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The “Physical Intrusion” by the Police Officer (Tapping the Defendant’s Pocket) Was Not Justified by Reasonable Suspicion of a Crime—The Subsequent Frisk of the Defendant Was Similarly Not Justified—The Arrest Was Therefore Invalid–All Seized Items and Statements Made by the Defendant Should Have Been Suppressed

The First Department determined the police officer’s observations of the defendant’s actions (head turning both ways) in a “high narcotics area” justified his approach of the defendant, who was sitting in a car (founded suspicion/common-law right of inquiry).  Asking the defendant what was in his pocket after the defendant pulled his hand from his jacket was also justified. However, the officer’s “tapping” of an object in defendant’s pocket was not justified.  The intrusion (tapping the pocket) and the subsequent frisk of the defendant were not supported by reasonable suspicion of a crime or by the need to ensure the officer’s safety. The arrest was invalid and the motion to suppress all seized items, as well as the statements made by the defendant, should have been granted:

Defendant was the passenger in a vehicle stopped by the police at approximately 9 p.m. in a “high narcotics area.” As an officer approached the passenger side of the vehicle, he noticed defendant’s “head turning both ways and a lot of . . . movement coming from the area of the front passenger seat.” As he reached the passenger side window, he saw defendant, who appeared nervous, “pulling his hand from his jacket, from the fold of his jacket.” When the officer asked defendant what he “put in [his] jacket,” defendant “mumbled something unintelligible or really didn’t say much.” The officer then reached into the car, “tapped” the pocket of defendant’s jacket with the flashlight he was holding, and felt “something hard.”

The officer’s observations, up until the time he arrived at the passenger window, gave rise to founded suspicion that criminality was afoot, and so justified his question regarding what defendant had put in his pocket, which constituted a common-law inquiry … . However, we find that the physical intrusion of tapping defendant’s pocket was unauthorized. The circumstances did not give rise to the reasonable suspicion required to authorize a frisk. Nor was the officer’s conduct justifiable as a “minimal self-protective measure”…, which is permissible in furtherance of the common-law right of inquiry, where sufficient concerns for personal safety are present … . The circumstances, viewed as a whole, did not suggest any need for the officer to take such a precaution. At the time of the officer’s intrusion, defendant was not reaching for an area where a weapon might be located, there was no suggestion that a weapon was present or that violence was imminent, and there was no other basis for a self-protective intrusion.

Because the ensuing frisk outside the car, and the resulting arrest, depended on the initial improper intrusion, they were invalid as well. In any event, we also find that the search of the plastic bag following defendant’s arrest was not supported by exigent circumstances … . People v Butler, 2015 NY Slip Op 03458, 1st Dept 4-28-15

 

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Special Proceedings, Here a Motion to File a Late Notice of Claim, Are Subject to the Same Standards and Rules as Motions for Summary Judgment—Supreme Court Should Not Have Considered New Evidence Presented for the First Time in Reply Papers

In finding that plaintiff’s motion to file a late notice of claim should not have been granted (inadequate excuse for delay, misrepresentations made to the court), the First Department explained that Supreme Court should not have considered matters raised for the first time in petitioner’s reply papers.  The court noted that special proceedings are subject to the same standards and rules as those applied to summary judgment motions:

As a matter of procedure, the motion court erred in entertaining arguments advanced for the first time in petitioners’ reply papers and in accepting their offer of new proof, unnecessarily protracting summary proceedings. As succinctly stated by this Court:

“It is settled that a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment, requiring the court to decide the matter upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised'” … .

We further held that where, as here, a petition is unsupported by sufficient evidentiary proof, the petitioning party will not be entitled to remedy those deficiencies …, thereby extending a procedure providing for summary disposition through “unnecessary and unauthorized elaboration” … . We have consistently stated that in proceedings subject to summary determination, no consideration is to be accorded to novel arguments raised in reply papers … . That this Court may, in the exercise of discretion, entertain such arguments upon review … does not endorse the unnecessary extension of summary proceedings. Under these circumstances, it was improvident to excuse petitioners’ deceit and grant their application to serve a late notice of claim. Matter of Gonzalez v City of New York, 2015 NY Slip Op 03467, 1st Dept 4-28-15

 

Including “Statute of Limitations” in a Catch-All Paragraph Listing Many Affirmative Defenses Did Not Provide Plaintiff with Sufficient Notice—At a Bare Minimum, the Duration of the Relevant Statute of Limitations, Six Years Here, Should Be Pled

The First Department, in a full-fledged opinion by Justice Acosta, with an extensive concurrence, determined that the inclusion of the “statute of limitations” in a catch-all paragraph listing many affirmative defenses did not provide sufficient notice to the plaintiff.  In addition to failing to separately number and plead each affirmative defense (as required by the CPLR) the defendant failed to plead what the applicable statute of limitations (six years here) was. The court criticized a Court of Appeals case which said that simply mentioning the “statute of limitations” as an affirmative defense is sufficient notice—the First Department specifically suggested that the Court of Appeals revisit the issue. The court held that the plaintiff was prejudiced by the failure to plead the applicable (six-year) statute of limitations because the issue was not directly addressed during discovery as a result of the insufficient notice.  Supreme Court’s grant of summary judgment to the defendant was reversed on the merits (competing expert affidavits raised questions of fact). The defendant was allowed to replead the affirmative defense and the plaintiff was allowed further discovery on the issue:

The result of defendant’s failure to comply with CPLR 3014 is that its statute of limitations defense lay buried within a paragraph of mostly irrelevant, and conclusory, defenses. Although plaintiff could have moved to compel separate numbering …, it was not required to make such a motion because defendant’s answer did not necessitate a responsive pleading (see CPLR 3018; CPLR 3024). Thus, plaintiff cannot be forced to accept the defective answer simply because it declined to make a motion to compel separate numbering.

Further, we have no doubt that defendant was permitted to plead its affirmative defenses hypothetically — which it apparently attempted to do by “reserving” those defenses unto itself — but only insofar as those defenses were concise, separately numbered, and sufficiently stated (CPLR 3013; CPLR 3014). A permissive hypothetical pleading does not extend so far as to authorize a defendant to plead each and every affirmative defense that might exist without regard to its relevance to the cause(s) of action presented by the complaint. Permitting such conduct here would effectively sanction deception on the part of defendant, whether intentional or not, thereby avoiding the CPLR’s notice requirement. In other words, defendant’s formulation of its laundry list of defenses in hypothetical terms does not exempt it from the other requirements of CPLR 3014.

The question, therefore, becomes one of prejudice. That is, the CPLR directs us to construe a defendant’s answer liberally and disregard defects unless a substantial right of the plaintiff would be prejudiced (see CPLR 3026). This must be done in light of the overarching directive that the CPLR “be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding” (CPLR 104). “[W]e must literally apply the mandate [to construe pleadings liberally] as directed and thus make the test of prejudice one of primary importance” … . * * *

It seems clear that a court cannot require a level of particularity beyond that outlined by the Official Forms; to do so would contravene CPLR 107’s command that pleadings that comply with the forms are sufficient as a matter of law … . Thus, the most that a court could require of a defendant pleading the statute of limitations is to state the applicable period of limitations, as set forth in Official Form 17. We acknowledge that Official Form 17 establishes a ceiling, not a floor. To be sure, a defendant whose answer pleads the “statute of limitations” and includes the applicable period of limitations will necessarily be in compliance with the official form, and courts must deem that pleading sufficient pursuant to CPLR 107 and CPLR 3013. Scholastic Inc. v Pace Plumbing Corp., 2015 NY Slip Op 03489, 1st Dept 4-28-15

 

Summary Judgment Motion Served Within 60 Days of the Filing of the Note of Issue but Filed on the 61st Day Deemed Untimely

The First Department, reversing Supreme Court, strictly enforced a Supreme Court “individual part rule” and deemed a summary judgment motion untimely.  The rule requires a motion for summary judgment to “filed” within 60 days of the filing of the note of issue.  Here the motion was served within the 60 days but was filed on the 61st day. Connolly v 129 E. 69th St. Corp., 2015 NY Slip Op 03450, 1st Dept 4-28-30

 

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“Pertinent to Litigation” Privilege for Statements Made by an Attorney Does Not Apply If the Relevant Litigation Is a “Sham”—Here Sufficient “Sham Litigation” Allegations Were Made—Slander Per Se Cause of Action Should Not Have Been Dismissed

In finding plaintiff had stated a cause of action for slander per se, the First Department explained that the privilege for statements made by an attorney which pertain to on-going litigation does not apply if the litigation is a “sham.”  The plaintiff, an attorney, sued Finkelstein, also an attorney, for statements alleged to have been made by Finkelstein to plaintiff’s former client, Harrison. Plaintiff alleged that Finkelstein told Harrison plaintiff had taken Harrison’s money and that Finkelstein was the source of the false allegations in Harrison’s complaint against plaintiff.  Disagreeing with Supreme Court, the First Department held that the complaint stated a cause of action because the complaint sufficiently alleged the lawsuit brought by Harrison was a “sham” to which the “statements pertinent to litigation” privilege would not apply:

… [A] statement that is pertinent to litigation is absolutely privileged and cannot form the basis of a defamation action. That principal of law was first stated by the Court of Appeals in Youmans v Smith (153 NY 214, 219 [1897]), and was recently reaffirmed by the Court in Front, Inc. v Khalil (24 NY3d 713 [2015]) . This Court has held that, where the privilege is invoked, “any doubts are to be resolved in favor of pertinence” … . Further, the test to determine whether a statement is pertinent to litigation is ” extremely liberal'” …, such that the offending statement, to be actionable, must have been “outrageously out of context” … .

This Court has recognized, however, that the privilege is capable of abuse and will not be conferred where the underlying lawsuit was a sham action brought solely to defame the defendant … , in which this Court declined to dismiss a defamation claim based on the pertinency privilege where the context in which the allegedly offending statement was made was a litigation that the plaintiffs filed but never prosecuted. The existence of this “sham litigation” exception has been confirmed (but not applied) in other cases in this Department… . Flomenhaft v Finkelstein, 2015 NY Slip Op 03468, 1st Dept 4-28-15

 

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Statutory Presumption of Possession of Weapons Recovered from Vehicle Confers on Vehicle-Occupants Automatic Standing to Move to Suppress

The First Department determined the People were relying exclusively on the statutory presumption that weapons recovered from inside a vehicle are possessed by all the occupants.  Therefore, the defendant had standing to move to suppress the weapons:

In opposition to defendant’s assertion that the weapon possession charges were based solely on the statutory presumption that weapons recovered from the interior of an automobile are deemed to be possessed by all its occupants (Penal Law § 265.15[3]), the People failed to “point to evidence reasonably tending to show the defendant’s actual or constructive possession” of the two pistols … . Instead, the People asserted that the statutory presumption did not apply, claiming erroneously that the two handguns at issue were recovered from the person of one of the car’s passengers (see Penal Law § 265.15[3][a]). The People concede on appeal that this argument was incorrect, because the two pistols (unlike a revolver found on the person of a passenger) were in fact recovered from a box on the back seat. There is no indication that the motion court relied either on the grand jury minutes or the search warrant affidavit. Because the People failed to adequately demonstrate that the charges relating to the two pistols were not based entirely on the statutory presumption, defendant had automatic standing to challenge seizure of those weapons … . People v Rivera, 2015 NY Slip Op 03396, 1st Dept 4-23-15

 

Evidence Which Is “Material and Necessary” in the Context of Discovery Is Much Broader in Scope than Evidence Which Is Admissible at Trial

The First Department, over a two-justice dissent, determined that Supreme Court should have allowed discovery of documents relating to a prior steam pipe explosion (in Texas) in the instant proceeding, which also involves a steam pipe explosion. Defendant Con Ed sought the records of defendant Team Industrial Services, Inc. (Team), which applied pipe sealant where both explosions occurred, alleging that the pipe sealant application caused the explosions. The dissent felt the Appellate Division should defer to Supreme Court’s finding, made after an extensive review of the Texas records, that the two incidents were not sufficiently similar to warrant discovery. The First Department explained that the criteria for the reach of discovery is broad and goes beyond what might be admissible at trial:

The words “material and necessary,” as used in CPLR 3101(a) are “to be interpreted liberally to require disclosure . . . of any facts bearing on the controversy” … . “The weight to be given evidence of other [lawsuits or claims] on the issues of notice and causation, and indeed the very admissibility of such evidence . . . are not of concern in the context of disclosure” … .

In our view, the motion court applied too harsh a standard in determining that documents concerning the prior … incident are not discoverable. We are not concerned with the ultimate admissibility of the evidence at trial, but with the discovery of information concerning the prior incident, as to which a more liberal standard applies … . Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 2015 NY Slip Op 03269, 1st Dept 4-21-15

 

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Questions of Fact Remained About Whether the Seller Was “Ready, Willing and Able to Close” and Whether the Seller Had Breached the Implied Covenant of Good Faith and Fair Dealing—Supreme Court Should Not Have Granted Summary Judgment to Seller

The First Department, in a full-fledged opinion by Justice Acosta, determined that summary judgment, entitling the seller of shares of a cooperative allocated to a penthouse to keep the plaintiff-buyer’s $2.75 million deposit, should not have been granted. During the course of purchase negotiations a dispute arose about whether a terrace was exclusively for the use of the occupants of the penthouse or whether it was a common area which could be used by other residents. Supreme Court held the issue had been resolved in the plaintiff-buyer’s favor. But the First Department held that the proof did not demonstrate the issue had been fully resolved such that the plaintiff could be sure of an exclusive right to the use of the terrace. Because the proof did not demonstrate the issue had been fully resolved, there were questions of fact whether the seller was “ready, willing and able to close” on the time-of-the-essence closing date and whether the plaintiff had a good reason not to attend the closing.  The First Department also found there were questions of fact about whether the seller had breached the implied covenant of good faith and fair dealing by trying the force the closing irrespective of whether the cooperative might later take steps to interfere with the plaintiff’s exclusive use of the terrace:

Without the [cooperative’s] Board’s affirmative and unequivocal acknowledgment that the shareholders have no right to traverse the terrace, and that it would not take future action to revoke plaintiff’s exclusive right to use that space, plaintiff lacked adequate assurances that his right of exclusivity (and the market value of the apartment) would remain undisturbed if he consummated the sale … .

The [seller] has not shown that plaintiff was given these assurances and, consequently, it failed to demonstrate its ability to close … . Moreover, absent a showing that plaintiff received unequivocal assurances that the Coop would not interfere with his right of exclusivity going forward, the [seller] cannot show that plaintiff lacked a lawful excuse to abstain from attending the closing … . Pastor v DeGaetano, 2015 NY Slip Op 03307, 1st Dept 4-21-15

 

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Allowing Testimony that Defendant’s Name Was Mentioned in an Out-of-Court Conversation About the Underlying Assault Was (Harmless) Error/The Confrontation Clause Was Not Implicated Because the Hearsay Was Not Testimonial/Admission of the Hearsay Was Not Justified as “Completing the Narrative” or “Preventing Jury Confusion”

Although the admission of hearsay was deemed harmless error, the First Department determined that allowing the hearsay in evidence to “complete the narrative” or to “eliminate jury confusion” was improper.  The hearsay identified defendant as one of the assailants by indicating the defendant’s name was one of the names mentioned in a phone call about the underlying assault.  The court noted that the Confrontation Clause was not implicated because the hearsay was not “testimonial,”  citing People v Gantt, 48 AD3d 59:

…[T]he hearsay nature of [the] testimony relating [an] out-of-court statement … identifying defendant as [an] assailant — either by name or by an identifying description …— was not remedied by framing the query posed … as seeking the “name mentioned …” during the call.

We do not adopt the trial court’s reasoning that the admission of this hearsay evidence was necessary to convey a coherent narrative of the relevant events or to eliminate the possibility of jury confusion … .  People v Owens, 2015 NY Slip Op 03270, 1st Dept 4-21-15

 

CIVIL PROCEDURE A Stay Which Was to Last “45 Days from the Service” of an Order Never Expired Because the Order Was Never Served/Argument that the Stay Never Started Because the Order Was Not Served Rejected

While defendant’s motion for summary judgment was pending, plaintiff’s counsel moved to withdraw. The motion was granted and the court ordered the case stayed “for 45 days from the service…” of the order dismissing plaintiff’s attorney.  Plaintiff was not served with the order and defendant’s summary judgment motion was subsequently granted in plaintiff’s absence.  The First Department determined that the orders issued pursuant to the summary judgment motion were a nullity.  The 45 day stay never expired because the order granting the stay was never served on the plaintiff.  The defendant’s argument that the stay never started because the order was not served was rejected:

After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). Because Plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired. Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant’s benefit.  Matos v City of New York, 2015 NY Slip Op 03074, 1st Dept 4-14-15

 

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