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Defendant Entitled to Suppression Hearing Where People Provided No Information About How Defendant Came to the Attention of Law Enforcement Personnel

The First Department determined the defendant’s motion papers, although conclusory, were sufficient to warrant a hearing on whether defendant’s statements should be suppressed.  The People had provided no information about how the defendant came to the attention of law enforcement:

Although the People provided defendant with extensive information about the facts of the crime and the proof to be offered at trial, they provided no information whatsoever, at any stage of the proceedings, about how defendant came to be a suspect, and the basis for her arrest, made hours after the crime at a different location. The People never explained, even by implication, whether defendant met a description, was named by a witness familiar with her, or was connected to the crime in some other way. While the People disclosed defendant’s detailed confession, it did not shed any light on how she came to be arrested … .

Accordingly, given defendant’s complete lack of relevant information, that portion of her motion papers alleging a “lack of probable cause to arrest the defendant based on the unreliability of the information provided to the police and/or the insufficiency of the description,” while conclusory, was sufficient to state a basis for suppression and raise a factual issue requiring a hearing … . People v Wynn, 2014 NY Slip Op 03352, 1st Dept 5-8-14

 

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Fraud Cause of Action Against Merrill Lynch Re: Credit Default Obligations Sufficiently Pled/Disclaimers and Disclosures Did Not Preclude Claim of Fraud

The First Department determined a cause of action for fraud against Merrill Lynch had been sufficiently pled.  The underlying agreement related to credit default obligations (CDO’s).  The court noted that an unjust enrichment cause of action is not viable when the lawsuit is based on a written agreement:

…[The] factual allegations provide sufficient details to inform the …defendants … of the alleged fraudulent conduct, namely that the CDO was secretly designed by an undisclosed hedge fund, Magnetar, which was secretly placing massive short bets against the very same deals it was sponsoring. Defendants, however, argue that plaintiff cannot establish the element of reasonable reliance (an element of both affirmative misrepresentation and concealment) as a result of the disclosures and disclaimers for the Auriga CDO. We cannot agree.

The offering circular states, “All or most of the Collateral Debt Securities Acquired by the Issuer . . . will be Acquired from a portfolio of Collateral Debt Securities selected by the Collateral Manager . . . .” If Magnetar rather than 250 Capital was doing the selecting, the statement in the offering circular was misleading. The identity of the person selecting the collateral was material: The offering circular says, “The performance of the portfolio of Collateral Debt Securities depends heavily on the skills of the Collateral Manager in analyzing and selecting the Collateral Debt Securities.” * * *

Under the circumstances, it cannot be said that the disclaimers and disclosures in the offering circulars preclude a claim of fraud on the ground of a prior misrepresentation as to the specific matter, namely that the CDO’s collateral had been carefully selected by an independent collateral manager, in the interests of the success of the deal and for the benefit of Auriga’s long investors. Loreley Fin (Jersey) No 38 Ltd v Merrill Lynch …, 2014 NY Slip Op 03326, 1st Dept 5-8-14

Similar issues and result re: Citigroup in a full-fledged opinion by Justice Renwick.  Loreley Fin (Jersey) No 3 Ltd v Citigroup Global Mkts Inc, 2014 NY Slip Op 03358, 1st Dept 5-8-14

 

NEGLIGENCE Plaintiff’s Inability to Identify the Precise Sidewalk Defect Which Caused Her Fall (In a Photograph) Did Not Warrant Summary Judgment to the Defendant—Plaintiff Testified She Tripped on a Bump in the Sidewalk

The First Department determined that plaintiff’s inability to identify the precise sidewalk defect over which she tripped did not warrant granting summary judgment to the defendant. Plaintiff testified her foot struck a bump in the sidewalk but she was unable to identify the defect in a photograph of the sidewalk. Under the circumstances the plaintiff was not required to identify the particular defect which caused her fall in order to avoid summary judgment. She was able to demonstrate a “nexus” between a defect and her fall:

At her deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff’s inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible … . Under the circumstances, plaintiff’s testimony was sufficient to demonstrate a causal “nexus” between a defect in the sidewalk in front of [defendant’s] property and her fall, and she was not required to prove “precisely which particular” defect in the sidewalk caused her to fall in order to avoid summary judgment … . Kovach v PJA, LLC, 2015 NY Slip Op 03931, 1st Dept 5-7-15

 

Court Should Not Have Instructed the Jury on the Initial Aggressor Exception to the Justification Defense—No Evidence to Support the Exception

The First Department, over a dissent, determined the trial court should not have instructed the jury that the justification defense would not apply if the jury determined defendant was the initial aggressor.  The victim was swinging a mop handle, while the defendant used a gun. The majority held that there were no facts in the record from which it could be inferred the defendant was the initial aggressor: “In charging the jury on the justification defense, the court erred when, over defendant’s objection, it included the initial aggressor exception to the defense embodied in Penal Law § 35.15(1)(b). This concept, that defendant would not have been justified in using deadly physical force if he was the initial aggressor, was completely inapplicable to the facts of the case. Although the jury could have reasonably determined that defendant’s use of deadly force was unjustified (where defendant used a gun against the deceased, who wielded a mop handle), it could not have reasonably found that defendant was the initial aggressor because the evidence does not support such a conclusion. There was no evidence that defendant was the first person in the fatal encounter to use or threaten the imminent use of deadly force, or any kind of force, for that matter. On the contrary, the evidence tended to indicate either that it was the deceased who first used force, by swinging a mop handle at defendant, or that defendant and the deceased used or threatened force simultaneously.” People v Valentin, 2015 NY Slip Op 03914, 1st Dept 5-7-15

 

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Plaintiff’s Age-Discrimination Lawsuit Properly Survived Summary Judgment

The First Department, over an extensive dissent, determined defendant’s motion for summary judgment in an age-discrimination suit was properly denied. Plaintiff alleged she was terminated because of her age and was able to raise a question of fact about whether the reasons for termination proffered by the defendant were pretextual. The core of plaintiff’s allegations were remarks made by the person who replaced plaintiff as executive director of defendant-club—remarks noting plaintiff looked “tired” and perhaps needed to “rest” or questions whether plaintiff was “up for” meetings or whether a meeting might be “too much for” her:

…[W]e find that when plaintiff’s testimony is credited for purposes of this motion, these remarks directly reflect age-based discriminatory bias  …, and raise an inference of age-related bias sufficient to make out plaintiff’s prima facie case of employment discrimination … . In concluding that no inference of discriminatory motive can be drawn from this evidence, the dissent fails to abide by the precept that “all of the evidence must be viewed in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party’s favor” … .

Plaintiff has … met her burden of showing pretext by “respond[ing] with some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete” … . Rollins v Fencers Club, Inc., 2015 NY Slip Op 03769, 1st Dept 5-7-15

 

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State’s Decrease in Its Contribution to Judges’ Health Care Insurance Violated the Compensation Clause of the NYS Constitution

The First Department determined that the state’s decrease in its contribution to the cost of judges’ health care insurance violated the Compensation Clause of the NYS Constitution.  The reduced contribution increased the amounts withheld from judges’ salaries and thereby constituted an unconstitutional decrease in compensation. Bransten v State of New York, 2014 NY Slip Op 03214, 1st Dept 5-6-14

 

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Once an Amended Complaint is Served the Action Must Proceed As if the Original Complaint Never Existed—A Summary Judgment Motion Based Upon an Affirmative Defense Asserted for the First Time in the Answer to the Amended Complaint Was Properly Brought, Even Though a Prior Summary Judgment Motion on the Same Ground Had Been Denied/Medical Billing Software, i.e., Intellectual Property, Is “Personal Property” Covered by General Obligations Law 5-903—The Automatic Renewal Provision of the Medical Billing Contract Was Therefore Void

The First Department, in a full-fledged opinion by Justice Gische, determined that an amended complaint supersedes the original complaint and an affirmative defense asserted in the answer to the amended complaint could be the basis of a summary judgment motion, even though the same ground was asserted in a prior, unsuccessful summary judgment motion. The substantive issue was whether billing software licensed to a doctor was “service … to or for … personal property” within the meaning of General Obligations Law 5-903 (2).  The court determined the billing software was covered by the General Obligations Law and, therefore, the automatic renewal provision in the contract between the software company and the doctor could not be enforced.  The “General Obligations Law” affirmative defense was not asserted in the original answer and a summary judgment motion based on the unpled affirmative defense had previously been denied:

We find that the second summary judgment motion, brought after the pleadings were amended on a substantive issue not previously decided by the court, was procedurally proper. “Once plaintiff served the amended complaint, the original complaint was superseded, and the amended complaint became the only complaint in the action. The action was then required to proceed as though the original pleading had never been served” … . Thus, defendant’s appeal from the prior order denying summary judgment became moot …, and “sufficient cause . . . exist[ed]” for his motion for summary judgment dismissing the amended complaint … . …

General Obligations Law § 5-903 does not define “personal property,” although it broadly defines “person” as “an individual, firm, company, partnership or corporation” and also states that its restrictions apply unless “the person receiving the service” is served with advanced notice calling its attention to the renewal clause in the contract (General Obligations Law § 5-903[2]). The statute does not require that the person own the “personal property” being serviced, and section 5-903 has been analyzed by courts in a variety of circumstances to determine its applicability. Personal property has been interpreted to include intellectual property as well as tangible personal property … . The purpose of the notice provision is to protect service recipients from the harm of unintended automatic renewals of contracts for consecutive periods … . Since § 5-903 is remedial in nature it is construed broadly … .

We find that the parties’ agreement was “for service . . . to or for . . . personal property” within the meaning of the General Obligations Law. The services provided were directly and inextricably related to the billing and medical records of the practice, which are personal property. Healthcare IQ LLC v Tsai Chung Chao, 2014 NY Slip Op 03216, 1st Dept 5-6-14

 

Lateral Shift of Heavy Equipment, Which Pinned Plaintiff Against a Column, Not Gravity-Related—Not Covered Under Labor Law 240 (1)

The First Department determined Supreme Court should have dismissed plaintiff’s Labor Law 240 (1) cause of action because plaintiff’s injury was not caused by a falling object. Plaintiff was moving an 8000 pound piece of equipment across a flat platform when the equipment shifted laterally and pinned plaintiff against a column. Because the accident did not flow from the application of the force of gravity, it was not covered under Labor Law 240 (1):

Plaintiff and his coworkers were moving a piece of an 8,000-pound piece of equipment across a flat platform. The ultimate goal was to place the equipment onto the forks of a forklift. Plaintiff testified that because two wheels broke off, the workers were pushing and pulling the equipment when it pinned him against a column on the side of the platform. Plaintiff testified that they did not lift the equipment into the air, and that it did not fall. Nor did he know what caused the equipment to shift laterally towards his side. Plaintiff’s testimony established that the piece of equipment that pinned him to the column was not a “falling object” and that he was not a “falling worker,” and the accident did not otherwise flow from the application of the force of gravity. Thus, he was not covered by Labor Law § 240(1) under the current case law … . Martinez v 342 Prop. LLC, 2015 NY Slip Op 03770, 1st Dept 5-5-15

 

Res Ipsa Loquitur Doctrine Can Apply to an Elevator Maintenance Company Even Where there Is No Proof the Company Had Actual or Constructive Notice of Elevator Misleveling

The First Department, in a full-fledged opinion by Justice Gische, over a two-justice partial dissent, determined that an elevator maintenance company could be liable for a fall allegedly caused by misleveling of an elevator under the doctrine of res ipsa loquitur, even though there was no evidence the elevator maintenance company had actual or constructive notice of the problem. The plaintiff’s allegations of the misleveling, coupled with the settled principle that elevator misleveling does not occur in the absence of negligence, raised a question of fact under the res ipsa loquitur criteria:

Res ipsa loquitur permits a fact finder to infer negligence based upon the sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant’s exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff’s part … . If a plaintiff establishes these elements, then the issue of negligence should be given to a jury to decide … .

Res ipsa loquitur does not create a presumption of negligence; rather it is a rule of circumstantial evidence that allows the jury to infer negligence … . A defendant is free to rebut the inference by presenting different facts or otherwise arguing that the jury should not apply the inference in a particular case … . Notice of a defect is inferred when the doctrine applies and the plaintiff need not offer evidence of actual or constructive notice in order to proceed … . Thus, while there is no proof of actual or constructive notice in this case, res ipsa loquitur can still support plaintiff’s claim … . Ezzard v One E. Riv. Place Realty Co., LLC, 2015 NY Slip Op 03791, 1st Dept 5-5-15

 

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Records of Pedigree Information Which Was Linked to the Defendant and Was Supplied by the Person Who Purchased a Prepaid Cell Phone Properly Admitted as Circumstantial Evidence Defendant Purchased the Phone

The First Department determined “[a]uthenticated records showing that the person who purchased a particular prepaid cell phone, which was linked to the crime, supplied pedigree information linked to defendant were properly admitted as circumstantial evidence of defendant’s identity as the purchaser of the phone. In the context of the case, the pedigree information did not constitute assertions of fact, but circumstantial evidence that the declarant was, in all likelihood, defendant … . Rather than being factual, the pedigree information was analogous to a fingerprint left on a document, tending to show the true identity of its author … . Although the purchaser of the phone was not under a business duty to provide the pedigree information, that requirement of the business records exception to the hearsay rule did not apply, because the initial declaration was independently admissible … . The possibility that the phone could have been purchased by an unknown person who had somehow acquired defendant’s pedigree information goes to weight, not admissibility.” People v Patterson, 2015 NY Slip Op 03788, 1st Dept 5-5-15

 

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