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Affirmative Defense of Recoupment Not Extinguished by Bankruptcy Sale

In affirming Supreme Court’s denial of a motion to dismiss a recoupment affirmative defense, the First Department noted the defense is not extinguished by a bankruptcy sale:

The affirmative defense of recoupment is not an “interest” that is extinguishable by a “free and clear” sale under the Bankruptcy Code … . Further * * * [d]efendant’s recoupment defense arises out of the same transaction (i.e., the same contract) that forms the basis for plaintiff’s action against defendant… . Hispanic Ind Tel Sales LLC v Unaa Vez Mas LP, 2013 NY Slip Op 06518, 1st Dept 10-8-13

 

Flawed Jury Instruction Re: Assisted Suicide Affirmative Defense to Murder Required New Trial

In a full-fledged opinion by Justice Richter, the First Department determined the trial court’s jury instruction on the assisted-suicide affirmative defense to murder did not accurately instruct the jury on the elements of the defense and a new trial was required. Apparently there was no question that the decedent wanted to die and that the defendant participated in some way in decedent’s death.  The central questions were whether defendant held the knife while the decedent leaned into it or whether defendant actively stabbed the decedent. The First Department noted that the prosecutor was not obligated to instruct the grand jury on the assisted-suicide affirmative defense because it is a mitigating defense (reducing the charge from murder) not a complete defense.  With respect to the elements of the assisted-suicide affirmative defense, the court wrote:

If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury’s verdict convicting defendant of murder was based on legally sufficient evidence and was not against the weight of the evidence … . The testimony of the People’s medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant’s claim that he merely held the knife.

But the jury was also free to accept defendant’s account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant’s version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant’s version supported the assisted suicide defense because it decided to give the charge … .

Under these circumstances, the portion of the court’s instruction that the assisted suicide defense is not made out if defendant “actively” caused the decedent’s death, along with the expansive definition of the word “active” given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word “active,” nor its antonym “passive,” appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. People v Minor, 2013 NY Slip Op 06444, First Dept 10-3-23

 

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Checkpoint Vehicle Stop Illegal

The First Department determined a vehicle checkpoint stop to control automobile thefts was unconstitutional:

The suspicionless vehicle checkpoint stop that led to the recovery of contraband in this case was constitutionally impermissible because the primary purpose of the checkpoint was “essentially to serve the governmental interest in general crime control” … . It is undisputed that the primary purpose of the checkpoint was to deter or control auto theft. Contrary to the People’s assertions, the interest in “controlling automobile thefts,” as described in this case, “is not distinguishable from the general interest in crime control” … . Under the applicable precedents, a secondary goal of promoting highway safety does not justify a checkpoint stop. People v Velez. 2013 NY Slip Op 06437, 1st Dept, 10-3-13

STREET STOPS, SUPPRESSION, SEARCH AND SEIZURE

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Negligence of Dog Owners In Calling A Dog Which Ran Into Bicyclist’s Path Is Actionable

Over a two-justice dissent, the First Department determined a lawsuit alleging the negligence of dog owners could go forward.  Plaintiff, a bicyclist, was injured when plaintiffs caused their dog to run into plaintiff’s path. After noting a change in the Court of Appeals’ approach to animal-caused injuries that are not the result of vicious propensities, the court wrote:

Recently, however, the Court of Appeals revisited Bard and Petrone when it decided an appeal of Hastings (94 AD3d 1171). In reversing the grant of summary judgment to the defendants, the Court recognized that an accident caused by an animal’s “aggressive or threatening behavior” is “fundamentally distinct” from one caused by an animal owner’s negligence in permitting the animal from wandering off the property where it was kept (21 NY3d 122, 125 [2013]). The Court stated that the consequence of a blanket rule against negligence claims in cases where animals displayed no vicious propensities “would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property” (id.). * * *

Defendants’ actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball’s path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that most proximately caused the accident. Doerr v Goldsmith, 2013 NY slip Op 06442, 1st Dept 10-3-13

 

Plaintiff Should Have Been Allowed to Voluntarily Discontinue Lawsuit

The First Department determined Supreme Court should have permitted plaintiff to voluntarily discontinue the lawsuit:

The court erred in declining to permit plaintiff to voluntarily discontinue the action. CPLR 3217(b) authorizes a court to grant a motion for voluntary discontinuance “upon terms and conditions, as the court deems proper.” While the determination upon such an application is generally within the sound discretion of the court …, a party ordinarily cannot be compelled to litigate and, absent special circumstances, such as prejudice to adverse parties, a discontinuance should be granted … . No special circumstances have been shown here, especially since the action is still in the early stages of litigation. Nor was there any showing that plaintiff sought the discontinuance only to avoid an adverse determination in this action ,,, . Since we are granting plaintiff’s motion, the cross motion to compel discovery must be denied.  Bank of Am NA v Douglas, 2013 NY Slip 06440, 1st Dept 10-3-13

 

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Relief Granted By Court Went Too Far Beyond Relief Requested

In a partition action, the First Department determined Supreme Court ordered relief which went too far beyond the relief requested in the motion papers and explained the relevant principles:

Pursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only “on motion of [an] interested person” and “with such notice as the court may direct” (CPLR 5015[a] [emphasis added]…). ” Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment'” … . Likewise, while a court “may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing [in] the papers on both sides,” it may do so only “if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically” … .  Carter v Johnson, 2013 NY Slip Op 06333, 2nd Dept 10-2-13

 

 

Mother Demonstrated Relocation to Mississippi Was In Best Interest of Child, Job and Family Support Available

In a full-fledged opinion by Justice Saxe, the First Department reversed Family Court and granted the mother’s petition for relocation with the couple’s child to Mississippi.  The mother’s inability to find sufficient work in New York, after several years of effort, coupled with job offers in Mississippi and the support of grandparents in Mississippi, were important factors:

In this relocation case, where respondent mother, Elizabeth E., seeks permission to move with the parties’ child to Oxford, Mississippi, we are once again confronted with the problem of balancing a child’s need for the ongoing presence of both parents in his daily life, with the custodial parent’s proven inability to support herself and the child beyond the subsistence level here in New York. * * *

Admittedly, the mother here is not (yet) destitute. Her financial situation is certainly not as bleak as that of the mother in Matter of Melissa Marie G. v John Christopher W. (73 AD3d 658, 658 [1st Dept 2010]), where this Court affirmed the grant of the mother’s application to relocate with the parties’ child to a stable home near the mother’s family in Florida, after she and the child had lived in a series of homeless shelters. However, while the need to improve the mother’s and child’s economic situation was far more extreme in that case, we find that the present relocation application was prompted by a legitimate, pressing need for a secure economic situation. Not only do we reject the unsupported suggestion that the mother actually had other, hidden, means of support, but we observe that proof of economic necessity does not require the parent to wait until she has used up every last dollar of her savings before taking steps to ensure that she will be able to care for the child’s future economic needs. Matter of Kevin McK v Elizabeth AE, 2013 NY Slip Op 06328, 1st Dept 10-1-13

 

Defendant Failed to Raise Question of Fact About Lack of Notice of Icy Condition

Over a dissent, the First Department determined the defendant in a slip and fall case failed to raise a question of fact re: its claim it did not have notice of the icy condition on the sidewalk. The court explained that the defendant failed to offer sufficient evidence of the condition of the sidewalk before the fall:

Plaintiff correctly contends that defendants failed to satisfy their prima facie burden since they did not submit evidence sufficient to establish that they did not have constructive notice of the hazardous icy condition on the sidewalk in front of their franchise restaurant on which plaintiff allegedly slipped …. In cases involving slip and falls on icy sidewalks, a defendant moving for summary judgment must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident … . …

Defendants’ supervisor, who only visited that franchise twice per week, attested that the employees would typically respond to winter storms by shoveling the sidewalk, and then applying rock salt. However, she had no personal knowledge of whether this procedure was followed in response to this storm, did not aver that she was present on either the day of the storm or the accident, and offered no evidence as to when the sidewalk had last been inspected or cleaned of snow, ice, or other debris. Hence, defendants’ evidence was “not probative of lack of actual or constructive notice,” and the evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment …. As defendants failed to meet their initial burden, the motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers … . Rodriguez v Bronx Zoo Rest. Inc, 2013 NY Slip Op 06294, 1st Dept 10-1-13

 

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Writ of Prohibition Barring Retrial Granted—Mistrial Granted Without Consent of Defendant Was Not Justified

The First Department granted a writ of prohibition barring a retrial of the defendant because the judge ordered a mistrial without the consent of the defendant based upon a comment made by defense counsel in summation. The First Department determined the comment was not sufficiently prejudicial to justify the mistrial:

Jeopardy attaches once a jury has been selected and sworn … . When a mistrial is declared without the consent or over the objection of a criminal defendant, the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in section 6 of article I of the New York State Constitution bars retrial for the same offense or offenses unless there is a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated … . Here, as the People concede, counsel’s summation comment was not overly prejudicial and provided no basis for a mistrial on “manifest necessity” or “ends of public justice” grounds. Matter of Smith v Williams, 2013 NY Slip Op 06329, 1st Dept 10-1-13

 

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Canadian Attorney Practicing in New York Properly Convicted of Unlicensed Practice of Law

The First Department affirmed the conviction of a Canadian attorney (not admitted in New York) whose New York law firm, which employed members of the New York bar, represented clients in immigration matters. The complainants were former clients who testified they retained the defendant’s law firm based upon their belief defendant was licensed to practice in New York. The complainants testified they did not receive the services they paid for and were not refunded their money.  The defendant was charged with grand larceny, scheme to defraud and unlicensed practice of law.  The First Department determined there was sufficient evidence to support the convictions even though there was no evidence defendant explicitly represented she was licensed to practice law in New York.  Several unique issues were discussed including: the Attorney General’s (AG’s) loss of documentary evidence (advertisements and retainer agreements) so the appellate court was unable to review them; the Attorney General’s jurisdiction over the criminal prosecution under Executive Law 63; the power of the Division of State Police to request that the Attorney General prosecute the case; the law of the case with respect to the First Department’s reversal of defendant’s conviction after her first trial and its refusal to dismiss the indictment; and the trial court’s refusal to substitute counsel for the defendant and giving defendant the choice to proceed pro se (which she did).  In discussing the sufficiency of the evidence, the First Department wrote:

Viewing the evidence in the light most favorable to the AG, as we must …, we find that the evidence was sufficient to convict defendant. It was not unreasonable for the jury to have concluded that by promoting herself in an advertisement as being a lawyer specializing in immigration, and having an office in New York, defendant intended to signal that she was licensed to practice in New York. That some of the lawyers working in the office were admitted in New York is of little moment, since defendant traded almost exclusively on her own reputation and expertise in seeking to attract clientele. Further, the fact that defendant’s advertisements made clear that she was admitted to practice in Canada did not preclude the possibility that a client would reasonably believe that she was also admitted in New York, but found it unnecessary to publicize that fact based on her location in Manhattan.

It was also not irrational for the jury to conclude that defendant had an economic motive for concealing her lack of a New York license, despite the fact that such a license was not necessary to process her clients’ immigration applications. Aside from the cachet that prospective clients would have attributed to having a lawyer who was a member of the New York bar, the jury could have concluded that CPI’s clients valued the fact that the attorney they retained was subject to the jurisdiction of local disciplinary authorities if they were unsatisfied with defendant’s work (as many of them were). Indeed, it is clear that CPI’s clients placed a large premium on defendant’s bar status, given that each of them testified that they would not have retained the firm had they known that defendant was not admitted to practice in New York. People v Codina, 2013 NY Slip Op 06291, 1st Dept 10-1-13

 

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