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CONNECTICUT SEXUAL ASSAULT STATUTE IS BROADER IN ITS REACH THAN NEW YORK COUNTERPARTS AND THEREFORE CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK.

The First Department, reversing Supreme Court, determined defendant should not have been sentenced as a second felony offender based on a Connecticut conviction for sexual assault. The court found the Connecticut statute was broader than its New York counterparts in both the “threat of harm,” and “accomplice liability” elements.  Therefore the violation of the Connecticut statute could not serve as a predicate felony in New York.

The New York statutes prohibit various sexual acts by forcible compulsion, which is defined (among other things) as the use of a threat “which places a person in fear of immediate death or physical injury [to someone] or in fear that [someone] will immediately be kidnapped” (Penal Law § 130.00[8]…). In contrast, CGSA § 53a-70(a)(1) does not contain any requirement that a threat issued to compel sexual intercourse must threaten immediate harm. Accordingly, the Connecticut statute is necessarily broader than its New York counterparts, and may not serve as a predicate offense … .

In addition, since CGSA § 53a-70(a)(1) is a general intent statute … , “the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts” … . Accordingly, a conviction under the statute is warranted even if a rape committed by a person other than the defendant is the unintended result of the defendant's use or threatened use of force … . In contrast, New York law requires that in order to establish accessorial liability the People must establish that a defendant, acting with the mental culpability required for the commission of the crime at issue, either solicited, requested, commanded, importuned, or intentionally aided another in committing the crime (Penal Law § 20.00). Accordingly, the Connecticut statute is broader than its New York counterparts in this regard as well. People v Davis, 2016 NY Slip Op 01623, 1st Dept 3-8-16

CRIMINAL LAW (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SENTENCING (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER STATUS (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)

ALTHOUGH BREACH OF CONTRACT CAUSES OF ACTION WERE PRECLUDED BY THE STATUTE OF FRAUDS, RELATED PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS.

The First Department, in a full-fledged opinion by Justice Richter, reversing (modifying) Supreme Court, determined that, although the breach of contract allegations were precluded by the statute of frauds, the related causes of action for promissory estoppel and unjust enrichment should not have been dismissed. Plaintiff, Peter, and defendant, Lisa, were both named as beneficiaries in their mother's, Madeline's, will. However, when Peter was in the midst of divorce proceedings, Madeline made Lisa the sole beneficiary because she did not want Peter's wife to claim any assets in her estate should she die before the divorce was final.  Lisa orally agreed to split the estate upon Madeline's death in return for Peter's promise to pay Madeline's estate taxes. Peter paid the estate taxes and Lisa reneged on the deal:

Although the breach of contract causes of action cannot stand, the complaint sufficiently states a claim under the doctrine of promissory estoppel. The elements of a promissory estoppel claim are: (i) a sufficiently clear and unambiguous promise; (ii) reasonable reliance on the promise; and (iii) injury caused by the reliance … . If a contract is barred by the statute of frauds, a promissory estoppel claim is viable in the limited set of circumstances where unconscionable injury results from the reliance placed on the alleged promise … . * * *

The factual allegations of the complaint sufficiently state a cause of action for unjust enrichment with respect to Peter's payment of Madeline's estate taxes and Lisa's life insurance premiums. To establish unjust enrichment, the plaintiff must show that the defendant was enriched, at the plaintiff's expense, and that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered … . Here, the complaint's allegations show that Lisa was enriched at Peter's expense because Peter paid the estate taxes and insurance premiums, despite Lisa's being the sole beneficiary of the will, and that it would be against equity and good conscience to allow Lisa to retain that windfall.

This theory of unjust enrichment is not precluded by the statute of frauds because it is not an attempt to enforce the oral contract but instead seeks to recover the amount by which Lisa was enriched at Peter's expense … . Castellotti v Free, 2016 NY Slip Op 01625, 1st Dept 3-8-16

CONTRACT LAW (ALTHOUGH BREACH OF CONTRACT CAUSES OF ACTION PRECLUDED BY STATUTE OF FRAUDS, RELATED PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS);/PROMISSORY ESTOPPEL (ALTHOUGH BREACH OF CONTRACT CAUSES OF ACTION PRECLUDED BY STATUTE OF FRAUDS, RELATED PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/UNJUST ENRICHMENT (ALTHOUGH BREACH OF CONTRACT CAUSES OF ACTION PRECLUDED BY STATUTE OF FRAUDS, RELATED PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)

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ARCHITECT MAY BE LIABLE FOR BOTH BREACH OF CONTRACT AND NEGLIGENCE.

The First Department, over a dissent, determined an architect, Perkins, could be sued for both breach of contract and negligence in a lawsuit stemming from the settling of a building and other structures in the vicinity of new construction. The court also concluded the plaintiff city, although not mentioned in the contract with the architect, had raised a question of fact whether the city was an intended third-party beneficiary of the contract. With respect to when a professional-party to a contract can be liable in tort, the court wrote:

Perkins, as architect, may be subject to tort liability based on a failure to exercise due care in the performance of its duties. In making this determination, the court is to look at the nature of the injury and whether the plaintiff is merely seeking the benefit of its agreement. Where the plaintiff is merely seeking the benefit of its agreement, it is limited to a contract claim … .

Where, however, “the particular project . . . is so affected with the public interest that the failure to perform competently can have catastrophic consequences,” a professional may be subject to tort liability as well … . Indeed, “[t]his is one of the most significant elements in determining whether the nature of the type of services rendered gives rise to a duty of reasonable care independent of the contract itself” (… citing Sommer v Federal Signal Corp., 79 NY2d 540, 553 [1992]). As the Court explained in Sommer, “[I]t is policy, not the parties' contract, that gives rise to a duty of care” … . The “nature of the injury, the manner in which the injury occurred and the resulting harm” are also considered … .

Here, there is a factual question whether Perkins assumed an independent legal duty as an architect to perform its work in a manner consistent with the generally accepted standard of professional care in its industry. Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 2016 NY Slip Op 01546, 1st Dept 3-3-16

NEGLIGENCE (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/CONTRACT LAW (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/ARCHITECTS (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)

RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted. Plaintiff was injured when thrown from a horse during a recreational ride at defendant’s stable. Plaintiff was deemed to have assumed the risk of being thrown from the horse:

The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding … . There is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks … . To the extent plaintiffs’ expert opined otherwise, such opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact … . Blumenthal v Bronx Equestrian Ctr., Inc., 2016 NY Slip Op 01545, 1st Dept 3-3-16

 

NEGLIGENCE (RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE)/ASSUMPTION OF RISK (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)/HORSES (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)

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POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION BASED SOLELY UPON THE APPLICANT’S CRIMINAL RECORD WITHOUT APPLYING THE HIRING CRITERIA GENERALLY REQUIRED BY THE CORRECTIONS LAW.

The First Department, as a matter of first impression, determined the police department (NYPD) could refuse to hire petitioner as a civilian police communication technician (PCT) solely because petitioner had a criminal record, without regard to the criteria set out in Corrections Law article 23-a. The Corrections Law, in an effort to support the hiring of persons with a criminal record, generally requires employers to determine whether an applicant’s criminal record has a direct relationship with the responsibilities of the job and/or whether employment of the applicant would pose an unreasonable risk to the public.  The First Department concluded the Corrections Law excluded law enforcement from the reach of its hiring criteria:

Article 23-A broadly provides that employers, whether public or private, are prohibited from unfairly discriminating against persons previously convicted of one or more criminal offenses, unless after consideration of certain enumerated statutory factors, the employer determines that there is direct relationship between the offense(s) and the duties or responsibilities inherent in the license or employment sought or held by the individual, or such employment or license poses an unreasonable risk to the public, etc. (Correction Law §§ 752, 753). The statute defines the term “employment” as follows: “(5) Employment’ means any occupation, vocation or employment, or any form of vocational or educational training. Provided, however, that “employment” shall not, for the purposes of this article, include membership in any law enforcement agency” (Correction Law § 750[5] emphasis added). Matter of Belgrave v City of New York, 2016 NY Slip Op 01548, 1st Dept 3-3-16

EMPLOYMENT LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/CORRECTIONS LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/MUNICIPAL LAW  (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)

NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER.

The First Department determined the defendants demonstrated they did not have constructive notice of a dangerous condition allegedly caused by tracked in rain, noting there was no obligation to continuously mop up tracked in water:

 

“The fact that it was raining and water was being tracked in does not constitute notice of a dangerous situation”; … defendants “were under no obligation . . . to continuously mop up all tracked-in water” … . Moreover, plaintiff's own testimony established that the water on which she slipped was not visible and apparent and therefore could not provide constructive notice … . Plaintiff testified that, despite looking at the floor where she was walking, it was not until after she fell that she was able to discern the wet spots on the floor, which she described as clear droplets in a small area less than two feet in diameter that were “hard to have seen . . . when I was standing up.” Plaintiff failed to raise a triable issue of fact whether the accumulating rain water was a recurrent condition … . Gunzburg v Quality Bldg. Servs. Corp., 2016 NY Slip Op 01438, 1st Dept 3-1-16

 

NEGLIGENCE (NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER)/SLIP AND FALL (NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER)

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STAND-ALONE EXECUTIVE LAW 63 (12) CAUSE OF ACTION FOR FRAUD REINSTATED AGAINST DONALD TRUMP ET AL.

In an action by the Attorney General against Donald Trump, alleging fraud in connection with the operation of Trump University, the First Department, overruling its own precedent, determined Executive law 63 (12) authorized a stand-alone fraud cause of action. The court further held that the three-year statute of imitations for causes of action created by statute did not apply because Executive Law 63 (12) did not create a cause of action which did not exist at common law, rather it merely authorized the Attorney General to bring a fraud cause of action. Applying the six-year statute of limitations, the First Department reinstated the Executive Law 63 (12) cause of action, and concluded questions of fact precluded summary judgment on both the statutory and common law fraud claims:

… [L]ike similar statutes that authorize causes of action, § 63(12) defines the fraudulent conduct that it prohibits, authorizes the Attorney General to commence an action or proceeding to foreclose that conduct, and specifies the relief, including equitable relief, that the Attorney General may seek. Indeed, the language of § 63(12) parallels the language of the Martin Act, under which the Attorney General is undisputedly authorized to bring a standalone cause of action for fraudulent conduct in the securities context … . * * *

… [W]e find … that the fraud claim under § 63(12) is not subject to the three-year statute of limitations imposed by CPLR 214(2), but rather, is subject to the residual six-year statute of limitations in CPLR 213(1) … . … § 63(12) does not create any liability nonexistent at common law, at least under the court’s equitable powers. … § 63(12) does not encompass a significantly wider range of fraudulent activities than were legally cognizable before the section’s enactment … .

Nevertheless, petitioner is not entitled to summary determination of its fraud claims, under either the common law or the statute, because material issues of fact exist as to those claims. Matter of People of the State of N.Y. by Eric T. Schneiderman v Trump Entrepreneur Initiative LLC, 2016 NY Slip Op 01430, 1st Dept 3-1-16

 

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APPEAL WAIVER INVALID, FLAWED ON-THE-RECORD EXPLANATION OF WAIVED RIGHTS NOT REMEDIED BY SIGNED WRITTEN WAIVER.

The First Department, over a dissent, determined defendant’s waiver of appeal was invalid because the trial judge did not make it clear the appeal-rights were distinct from those waived by the guilty plea. The written waiver signed by the defendant was not sufficient to remedy the flawed colloquy:

 

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Rather, the court merely stated that “as a part of this” — that is, as part of the guilty plea — defendant was waiving his right to appeal and thus, that the convictions would be final because no appellate court would review them. Despite our dissenting colleague’s suggestion otherwise, the problem with the waiver’s validity is not that there was “some ambiguity in the court’s colloquy.” Rather, by using the phrase “as a part of this,” the trial court expressly undercut the principle that a defendant must understand his waiver of appeal to be distinct from the rights forfeited upon a guilty plea … . …

… [T]the written waiver that defendant signed was no substitute for an on-the-record explanation of the nature of the right to appeal … . This conclusion holds especially true here, where the record does not make clear when defendant signed the waiver. Although the waiver itself states that defendant signed the waiver only “after being advised by the Court,” it is not evident from the record whether defendant signed the waiver before the colloquy regarding his right to appeal, or whether he signed it after. People v Bryant, 2016 NY Slip Op 01427, 1st Dept 3-1-16

 

CRIMINAL LAW (INVALID WAIVER OF APPEAL)/APPEALS (CRIMINAL, WAIVER OF APPEAL INVALID)/WAIVER (APPEAL, WAIVER INVALID DESPITE SIGNED WRITTEN WAIVER)

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THE PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, DEFENDANT’S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION PROPERLY GRANTED.

The First Department determined Supreme Court properly dismissed the indictment on speedy trial grounds. At issue was the delay associated with obtaining DNA test results. A delay for that purpose can be an “exceptional circumstance” justifying exclusion of the delay from the speedy trial clock, but only if the People act with due diligence. The court determined numerous other delays during the course of the proceedings demonstrated the People did not act with due diligence:

Pursuant to CPL 30.30(4)(g), periods of delay caused by “exceptional circumstances” are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance … . CPL 30.30(4)(g)(i) specifically makes excludable a continuance “granted because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” Under this provision, the unavailability of DNA test results can be considered an exceptional circumstance, so long as the People exercised due diligence to obtain the results … .

Acknowledging that “[t]here is no precise definition of what constitutes an exceptional circumstance,” the Court of Appeals has made clear that the exception to the rule must conform to the legislative intent of discouraging prosecutorial inaction … . People v Gonzalez, 2016 NY Slip Op 01388, 1st Dept 2-25-16

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)/SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)

NEW YORK COURTS DO NOT HAVE THE POWER TO DISSOLVE A FOREIGN CORPORATION.

The First Department, in a full-fledged opinion by Justice Richter, overruling its own precedent, determined New York courts do not have jurisdiction over the dissolution of a foreign corporation:

 

We agree with the near-universal view that the courts of one state do not have the power to dissolve a business entity formed under another state’s laws. Because a business entity is a creature of state law, the state under whose law the entity was created should be the place that determines whether its existence should be terminated … . Matter of Raharney Capital, LLC v Capital Stack LLC, 2016 NY Slip Op 01425, 2nd Dept 2-25-16

CORPORATION LAW (NEW YORK COURTS CANNOT DISSOLVE A FOREIGN CORPORATIOIN)/JURISDICTION (NEW YORK COURT’S CANNOT DISSOLVE A FOREIGN CORPORATION)/ FOREIGN CORPORATIONS (NEW YORK COURTS CANNOT DISSOLVE)

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