTAL CONTAMINATION CASE, THE INSURER IS NOT LIABLE TO THE INSURED FOR LOSSES ATTRIBUTABLE TO TIME PERIODS WHEN LIABILITY INSURANCE WAS UNAVAILABLE (CT APP))/POLLUTION (INSURANCE LAW, (IN THIS LONG TERM ENVIRONMENTAL CONTAMINATION CASE, THE INSURER IS NOT LIABLE TO THE INSURED FOR LOSSES ATTRIBUTABLE TO TIME PERIODS WHEN LIABILITY INSURANCE WAS UNAVAILABLE (CT APP))/UTILITIES (INSURANCE LAW, ENVIRONMENTAL CONTAMINATION, IN THIS LONG TERM ENVIRONMENTAL CONTAMINATION CASE, THE INSURER IS NOT LIABLE TO THE INSURED FOR LOSSES ATTRIBUTABLE TO TIME PERIODS WHEN LIABILITY INSURANCE WAS UNAVAILABLE (CT APP))

UNAMBIGUOUS POLICY LANGUAGE REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED, BECAUSE THERE WAS NO WRITTEN CONTRACT, THERE WAS NO COVERAGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive two-judge dissent, determined that the language of the policy which required a written contract with an additional insured (Gilbane JV) was unambiguous and precluded coverage:

The relevant portion of the Liberty policy is the “Additional Insured-By Written Contract” provision, which reads:

“WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization with whom you have agreed to add as an additional insured by written contract but only with respect to liability arising out of your operations or premises owned by or rented to you.”… . …

… [T]he endorsement would have the meaning Gilbane JV desires if the word “with” had been omitted. Omitting “with,” the phrase would read: “. . . any person or organization whom you have agreed by written contract to add . . .”, and Gilbane JV’s position would have merit. But [the general contractor] and Liberty included that preposition in the contract between them, and we must give it its ordinary meaning. Here, the “with” can only mean that the written contract must be “with” the additional insured. Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 2018 NY Slip Op 02117, CtApp 3-27-18

INSURANCE LAW (UNAMBIGUOUS POLICY LANGUAGE REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED, BECAUSE THERE WAS NO WRITTEN CONTRACT, THERE WAS NO COVERAGE (CT APP))/CONTRACT LAW (INSURANCE LAW, UNAMBIGUOUS POLICY LANGUAGE REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED, BECAUSE THERE WAS NO WRITTEN CONTRACT, THERE WAS NO COVERAGE (CT APP))

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THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP).

The Court of Appeals, in a short memorandum decision, over an extensive two-judge dissenting opinion by Judge Rivera, determined the record supported the trial court’s finding that the stop and search of the defendant, in an apartment building, met the DeBour street stop criteria:

Police were conducting a vertical patrol of a New York City Housing Authority building in a high crime area and interviewing tenants in search of a robbery suspect in an investigation unrelated to this case. Defendant got off the elevator, observed the police officers — who were approximately eight feet away with shields displayed — and immediately retreated into the elevator. Defendant ignored an officer’s request that he hold the door and instead “kept pushing the button” and the elevator doors closed. In light of this behavior, as well as the building’s history of narcotics and trespass activity, the police followed defendant to determine whether he lived in the building. Rather than respond to the officer’s questions, defendant turned away from the police to face the wall, held his head down with the hood of his sweatshirt over his head, and kept his hands hidden inside his sweatshirt. The officer immediately noticed a large bulge in defendant’s right arm, which defendant held stiffly and straight down from his body in an unnatural position. … When the officer touched the defendant’s wrist, he felt a metal object, lifted the sleeve of the defendant’s shirt, saw the point of a blade, and ordered him to “drop it.” Defendant did not comply and officers had to pull the weapon — a two-foot-long machete — from defendant’s shirt. Minutes later, the officer learned of a recent robbery in the area involving a machete-wielding suspect wearing clothing matching that worn by defendant.

The issue on appeal to this Court, whether the police conduct conformed to De Bour, presents a mixed question of law and fact …  Accordingly, “our review is limited to whether there is evidence in the record supporting the lower courts’ determinations” … . …  People v Perez, 2018 NY Slip Op 02118, CtApp 3-27-18

CRIMINAL LAW (STREET STOPS, THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP))/STREET STOPS (CRIMINAL LAW, THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP))/DEBOUR (CRIMINAL LAW, STREET STOPS, THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP))/SEARCH AND SEIZURE (CRIMINAL LAW, STREET STOPS,  THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP))/APPEALS (CRIMINAL LAW, COURT OF APPEALS, MIXED QUESTION OF LAW AND FACT, THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP))/MIXED QUESTION OF LAW AND FACT (CRIMINAL LAW, COURT OF APPEALS,  THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP))

MAJORITY DEEMED THE DISMISSAL OF THE BB GUN POSSESSION CHARGE PRIOR TO SUBMITTING THE HANDGUN POSSESSION CHARGE TO THE JURY PROPER, STRONG DISSENT ARGUED THE DEFENDANT’S ADMISSION OF POSSESSION OF THE BB GUN TAINTED THE JURY’S CONSIDERATION OF THE MORE SERIOUS CHARGE (CT APP).

The Court of Appeals, in a brief memorandum decision, over a comprehensive two-judge dissenting opinion by Judge Rivera, affirmed defendant’s conviction for unlawful possession of a weapon. Defendant was charged with possession of a BB gun and a handgun (Taurus). The judge dismissed the BB gun charge prior to submission of the handgun charge to the jury:

The trial court did not abuse its discretion by dismissing the non-inclusory charge of unlawful possession of an air pistol or rifle which related to the BB gun … . The jury was free to credit defendant’s theory that he possessed the BB gun but not the Taurus firearm that was also recovered in his vicinity — which was the subject of separate weapon possession counts. Contrary to defendant’s contention, his defense that he never possessed the Taurus firearm was not removed from consideration when the trial court dismissed the charge related to the BB gun, nor did defendant argue in the trial court that the dismissal of the BB gun count impaired his constitutional right to present a defense.

From the dissent:

The trial court abused its discretion when it did not submit the unlawful possession of an air pistol count to the jury and submitted instead only the more serious counts relating to the possession of a handgun. This error allowed the jury to consider highly prejudicial testimony completely irrelevant to the counts submitted, including defendant’s admission of guilt to the possession of the air pistol. So doing, the trial court encouraged reverse jury nullification and provoked confusion in the jury’s deliberative process.  People v Boyd, 2018 NY Slip Op 02120, CtApp 3-27-18

CRIMINAL LAW (MAJORITY DEEMED THE DISMISSAL OF THE BB GUN POSSESSION CHARGE PRIOR TO SUBMITTING THE HANDGUN POSSESSION CHARGE TO THE JURY PROPER, STRONG DISSENT ARGUED THE DEFENDANT’S ADMISSION OF POSSESSION OF THE BB GUN TAINTED THE JURY’S CONSIDERATION OF THE MORE SERIOUS CHARGE (CT APP))/JURIES (CRIMINAL LAW, JURY CONFUSION, (MAJORITY DEEMED THE DISMISSAL OF THE BB GUN POSSESSION CHARGE PRIOR TO SUBMITTING THE HANDGUN POSSESSION CHARGE TO THE JURY PROPER, STRONG DISSENT ARGUED THE DEFENDANT’S ADMISSION OF POSSESSION OF THE BB GUN TAINTED THE JURY’S CONSIDERATION OF THE MORE SERIOUS CHARGE (CT APP))/WEAPON, POSSESSION OF (CRIMINAL LAW, JURY CONFUSION, (MAJORITY DEEMED THE DISMISSAL OF THE BB GUN POSSESSION CHARGE PRIOR TO SUBMITTING THE HANDGUN POSSESSION CHARGE TO THE JURY PROPER, STRONG DISSENT ARGUED THE DEFENDANT’S ADMISSION OF POSSESSION OF THE BB GUN TAINTED THE JURY’S CONSIDERATION OF THE MORE SERIOUS CHARGE (CT APP))/BB GUN (CRIMINAL LAW, JURY CONFUSION, (MAJORITY DEEMED THE DISMISSAL OF THE BB GUN POSSESSION CHARGE PRIOR TO SUBMITTING THE HANDGUN POSSESSION CHARGE TO THE JURY PROPER, STRONG DISSENT ARGUED THE DEFENDANT’S ADMISSION OF POSSESSION OF THE BB GUN TAINTED THE JURY’S CONSIDERATION OF THE MORE SERIOUS CHARGE (CT APP))/HANDGUN (CRIMINAL LAW, JURY CONFUSION, (MAJORITY DEEMED THE DISMISSAL OF THE BB GUN POSSESSION CHARGE PRIOR TO SUBMITTING THE HANDGUN POSSESSION CHARGE TO THE JURY PROPER, STRONG DISSENT ARGUED THE DEFENDANT’S ADMISSION OF POSSESSION OF THE BB GUN TAINTED THE JURY’S CONSIDERATION OF THE MORE SERIOUS CHARGE (CT APP))

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FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP).

The Court of Appeals determined the trial court properly ordered a Frye hearing in this strangulation/drowning murder case. The court further found that testimony about an argument between defendant and the victim a month before the murder, in which the defendant threatened to kill the victim, was double hearsay and was not admissible under any hearsay exception. The error was deemed harmless. The Court explained the criteria for ordering a Frye hearing:

Under the Frye standard, expert testimony is admissible only if a scientific “principle or procedure has gained general acceptance’ in its specified field” … . The process is meant to assess “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” … . Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted.

“The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case” … . The proper procedure for addressing concerns about foundation can include an in limine hearing where the trial court determines whether ” there is simply too great an analytical gap between the data and the opinion proffered'” … . The question is whether the expert’s opinion sufficiently relates to existing data or “is connected to existing data only by the ipse dixit of the expert” … .

To the extent that the trial court improperly employed the Frye procedure to rule on the foundation of the defense expert’s testimony, any such error was harmless. People v Brooks, 2018 NY Slip Op 01956, CtApp 3-22-18

CRIMINAL LAW (EVIDENCE, FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/EVIDENCE (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/FRYE HEARING (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/HEARSAY (CRIMINAL LAW, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))

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REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the appellate division, over a two-judge dissenting opinion, determined the trial court properly refused to instruct the jury on the justification defense. The dissent laid out the facts. At the time of the shooting defendant (Sanchez), who had just been beaten up, and defendant’s friends were confronted by several people who apparently had a knife and broken bottles. Although the defendant had retrieved a gun from a car and returned to the confrontation, it was defendant’s friend who took the gun and fired:

Viewing the evidence in the light most favorable to defendant … , the trial court properly declined to charge the jury on the justification defense because, even assuming that the jury could rationally find that defendant subjectively believed he had been threatened with the imminent use of deadly physical force, “the jury could not rationally conclude that his reactions were those of a reasonable [person] acting in self-defense” … . Further, on this record, there was no reasonable view of the evidence that defendant could not safely retreat at the time that deadly physical force was used … .

From the dissent:

Lurking somewhere beneath the majority’s opinion is the thought that you mustn’t bring a gun to a knife fight. We should keep in mind that, although there is no evidence that the group threatening Mr. Sanchez and his friends was armed with guns, courts of this state have held that the threat of deadly force may exist when a group of people attacking an individual is not armed at all … or when, in a one-on-one altercation, an unarmed victim “grabs” at a defendant’s gun … . Courts have also characterized a variety of items as dangerous instruments which, if used as part of a real or threatened attack, might justify the use of deadly force … . People v Sanchez, 2018 NY Slip Op 01957, CtApp 3-22-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/EVIDENCE (CRIMINAL LAW, (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/JUSTIFICATION DEFENSE (CRIMINAL LAW, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))

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INDENTURE TRUSTEE STATED CAUSES OF ACTION FOR FRAUDULENT CONVEYANCES UNDER A VEIL-PIERCING THEORY, COMPLAINT ALLEGED FRAUDULENT REDEMPTIONS SIPHONED OFF ASSETS LEAVING CORPORATE OBLIGORS UNABLE TO PAY NOTEHOLDERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, affirmed the appellate division’s ruling that the complaint by an indenture trustee stated causes of action on behalf of noteholders for fraudulent conveyances under a corporate veil-piercing theory. The court explained the issues before it as follows:

On this appeal we must determine whether an indenture trustee may seek recovery on behalf of noteholders for defendants’ alleged fraudulent redemptions intended to siphon off assets, leaving corporate obligors unable to pay the noteholders. The indenture at issue authorizes the trustee to “pursue any available remedy to collect . . . the payment of principal, premium, if any, and interest on the Notes,” and thus empowers that trustee to proceed at law and in equity to recover losses incurred by all noteholders from the unpaid notes. As such, the trustee may assert causes of action to recover pro-rata losses caused by defendants’ scheme to render the note debtor insolvent. The trustee may also seek to pierce the corporate veil and impose corporate obligations on defendants under an alter ego theory of liability based on properly pleaded factual allegations — here that defendants created, for unlawful purposes, a corporate structure over which they exercised complete control and domination, and which they used to incur corporate debt so they could distribute the loan proceeds to themselves through fraudulent transfers, leaving the corporation unable to pay its creditors. * * *

The [appellate division properly] concluded that the relevant language of the indenture “confers standing on the trustee to pursue . . . the fraudulent conveyance and other . . . claims, which seek recovery solely of the amounts due under the notes, for the benefit of all noteholders on a pro rata basis, as a remedy for an alleged injury suffered ratably by all noteholders by reason of their status as noteholders” … . The court also [properly] found that the complaint sufficiently states a cause of action against these defendants under a veil-piercing theory … . Cortlandt St. Recovery Corp. v Bonderman, 2018 NY Slip Op 01149, CtApp 2-20-18

SECURITIES (INDENTURE TRUSTEE STATED CAUSES OF ACTION FOR FRAUDULENT CONVEYANCES UNDER A VEIL-PIERCING THEORY, COMPLAINT ALLEGED FRAUDULENT REDEMPTIONS SIPHONED OFF ASSETS LEAVING CORPORATE OBLIGORS UNABLE TO PAY NOTEHOLDERS (CT APP))/DEBTOR-CREDITOR (INDENTURE TRUSTEE STATED CAUSES OF ACTION FOR FRAUDULENT CONVEYANCES UNDER A VEIL-PIERCING THEORY, COMPLAINT ALLEGED FRAUDULENT REDEMPTIONS SIPHONED OFF ASSETS LEAVING CORPORATE OBLIGORS UNABLE TO PAY NOTEHOLDERS (CT APP))/CORPORATION LAW  (INDENTURE TRUSTEE STATED CAUSES OF ACTION FOR FRAUDULENT CONVEYANCES UNDER A VEIL-PIERCING THEORY, COMPLAINT ALLEGED FRAUDULENT REDEMPTIONS SIPHONED OFF ASSETS LEAVING CORPORATE OBLIGORS UNABLE TO PAY NOTEHOLDERS (CT APP))/INDENTURE TRUSTEE  (INDENTURE TRUSTEE STATED CAUSES OF ACTION FOR FRAUDULENT CONVEYANCES UNDER A VEIL-PIERCING THEORY, COMPLAINT ALLEGED FRAUDULENT REDEMPTIONS SIPHONED OFF ASSETS LEAVING CORPORATE OBLIGORS UNABLE TO PAY NOTEHOLDERS (CT APP))/FRAUD  (INDENTURE TRUSTEE STATED CAUSES OF ACTION FOR FRAUDULENT CONVEYANCES UNDER A VEIL-PIERCING THEORY, COMPLAINT ALLEGED FRAUDULENT REDEMPTIONS SIPHONED OFF ASSETS LEAVING CORPORATE OBLIGORS UNABLE TO PAY NOTEHOLDERS (CT APP))/PIERCING THE CORPORATE VEIL (INDENTURE TRUSTEE STATED CAUSES OF ACTION FOR FRAUDULENT CONVEYANCES UNDER A VEIL-PIERCING THEORY, COMPLAINT ALLEGED FRAUDULENT REDEMPTIONS SIPHONED OFF ASSETS LEAVING CORPORATE OBLIGORS UNABLE TO PAY NOTEHOLDERS (CT APP))

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COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge concurring opinion, determined that the complaints stated causes of action against the Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO),  and National Grid Electric Services LLC based upon defendants’ failure to shut down the power in advance of landfall by Hurricane Sandy. Plaintiffs alleged the failure to shut down the power resulted in fires which destroyed their property. The complaints alleged the defendants acted in a proprietary, not governmental, capacity and therefore were not entitled to governmental immunity. The Court of Appeals held that the defendants, at this pre-answer stage, had not met their burden of demonstrating their actions were governmental:

Defendants moved to dismiss the amended complaints pursuant to CPLR 3211 (a) (7) insofar as asserted against them on the ground that LIPA was immune from liability based on the doctrine of governmental function immunity, and that LILCO and National Grid were entitled to the same defense. Specifically, LIPA argued, among other things, that the actions challenged were taken in the exercise of its governmental capacity and were discretionary, and, even if they were not discretionary, plaintiffs’ failure to allege a special duty in the complaints amounted to a failure to state viable claims. Plaintiffs opposed the motions on the ground that defendants’ actions were proprietary, not governmental, and that special duty rules did not apply. Supreme Court denied the motions to dismiss in three substantially similar orders. * * *

… .[P]laintiffs’ allegations concern the provision of electrical power by defendants, a service that traditionally has been provided by private entities in the State of New York. In fact, LIPA itself was created to replace LILCO which, at the time, was an “investor owned utility” (Public Authorities Law § 1020-a). This takeover was anomalous and, when the legislation creating LIPA was enacted, the New York State Public Service Commission — the agency charged with ensuring safe and reliable utility service throughout the State — observed that, “[i]n New York State we have generally adopted a system of private ownership subject to close regulation” … . …

… [W]e cannot say, as a matter of law based only on the allegations in the amended complaints, as amplified, that LIPA was acting in a governmental, rather than a proprietary, capacity when engaged in the conduct claimed to have caused plaintiffs’ injuries. Connolly v Long Is. Power Auth., 2018 NY Slip Op 01148, CtApp 2-20-18

MUNICIPAL LAW (IMMUNITY, COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/IMMUNITY (GOVERNMENTAL, COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/NEGLIGENCE (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/GOVERNMENTAL IMMUNITY (ELECTRIC POWER,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/UTILITIES (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/ELECTRIC POWER (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))

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