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FORBEARANCE CAN BE ADEQUATE CONSIDERATION CREATING A VALID CONTRACT (FIRST DEPT)

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gonzalez, determined summary judgment should not have been awarded dismissing the breach of contract cause of action in the multi-million dollar lawsuit involving Russian oil and gas. The opinion is too detailed to summarize here. On the breach of contract cause of action, the court noted that forbearance can be adequate consideration creating a valid contract:

“A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other” … . Indeed, “any basic contemporary definition would include the idea that [consideration] consists of either a benefit to the promisor or a detriment to the promisee” … . “The slightest consideration is sufficient to support the most onerous obligation” … . …

When plaintiff first agreed to join defendants in the oil business, he allegedly did so as a one-third partner. According to the Undisputed Statement of Facts, the parties disputed their respective obligations and “discussed [for several years] options for compensating [plaintiff] for the stock and cash he caused to be transferred.” In 2001, when the parties drafted the Investment Agreement, plaintiff agreed to a 15% stake and a 15% share of the profits, a marked reduction in what he would have expected to receive as an alleged one-third partner. Plaintiff also agreed to forego any right to profits pre-dating October 2001. …

The record thus suggests … that the 2001 Investment Agreement was a binding contract supported by plaintiff’s forbearance. Notably, … defendants began to perform under the agreement … , … suggesting that it was a binding accord for which plaintiff’s forbearance had supplied consideration. Lebedev v Blavatnik, 2021 NY Slip Op 01002, First Dept 2-16-21

 

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DEFENDANT, A MEMBER OF THE PROUD BOYS, WAS CONVICTED OF ATTEMPTED GANG ASSAULT OF A MEMBER OF ANTIFA; A BOOT IS A DANGEROUS INSTRUMENT; EXPERT TESTIMONY ON THE ANIMOSITY BETWEEN THE PROUD BOYS AND ANTIFA PROPERLY ALLOWED (FIRST DEPT).

The First Department affirmed the conviction of a member of the Proud Boys for the attempted gang assault of an Antifa member. The court held that a boot may constitute a dangerous instrument within the meaning of the assault statutes. In addition, the First Department noted that the People were properly allowed to call an expert witness on extremist groups to explain the animosity between the Proud Boys and Antifa:

Defendants’ intent and attempt to cause physical injury were demonstrated by defendant Kinsman, who while wearing brown leather boots, repeatedly kicked the victim while she was still on the ground and after she had just been repeatedly kicked by another Proud Boy and by defendant Hare who punched the victim and also kicked her multiple times while he was wearing Doc Marten boots … . …

The court providently exercised its discretion in permitting the People to call an expert witness on extremist groups. Some background information regarding the ideology and past conduct of the Proud Boys was permissible to explain the preexisting animosity between the Proud Boys and Antifa at the time of the incident at issue … . … While some of the evidence regarding the Proud Boys’ practices, and in particular racist remarks made by the group’s founder, were immaterial to the issues at trial, and their potential for prejudice outweighed any probative value, the court issued a limiting instruction that the background information provided by the expert was not proof of the defendants’ mental states. People v Kinsman, 2021 NY Slip Op 01009, First Dept 2-15-21

 

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SNATCHING A PURSE DANGLING FROM THE VICTIM’S ARM DID NOT INVOVLE THE PHYSICAL FORCE NECESSARY FOR ROBBERY THIRD, RENDERING THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE; REDUCED TO PETIT LARCENY (FIRST DEPT).

The First Department, reducing defendant’s robbery 3rd conviction to petit larceny, determined that the physical force element was not involved rendering the conviction against the weight of the evidence:

Judgment * * * unanimously modified, on the facts and as a matter of discretion in the interest of justice, to the extent of reducing the robbery conviction to petit larceny and reducing the sentence on that conviction to time served …. .

Defendant’s conduct in snatching the purse that was dangling from the victim’s arm did not involve the physical force required to sustain a conviction of robbery (see People v Dobbs, 24 AD3d 1043 [3d Dept 2005]; People v Middleton, 212 AD2d 809, 810 [2d Dept 1995]; compare People v Santiago, 62 AD2d 572, 579 [2d Dept 1978], aff’d 48 NY2d 1023 [1980]). Accordingly, defendant’s conviction of robbery in the third degree was not supported by legally sufficient evidence, and that verdict was against the weight of the evidence … . People v Kourouma, 2021 NY Slip Op 01011, First Dept 2-16-21

 

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PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AS THE PREVAILING PARTY BECAUSE THE POLICE DEPARTMENT TURNED OVER THE REQUESTED BODY CAM VIDEOS VOLUNTARILY WHILE THE PROCEEDING WAS PENDING; THE RESPONDENTS HAD NO REASONABLE BASIS FOR DENYING THE REQUEST (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees in this FOIL action which sought police body cam videos for an incident involving deadly force. Petitioner was the prevailing party because the respondents voluntarily provided the videos while the proceeding was pending:

… [P]etitioner substantially prevailed when respondents, during the pendency of this proceeding, disclosed the records sought in the FOIL request … . “[T]he voluntariness of . . . disclosure is irrelevant to the issue of whether petitioner substantially prevailed” … . …

… [R]espondents had no reasonable basis for denying access to the records sought. To invoke the FOIL exemption applicable to records that ‘are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations’ … , an ‘agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents’ … . ‘Put slightly differently, the agency must still fulfill its burden under Public Officers Law § 89(4)(b) to articulate a factual basis for the exemption’ … . In response to the FOIL request, NYPD did identify the generic kinds of documents at issue; it is undisputed that the responsive records, which have now been disclosed, were videos recorded by body cameras worn by NYPD officers during an incident in which NYPD used deadly force. However, NYPD’s assertions in response to the FOIL request that disclosure would interfere with an ongoing internal investigation into the incident, which was being conducted by the Force Investigation Division at the time, was conclusory in the absence of any factual showing as to how disclosure would have interfered with that investigation.” Matter of Dioso Faustino Freedom of Info. Law Request v New York City, 2021 NY Slip Op 00907, First Dept 2-11-21

 

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PETITIONERS WERE ENTITLED TO SUMMARY DETERMINATION IN THIS EXECUTIVE LAW 63 SPECIAL PROCEEDING SOUNDING IN FRAUD STEMMING FROM UNCONSCIONABLE EQUIPMENT FINANCE LEASES AND OPPRESSIVE DEBT COLLECTION PRACTICES; RESPONDENTS’ REQUEST FOR FURTHER DISCOVERY, WHICH IS DISFAVORED IN SPECIAL PROCEEDINGS, WAS PROPERLY DENIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined the respondents in this Executive Law 63 special proceeding were not entitled to additional discovery, including depositions, and petitioners were entitled to summary determination in this fraud and deceptive business practices action. The petition, brought by the NYS Attorney General, alleged respondents engaged in fraud and deception in having small businesses sign unconscionable equipment finance leases (EFLs) for credit card processing equipment leading to oppressive debt collection practices. The court noted that discovery in a special proceeding is disfavored and is permitted only on leave of court upon a showing of “ample need:”

Supreme Court correctly found that petitioners demonstrated respondents’ liability under Executive Law § 63(12). Under Executive Law § 63(12), “the test for fraud is whether the targeted act has the capacity or tendency to deceive or creates [*5]an atmosphere conducive to fraud” … . “Executive Law § 63(12) was meant to protect not only the average consumer, but also the ignorant, the unthinking, and the credulous” … . “[P]ublic reports and lawsuits of alleged fraud are sufficient to put a plaintiff on inquiry notice of fraud” … . * * *

We held in our prior decision that allegations that the [respondents] created legal obligations through misrepresentations and fraud and then attempted to enforce those obligations through abusive pre-litigation and litigation practices sufficiently demonstrated that the [respondents’] debt collection activities and procuring of default judgments were “objectively baseless” … . Matter of People of the State of New York v Northern Leasing Sys., Inc., 2021 NY Slip Op 00914, First Dept 2-11-21

 

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THE NYC HOUSING STABILITY AND TENANT PROTECTION ACT OF 2019 PART I, WHICH IMPOSES RESTRICTIONS ON A LANDLORD’S RIGHT TO REFUSE TO RENEW A RENT-STABILIZED LEASE, DOES NOT APPLY TO THIS HOLDOVER PROCEEDING WHICH WAS PENDING WHEN THE LAW WAS ENACTED (FIRST DEPT).

The First Department, reversing the Appellate Term, determined the Housing Stability and Tenant Protection Act of 2019  (HSTPA) Part I did not apply to did not apply to the instant holdover proceeding which was pending when the HSTPA was enacted:

As amended by HSTPA Part I … , Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-511(c)(9)(b), which governs an owner’s right to refuse to renew a rent-stabilized lease on the ground that the owner seeks the unit for his or her own personal use and occupancy as a primary residence, limits the owner to the recovery of only one dwelling unit in a building, requires proof of “immediate and compelling necessity” for the owner’s use, and requires that the owner provide an equivalent housing accommodation for any tenant over the age of 62 and in occupancy for 15 years or more. …

… [F]our months after Appellate Term issued its decision in this proceeding, the Court of Appeals decided Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332 [2020]), holding that HSTPA Part F, relating to rent overcharges, could not be applied to pending cases because “application of these amendments to past conduct would not comport with our retroactivity jurisprudence or the requirements of due process” … .

We conclude that the same reasoning applies with equal measure to HSTPA Part I. Matter of Harris v Israel, 2021 NY Slip Op 00796, First Dept 2-9-21

 

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THE FOUR-YEAR LOOKBACK CAN BE APPLIED TO DETERMINE WHETHER DEFENDANT ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE NYC APARTMENTS RECEIVING J-51 TAX BENEFITS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, determined the four-year lookback period can be applied to determine whether there was a fraudulent scheme to deregulate apartments which, under Roberts (12 NY3d 270 [2009]) should not have been deregulated because the landlord was receiving “J-51” tax benefits. Defendant’s motion for summary judgment was properly denied and plaintiff’s motion to certify a class was properly granted:

… [I]n pre-Roberts cases where landlords relied on DHCR [NYC Division of Housing & Community Renewal] guidance there could be no fraudulent scheme to deregulate. * * *

[W]e have not extended this rule to cases decided after Roberts … . To the contrary, our jurisprudence holds that an owner may not flout the teachings of Roberts. * * *

The hallmarks of a fraudulent scheme to deregulate are present here. … Defendant deregulated the apartment after Roberts was decided and did not re-register with DHCR, despite receiving J-51 tax benefits … . During the four-year period preceding commencement of the lawsuit, plaintiff was still not given a rent-stabilized lease. … Defendant’s actions cannot be deemed to be prompt compliance. Rather, at this stage, plaintiff has sufficiently alleged a six-year scheme to illegally deregulate 27 units or approximately 32% of the building. Montera v KMR Amsterdam LLC, 2021 NY Slip Op 00805, First Dept 2-9-21

 

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ALTHOUGH AN INDICTMENT NEED NOT ALLEGE ACCESSORIAL LIABILITY TO BE LEGALLY SUFFICIENT; WHERE THERE IS NO EVIDENCE A DEFENDANT ACTED AS A PRINCIPAL THE JURY MUST BE INSTRUCTED ON ACCESSORIAL LIABILITY; THE FAILURE TO SO INSTRUCT THE JURY HERE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the failure to instruct the jury on accessorial liability rendered the conviction against the weight of the evidence. The defendant and a companion were involved in an altercation with the victim. The companion slashed the victim and struck the victim with a baseball bat. There was no evidence defendant attacked the victim. The court noted that the indictment need not allege accessorial liability to be legally sufficient, but the jury must be instructed on the theory where there is no evidence a defendant acted as a principal:

The circumstances supported the inference that defendant was guilty of acting in concert in the attack, but undisputedly failed to support liability as a principal, that is, for personally attacking the victim. However, the prosecutor did not request, either before or after the court’s charge, that the court instruct the jury regarding accessorial liability (see Penal Law § 20.00), and the court did not give such an instruction.

Because there is “no legal distinction between liability as a principal or criminal culpability as an accomplice” … , an indictment need not contain any language relating to accessorial liability. However, this does not mean that a conviction may be sustained on an acting-in-concert theory when no such theory was submitted to the jury … . People v Ballo, 2021 NY Slip Op 00810, First Dept 2-9-21

 

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A COMPETENT ADULT MAY REVOKE A HEALTH CARE PROXY; HERE PETITIONER’S MOTHER REVOKED THE PROXY BY EXECUTING A DOCUMENT REVOKING ALL DOCUMENTS OF AUTHORITY IN FAVOR OF PETITIONER (FIRST DEPT).

The Second Department determined that a document executed by Angela M., Mark M.’s mother, revoking all documents of authority in favor of Mark M. included a health care proxy:

“A competent adult may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy” (Public Health Law § 2985[1][a]). Angelina M. revoked the health care proxy prior to her incapacitation by executing a written revocation expressly revoking “any and all” documents of authority “of every nature[,] type[,] and description” in favor of Mark M. Contrary to Mark M.’s contention, the revocation is not limited to powers of attorney related to Angelina M.’s interest in real properties and certain limited liability companies and reflects Angelina M.’s intent to revoke all documents of authority in his favor, including the health care proxy. Also contrary to Mark M.’s contention, the revocation is clear and unambiguous, and the Supreme Court properly declined to consider the affidavit of the attorney who drafted the revocation … . Matter of Angelina M. (Mark M.), 2021 NY Slip Op 00649, First Dept 2-4-21

 

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PLAINTIFF’S DECEDENT, A POLICE OFFICER SUFFERING FROM BIPOLAR DISORDER, COMMITTED SUICIDE; THE ESTATE BROUGHT A WRONGFUL DEATH ACTION AGAINST THE CITY; ALTHOUGH THE FACTS SUPPORTED AN EMPLOYMENT DISCRIMINATION CLAIM, THE COMPLAINT DID NOT ALLEGE HUMAN RIGHTS LAW CAUSES OF ACTION; THE COMPLAINT WAS PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta. determined plaintiff’s decedent (Benitez), a police officer who committed suicide, was disabled by bipolar disorder and was entitled to accommodation under the state and city Human Rights Law. However, because the estate brought a wrongful death action, and did not allege Human Rights Law discrimination causes of action, the complaint was properly dismissed:

… [P]laintiff conceded that this case “ha[d] been primarily brought on a claim of negligence,” that it had not interposed separate statutory causes of action, and that “this [wa]s a negligence c[ase], not a c[ase] based on discriminatory practices.” …

Inasmuch as plaintiff did not raise any Human Rights Law violations for failure to accommodate, we are constrained to affirm … . Supreme Court correctly concluded that defendants did not owe Benitez a duty to prevent him from committing suicide. A defendant owes such a duty where it is either “a facility such as a hospital or jail which is in actual physical custody of an individual” or “an institution or mental health professional with sufficient expertise to detect suicidal tendencies and with the control necessary to care for the person’s well-being” … . Here, defendants had neither “actual physical custody” of the decedent nor “the control necessary to care for [his] well-being” before his suicide … . Furthermore, a defendant only breaches its duty to prevent a decedent’s suicide when it “fails to take reasonable steps to prevent a reasonably foreseeable suicide … ,” and there is no evidence in this case that the decedent’s suicide was “reasonably foreseeable” … .

On appeal, plaintiff argues that the NYPD failed to accommodate Benitez under, among other statutes, the City Human Rights Law (City HRL). However, plaintiff improperly raises elements of disability discrimination in the context of a wrongful death action. Benitez v City of New York, 2021 NY Slip Op 00617, First Dept 2-4-21

 

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