You are here: / First Department

Tag Archive for: First Department

, ,

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMANDED; DEFENDANT WAS NOT INFORMED THAT BY PLEADING GUILTY TO A PROBATION VIOLATION HE WAS GIVING UP HIS RIGHT TO A HEARING; APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, remanding the matter, determined defendant was not advised he could be deported based on his guilty plea, and further determined defendant’s plea to a probation violation was defective because he was not informed he was giving up his right to a hearing. Although the issue was not preserved by a motion to withdraw the plea, the appeal was heard in the interest of justice:

When defendant, a noncitizen, pleaded guilty to criminal possession of a firearm, the court did not advise him that if he was not a citizen, he could be deported as a consequence of his plea. Even though he did not move to withdraw his guilty plea, there is no evidence that defendant knew about the possibility of deportation during the plea and sentencing proceedings. As such, the claim falls within the “narrow exception” to the preservation doctrine (People v Peque, 22 NY3d 168, 183 [2013], cert denied 574 US 850 [2014]). Therefore, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation (id. at 198). Accordingly, we remit for the remedy set forth in Peque (id. at 200-201), and we hold the appeal in abeyance for that purpose.

Furthermore, defendant’s guilty plea to violation of probation was defective because there was no allocution about whether defendant understood that he was giving up his right to a hearing on the violation. While there is no mandatory catechism, Supreme Court failed to “advise defendant of his rights or the consequences regarding an admission to violating probation, including that he understood that he was entitled to a hearing on the issue and that he was waiving that right” … . Although defendant never moved to withdraw this plea and his claim is unpreserved, we review it in the interest of justice. People v Pinnock, 2020 NY Slip Op 02731, First Dept 5-7-20

 

THE STANDARD FOR VACATING A DEFAULT JUDGMENT IS A ‘REASONABLE’ EXCUSE, NOT A ‘PLAUSIBLE’ EXCUSE; IF NO REASONABLE EXCUSE IS OFFERED THE MERITS NEED NOT BE CONSIDERED; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant Swanston’s motion to vacate the default judgment should not have been granted. The excuse was not deemed reasonable and, therefore, the merits of the case need not be considered:

The motion court thought that Swanston’s excuses might not be valid but that they were “plausible.” However, plausibility is not the standard; rather, on a CPLR 5015(a)(1) motion, the movant must show a reasonable excuse for his default … . Swanston’s one-sided understanding that plaintiffs would refrain from prosecuting their lawsuit while defendant JackFromBrooklyn Inc. (JFB) negotiated to sell itself did not constitute a reasonable excuse for failing to answer … .

Given the absence of a reasonable excuse, we “need not determine whether a meritorious defense exists” … . Kowal v JackFromBrooklyn Inc., 2020 NY Slip Op 02715, First Dept 5-7-20

 

,

ALTHOUGH THERE WAS EVIDENCE DEFENDANT WAS SELLING TICKETS TO A SPORTING EVENT OUTSIDE THE ARENA, THE EVIDENCE DEFENDANT KNEW THE TICKETS WERE FORGED WAS LEGALLY INSUFFICIENT; DEFENDANT’S FLIGHT WHEN HE SAW THE POLICE WAS EQUIVOCAL (FIRST DEPT).

The First Department, reversing defendant’s convictions of criminal possession of a forged instrument, determined the evidence that defendant knew the Rangers tickets were forged was legally insufficient. The defendant briefly held an envelope containing the tickets and fled when he say the police:

Defendant approached Rangers fans outside of Madison Square Garden before a game, and at one point said “tickets, tickets.” He was on a cell phone call for a few seconds with an unspecified caller, the substance of which was not overheard. Defendant then met an unapprehended man, who gave defendant an envelope, which he immediately passed to a codefendant. The envelope, which the police recovered from the codefendant, contained a birthday card and the four forged Rangers tickets.

The evidence suggested that defendant sought to buy or sell tickets, but it did not show that he knew the tickets in question were forged. Even if the evidence established that defendant knowingly acted in concert with one or more other persons to sell tickets, in the circumstances presented this failed to support an inference that he knew he was selling forged tickets. His momentary possession of the envelope as he took it from one man and handed it to another, without looking inside or otherwise seeing the tickets, and the lack of any evidence of the codefendant’s conduct, besides his walking with defendant and receiving the tickets, does not suffice to establish that defendant knew the tickets were forged, either personally or while acting in concert with the codefendant.

Defendant’s flight from a plainclothes officer, whom defendant may have recognized, was too equivocal to prove that he knew the tickets inside the envelope were forged. There are other reasonable explanations for defendant’s flight, such as his potential awareness that it is unlawful to sell tickets, even if genuine, in the vicinity of the Garden … . People v Johnson, 2020 NY Slip Op 02708, First Dept 5-7-20

 

,

THE MOTION COURT APPLIED THE WRONG CRITERIA WHEN RULING ON WHETHER THE DEFENDANT WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON DEFENSE COUNSEL’S ALLEGED FAILURE TO INFORM HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; ASSESSING DEFENDANT’S CHANCES AT TRIAL IS NOT THE PROPER ANALYSIS (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Renwick, over a dissent, determined the motion court applied the wrong criteria for assessing whether the defendant was prejudiced by the alleged ineffective assistance of counsel. Defendant moved to vacate his conviction, alleging defense counsel did not inform him of the deportation consequences of his guilty plea. The defendant’s chance of success at trial is irrelevant to whether defendant was entitled to a hearing. The First Department succinctly summarized the issues and the ruling as follows:

We find that the trial court improperly denied the motion without a hearing pursuant to CPL 440.30(4)(d) (i) & (ii). This section permits a court to reach the merits of a postjudgment motion without a hearing to dismiss frivolous claims … . In the case at bar, however, as the dissent concedes, there is independent support for defendant’s assertion that his plea was induced by erroneous advice given by his trial counsel, namely that his felony guilty plea would not subject defendant to mandatory deportation. Nevertheless, the dissent argues that summary denial of the CPL 440.10 motion is still proper, because defendant’s allegations did not raise a reasonable possibility that he was prejudiced by the misadvice. We disagree. Like the court below, the dissent applies the wrong prejudice standard, by focusing exclusively on defendant’s alleged lack of a viable defense and the likelihood he would have been convicted after trial, and disregards the particular circumstances of defendant’s desire to remain in the United States. The dissent’s reasoning is contradicted by the recent United States Supreme Court holding in Lee v United States (582 US __, 137 S Ct 1958, 1966 [2017]), which rejects any per se rule that prevents a defendant from establishing prejudice by an attorney’s erroneous advice simply because the defendant may not have a strong defense. Instead, as Lee v United States mandates, even if the chance of success at trial is low, the prejudice inquiry should focus on the defendant’s decision-making and whet her it was reasonable for one in defendant’s position, facing mandatory deportation, to choose to take a shot a trial. People v Lantigua, 2020 NY Slip Op 02557, First Dept 4-30-20

 

,

PLAINTIFF SOCIAL WORKER WAS MENACED BY A TENANT IN CITY HOUSING WIELDING A KNIFE AND SUED THE CITY; THE CITY WAS ACTING IN A GOVERNMENTAL CAPACITY; THERE WAS NO SPECIAL DUTY OWED TO PLAINTIFF BY THE CITY; THE ATTACK WAS NOT FORESEEABLE; SECURITY WAS ADEQUATE; THE COMPLAINT WAS PROPERLY DISMISSED (FIRST DEPT).

The First Department determined plaintiff social worker’s suit against the city based on a tenant’s menacing her with a knife  was properly dismissed. The incident happened at city housing for mentally ill and homeless persons:

The court correctly concluded that the City defendants were acting in a governmental capacity when they provided funding for the facility and its services. A party seeking to impose liability on a municipality acting in a governmental capacity must establish the existence of a special duty to plaintiff, which is more than the duty owed to the public generally … . Here, plaintiff presented no evidence that would provide a basis for finding that a special duty was owed to her by the City defendants.

Regarding defendants owner and managing agent of the premises, a landowner must act as a reasonable person in maintaining the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk … . The owner and managing agent demonstrated that the incident was not reasonably foreseeable in that the tenant was a resident in the facility for nine years and had no record of violent behavior or threats of violence to others … . Plaintiff asserts that the tenant was an unsuitable tenant for the facility because of his mental illness and prior criminal conduct. However, the tenant’s criminal conduct took place 15 years before the incident.

Plaintiff argues that the facility lacked adequate security given its “high risk” population. However, surveillance cameras controlling building access and functioning locks on office doors, which were present here, have been found to be sufficient to satisfy the “minimal precautions” standard … . Furthermore, since the incident was over in less than a minute and security personnel were alerted and responded, additional security could not have prevented the incident … . Musano v City of New York, 2020 NY Slip Op 02368, First Dept 4-23-20

 

, ,

DEFENDANTS-ATTORNEYS’ MOTION TO DISMISS THE LEGAL MALPRACTICE ACTION BASED UPON UNDENIABLE DOCUMENTARY EVIDENCE, AS WELL AS OTHER GROUNDS, SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants-attorneys’ motion to dismiss the legal malpractice complaint based upon documentary evidence should have been granted. The plaintiffs-insurers’ alleged the defendants negligently advised them to disclaim insurance coverage:

… [P]laintiffs allege that they sustained damages when they relied on defendants’ negligent advice that they could disclaim coverage of their insured in an underlying malpractice action. In support of their motion to dismiss, defendants properly relied on documentary evidence, including the challenged disclaimer letter and the relevant policy, since their authenticity is undisputed and their contents are “essentially undeniable” ( … CPLR 3211[a][1]). The disclaimer letter sets forth an analysis of plaintiffs’ right to refuse coverage to their insured on two independent bases. Plaintiffs’ failure to allege with specificity or argue that one of the two bases for defendants’ advice was incorrect, requires dismissal of this legal malpractice action.

Aside from this, defendants’ alleged malpractice concerning other issues is subject to the attorney-judgment rule … . Since plaintiffs failed to show that the issues were elementary or subject to settled authority, defendants could not be liable for malpractice based on their prediction of how a court would interpret the policy … .

Further, plaintiffs’ failure to explain how it was that any alleged error by defendants prejudiced their defense in the subsequent coverage action also mandates dismissal of the malpractice claim … . Lloyd’s Syndicate 2987 v Furman Kornfeld & Brennan, LLP, 2020 NY Slip Op 02365, First Dept 4-23-20

 

, ,

FATHER WAS DENIED DUE PROCESS WHEN THE COURT TOOK SIX MONTHS TO HOLD A POST-DISPOSITIONAL HEARING AFTER A FAILED TRIAL DISCHARGE OF THE CHILDREN TO FATHER; THE CHILDREN WERE FINALLY RETURNED TO FATHER AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that father was entitled to an expedited post-dispositional hearing after the children were removed from the father’s custody based upon a failed trial discharge. The children were eventually returned to father, but the hearing took six months and the children were not returned to father until eight months after the decision was issued. The First Department ruled on the appeal as an exception to the mootness doctrine, finding that this situation was likely to recur. The court held that father was entitled to an “expedited hearing” after the children were removed under due process principles:

We find that a parent’s private interest in having custody of his or her children, the children’s private interest in residing with their parent, and the undisputed harm to these interests are factors that merit equal consideration. On this record, ACS [Administration for Children’s Services]  fails to establish that the lengthy delay was related to its interest in protecting the children. Rather, the hearing was prolonged over six months because of the court’s and attorneys’ scheduling conflicts. There is no indication that the completion of the hearing was caused by difficult legal issues, or by the need to obtain elusive evidence, or by some other factor related to an accurate assessment of the best interest of the children … .

Even though this is a post-dispositional matter, the father is entitled to the strict due process safeguards afforded in neglect proceedings. “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State” … . This rationale equally applies to the primacy of a parent’s fundamental liberty interest, and the importance of procedural due process in protecting that interest, particularly when a parent and child are physically separated … . Accordingly, we find that a parent is entitled to a prompt hearing on the agency’s determination to remove the children from his or her physical custody through a failed trial discharge. Matter of F.W. (Monroe W.), 2020 NY Slip Op 02385, First Dept 4-23-20

 

,

NONSIGNATORY NOT BOUND BY ARBITRATION CLAUSE IN ENGAGEMENT LETTER (FIRST DEPT).

The First Department, noting that Supreme Court should have decided whether a nonsignatory was bound by an arbitration clause and deciding the issue in the interest of judicial economy, determined the nonsignatory was not bound:

Millennium Lab Holdings, Inc. and Millennium Lab Holdings II, LLC (Millennium Holdings, LLC), pursuant to an engagement letter, retained petitioner KPMG LLP to audit their financial statements for certain time periods. The engagement letter contained a clause requiring arbitration of “[a]ny dispute or claim arising out of or relating to this Engagement Letter or the services provided hereunder.” * * *

The parties agree that the only theory under which respondent, as a nonsignatory to the engagement letter containing the arbitration clause, can be required to arbitrate is on the equitable estoppel/direct benefits grounds. We find that petitioner has not met its “heavy burden” … under that theory.

The benefits that the investors whose interests respondent represents derived from the engagement letters between petitioner and nonparty Millennium were “merely indirect” … . Here … respondent pleaded solely common-law claims and did not invoke the engagement letter … . …

Millennium and petitioner did not contemplate that the investors represented by respondent would benefit from the engagement letter. …

… [T]here is no indication in the record that the investors whom respondent represents had actual knowledge of the engagement letters between petitioner and Millennium … . Matter of KPMG LLP v Kirschner, 2020 NY Slip Op 02286, First Dept 4-16-20

 

PLAINTIFF ENTITLED TO WORKERS’ COMPENSATION BENEFITS FOR INJURIES CAUSED BY A CO-EMPLOYEE’S INTENTIONAL TORT (ASSAULT) (FIRST DEPT).

The First Department determined plaintiff was entitled to workers’ compensation benefits for injuries from an intentional tort (assault) by an employee:

Plaintiff alleged that he was injured when, as he was attempting to sit down, defendant, his coworker, pulled his chair out from under him, causing him to fall to the ground. After plaintiff’s accident, the Workers’ Compensation Board determined that he was entitled to benefits for a work-related injury.

An employee’s rights to Workers’ Compensation benefits is the employee’s exclusive remedy against his employer or coemployee for injuries sustained during his employment (see Workers’ Compensation Law §§ 11, 29[6]) … ). The Workers’ Compensation Law, however, does not prevent an employee from recovering for intentional torts, such as an assault … .

Here, the motion court properly denied defendant’s motion for summary judgment dismissing the claim for assault. There are issues of fact as to whether defendant’s conduct placed plaintiff in “imminent apprehension of harmful contact” … . Donnelly v Christian. 2020 NY Slip Op 02279, First Dept 4-16-20

 

LABOR LAW 200, 241(6) AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS WORKPLACE SLIP AND FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s Labor law 200, 241(6)  and common law negligence causes action properly survived summary judgment in this workplace slip and fall case. Plaintiff fell going down a staircase and there was evidence that dust and perhaps paint was on the stairway associated with sanding and painting the walls. Although the stairway was not a passageway pursuant to the Industrial Code, there was a question of fact whether the stairway was a work area, even though no work was being done at the time of the fall. The defendant responsible for cleaning up, Magnetic, could be liable as a statutory agent:

… [P]laintiff’s identification of the cause of his slip and fall is not merely speculation. He testified that after he fell down the stairs, the steps he could see from the bottom of the staircase were dusty, his clothes were dusty, and his jacket was wet with paint. Further, there is testimony in the record that the walls of the stairway had been sanded and painted before plaintiff’s accident. * * *

Industrial Code § 23-1.7(e)(2) may serve as a predicate for plaintiff’s Labor Law § 241(6) claim, as it applies to slipping as well as tripping hazards … . …

Industrial Code § 23-1.7(d) is applicable to plaintiff’s accident. While a staircase used to provide access to a job site is not a passageway or other working surface within the meaning of the provision unless it is the sole means of access … , the provision is applicable if the staircase was a work area … . …

Insofar as Magnetic was delegated authority for the injury-producing work, retained subcontractors to perform the injury-producing work, and was responsible for clean-up at the site, it may be held liable under Labor Law § 241(6) as a statutory agent … . Ohadi v Magnetic Constr. Group Corp., 2020 NY Slip Op 02278, First Dept 4-16-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy