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PLAINTIFF WAS INJURED IN A LYFT CAR WHICH HAD BEEN ORDERED BY HIS FRIEND THROUGH THE FRIEND’S ACCOUNT; BECAUSE PLAINTIFF HAD SCROLLED THROUGH AND AGREED TO LYFT’S TERMS OF SERVICE, WHETHER PLAINTIFF WAS BOUND BY THE ARBITRATION CLAUSE MUST BE DETERMINED BY THE ARBITRATOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who used another’s Lyft account to order transportation, and who was injured in an accident involving the Lyft car, was subject to an arbitration provision in the contract between Lyft and the account-holder. Whether the plaintiff was bound by the arbitration clause was deemed to be an issue to be decided by the arbitrator:

Arbitration must be compelled because plaintiff was a party to an arbitration agreement with Lyft that expressly delegated the threshold question of arbitrability to the arbitrator. It is undisputed that, prior to the subject accident, plaintiff scrolled through and agreed to Lyft’s Terms of Service (the TOS), which included an agreement to arbitrate. As part of the arbitration agreement, the parties agreed to delegate “disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement)” to the arbitrator. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision “even if the arguments of the party seeking to arbitrate ‘appear[] to the court to be frivolous’ or even ‘wholly groundless'” … .

There is no dispute that if plaintiff had ordered the subject ride through his own Lyft account, then the instant claims would be subject to arbitration because plaintiff was party to a valid and enforceable arbitration agreement with a valid and enforceable delegation provision — even if there were a question as to the arbitration agreement’s scope … . We find that the question of whether the agreement to arbitrate encompassed claims stemming from plaintiff’s presence in a Lyft that he did not order is a question of arbitrability that must be decided by the arbitrator … . Samuel v Islam, 2024 NY Slip Op 06675, First Dept 12-31-24

Practice Point: If you scroll through and agree to the terms of service when a Lyft car is ordered though another’s account, and you are subsequently injured in an accident in the Lyft car, you are compelled to arbitrate the question whether you are subject to the arbitration clause just as the account-holder would be.

 

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DEFENDANT’S MOTION TO VACATE HIS ATTEMPTED MURDER CONVICTIONS ON INEFFECTIVE-ASSISTANCE-OF-COUNSEL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Supreme Court’s grant of defendant’s motion to vacate his attempted murder convictions, determined defendant’s counsel (Lee) was not ineffective for failure to raise a medical-condition defense. Defendant argued he was incapable of running because of a gunshot wound. Several witnesses to the shooting testified the shooter ran after the victims:

It is unclear from the record as to whether Lee was informed of the existence of such a defense and that he ignored it without investigation. The record is devoid of any evidence, including an affidavit from counsel Brown [defendant’s prior attorney], as to whether Brown followed up on securing the medical records or whether he informed Lee of their existence and possible significance. While Lee testified that he had no recollection of the specifics of the case and therefore of being told of such a defense, he testified that it was his custom and practice to discuss and investigate possible defenses with his clients. Defendant also testified that he discussed various defenses with Lee, which Lee followed up on.

… [I]t is of note that defendant did not assert the defense of medical impossibility, and Lee’s alleged ineffectiveness in not presenting it, in defendant’s appeal of his conviction on October 16, 2001, his pro se CPL 440 motion dated October 6, 2004, or his habeas corpus petition dated February 22, 2006. While Supreme Court acknowledged that it was “troubling that the issue was not raised in the habeas corpus application,” it nevertheless dismissed the People’s argument … . The significance of defendant’s failure to raise the issue for over 19 years is two-fold. First, had defendant raised the issue earlier, Lee’s recollections as to what he did and did not do would certainly have been clearer. More importantly, Lee’s case files would be available for review and scrutiny. Despite Supreme Court’s recognition that “the loss of Lee’s file makes it impossible to prove that” Lee was in possession of the medical records or was aware of the records, it nevertheless improvidently concluded that Lee “conducted no investigation” and “did not look for an expert or for the treating doctor to consult about the injury and its consequences.”

Assuming Lee was informed of the existence of such a defense, defendant failed to overcome a “presumption” that the challenged action “might be considered sound trial strategy,” and demonstrate the “absence of strategic or other legitimate explanations” for the alleged shortcomings … . People v Brown, 2024 NY Slip Op 06550, First Dept 12-24-24

Practice Point: Although fact-specific, this opinion provides in-depth analysis of several issues raised in defendant’s motion to vacate his convictions, including ineffective assistance for failure to raise a defense, newly discovered evidence and actual innocence.

 

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ALTHOUGH PLAINTIFF ALLEGED FRAUDULENT INDUCEMENT, THE ESSENCE OF THE LAWSUIT IS THE ALLEGED BREACH OF THE CONTRACTS; THIS IS NOT A CASE WHERE IT IS ALLEGED THE FRAUDULENT INDUCEMENT NULLIFIED THE CONTRACTS; THEREFORE THE JURY-TRIAL WAIVER PROVISIONS REMAIN ENFORCEABLE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Kapnick, determined the “fraudulent inducement” claim in this breach of contract action was covered by the contractual waiver of a jury trial. The First Department distinguished this case, which is in essence a “breach of contract” action, from cases where fraudulent inducement is alleged to have nullified the entire agreement. The contracts here involved the manufacture of semiconductor chips by defendant GlobalFoundries for plaintiff IBM:

From 2013 to June 2015, plaintiff International Business Machines Corporation (IBM) and defendant GlobalFoundries U.S. Inc., a manufacturer of semiconductors, engaged in discussions concerning a collaborative venture whereby IBM would transfer its microelectronics business, including technology, engineers and employees, to GlobalFoundries, along with a sum of $1.5 billion, and GlobalFoundries would develop, manufacture and supply next generation 14nm and 10nm high performance semiconductor chips for IBM. * * *

… [W]here a claim of fraudulent inducement challenges the validity of the agreement, a provision waiving the right to a jury trial in litigation arising out of the agreement may not apply … . This Court has taken care to distinguish between actions where the primary claim is fraudulent inducement and the validity of the entire contract is clearly being challenged … , and actions that do not challenge the validity of the contract but rather seek to enforce the underlying contract by obtaining damages for fraudulent inducement … . The present case falls into the latter category. * * *

It is clear from IBM’s complaint that its primary claim is not fraudulent inducement but rather breach of the agreements. International Business Machs. Corp. v GlobalFoundries U.S. Inc., 2024 NY Slip Op 06425, First Dept 12-19-24

Practice Point: It is possible that fraudulent inducement can nullify an underlying contract rendering all of the contract provisions unenforceable. Here however, although fraudulent inducement was alleged, the essence of the suit is the alleged breach of the underlying contracts. Therefore, the jury-trial waiver provisions remain enforceable.

 

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IN THIS JUVENILE DELINQUENCY PROCEEDING, THE JUVENILE’S BEHAVIOR—LOOKING AT THE UNDERCOVER VEHICLE AND TURNING HIS BICYCLE AROUND—DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION JUSTIFYING THE STREET STOP (FIRST DEPT). ​

The First Department, reversing Family Court’s finding there was reasonable suspicion justifying the street stop of the juvenile, determined the officers’ observation of the juvenile’s “look[ing] in the direction of one of the unmarked vehicles, back pedal[ing], duck[ing], turn[ing] the bicycle around and rid[ing] in the opposite direction” was not sufficient. The police had been alerted to a gunshot in the area. A handgun was retrieved from the juvenile:

… [T]he totality of the circumstances did not support Family Court’s finding that the officer had reasonable suspicion to justify the stop, and his detention was unlawful because appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation” … . Police, in two unmarked vehicles, while canvassing the area in response to a “Shotspotter” sensor report of shots fired, observed appellant riding a bicycle on the sidewalk. An officer observed appellant look in the direction of one of the unmarked vehicles, back pedal, duck, turn the bicycle around and ride in the opposite direction. The officer found appellant’s actions suspicious, exited the vehicle, approached appellant, ordered him to stop, grabbed him by both wrists and pushed him against the wall. While appellant was detained another officer observed a bulge in appellant’s pocket, squeezed the pocket area and retrieved a firearm.

Although an officer observed an L-shaped object in appellant’s pocket during the detention, there is no evidence or any reasonable inference that the officer “was in a position to view the contraband absent the unlawful detention” … . Matter of W.P., 2024 NY Slip Op 06426, First Dept 12-19-24

Practice Point: Here the police were canvassing the area after a report of a gunshot. They stopped the juvenile after observing him look at their undercover vehicle and turn his bicycle around. A handgun was retrieved during the stop. The First Department held the observations did not provide the police with “reasonable suspicion” and the street stop was therefore not justified.

 

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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION REQUIRING CONSENT TO WARRANTLESS SEARCHES; IN THE PLEA PROCEEDINGS, DEFENDANT ADMITTED PUNCHING THE VICTIM; THE PROBATION CONDITION ALLOWING SEARCHES FOR DRUGS AND WEAPONS HAD NO CONNECTION TO THE UNDERLYING OFFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) a waiver of appeal does not preclude challenging a condition of probation requiring warrantless searches, and (2) there was no basis for requiring defendant to consent to warrantless searches:

… [D]efendant’s challenge to the condition of probation requiring that he consent to warrantless searches survives even a valid waiver … . Here, during the plea proceedings, defendant admitted that he intentionally caused injury to the victim by punching him with a closed fist. The Department of Probation recommended that, as a condition of probation, defendant consent to warrantless searches for illegal drugs and weapons to help ensure the safety of the public and probation officers. We find that the condition of probation was not reasonably related to defendant’s rehabilitation, given that defendant’s conviction did not involve the use of a weapon and did not appear connected to the sale or use of drugs … . People v Thomas, 2024 NY Slip Op 06427, First Dept 12-19-24

Practice Point: A waiver of appeal does not preclude a challenge to a probation condition requiring consent to warrantless searches.

Practice Point: The probation condition requiring consent to warrantless searches must have some connection to the underlying offense. Searches for drugs and weapons had no connection to the underlying offense in this case where defendant admitted punching the victim with his fist.

 

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HERE THE PROVISIONS IN THE LETTER AGREEMENT DID NOT GIVE PLAINTIFF THE EXCLUSIVE RIGHT TO SELL THE PROPERTY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the letter agreement did not give plaintiff an exclusive right to sell the property:

Plaintiff’s argument that the parties’ letter agreement gave it an exclusive right to sell is unavailing. To create an exclusive right to sell, a contract “must clearly and expressly provide that a commission is due upon sale by the owner or exclude the owner from independently negotiating a sale” … . The agreement here lacks express language excluding a direct conveyance by defendants, nor is that a necessary implication of its terms … . The agreement’s language requiring defendants to “inform” plaintiff if contacted about potential transactions is insufficient to create an exclusive right to sell … . Moreover, plaintiff fails to show that the agreement’s tail provision, entitling plaintiff to a fee for efforts at procuring a transaction during its engagement even if the transaction were completed only after the termination of that engagement, necessarily implied that the parties intended to create an exclusive right to sell. Cantor Fitzgerald & Co. v ObvioHealth Pte Ltd., 2024 NY Slip Op 06421, First Dept 12-19-24

Practice Point: This decision gives some insight into the criteria for conferring the exclusive right to sell property.

 

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DEFENDANT POLICE OFFICER WAS ENGAGED IN AN “EMERGENCY OPERATION” WITHIN THE MEANING OF VEHICLE AND TRAFFIC LAW 1104 WHEN HIS POLICE VAN STRUCK PLAINTIFF AS SHE STEPPED INTO THE ROAD FROM BETWEEN PARKED CARS; DEFENDANT DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS AND, THEREFORE, COULD NOT BE HELD LIABLE FOR PLAINTIFF’S INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant police officer’s motion for summary judgment dismissing the complaint should have been granted. Plaintiff was struck by defendant’s police van when plaintiff stepped into the road from between two parked cars. Defendant police office was responding to an “assault in progress” when plaintiff was struck:

Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104, by submitting evidence that he was responding to a radio call about an “assault in progress” at the time of the accident … . The police officer therefore was privileged to drive in the wrong direction on the roadway … , and can be found liable only if he operated the vehicle in reckless disregard for the safety of others … .

Defendants demonstrated that the officer did not act with reckless disregard based on his testimony that he entered the eastbound lane after ascertaining that there was no traffic, turned on the siren and lights, and was unable to avoid striking plaintiff when she stepped out in front of the police van, despite hitting the brakes hard … . Yuet C. Chiu-Yu v Chin, 2024 NY Slip Op 06273, First Dept 12-12-24

Practice Point: Defendant police officer was responding to an “assault in progress” and testified he had activated his siren and lights and had checked for pedestrians prior to striking plaintiff as she stepped into the road from between parked cars. The officer testified he braked hard but could not avoid striking plaintiff. Defendants were entitled to summary judgment because the officer demonstrated he did not operate his vehicle in “reckless disregard” for the safety of others.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR COUNSEL OF HIS CHOICE, ASSIGNED COUNSEL’S DISPARAGING REMARKS, AND ASSIGNED COUNSEL’S FAILURE TO INFORM DEFENDANT DEPORTATION WAS MANDATORY, AMOUNTED TO A DEPRIVATION OF DEFENDANT’S RIGHT TO COUNSEL; GUILTY PLEA WITHDRAWN AND VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to withdraw and vacate his guilty plea should have been granted. Defendant did not receive effective assistance of counsel:

The People concede that defendant’s right to counsel was violated by the court’s ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter … , and by the conflict of interest between assigned counsel and defendant that arose from counsel’s disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing.

Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant’s conviction would trigger mandatory deportation … . People v Pan, 2024 NY Slip Op 06166, First Dept 12-10-24

Practice Point: The judge improperly prohibited defendant from obtaining counsel of his choice.

Practice Point: Assigned counsel’s disparaging remarks about defendant created a conflict of interest.

Practice Point: Assigned counsel’s failure to inform defendant deportation was mandatory constituted ineffective assistance.

 

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THE ZONING REGULATION WHICH REQUIRES PAYMENT TO AN “ARTS FUND” OF $100 PER SQUARE FOOT FOR CONVERSION OF “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO FULLY RESIDENTIAL USE IS AN UNCONSTITUTIONAL TAKING (FIRST DEPT).

The First Department, reversing Supreme Court, found unconstitutional a NYC Zoning Regulation (ZR) which required artists who wish to convert their “joint living-work quarters for artists (JLWQA)” to residential use to pay $100 per square foot to an “Arts Fund.” The fund did not have a sufficient connection with the government’s land-use interest:

The ZR amendment passed by the City, in establishing the Special SoHo-NoHo Mixed Use District (SNX District), provides current JLWQA unit owners a pathway to convert uses but also requires them, if and when they seek conversion, to contribute “$100.00 per square foot of floor area to be converted” to the Arts Fund, with annual increases … . “[T]he payment of such non-refundable contribution shall be a precondition to filing for or issuing of any building permit allowing the conversion [of] a joint living-work quarters for artists to a residence” … .

The Arts Fund fee constitutes a permit condition for which the “two-part test modeled on the unconstitutional conditions doctrine” applies … . Thus, the permit condition “must have an ‘essential nexus’ to the government’s land-use interest,” which “ensures that the government is acting to further its stated purpose” … , and the condition “must have ‘rough proportionality’ to the development’s impact on the land-use interest” … .

In applying the two-part test, we find that petitioners are entitled to a declaration that the Arts Fund fee requirement constitutes a taking without just compensation (US Const Amend V; NY Const art I, § 7[a]). Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2024 NY Slip Op 06118, First Dept 12-5-24

Practice Point: Here a zoning regulation which required payment of a fee of $100 per square foot to an “Arts Fund” as a precondition for a building permit was deemed an unconstitutional taking.

 

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THE COURT SHOULD NOT HAVE DELEGATED TO MOTHER ITS AUTHORITY TO SET A VISITATION SCHEDULE FOR FATHER; FORENSIC MENTAL HEALTH EVALUATIONS AND COUNSELING MAY BE APPROPRIATE WHERE, AS HERE, A CHILD REFUSES VISITATION WITH A PARENT (FIRST DEPT).

The First Department, reversing Family Court, determined the court improperly delegated to mother the authority to control father’s visitation with the child. The First Department noted that forensic mental health examinations may be appropriate where, as here,  a child refuses to visit with a parent:

Here, Family Court’s order that the father have visitation as agreed between the parties in consultation with the child is an impermissible delegation of its authority to the mother and child, and essentially causes the father to have no visitation at all. Furthermore, despite the father’s lack of sensitivity to the child … we cannot find on this record that there was a showing adequate to justify terminating the father’s contact with the child; that is, that any form of contact under all circumstances would be harmful to the child’s welfare.

We note that Family Court may order forensic mental health evaluations where a visitation petition is pending and where doing so will facilitate the court’s determination (Family Court Act § 251[A]; 22 NYCRR 202.18). “[T]he value of forensic evaluations of the parents and children has long been recognized,” including when a child refuses to visit with a parent … . We further note that a court may place restrictions on visitation that promote the child’s best interests and are not unduly restrictive, including ordering therapeutic or other kinds of supervised visitation … . The court may also make directives as to the amount and type of contact a parent has with the child between visits. Finally, a court may direct a parent to attend counseling as a component of a visitation plan, where doing so promotes the child’s best interests … . Matter of Michael B. v Patricia S., 2024 NY Slip Op 06005, First Dept 12-3-24

Practice Point: Family Court cannot not delegate to a parent its authority to set the other parent’s visitation schedule.

Practice Point: Where a child refuses to visit with a parent, the court may order forensic mental health evaluations and counseling.

 

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