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DISPUTES INVOLVING COMMERCIAL REAL ESTATE WERE SUFFICIENTLY RELATED TO INTERSTATE COMMERCE TO FALL UNDER THE JURISDICTION OF THE FEDERAL ARBITRATION ACT; PLAINTIFFS’ RESORT TO LITIGATION AND THE RESULTING PREJUDICE TO DEFENDANTS CONSTITUTED A WAIVER OF ARBITRATION.

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that the intrafamilial contractual disputes involving commercial real estate fell under the jurisdiction of the Federal Arbitration Act (FAA), but that the plaintiffs, by litigating the disputes in the courts and thereby prejudicing the rights of the defendants, had waived arbitration:

… [T]he Supreme Court has made it abundantly clear that the FAA's reach is expansive. The idea that the intrafamilial nature of the agreements has some bearing on whether the FAA is applicable finds no support in the caselaw. Nor does the fact that these agreements do not themselves evidence the commercial transactions appear to be significant. The ultimate purpose of the agreements was to authorize participation in the business of commercial real estate and that is, in fact, what the entities did. In determining whether the FAA applies, the emphasis is meant to be on whether the particular economic activity at issue affects interstate commerce — and, here, it does.

Nonetheless, plaintiffs have waived their right to arbitrate this dispute. “'[L]ike contract rights generally, a right to arbitration may be modified, waived or abandoned.' Accordingly, a litigant may not compel arbitration when its use of the courts is 'clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration'” … . While it is true that “[n]ot every foray into the courthouse effects a waiver of the right to arbitrate,” we are satisfied that the totality of plaintiffs' conduct here establishes waiver… .

Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established … . The majority of federal courts have taken the position that waiver cannot be established in the absence of prejudice … .  * * *

Here, … prejudice … [has] been established. After vigorously pursuing their litigation strategy for approximately one year, plaintiffs moved to compel arbitration. Even more telling, the desire for arbitration only arose after Supreme Court made plain its view that plaintiffs' claims were vexatious and largely time-barred. Indeed, plaintiffs had expressly represented to Supreme Court that they did not want to go to arbitration. Plaintiffs' behavior is indicative of blatant forum-shopping and, under these circumstances, prejudice has clearly been established. Therefore, plaintiffs have waived the right to arbitration and the issue of timeliness should be determined by the court … . Cusimano v Schnurr, 2015 NY Slip Op 09232, CtApp 12-16-15

ARBITRATION (DISPUTES RE: COMMERCIAL REAL ESTATE FELL UNDER JURISDICTION OF FEDERAL ARBITRATION ACT)/FEDERAL ARBITRATION ACT (DISPUTES INVOLVING COMMERCIAL REAL ESTATE)/ARBITRATION (WAIVER BY INVOLVEMENT IN LITIGATION AND PREJUDICE TO OPPOSING PARTY)/WAIVER OF ARBITRATION (INVOLVEMENT IN LITIGATION AND PREJUDICE TO OPPOSING PARTY)

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COLLATERAL ESTOPPEL DOCTRINE DID NOT PRECLUDE TESTIMONY ABOUT DEFENDANT’S USE OF A RAZOR BLADE, DESPITE DEFENDANT’S ACQUITTAL ON THE RELATED “DANGEROUS INSTRUMENT” CHARGES IN THE FIRST TRIAL; ADVOCATE-WITNESS RULE REQUIRED THAT DEFENSE COUNSEL’S MOTION TO WITHDRAW OR HER MOTION FOR A MISTRIAL BE GRANTED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the doctrine of collateral estoppel did not prohibit testimony in defendant's second trial that the defendant threatened to cut a victim's throat with a razor blade, despite the fact defendant was acquitted of charges involving the use of a dangerous instrument in the first trial. The court concluded that the witness-victims could not give truthful testimony about the defendant's actions without reference to the razor blade. Therefore, the collateral estoppel doctrine, under the facts of this case, was properly not applied. The court went on to find that defense counsel's request to withdraw or her motion for a mistrial should have been granted. Defense counsel's statements at arraignment were used to impeach the defendant's version of events. After defense counsel reviewed her notes, she informed the court that her statements at arraignment were incorrect and that defendant's testimony at trial matched what he had told her before arraignment. Under these circumstances, the witness-advocate rule required that defense counsel withdraw or that a mistrial be declared. Defendant's conviction was therefore reversed:

… [T]he rigid application of collateral estoppel sometimes gives way to society's interest in ensuring the correctness of criminal prosecutions … . Thus, … if it becomes apparent … that collateral estoppel “cannot practicably be followed if a necessary witness is to give truthful testimony, then [the doctrine] should not be applied” …. . * * *

[Re: the use of defense counsel's erroneous statement to impeach defendant:] The situation went from bad to worse when it became clear that the only way for defense counsel to rehabilitate her client's credibility was to impugn her own, moments before she would argue for her client's innocence in summation. Any way you look at it, defense counsel had no choice but to withdraw. In these unusual circumstances, we hold that the trial court should have granted counsel's request to withdraw or declared a mistrial. People v Ortiz, 2015 NY Slip Op 09233, CtApp 12-16-15

CRIMINAL LAW (COLLATERAL ESTOPPEL DOCTRINE NOT APPLIED)/COLLATERAL ESTOPPEL (UNDER THE FACTS, DOCTRINE INAPPLICABLE IN CRIMINAL CASE)/ATTORNEYS (ADVOCATE-WITNESS RULE REQUIRED THAT DEFENSE COUNSEL'S MOTION TO WITHRAW OR HER MOTION FOR A MISTRIAL BE GRANTED)/ADVOCATE-WITNESS RULE (DEFENSE COUNSEL'S MOTION TO WITHDRAW OR HER MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

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RE: FAILURE TO TIMELY FILE A NOTICE OF APPEAL: A PREREQUISITE FOR CORAM NOBIS RELIEF IS INEFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, determined that the applications for a writ of coram nobis in the two cases before the court were properly denied. The court found that the defendants were aware of their right to appeal but had not requested that their attorneys file a notice of appeal. The cases, therefore, were factually distinct from cases where the defendants requested that their attorneys file a notice of appeal but the attorneys failed to do so:

In People v Syville (15 NY3d 391), this Court considered whether defendants may be afforded an opportunity to file a notice of appeal, even beyond the one year and 30 days permitted under the CPL. In Syville, the defendants had made timely requests to their attorneys to file a notice of appeal on their behalf but their attorneys failed to comply. We held that when an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant demonstrates that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering a coram nobis application to pursue an untimely appeal. Thus, coram nobis relief is not just another stop on a continuum of opportunities for a defendant to seek appellate relief. Rather, it is extraordinary relief only to be provided in “rare cases” “when a right to appeal was extinguished ‘due solely to the unconstitutionally deficient performance of counsel'” … . * * *

… [N]either defendant claims that he requested that his attorney file a notice of appeal and that his attorney failed to comply with that request. Rather, they claim that counsel did not advise them of the right to appeal and had defendants known about their right to appeal, they would have requested one. However, in both appeals, the only evidence proffered in support of the contention that defendants were not apprised of their appellate rights are self-serving affidavits. The records as a whole reveal that defendants knew about their right to appeal. Thus, to grant defendants relief here would be to broaden the Syville rule to apply to any case where a notice of appeal had not been filed within one year and 30 days of conviction. Such a rule would abrogate CPL 460.30. Simply put, defendants here failed to show that their attorneys were unconstitutionally ineffective and therefore they are not entitled to the relief they seek. People v Rosario, 2015 NY Slip Op 09230, CtApp 12-16-15

CRIMINAL LAW (NO CORAM NOBIS RELIEF WHERE DEFENDANT DID NOT REQUEST COUNSEL TO FILE A NOTICE OF APPEAL)/CORAM NOBIS (NO RELIEF WHERE DEFENDANT DID NOT REQUEST ATTORNEY TO FILE A NOTICE OF APPEAL)/APPEALS (NO CORAM NOBIS RELIEF WHERE DEFENDANT DID NOT REQUEST COUNSEL TO FILE A NOTICE OF APPEAL)

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DOCTORS, WHO ALLEGEDLY FAILED TO WARN PATIENT OF DISORIENTING EFFECTS OF DRUGS, OWED A DUTY OF CARE TO PLAINTIFF, WHO WAS STRUCK BY A VEHICLE DRIVEN BY THE PATIENT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive dissenting opinion by Judge Stein (in which Judge Abdus-Salaam concurred), determined a medical malpractice complaint alleging defendant hospital and doctors owed a duty of care to plaintiff, who was injured by a patient, should not have been dismissed. The patient was treated with drugs which could impair her ability to drive but allegedly was not warned of that effect by the treating doctors.  Shortly after leaving the hospital, the patient crossed a double yellow line and struck plaintiff's vehicle. The Court of Appeals held that the injured plaintiff's complaint, which alleged the negligent failure to warn the patient of the impairment of the ability to drive, stated a cause of action, sounding in medical malpractice, against the defendant hospital and doctors:

Here, put simply, to take the affirmative step of administering the medication at issue without warning [the patient] about the disorienting effect of those drugs was to create a peril affecting every motorist in [the patient's] vicinity. Defendants are the only ones who could have provided a proper warning of the effects of that medication. Consequently, on the facts alleged, we conclude that defendants had a duty to plaintiffs to warn [the patient] that the drugs administered to her impaired her ability to safely operate an automobile … . Davis v South Nassau Communities Hosp., 2015 NY Slip Op 09229, CtApp 12-16-15

NEGLIGENCE (DOCTORS OWED DUTY OF CARE TO PERSON INJURED BY DRUGGED PATIENT)/MEDICAL MALPRACTICE (DOCTORS OWED DUTY OF CARE TO PERSON INJURED BY DRUGGED PATIENT)/MEDICAL MALPRACTIVE (FAILURE TO WARN PATIENT OF DISORIENTING EFFECT OF ADMINISTERED DRUGS)

GRANDPARENTS, WITH WHOM THE CHILD HAD RESIDED FOR TEN YEARS, HAD STANDING TO SEEK CUSTODY OF THE CHILD; THERE IS NO REQUIREMENT THAT THE 24-MONTH SEPARATION OF PARENT AND CHILD REQUIRED BY THE “GRANDPARENT STANDING” STATUTE BE CHARACTERIZED BY A COMPLETE LACK OF CONTACT BETWEEN PARENT AND CHILD.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the grandparents had demonstrated standing to seek custody of the child, who had lived with the grandparents from infancy for ten years. Mother argued that, in order to meet the standing requirement of a 24-month separation of parent and child, the child must have had no contact with her during at least a 24-month period. The Court of Appeals disagreed, finding no “absence of parental contact” requirement. The case was remanded to the Appellate Division for an application of the “best interests of the child” analysis in the custody proceedings:

Domestic Relations Law § 72 (2) sets forth three “elements” required to demonstrate the extraordinary circumstance of an “extended disruption of custody,” specifically: (1) a 24-month separation of the parent and child, which is identified as “prolonged,” (2) the parent's voluntary relinquishment of care and control of the child during such period, and (3) the residence of the child in the grandparents' household. * * *

Contrary to the mother's contention, a lack of contact is not a separate element under the statute. Indeed, there is no explicit statutory reference to contact or the lack thereof. Rather, the quality and quantity of contact between the parent and child are simply factors to be considered in the context of the totality of the circumstances when determining whether the parent voluntarily relinquished care and control of the child, and whether the child actually resided with the grandparents for the required “prolonged” period of time. Matter of Suarez v Williams, 2015 NY Slip Op 09231, CtApp 12-16-15

FAMILY LAW (GRANDPARENTS HAD STANDING TO SEEK CUSTODY, NO REQUIREMENT OF A COMPLETE ABSENCE OF PARENTAL CONTACT)/CUSTODY (GRANDPARENTS HAD STANDING TO SEEK CUSTODY, NO REQUIREMENT OF A COMPLETE ABSENCE OF PARENTAL CONTACT)/GRANDPARENT CUSTODY (NO REQUIREMENT OF A COMPLETE ABSENCE OF PARENTAL CONTACT)

INFORMATION ADEQUATELY ALLEGED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE; THE APPEARANCE OF BURNT RESIDUE IN A GLASS PIPE, TOGETHER WITH ALLEGATIONS THE OFFICER HAD THE REQUISITE TRAINING AND EXPERIENCE SUFFICIENT.

The Court of Appeals determined the heightened requirements for a misdemeanor information were met by the information charging defendant with criminal possession of a controlled substance seventh degree:

Here, …  the information was facially sufficient because it contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant's possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe.

That the substance at issue here was a burnt residue does not dictate a different result. …[A]n information's description of the characteristics of a substance combined with its account of an officer's training in identifying such substances, the packaging of such substance and the presence of drug paraphernalia, can support the inference that the officer properly recognized the substance as a controlled substance. People v Smalls, 2015 NY Slip Op 09188, CtApp 12-15-15

CRIMINAL LAW (SUFFICIENCY OF MISDEMEANOR INFORMATION, POSSESSION OF CONTROLLED SUBSTANCE)/MISDEMEANOR INFORMATION (SUFFICIENT ALLEGATION OF POSSESSION OF A CONTROLLED SUBSTANCE)/POSSESSION OF A CONTROLLED SUBSTANCE (SUFFICIENCY OF MISDEMEANOR INFORMATION)

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SANCTIONS FOR NEGLIGENT SPOLIATION OF EVIDENCE REQUIRE A SHOWING OF THE RELEVANCE OF THE LOST EVIDENCE; AN ADVERSE INFERENCE JURY INSTRUCTION MAY BE APPROPRIATE FOR NEGLIGENT SPOLIATION.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion by Judge Stein (in which Judge Rivera concurred), determined the record supported a finding that defendant was negligent in failing to preserve electronic evidence and remitted the matter to Supreme Court for a determination of the relevance of the lost evidence and a sanction, if deemed appropriate. The court noted that, even where spoliation is the result of simple negligence, an adverse inference jury instruction may be appropriate. The court explained the applicable law as follows:

A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a “culpable state of mind,” and “that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed … . On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense … .

On this appeal, we are asked to decide whether the Appellate Division erred in reversing an order of Supreme Court that imposed a spoliation sanction on the defendants. We hold that it did, and remand the matter to the trial court for a determination as to whether the evidence, which the Appellate Division found to be negligently destroyed, was relevant to the claims asserted against defendants and for the imposition of an appropriate sanction, should the trial court deem, in its discretion, that a sanction is warranted. * * *

… [A]dverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed … . Pegasus Aviation I, Inc. v Varig Logistica S.A., 2015 NY Slip Op 09187, CtApp 12-15-15

CIVIL PROCEDURE (NEGLIGENT SPOLIATION OF EVIDENCE, RELEVANCE MUST BE DEMONSTRATED)/EVIDENCE (NEGLIGENT SPOLIATION OF EVIDENCE, RELEVANCE MUST BE DEMONSTRATED)/SPOLIATION OF EVIDENCE (NEGLIGENT SPOLIATION, RELEVANCE MUST BE DEMONSTRATED)/SPOLIATION OF EVIDENCE (ADVERSE INFERENCE JURY INSTRUCTION)/ADVERSE INFERENCE JURY INSTRUCTION (NEGLIGENT SPOLIATION OF EVIDENCE)/JURY INSTRUCTIONS (ADVERSE INFERENCE, NEGLIGENT SPOLIATION OF EVIDENCE)

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A CONTRACTUAL NEW YORK CHOICE OF LAW PROVISION OVERRIDES AN OTHERWISE APPLICABLE NEW YORK STATUTORY CHOICE OF LAW PROVISION WHICH WOULD REQUIRE THE APPLICATION OF ANOTHER STATE’S LAW.

In a full-fledged opinion by Judge Stein, over an extensive dissenting opinion by Judge Abdus-Salaam (in which Judge Rivera concurred), the Court of Appeals determined the New York choice of law provision in decedent's retirement and death benefit plans required the application of New York law, even though, under the facts, an otherwise applicable New York statutory choice of law provision required the application of Colorado law.  Decedent was enrolled in both retirement and death benefit plans. He made his wife the beneficiary of the plans and his wife's father the contingent beneficiary. Decedent and his wife divorced and decedent died in Colorado. If the otherwise applicable New York statutory choice of law provision applied, the effect of the divorce would be determined by Colorado law (where decedent died). Under Colorado law, the divorce removed both decedent's wife and her father as beneficiaries of the plans. Under New York law only the wife was removed and her father remained.  The choice of law provision in the retirement and death benefit plans was deemed to supersede the otherwise applicable New York statutory choice of law provision (which would have required analysis under Colorado law):

… [W]e should apply the most reasonable interpretation of the contract language that effectuates the parties' intended and expressed choice of law … . To do otherwise — by applying New York's statutory conflict-of-laws principles, even if doing so results in the application of the substantive law of another state — would contravene the primary purpose of including a choice-of-law provision in a contract — namely, to avoid a conflict-of-laws analysis and its associated time and expense. Such an interpretation would also interfere with, and ignore, the parties' intent, contrary to the basic tenets of contract interpretation. Ministers & Missionaries Benefit Bd. v Snow, 2015 NY Slip Op 09186, CtApp 12-15-15

CIVIL PROCEDURE (CONTRACTUAL CHOICE OF LAW PROVISION OVERRIDES STATUTORY CHOICE OF LAW PROVISION)/CONTRACT LAW (CONTRACTUAL CHOICE OF LAW PROVISION OVERRIDES STATUTORY CHOICE OF LAW PROVISON)/CHOICE OF LAW (CONTRACTUAL PROVISION OVERRIDES STATUTORY PROVISION)/CONFLICT OF LAWS (CONTRACTUAL CHOICE OF LAW PROVISION OVERRIDES STATUTORY CHOICE OF LAW PROVISION)

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Standing Criteria for Petitioning for Review of Municipal Environmental Rulings Clarified; The Fact that Many People, in Addition to Petitioner, Will Suffer the Same Adverse Effects as Petitioner, Did Not Negate Petitioner’s Standing

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals clarified the nature of the standing requirement for contesting municipal rulings under the State Environmental Quality Review Act (SEQRA). The Village of Painted Post had approved the sale of municipal water to a company which operates gas wells in Pennsylvania. As part of that project, construction of a railroad loading facility was approved. A resident of the village, Martin, was one of the petitioners seeking the annulment of the Village’s SEQRA rulings. Martin, who lives near the rail facility, alleged the noise from the facility was different in degree from that experienced by the general public (thus according him standing to bring the petition). Supreme Court agreed Martin had standing. The Appellate Division reversed. The Court of Appeals determined Martin did in fact sufficiently allege standing. The fact that other nearby residents would experience the same intrusion as Martin was not dispositive:

The Appellate Division, in concluding that petitioner Marvin lacked standing, applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large,” reasoning that because other Village residents also lived along the train line, Marvin did not suffer noise impacts different from his neighbors. * * *

To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.”]). The harm that is alleged must be specific to the individuals who allege it, and must be “different in kind or degree from the public at large”… , but it need not be unique. Here, petitioner Marvin is not alleging an indirect, collateral effect from the increased train noise that will be experienced by the public at large, but rather a particularized harm that may also be inflicted upon others in the community who live near the tracks.

The number of people who are affected by the challenged action is not dispositive of standing. …[S]tanding rules should not be “heavy-handed,” …[w]e are “reluctant to apply [standing] principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” … . Applying the Appellate Division’s reasoning, because there are multiple residents who are directly impacted, no resident of the Village would have standing to challenge the actions of the Village, notwithstanding that the train noise fell within the zone of interest of SEQRA. That result would effectively insulate the Village’s actions from any review and thereby run afoul of our pronouncement that the standing rule should not be so restrictive as to avoid judicial review. Matter of Sierra Club v Village of Painted Post, 2015 NY Slip Op 08452, CtApp 11-19-15

 

Use of Stolen New York City Transit Authority (NYCTA) Key to Allow Persons to Enter the Subway System for a Small Fee Deprived the NYCTA of Its Property and Therefore Constituted Petit Larceny

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined the misdemeanor information adequately alleged petit larceny based upon the defendant’s use of a stolen New York City Transit Authority (NYCTA) key to allow two people to enter the subway system in return for a small fee. The issue was whether the information alleged that the NYCTA was the “owner” of the fees paid to the defendant. The case turned on distinguishing People v Hightower (18 NY3d 249) where the court held the use of a legally purchased MetroCard to swipe persons through a subway turnstile (for a fee) did not constitute petit larceny because the NYCTA did not own the card and therefore no property was taken from the NYCTA. The fact that the NYCTA key was stolen was the distinguishing factor. The dissent, however, did not see the distinction. The majority wrote:

… [T]he information adequately alleged all the elements of a larceny in setting forth defendant’s unauthorized use of the illegally-obtained key to allow the undercover officers to enter through the emergency exit gate in exchange for money, thereby depriving the NYCTA, as the owner, of its property. People v Matthew P., 2015 NY Slip Op 08454, CtApp 11-19-15

 

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