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MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the misdemeanor complaint sufficiently alleged possession of “brass knuckles:”

“[A] reasonable, not overly technical reading” of the accusatory instrument here satisfies our sufficiency standard … , as it supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” … . The accusatory instrument clearly informed defendant that he was in criminal possession of “brass metal knuckles,” a per se weapon, in violation of Penal Law § 265.01 (1). The term “brass metal knuckles” gave defendant a clear description of the object recovered from his pocket at a specific time and place. Under the common and natural definition of the term, as well as the dictionary definition, defendant was adequately informed of the charge against him. * * *

[T]he character of metal knuckles is such that one need only look at the object to discern whether it is in fact metal knuckles. Thus, the officer here did not have to “exercise . . . professional skill or experience” to conclude defendant possessed metal knuckles … , and the accusatory instrument did not require any specific description of the officer’s training or experience. People v Aragon, 2016 NY Slip Op 07104, CtApp 11-1-16

 

CRIMINAL LAW (MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES)/MISDEMEANOR COMPLAINT (MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES)/BRASS KNUCKLES (MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES)

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DEFENSE EXPERT’S CONCLUSORY ASSERTIONS DID NOT RAISE A QUESTION OF FACT ABOUT THE ALLEGATIONS THE NEGLIGENT PRESCRIPTION OF TWO DRUGS CAUSED HEART DAMAGE.

The Court of Appeals, with a concurrence and a three-judge dissent, determined defendant’s motion for summary judgment was properly denied in this medical malpractice action. The complaint alleged the negligent prescription of two drugs caused heart damage. The majority concluded that conclusory statements in the defense expert’s affidavit did not raise a question of fact about the plaintiff’s allegations of malpractice:

Here, defendant’s expert proffered only conclusory assertions unsupported by any medical research that defendant’s actions in prescribing both drugs concurrently did not proximately cause plaintiff’s AV heart block. These conclusory statements did not adequately address plaintiff’s allegations that the concurrent Lipitor and azithromycin prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the azithromycin prescription, defendant’s expert failed to “tender[] sufficient evidence to demonstrate the absence of any material issues of fact” … as to proximate causation and, as a result, defendant was not entitled to summary judgment. Because defendant failed to meet his prima facie burden, it is unnecessary to review the sufficiency of the plaintiff’s opposition papers … .  Pullman v Silverman, 2016 NY Slip Op 07107, CtApp 11-1-16

NEGLIGENCE (MEDICAL MALPRACTICE, DEFENSE EXPERT’S CONCLUSORY ASSEERTIONS DID NOT RAISE A QUESTION OF FACT ABOUT THE ALLEGATIONS THE NEGLIGENT PRESCRIPTION OF TWO DRUGS CAUSED HEART DAMAGE)/MEDICAL MALPRACTICE (DEFENSE EXPERT’S CONCLUSORY ASSEERTIONS DID NOT RAISE A QUESTION OF FACT ABOUT THE ALLEGATIONS THE NEGLIGENT PRESCRIPTION OF TWO DRUGS CAUSED HEART DAMAGE)

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DEFENDANT PROPERLY IMPEACHED WITH SPONTANEOUS STATEMENTS MADE TO THE POLICE AT THE SCENE OF HIS ARREST; SPONTANEOUS STATEMENT MADE NO MENTION OF AN ATTACK ON DEFENDANT BY THE COMPLAINANT WHICH DEFENDANT DESCRIBED AT TRIAL.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, with a concurring opinion, determined defendant was properly impeached with a spontaneous statement made to police at the time of his arrest for robbing the complainant. At trial, defendant testified the complainant had struck him with a board. However, the alleged attack with a board was not mentioned in defendant’s spontaneous statement at the scene:

Here … defendant’s statement was not the product of interrogation, but was made spontaneously at the scene, prior to the issuance of Miranda warnings. In addition, the substance of defendant’s spontaneous statement was not inculpatory, but a description of the complainant’s conduct and was made to inform the police when the information was timely to their decision as to whether to arrest defendant or complainant. Even more significant, defendant admitted in his direct testimony that he was not silent and that he had given the police his version of complainant’s misconduct at the scene. Consequently, the credibility of his initial spontaneous statement was legitimately called into question by his trial testimony.

Here, defendant elected to provide some explanation of what happened at the scene, and it was unnatural to have omitted the significantly more favorable version of events to which he testified at trial — that complainant had assaulted him. “[D]efendant’s conspicuous omission of these exculpatory facts in his voluntary statement to police tended to show that his trial testimony was a recent fabrication” … . People v Chery, 2016 NY Slip Op 07109, CtApp 11-1-16

 

CRIMINAL LAW (DEFENDANT PROPERLY IMPEACHED WITH SPONTANEOUS STATEMENTS MADE TO THE POLICE AT THE SCENE OF HIS ARREST; SPONTANEOUS STATEMENT MADE NO MENTION OF AN ATTACK ON DEFENDANT BY THE COMPLAINANT WHICH DEFENDANT DESCRIBED AT TRIAL)/EVIDENCE DEFENDANT PROPERLY IMPEACHED WITH SPONTANEOUS STATEMENTS MADE TO THE POLICE AT THE SCENE OF HIS ARREST; SPONTANEOUS STATEMENT MADE NO MENTION OF AN ATTACK ON DEFENDANT BY THE COMPLAINANT WHICH DEFENDANT DESCRIBED AT TRIAL/IMPEACHMENT (CRIMINAL LAW, DEFENDANT PROPERLY IMPEACHED WITH SPONTANEOUS STATEMENTS MADE TO THE POLICE AT THE SCENE OF HIS ARREST; SPONTANEOUS STATEMENT MADE NO MENTION OF AN ATTACK ON DEFENDANT BY THE COMPLAINANT WHICH DEFENDANT DESCRIBED AT TRIAL)/STATEMENTS (CRIMINAL LAW, IMPEACHMENT, DEFENDANT PROPERLY IMPEACHED WITH SPONTANEOUS STATEMENTS MADE TO THE POLICE AT THE SCENE OF HIS ARREST; SPONTANEOUS STATEMENT MADE NO MENTION OF AN ATTACK ON DEFENDANT BY THE COMPLAINANT WHICH DEFENDANT DESCRIBED AT TRIAL)

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INEFFECTIVE ASSISTANCE OF COUNSEL COULD NOT HAVE AFFECTED THE PROCEEDINGS; DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION PROPERLY DENIED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined defendant had been wrongly informed by his attorney that he was subject to consecutive sentences, and therefore defendant had received ineffective assistance of counsel. However, the People presented evidence that, because of the horrendous nature of the crime, there was no possibility defendant would have been offered a plea bargain. Therefore the erroneous advice could not have affected the proceedings. Defendant’s motion to set aside his conviction was properly denied:

… [D]efendant was required to show more than incorrect advice by defense counsel. Here, the record supports the Appellate Division’s determination that there was no possibility that a reduced plea would have been offered to defendant. Therefore, the incorrect advice could not have affected the outcome of the proceedings. The People entertained no plea possibility or any reduction in the sentence given, among other things, the maximum sentence defendant faced for killing two adults and injuring a third was an aggregate term of just 5 to 15 years. Nor was there any proof that the court would have extended an offer to a reduced sentence. Rather, the sentencing court remarked that it did not think the maximum sentence was enough punishment for defendant under the circumstances of this case. People v Bank, 2016 NY Slip Op 07110, CtApp 11-1-16

CRIMINAL LAW (INEFFECTIVE ASSISTANCE OF COUNSEL COULD NOT HAVE AFFECTED THE PROCEEDINGS; DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION PROPERLY DENIED)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE OF COUNSEL COULD NOT HAVE AFFECTED THE PROCEEDINGS; DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION PROPERLY DENIED)/INEFFECTIVE ASSISTANCE OF COUNSEL (INEFFECTIVE ASSISTANCE OF COUNSEL COULD NOT HAVE AFFECTED THE PROCEEDINGS; DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION PROPERLY DENIED)

THE TOLLING PROVISION, WHICH TOLLS THE FIVE-YEAR STATUTE OF LIMITATIONS FOR CERTAIN SEXUAL OFFENSES UNTIL THE VICTIM TURNS 18, WAS PROPERLY APPLIED TO RENDER THE INDICTMENT TIMELY; THERE IS NO CONFLICT BETWEEN THE TOLLING PROVISION AND THE STATUTE OF LIMITATIONS.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a two-judge concurrence, determined that the tolling provision, which tolls the five-year statute of limitations for certain sexual offenses involving a child until the child turns 18, applied here and the indictment, brought when the victim was 21, was timely. The opinion delves into an extensive statutory-interpretation analysis which is too detailed to fairly summarize here:

Defendant claims his prosecution is time-barred because the applicable five-year limitations period set forth in CPL former 30.10 (3)(e) expired before the filing of the felony complaint, and the statute of limitations is not subject to tolling under CPL 30.10 (3)(f). Defendant’s argument is unpersuasive, misconstrues the statutory provisions, and ignores the relevant legislative history. The crime for which defendant stands convicted is expressly encompassed by CPL 30.10 (3)(f), and involves the type of conduct the legislature sought to address by expansive, albeit delayed, prosecution of multiple acts of sexual abuse against a minor. * * *

Unlike CPL 30.10 (3)(e), which is a self-contained statute of limitations, CPL 30.10 (3)(f) is a tolling provision and as such is dependent on reference to time limits found elsewhere in the statute. Defendant mistakenly equates the two subsections — as if they are both statutes of limitations — when he claims they are in conflict and the specific provision of CPL 30.10 (3)(e) overrides the general provision of CPL 30.10 (3)(f). The more apt comparison is to the two statutes of limitations CPL 30.10 (3)(e) and 30.10 (2)(b), which harmoniously coexist as a specific and general statute of limitations, respectively, and which in no way lead to the conclusion promoted by defendant, that CPL 30.10 (3)(e) is superfluous. Regardless, there is no conflict obvious from the interplay of subsections (3)(e) and (3)(f). One sets forth a five-year prosecution deadline and the other explains when the clock begins to run on that deadline. People v Pabon, 2016 NY Slip Op 07108, CtApp 11-1-16

 

CRIMINAL LAW (THE TOLLING PROVISION, WHICH TOLLS THE FIVE-YEAR STATUTE OF LIMITATIONS FOR CERTAIN SEXUAL OFFENSES UNTIL THE VICTIM TURNS 18, WAS PROPERLY APPLIED TO RENDER THE INDICTMENT TIMELY; THERE IS NO CONFLICT BETWEEN THE TOLLING PROVISION AND THE STATUTE OF LIMITATIONS)/STATUTE OF LIMITATIONS (CRIMINAL LAW, THE TOLLING PROVISION, WHICH TOLLS THE FIVE-YEAR STATUTE OF LIMITATIONS FOR CERTAIN SEXUAL OFFENSES UNTIL THE VICTIM TURNS 18, WAS PROPERLY APPLIED TO RENDER THE INDICTMENT TIMELY; THERE IS NO CONFLICT BETWEEN THE TOLLING PROVISION AND THE STATUTE OF LIMITATIONS)TOLLING PROVISION (STATUTE OF LIMITATIONS, CRIMINAL LAW, (THE TOLLING PROVISION, WHICH TOLLS THE FIVE-YEAR STATUTE OF LIMITATIONS FOR CERTAIN SEXUAL OFFENSES UNTIL THE VICTIM TURNS 18, WAS PROPERLY APPLIED TO RENDER THE INDICTMENT TIMELY; THERE IS NO CONFLICT BETWEEN THE TOLLING PROVISION AND THE STATUTE OF LIMITATIONS)/CHILDREN, SEX OFFENSES INVOLVING  (THE TOLLING PROVISION, WHICH TOLLS THE FIVE-YEAR STATUTE OF LIMITATIONS FOR CERTAIN SEXUAL OFFENSES UNTIL THE VICTIM TURNS 18, WAS PROPERLY APPLIED TO RENDER THE INDICTMENT TIMELY; THERE IS NO CONFLICT BETWEEN THE TOLLING PROVISION AND THE STATUTE OF LIMITATIONS)

PEOPLE VS CATU, WHICH INVALIDATED GUILTY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, with a concurring opinion and over a dissenting opinion, determined the 2005 case which invalidated guilty pleas accepted without express notice of the period of postrelase supervision (PRS) (People v Catu, 4 NY3d 242) should not be applied retroactively. In both cases before the court, the pre-Catu convictions by guilty plea were challenged to prohibit their consideration as predicate crimes for sentencing in post-Catu offenses. The analysis, which encompasses federal and state constitutional law, is too complex to fairly summarize here:

… [N]either [defendant’s] conviction was obtained in violation of the law as it existed at the time of their respective convictions. Both state and federal law required that a defendant demonstrate that he would not have pleaded guilty had he known about a mandatory term of his sentence. It was not until our 2005 decision in Catu that a defendant was entitled to automatic vacatur. * * *

Our Catu “automatic vacatur” rule did not constitute ,,, a “watershed rule”… . Catu was not necessary to prevent an impermissibly large risk of an inaccurate conviction, and it is doubtful that the failure of the courts to apprise defendants … of the PRS component resulted in them pleading guilty to crimes that they did not commit. Indeed, when presented with their prior convictions, defendants … acknowledged that they were the individuals mentioned in the predicate felony statements filed by the People, and that they did not wish to challenge any of the allegations contained within their respective statements. People v Smith, 2016 NY Slip Op 07106, CtApp 11-1-16

 

CRIMINAL LAW (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY)/POSTRELEASE SUPERVISION (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY).CATU, PEOPLE V (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY)/GUILTY PLEAS (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY)

EXPANDABLE, METAL BATON IS A “BILLY” WITHIN THE MEANING OF THE PENAL LAW.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissent, determined the accusatory instrument sufficiently alleged the illegal possession of a “billy.”  The accusatory instrument stated that a police officer observed defendant with a “rubber gripped, metal, extendable baton (billy club)” in his rear pants pocket. Based upon his training and experience, the officer stated that “said baton device is designed primarily as a weapon, consisting of a tubular, metal body with a rubber grip and extendable feature and used to inflict serious injury upon a person by striking or choking.” The term “billy” is not defined in the Penal Law. When the law was enacted a billy club was a fixed wooden baton. The question before the court was whether a metal, expandable baton constituted a “billy” within the meaning of the statute:

In our view, ,,, the only plausible interpretation of the term “billy” encompasses a collapsible metal baton … . Our conclusion in this regard does not rest — as the dissent suggests — on whether or not law enforcement personnel has chosen to use this particular type of instrument. Rather, our determination follows from the common understanding of the term “billy” and our view that the baton at issue here fits comfortably within the definition thereof. Therefore, we hold that the accusatory instrument alleging that defendant possessed a metal, extendable striking weapon with a handle grip, was sufficient to charge him with possessing a “billy” under Penal Law § 265.01 (1) so as to provide sufficient notice for him to prepare a defense and to protect him from multiple prosecutions. People v Ocasio, 2016 NY Slip Op 07105, CtApp 11-1-16

CRIMINAL LAW (EXPANDABLE, METAL BATON IS A “BILLY” WITHIN THE MEANING OF THE PENAL LAW)/BILLY (EXPANDABLE, METAL BATON IS A “BILLY” WITHIN THE MEANING OF THE PENAL LAW)

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STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined Section 61 of the Executive Budget Law, which cut-off counties’ ability to seek Medicaid “overburden expenses” as of January 1, 2006, is constitutional. The State Executive Budget Memorandum explained that the purpose of Section 61 was to “to clarify that local governments cannot claim for overburden expenses incurred prior to January 1, 2006 when the ‘local cap’ statute that limited local contributions to Medicaid expenditures took effect. This is necessary to address adverse court decisions that have resulted in State costs paid to local districts for pre-cap periods, which conflict with the original intent of the local cap statute:”

Once the State complied with its statutory obligation under Social Services Law § 368-a (1) (h) (i) to pay the counties for overburden reimbursements, it was fully consistent with the prior mandatory reimbursement scheme for the Legislature to impose a deadline on claims for unpaid funds. That deadline was neither in conflict with a fundamental law nor our constitutional principles. Just as the Counties cannot be heard to complain that the Legislature replaced one Medicaid allocation scheme with another, thus redefining the counties’ expense burden, so too are the counties without recourse when the Legislature imposes a deadline on the counties’ submission of claims for overburden reimbursements, thereby closing the door on pre-2006 claims. Matter of County of Chemung v Shah, 2016 NY Slip Op 07043, CtApp 10-27-16

 

MEDICAID (STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)/MUNICIPAL LAW (COUNTIES, MEDICAID REIMBURSEMENT, STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)/COUNTIES (MEDICAID REIMBURSEMENT, STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)

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SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Pigott, over a three-judge dissent, determined the search of a juvenile’s shoe at the police station was reasonable. Therefore, the weapon found in the shoe was admissible. The dissent argued the Court of Appeals did not have jurisdiction to hear the appeal because the dissent below did not present a question of law, but rather a mixed question of law and fact:

Respondent initially told police on the street that he was 16 years old. Because he lacked identification, the police transported him to the precinct, where, nearly an hour later, he told them that he was only 15 years old. Thereafter, the officers treated respondent as a juvenile, placing him in a juvenile room and making him remove his belt, shoelaces and shoes as a protective measure until his parents were notified and he could be picked up from the precinct. Based on respondent’s representation that he was 16 years old and the officers’ observations of him in the street, the officers had probable cause to arrest respondent for disorderly conduct.

We also conclude that the limited search of respondent’s shoes was reasonable. The majority found no fault with the request that respondent remove his belt and shoelaces as a safety precaution; rather it was the request to remove his shoes that the majority held to be “far more intrusive than a frisk or patdown” … . However, the officers were not first required to suspect that respondent either possessed contraband or posed a danger to himself or officers before being directed to remove his shoes. In that regard, the limited search of respondent’s shoes while he was temporarily detained and awaiting the notification of his parents was a reasonable protective measure employed by police to ensure both the safety of respondent and the officers, and the intrusion was minimal … . Matter of Jamal S., 2016 NY Slip Op 07045, CtApp 10-27-16

 

CRIMINAL LAW (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/SEARCH AND SEIZURE (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/FAMILY LAW (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/JUVENILE DELINQUENCY (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)

PLAINTIFF’S PURCHASE OF NOTES WAS FOR THE PRIMARY PURPOSE OF BRINGING A LAWSUIT IN VIOLATION OF THE JUDICIARY LAW (CHAMPERTY STATUTE).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined plaintiff Jusitian Capital’s purchase of notes from DPAG was champertous (purchased for the primary purpose of bringing a lawsuit), and further determined Justinian was not entitled to the “safe harbor” provision of the champerty statute (which exempts securities purchased for “an aggregate purchase price of at least five hundred thousand dollars”):

… DPAG and Justinian entered into a sale and purchase agreement (the Agreement). Pursuant to the Agreement, DPAG would assign the Notes to Justinian and Justinian would agree to pay DPAG a base purchase price of $1,000,000 … . The Notes were assigned to Justinian shortly after execution of the Agreement. The assignment, however, was not contingent on Justinian’s payment of the $1,000,000. Nor did Justinian’s failure to pay the $1,000,000 constitute an Event of Default under section 9 of the Agreement. * * *

…[T]he impetus for the assignment of the Notes to Justinian was DPAG’s desire to sue [defendant] for causing the Notes’ decline in value and not be named as the plaintiff in the lawsuit. Justinian’s business plan, in turn, was acquiring investments that suffered major losses in order to sue on them, and it did so here within days after it was assigned the Notes. … [T]here was no evidence, even following completion of champerty-related discovery, that Justinian’s acquisition of the Notes was for any purpose other than the lawsuit it commenced almost immediately after acquiring the Notes … . * * *

The record establishes, and we conclude as a matter of law, that the $1,000,000 base purchase price listed in the Agreement was not a binding and bona fide obligation to pay the purchase price other than from the proceeds of the lawsuit. The Agreement was structured so that Justinian did not have to pay the purchase price unless the lawsuit was successful, in litigation or in settlement. Justinian Capital SPC v WestLB AG, 2016 NY Slip Op 07047, CtApp 10-27-16

 

DEBTOR-CREDITOR (PLAINTIFF’S PURCHASE OF NOTES WAS FOR THE PRIMARY PURPOSE OF BRINGING A LAWSUIT IN VIOLATION OF THE JUDICIARY LAW (CHAMPERTY STATUTE))/CHAMPERTY (PLAINTIFF’S PURCHASE OF NOTES WAS FOR THE PRIMARY PURPOSE OF BRINGING A LAWSUIT IN VIOLATION OF THE JUDICIARY LAW (CHAMPERTY STATUTE))

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