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Under Mental Hygiene Law, Claim Made for Payment from Nursing Home Resident’s Guardianship Account During Resident’s Life Had Priority over Claim by Department of Social Services After Resident’s Death

The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined that a nursing home (Eastchester) which had submitted a claim for the resident’s (Shannon’s) care to the resident’s guardianship account during the resident’s life had priority over the Department of Social Services, which submitted a claim for the resident’s care (Medicaid) to the resident’s estate after death:

Eastchester, a skilled nursing facility, admitted Edna Shannon into its care in 2005. In 2008, due to Shannon’s need for assistance, and concerns about the proper handling of her finances by third parties, Eastchester commenced a proceeding pursuant to Mental Hygiene Law article 81 to have a guardian appointed for her person and property. It also filed an application for medical assistance for Shannon’s nursing home costs. In 2009, DSS determined that Shannon was eligible for Medicaid, effective September 1, 2008. By order and judgment entered April 24, 2009, Supreme Court appointed Family Service Society of Yonkers as her guardian. Among other things, the court conferred on Family Service Society the authority to pay Shannon’s nursing home expenses and to pay bills after her death. Shannon died in December 2011 at age 87. * * *

As Eastchester was to be paid out of the guardianship account before any funds passed to the estate, its claim had priority over DSS’s claim.  MHL § 81.44(d) provides that, within 150 days of the death of an incapacitated person, the guardian must serve on the personal representative of the decedent’s estate, or if none, the public administrator or chief fiscal officer, a statement of assets and notice of claim, and “except for property retained to secure any known claim, lien or administrative costs of the guardianship,” deliver all guardianship property to the personal representative, public administrator, or chief fiscal officer (emphasis added). Matter of Shannon, 2014 NY Slip Op 04452, 1st Dept 6-17-14

 

Dissenter Would Have Reduced Defendant’s Sentence Because of His Age (15), the Factual Background of the Offense and Defendant’s “Sad Life”

The First Department affirmed the conviction and sentence of a defendant who was 15 years old at the time he pled guilty.  The court determined the sentencing court properly refused to grant the defendant youthful offender status.  The decision is notable for the extensive dissent of Justice Freedman who would have reduced the defendant’s sentence because of his age, the facts of the offense and the defendant’s background.  From the dissent:

I write separately because I believe the current law that allows 15 year olds to be tried as adult criminals, even though they are sentenced as juvenile offenders, belies everything science has taught us about the functioning of the juvenile brain (People v Rudolph, 21 NY3d 497 [Graffeo, J., concurring at 506] [2013]). For that reason, I would reduce the sentence to 2 to 6 years to be served concurrently with the five-year term of defendant’s Kings County sentence, but would not accord defendant the youthful offender treatment that he seeks. * * *

In the 2010 presentence report in the instant matter, the probation department stated that defendant “would benefit from a mental health evaluation and a residential mental health treatment program.” However, the court sentenced him to three to nine and denied youthful offender treatment. In pronouncing sentence here, the court noted that defendant had “a very sad life,” but since he “violated every condition” a sentence near the maximum without youthful offender treatment was warranted. The differences between juvenile and adult criminals were highlighted by the United State Supreme Court in Graham v Florida (560 US 48, 68 [2010] [“(a)s petitioner(s) point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence” and “(a)s compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility. . . . Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character’ than are the actions of adults,” quoting Roper v Simmons, 543 US 551, 569, 570 (2005); see also People v Rudolph, 21 NY3d 506]).  People v Crawford, 2014 NY Slip Op 05364, 1st Dept 7-17-14

 

Judges Not Entitled to Retroactive Monetary Damages Re: Legislature’s Failure to Enact Cost of Living Increases Since 2000

The First Department, with concurring and dissenting opinions, affirmed Supreme Court’s declining to award the plaintiffs-judges retroactive monetary damages based upon the legislature’s failure to enact cost of living increases since 2000.  In his concurring opinion, Justice Tom determined that the Court of Appeals, in Matter of Maron v Silver, 14 NYU3d 230 (2010), did not authorize the courts to award such damages, rather the Court of Appeals left it to the legislature to remedy the problem:

There is no lingering question whether the legislature acted properly during the time period when judges’ salary remained stagnant for years – it did not – nor was there any serious controversy regarding the merits of an increase in judicial compensation. Now that the legislature has acted, the issue presented is whether the pay increases that were authorized were themselves constitutionally deficient. However, plaintiffs are conflating an understandable lack of satisfaction with the financial outcome with an analysis more properly relegated to the constitutionality of the process. Relatedly, we are constrained by the text of the Court of Appeals decision, in Maron, which analyzed the prior process in terms of the conflict between the legislature’s constitutional prerogatives, and its budgetary policies that are outside the purview of those boundaries. * * *

In the final analysis, however, the viability of the remedy which plaintiffs seek is solely governed by the existing Court of Appeals ruling. The decision did not directly define the outer boundaries of judicial power should the legislature not provide for retroactive compensation, but seemingly left the nature and extent of compensation with the legislature. Thus, I do not find that the legislature, having abandoned its constitutionally offensive policy of linkage when recently increasing judicial salaries, has constitutionally offended by acting only prospectively, nor do I see a basis to conclude that the directives of the Court of Appeals were transgressed.  Larabee v Governor of the State of NY, 2014 NY Slip Op 05246, 1st Dept 7-10-14

 

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No Sanction for Automatic Destruction of Video Recordings of Accident Scene after 21 Days—Counsels’ Original Request for Video Recording at the Time of the Accident Was Complied With—Counsel Subsequently Asked for Six Hours of Recording Prior to the Accident—By the Time of that Request the Videotape Had Been Automatically Destroyed

The First Department, over a dissent, determined Supreme Court properly denied plaintiff’s motion for sanctions based upon allegations of spoliation of evidence.  In response to plaintiff’s counsel’s initial request, 84 seconds of videotape depicting plaintiff’s slip and fall were preserved. Subsequently plaintiff’s attorney requested video of the six hours preceding the accident.  By that time, however, the tapes had been automatically erased:

On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind,” which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party’s claim or defense … . In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . * * *

While it is true that a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and “should not be compelled to accept defendant’s self-serving statement concerning the contents of the destroyed tapes” … , this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff’s request for them. That obligation would impose an unreasonable burden on property owners and lessees.   Duluc v AC & L Food Corp, 2014 NY Slip Op 05243, 1st Dept 7-10-14

 

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Termination of Teacher for Failure to Control Special-Education Class to Which He Was Assigned After an Unblemished 18-Year Career Shocked the Court’s Sense of Fairness

The First Department, over a two-justice dissent, determined that the termination of a teacher shocked the court’s sense of fairness. The teacher had an unblemished 18-year record before being assigned to a special-education class.  Although the court agreed that the teacher’s inability to control the class had been demonstrated, the punishment was deemed too severe:

While we do not dispute the specific findings of the Hearing Officer concerning petitioner’s deficiencies in the management of this one special education class, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness … . Matter of Russo v New York City Department of Educ, 2014 NY Slip Op 05032, 1st Dept 7-3-14

 

Two Asbestos Cases Properly Consolidated

The First Department, in a full-fledged opinion by Justice Mazzarelli, over a two-justice dissent, determined Supreme Court properly consolidated two cases alleging injury related to asbestos exposure.  One case involved a worker injured by asbestos dust from drywall sanding at a construction site.  The other involved a navy boiler technician who maintained steam valves containing asbestos.  The court determined that the cases had more commonality than differences:

Consolidation of cases is authorized by CPLR 602(a), which provides:

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

As the statutory language suggests, joining cases together is designed to “reduce the cost of litigation, make more economical use of the trial court’s time, and speed the disposition of cases” … . Further, “[g]reat deference is to be accorded to the motion court’s discretion” in joining cases together … .

Malcolm v National Gypsum Co. (995 F2d 346 [2d Cir 1993]) is the seminal case concerning consolidation in asbestos cases. There, the Second Circuit endorsed “[a standard set of] criteria . . . as a guideline in determining whether to consolidate asbestos exposure cases[, including]: (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged” … .

The court entertaining a consolidation motion is further required to take into consideration the number of separate cases (id. at 352). This Court has applied the Malcolm factors to asbestos cases … . Not all of the factors need be present; consolidation is appropriate so long as “individual issues do not predominate over the common questions of law and fact” (id.). However, in asbestos cases, it has been “routine” to join cases together for a single trial … . Matter of New York City Asbestos Litig, 2014 NY Slip Op 05054, 1st Dept 7-3-14

 

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Statute of Limitations Starts When the Alleged Malpractice Occurred, Not When Plaintiff Becomes Aware of It/Continuous Representation Doctrine Can Not Be Invoked to Toll Statute of Limitations When Plaintiff Was Notified Representation Was Formally Closed

In affirming the dismissal of an attorney malpractice cause of action, the First Department noted that the cause of action accrued when an appeal was dismissed for lack of prosecution, irrespective of whether the plaintiff was aware of the dismissal.  In addition, the court noted that a letter to the plaintiff which indicated the defendants’ represented of plaintiff was formally closed precluded the plaintiff from relying on the continuous representation doctrine to toll the statute of limitations:

The first cause of action, alleging legal malpractice, accrued at the time that plaintiff’s appeal of the order that granted summary judgment dismissing his underlying Labor Law claims was dismissed for want of prosecution, in July 2006, notwithstanding his lack of knowledge of the dismissal … . Plaintiff then had three years to commence a malpractice action against defendants (see CPLR 214[6]), absent an applicable ground for tolling the limitations period. He did not commence this action until March 2012.

Plaintiff relies on the continuous representation doctrine. However, in June 2008, defendants sent him a letter enclosing the 2nd Department’s affirmance of the underlying judgment and formally closing their representation of him. The letter, which plaintiff did not object to, demonstrates that the parties lacked “a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim” … . Even accepting that defendants concealed from plaintiff the fact that his appeal was dismissed as abandoned, their letter placed him on notice that his attorney-client relationship with them had ended… . McDonald v Edelman & Edelman, PC, 2014 NY Slip Op 04560, 1st Dept 6-19-14

 

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All Ambiguities Re: Letters of Credit Resolved Against the Issuer—“Independence Principle” Applied—Beneficiaries of Letters of Credit Entitled to Payment

In a full-fledged opinion by Justice Andrias, the First Department reversed Supreme Court and determined plaintiffs were entitled to payment as beneficiaires of irrevocable standby letters of credit.  The opinion is detailed and meticulously resolved all ambiguities in the relevant documents against the issuer of the letters of credit.  The opinion includes an extended discussion of the “independence principle” in this context.  With respect to the basic analytical principles to be applied, the court wrote:

Under New York law, in order to recover on its claim that the issuer wrongfully refused to honor its request to draw down on a letter of credit, the beneficiary must prove that it strictly complied with the terms of the letter of credit … . “The corollary to the rule of strict compliance is that the requirements in letters of credit must be explicit, and that all ambiguities are construed against the [issuer]” … . The reasoning is that “[s]ince the beneficiary must comply strictly with the requirements of the letter, it must know precisely and unequivocally what those requirements are” … . “Where a letter of credit is fairly susceptible of two constructions, one of which makes it fair, customary and one which prudent men would naturally enter into, while the other makes it inequitable, the former interpretation must be preferred to the latter, and a construction rendering the contract possible of performance will be preferred to one which renders its performance impossible or meaningless” … . * * *

In November 2000, the independence principle was codified in a general revision of article 5 of the UCC. UCC 5—103(d) now provides that:

“[r]ights and obligations of an issuer to a beneficiary or a nominated person under a letter of credit are independent of the existence, performance, or nonperformance of a contract or arrangement out of which the letter of credit arises or which underlies it, including contracts or arrangements between the issuer and the applicant and between the applicant and the beneficiary.”

The doctrine of independent contracts, as codified in UCC article 5, allows the letter of credit to provide ” a quick, economic and trustworthy means of financing transactions for parties not willing to deal on open accounts'”… . “Only staunch recognition of this principle by the issuers and the courts will give letters of credit the continuing vitality that arises from the certainty and speed of payment under letters of credit” … .BasicNet SpA v CFP Servs Ltd, 2014 NY Slip Op 04585, 1st Dept 6-19-14

 

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Error for Trial Judge to Defer to Prosecutor’s Wish to Dismiss a Count of an Indictment—The Judge Must Exercise His or Her Own Discretion on the Issue

The First Department determined the trial judge had erroneously deferred to the prosecutor’s wish to dismiss a count of the indictment before submitting the case to the jury.  The judge, not the prosecutor, has the discretion to dismiss counts.  The error was deemed harmless however:

Defendant argues on appeal that the court improperly deferred to the People’s desire to withdraw the fourth-degree possession charge, relying on People v Extale (18 NY3d 690 [2012]). In Extale, the defendant was indicted for, inter alia, first-degree assault and first-degree vehicular assault, in connection with his having intentionally driven a pickup truck into a police officer. Before the trial of those charges, the prosecutor announced the People’s intention to withdraw the vehicular assault count, and the court agreed with the prosecutor that the People had “the authority” to do so. The Court of Appeals disagreed, holding that “the issue was one for the trial court’s discretion, not the prosecutor’s” (18 NY3d at 695). * * *

On the merits, we agree with defendant that the court’s position with respect to the count was no different from that of the trial court in Extale, which was found by the Court of Appeals to be erroneous. No fair reading of the trial record supports the People’s argument that the trial court exercised its discretion in dismissing the charge. Indeed, its comment that “the People can dismiss [the count]” was equivalent to the Extale trial court’s comment that the prosecutor “ha[d] the authority” to dismiss the vehicular assault count (18 NY3d at 693). People v Silvestre, 2014 NY Slip Op 04562, 1st Dept 6-19-14

 

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Court’s Erroneous Jury Instruction Re: State’s Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error—Objection Is Required to Preserve the Issue for Appeal

The First Department determined that the court’s erroneous jury instruction concerning the state’s terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:

The trial court instructed the jury that the prosecution was required to establish the State’s territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State’s territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court’s charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court’s territorial jurisdiction cannot be waived, a claim of error in a court’s instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for “mode of proceedings” errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process … . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had “relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt” (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that “a defendant’s failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether – as a matter of law – this State has the power to hear the case” (id. at 312). In this case, it is undisputed that defendant did not object to the trial court’s erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court’s charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14

 

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