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PLAINTIFF’S ‘DENIAL OF A FAIR TRIAL’ ACTION PURSUANT TO 42 USC 1983 SHOULD NOT HAVE BEEN DISMISSED BEFORE PLAINTIFF’S CASE WAS CLOSED; THE MOTION FOR A DIRECTED VERDICT WAS PREMATURE AND SHOULD NOT HAVE BEEN GRANTED, EVEN IF PLAINTIFF’S ULTIMATE SUCCESS WAS UNLIKELY; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing Supreme Court, setting aside the verdict, and ordering a new trial, determined that the motion for a directed verdict should not have been granted prior to the close the plaintiff’s case. Plaintiff had brought an action against the City of New York pursuant to 42 USC 1983 alleging he had not received a fair trial:

The denial of a fair trial claim is a stand alone cause of action (see e.g. Garnett v Undercover Officer C0039, 838 F3d 265, 278-279 [2d Cir 2016]), which should not have been dismissed prior to the conclusion of plaintiff’s case in chief. CPLR 4401 permits a party to move for a directed verdict “after the close of the evidence presented by an opposing party with respect to such cause of action or issue.” “[I]t is reversible error to grant a motion for a directed verdict prior to the close of the party’s case against whom a directed verdict is sought” … , even if the ultimate success of a plaintiff’s cause of action is unlikely … . Cromedy v City of New York, 2019 NY Slip Op 07527, First Dept 10-22-19

 

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DEFENDANT’S CONNECTICUT CONVICTION WAS NOT EQUIVALENT TO A NEW YORK REGISTRABLE OFFENSE; THE CIVIL APPEALS STANDARDS APPLY; ALTHOUGH NOT PRESERVED, THE ISSUE PRESENTS A PURE QUESTION OF LAW, COULD NOT HAVE BEEN AVOIDED IF RAISED BELOW AND THE RECORD WAS SUFFICIENT FOR REVIEW (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant need not register as a sex offender in New York based upon a Connecticut misdemeanor conviction which was not equivalent to New York’s first-degree sexual abuse statute. The court noted that the civil appeals standards apply and preservation of the error was not required because the appeal presents a pure question of law, the issue could not have been avoided if raised below, and the record is sufficient for review:

In 2003, defendant was convicted in Connecticut of two counts of fourth-degree sexual assault. To the extent relevant here, a person is guilty of that misdemeanor when he “subjects another person to sexual contact who is . . . physically helpless, or. . . subjects another person to sexual contact without such other person’s consent” (Conn Gen Stat § 53a-73a[a][1][D],[2]). The physical helplessness element would make the crime the equivalent of first-degree sexual abuse (Penal Law § 130.65[2]), a registrable offense in New York. In the absence of that element, the crime is the equivalent of third-degree sexual abuse (Penal Law § 130.55), which is not registrable.

Equivalency, based on a comparison of essential elements (see Corr Law § 168-a[1],[2][d]), may be established when “the conduct underlying the foreign conviction . . . is, in fact, within the scope of the New York offense” … . Here, the hearing court relied on undisputed documentary evidence that each victim “felt paralyzed” while being sexually abused by defendant; one victim “just froze” and the other “was afraid to confront” him. There is no indication, however, that either victim was physiologically incapable of speech, drugged into a stupor, or otherwise unable to communicate her unwillingness to submit to the sexual contact … . …

The issue is properly reviewable on this appeal, notwithstanding defendant’s failure to raise it before the hearing court. While we agree with the People that preservation considerations applicable to civil appeals apply here, those considerations do not bar review. This appeal presents a pure question of law. This issue could not have been avoided if raised before the hearing court, and it is reviewable on the existing record … .  Moreover, the hearing court expressly ruled on the issue in its detailed decision. People v Burden, 2019 NY Slip Op 07497, First Dept 10-17-19

 

POSSESSION OF A GRAVITY KNIFE CHARGE DISMISSED EVEN THOUGH THE STATUTE DECRIMINALIZING SUCH POSSESSION IS NOT TO BE APPLIED RETROACTIVELY (FIRST DEPT).

The First Department determined the indictment charging possession of a gravity knife based upon the statute decriminalizing such possession, even though the statute is not to be applied retroactively:

With respect to the weapon conviction, involving a gravity knife, the People, in the exercise of their broad prosecutorial discretion, have agreed that the indictment should be dismissed under the particular circumstances of the case and in light of recent legislation amending Penal Law § 265.01 to effectively decriminalize the simple possession of gravity knives, notwithstanding that this law does not apply retroactively. We agree … . People v Caviness, 2019 NY Slip Op 07494, First Dept 10-17-19

 

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CONDITION OF PAROLE THAT PETITIONER NEVER ENTER QUEENS COUNTY WITH NO PROVISION FOR OBTAINING PERMISSION TO TRAVEL THERE VIOLATED PETITIONER’S RIGHT TO TRAVEL AND RIGHT TO ASSOCIATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the condition of petitioner’s post release supervision prohibiting him from entering Queens County (where the assault victim resides), without any option to travel there with permission, violated petitioner’s right to travel and right to associate and was arbitrary and capricious:

Release conditions that implicate certain fundamental rights, such as the right to travel and the right to associate, have been held permissible as long as “reasonably related” to a petitioner’s criminal history and future chances of recidivism … .

The special condition, as noted, provides, “I will not leave New York City . . . [including Queens] without written permission from my parole officer (including work purposes). I understand that I am not to travel under any circumstances to the borough of Queens.” Barring petitioner from the entire county of Queens under all circumstances, without any clear right to seek, or ability to obtain, a waiver from respondents, is a categorical ban impinging upon his rights to travel and association, and, for this reason alone, the travel restriction must be vacated as arbitrary and capricious, as it is not “reasonably related” to petitioner’s criminal history and future chances of recidivism … .

Accordingly, we remand this matter for respondents to issue a new travel restriction. The restriction must be clear and “reasonably related” to petitioner’s criminal history and future chance of recidivism … . Unlike the vacated restriction, the new restriction should specify that any travel restrictions are subject to case-by-case exceptions for legitimate reasons, which petitioner may request from his parole officer. Matter of Cobb v New York State Dept. of Corr. & Community Supervision, 2019 NY Slip Op 07480, First Dept 10-17-19

 

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JUDGE HAD THE AUTHORITY TO SEVER TWO COUNTS IN AN INDICTMENT AND REMOVE THE MATTER, INVOLVING A JUVENILE, TO FAMILY COURT; THE PEOPLE’S ARTICLE 78 SEEKING PROHIBITION DENIED AND DISMISSED (FIRST DEPT).

The First Department denied the People’s Article 78 action seeking to vacate an order by the respondent judge severing two counts which had been combined in an indictment and removing the charges to Family Court. The People objected to removing the prosecution of a 16-year-old to Family Court. In order the facilitate the removal, respondent judge severed the two counts. The People unsuccessfully argued the judged did not have the authority to sever the counts, and therefore could not send the charges to Family Court:

“[T]he extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court . . . acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction” … . “Use of the writ is, and must be, restricted so as to prevent incessant interruption of pending judicial proceedings by those seeking collateral review of adverse determinations made during the course of those proceedings” … .

There is no merit in the People’s contention that the court lacks the authority to sever charges that were joined in a single indictment. This argument would have validity in cases where charges were properly joinable in a single indictment. However, the law is clear that the determination of whether the charges were, in fact, properly joinable in the first instance, is a duty of the court that is not delegated to the prosecution or the grand jury.

The court has a duty to examine the indictment to determine whether joinder is proper pursuant to CPL 200.20(a) or (b). Notably, the People have not provided any precedent to support their position to the contrary. Courts routinely rule on the issue of whether charges in an indictment are properly joinable under CPL 200.20(2) and sever those charges that are not … .

While the People disagree with the court’s finding that the … charges were not properly joinable under CPL 200.20(2)(b), determination of this issue is not before us in this article 78 proceeding. Rather, we are only asked, and we only have the authority, to determine whether the court acted without jurisdiction or in excess of its authority. Matter of Vance v Roberts, 2019 NY Slip Op 07358, First Dept 10-10-19

 

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QUESTIONS OF FACT WHETHER THE ADVERSE INTEREST EXCEPTION TO THE IN PARI DELICTO DEFENSE APPLIES IN THIS ACCOUNTANT MALPRACTICE CASE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined questions of fact were raised about whether the adverse interest exception bars the in pari delicto defense in this accountant malpractice case:

In this accounting malpractice action, plaintiffs, the liquidators of several hedge funds, allege that defendants failed to uncover fraudulent activity by the funds’ investment managers. The issue before us is whether the adverse interest exception to the equitable defense of in pari delicto bars the defense in this case (see Kirschner v KPMG LLP, 15 NY3d 446 [2010]). We find that plaintiffs raised issues of fact as to the adverse nature of their interests vis-a-vis those of their agents, the funds’ investment managers, that preclude summary dismissal of the complaint on the ground of the in pari delicto defense.

“To come within the exception, the agent must have totally abandoned his principal’s interests and be acting entirely for his own or another’s purposes” ,,, . The exception is applied only where the fraud is committed “against a corporation rather than on its behalf” … . “So long as the corporate wrongdoer’s fraudulent conduct enables the business to survive — to attract investors and customers and raise funds for corporate purposes — this test is not met” … . Thus, we conclude that the mere continuation of a corporate entity does not per se constitute a benefit that precludes application of the adverse interest exception. …

… [R]eliance on speculation about the benefits to be derived from the continued existence of an entity is inconsistent with the analysis of the adverse interest exception in Kirschner. It may be possible in every case to construct a hypothetical scenario where the company teetering on the brink of insolvency because of its agent’s fraud meets with an opportune circumstance that allows it to resume legitimate business operations. Permitting such speculation would render the adverse interest exception meaningless. Further, an ongoing fraud and a continued corporate existence may harm a corporate entity: The agent may prolong the company’s legal existence so that he can continue to loot from it, as appears to have been the case here. Conway v Marcum & Kliegman LLP, 2019 NY Slip Op 07338, First Dept 10-10-19

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED IN THIS CRANE-ACCIDENT CASE; THE ESPINAL ‘LAUNCHED AN INSTRUMENT OF HARM’ CAUSE OF ACTION AGAINST THE COMPANY WHICH REFURBISHED AND MAINTAINED THE CRANE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted in this crane-accident case. The First Department also held that the negligence action against the company (Hoffman) which refurbished and maintained the crane, based upon the Espinal “launched an instrument of harm” theory, should not have been dismissed:

The collapse of a crane constitutes a prima facie violation of Labor Law § 240(1) … . A plaintiff need not be directly injured by a portion of the crane for the Labor Law to apply — injuries that occur while trying to avoid being struck during a hoisting accident may qualify … . While plaintiff’s testimony at his deposition varied somewhat from his 50-h testimony, he repeatedly cautioned that the accident happened so fast it was difficult for him to describe exactly how it occurred. In any event, no matter which version is accepted, Labor Law § 240(1) applies to the … defendant … .

Hoffman refurbished the subject crane one year before the accident and performed maintenance on it several times thereafter. Although a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third person … , an exception exists where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition so as to have “launched a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002] …). Hoffman failed to adequately address the findings of the independent crane company that conducted the post-accident investigation, which concluded that several maintenance and repair issues contributed to over wear on the crane’s wire ropes … . DeGidio v City of New York, 2019 NY Slip Op 07218, First Dept 10-8-1

 

PLAINTIFF WAIVED ITS RIGHT TO A JURY TRIAL BY INCLUDING A REQUEST FOR EQUITABLE RELIEF; ONCE WAIVED THE RIGHT CANNOT BE REVIVED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had waived its right to a jury trial by including a request for equitable relief and, once waived, the right cannot be revived:

Plaintiff has waived its right to a jury trial. When, as here, the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, there is a waiver of a plaintiff’s right to a jury trial … . Plaintiff’s sixth cause of action for a permanent injunction sounds in equity, is not incidental to the remaining claims and as a result of its inclusion, it can no longer be said that money damages would afford a complete remedy … . Furthermore, “[o]nce the right to a jury trial has been intentionally lost by joining legal and equitable claims, any subsequent dismissal, settlement or withdrawal of the equitable claim(s) will not revive the right to trial by jury” … . Errant Gene Therapeutics, LLC v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 07226, First Dept 10-8-19

 

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PLAINTIFFS FELL FROM A LIFT TRUCK WHICH WAS STRUCK BY A BUS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; HEARSAY ALONE WILL NOT DEFEAT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted, noting that hearsay alone will not defeat a summary judgment motion:

Plaintiffs … established prima facie that defendants are liable for their injuries under Labor Law § 240(1) by submitting evidence that they fell to the ground and were injured when the lift truck upon which they were working moved when it was struck by a passing bus … . Moreover, the lift truck, which was being used as an elevated work platform, lacked a guardrail to prevent … . In opposition, defendants failed to raise an issue of fact. They rely instead on hearsay evidence as to how the accident may have occurred. Such hearsay evidence alone is insufficient to defeat a motion for summary judgment … . South v Metropolitan Transp. Auth., 2019 NY Slip Op 07213, First Dept 10-8-19

 

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THE PROHIBITION OF DOUBLE JEOPARDY DID NOT PRECLUDE THE PROSECUTION BASED UPON THE THEFT OF GOLDMAN SACHS SOURCE CODE UNDER A STATE STATUTE AFTER DEFENDANT’S CONVICTION UNDER A FEDERAL STATUTE WAS REVERSED; THE STATE STATUTE INCLUDED AN ELEMENT NOT INCLUDED IN THE FEDERAL STATUTE (FIRST DEPT).

The First Department determined defendant’s prosecution for unlawful use of secret scientific material did not violate the prohibition against double jeopardy. Defendant, while working for Goldman Sachs, had uploaded source code to a server in Germany. He was first charged under a federal statute, the National Stolen Property Act (NSPA). The Second Circuit reversed the NSPA conviction because the source code was deemed “intangible” at the time of the theft (when it was transmitted) and therefore did not meet the definition of “goods” in the federal statute. However, the state statute under which defendant was subsequently prosecuted, unlawful use of secret scientific material, included tangible electronically reproduced material, and the source code reproduced on the German server met that criteria:

Defendant’s argument rests on the claim that the “goods” element of the NSPA, which undisputedly requires that the property transported be “tangible,” is equivalent to the “tangible reproduction” element of New York’s unlawful use statute. That statute provides that “[a] person is guilty of unlawful use of secret scientific material when, with intent to appropriate . . . the use of secret scientific material, and having no right to do so and no reasonable ground to believe that he [or she] has such right, [the person] makes a tangible reproduction or representation of such secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material” (Penal Law § 165.07). * * *

… [T]he Second Circuit did not hold that the source codes were intangible as they existed on the German server. Rather, it held that “at the time of the theft” … — which was the same as the time that the codes were transmitted — the codes were purely intangible. Because the elements are not equivalent, there is no inconsistency between the Second Circuit’s determination that the codes were intangible when transported and this Court’s determination that defendant made a tangible reproduction when he uploaded them to the German server, where they resided within a physical medium. People v Aleynikov, 2019 NY Slip Op 07211, First Dept 10-18-19

 

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