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“Grouping of Contacts” Analysis to Determine Which State’s Law Applies

The First Department noted Supreme Court correctly applied the “grouping of contacts” analysis in determining whether New York or Maryland law applied in an action to determine which insurance company was required to defend and indemnify.  The First Department further noted that late notice to the carrier because of the need to investigate did not warrant the carrier’s disclaimer of coverage.  Addressing the “grouping of contacts,” the court explained:

The motion court correctly determined that, under the standard “grouping of contacts” analysis, New York law, rather than Maryland law, applies in this case …. Indeed, the subcontract between Hayward Baker and Schiavone involved construction services at a site located in New York, Schiavone formed a joint venture in New York to perform those services, the accident and resulting litigation occurred in New York, Zurich asserts that it is a New York corporation with a home office in New York, Illinois National is licensed to do business in New York, and the demand letters and responses were sent from the parties’ New York offices … .  Illinois Natl Ins Co v Zurich Am Ins Co, 2013 NY slip Op 04881, 1st Dept 6-27-13

 

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Supreme Court Case Relied Upon to Vacate Convictions by Guilty Plea Where Defendant Not Informed of Possibility of Deportation Can Not Be Applied Retroactively

The First Department, in a full-fledged opinion by Justice Tom, reversed the sentencing court’s vacation of defendant’s conviction (by guilty plea).  The sentencing court had reversed the conviction on the ground defendant had not been informed of the risk of deportation based on the plea.  The sentencing court’s ruling was based upon the US Supreme Court’s ruling in Padilla v Kentucky, 559 US 356 (2010), which the sentencing court determined should be applied retroactively.  The First Department explained that Padilla should not be applied retroactively, overruling First Department and 3rd Department precedent:

Padilla has been accorded retroactive application by this Court …and the 3rd Department…. However, since Padilla “marks a break from both Federal and State law precedents . . . and fundamentally alters the Federal constitutional landscape, the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition of this case” (People v Eastman, 85 NY2d 265, 275 [1995]).

The holding that Padilla announced new law, by which this Court is bound, dictates the conclusion that it has no retroactive application. As Eastman explains:  “Pursuant to Teague, new rules of constitutional criminal procedure are applied retrospectively in one of two situations: (1) where the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe’ or (2) where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial” (Eastman, 85 NY2d at 275, quoting Teague, 489 US at 311-312).

The rule announced in Padilla does neither, merely prescribing a duty imposed on counsel, and does not warrant retroactive application. Thus, defendant may not avail himself of the ruling… People v Verdejo, 2013 NY Slip Op 04913, 1st Dept 6-27-13

 

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Supreme Court’s Denial of Application for Stationary Engineer License Based on Applicant’s Criminal Record Reversed

The First Department, in this and several other similar rulings, reversed Supreme Court’s denial of petitioner’s application for a stationary engineer license determining that petitioner’s criminal record bore no relationship to the duties of a stationary engineer:

The determination to deny petitioner’s renewal application for a stationary engineer license was in violation of lawful procedure and lacked a rational basis. Respondents arbitrarily concluded that petitioner’s prior federal conviction for conspiracy bore a direct relationship to the duties and responsibilities attendant to a stationary engineer, the license for which he sought renewal after having his license renewed several times (see Correction Law § 750[3]; 752[2];…. Petitioner’s prior conviction resulted from the misuse of his administrative powers in his former position, which granted him control over hiring, payroll, and selection of vendors. Such actions bear no direct relationship to the equipment maintenance duties and responsibilities inherent in the stationary engineer license, and thus do not satisfy the first exception to the general prohibition of discrimination against persons previously convicted of criminal offenses (see Correction Law § 752[1]).  Matter of Donovan v LiMandri, 2013 NY Slip Op 04737, 1st Dept 6-25-13

 

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Company Hired on On-Call Basis for Elevator Repair Not Liable for Allegedly Faulty Elevator Door Interlock Where Last Repair Made 13 Months Before Accident

Plaintiff’s decedent fell down an elevator shaft, allegedly due to the condition of a door interlock.  The First Department determined the wrongful death complaint against New York Elevator and Electrical Corporation (NYE) should have been dismissed because the company was retained only on an on-call basis for repairs and there was no evidence NYE was negligent when it inspected the elevator 13 months before the accident:

The amended complaint should have been dismissed as against defendant/third-party plaintiff NYE in its entirety. NYE did not have an exclusive agreement with Broadway to maintain or service the freight elevator…. It was merely retained on an on-call basis to make specific repairs and inspections and, therefore, did not have a duty to inspect or repair unrelated defects…. Indeed, NYE may only be held liable if it failed to exercise reasonable care in making any requested repairs or inspections….  Casey v New York El & Elec Corp, 2013 NY Slip Op 04745, 1st Dept 6-25-13

 

Procedure for Applying to be a “Defender” in America’s Cup Regatta, as Alleged in Complaint, Constitutes an “Offer” and “Acceptance”

The First Department, in a full-fledged opinion by Justice Acosta, in the context of whether the complaint stated a cause of action sufficient to withstand a motion to dismiss, determined that the procedures in a Deed of Gift and Protocol for the America’s Cup sailing regatta constituted and “offer” and “acceptance” resulting in an enforceable contract with the plaintiff which had applied to be a “Defender Candidate” in the regatta.  A lengthy and well-reasoned dissent by Justice Tom argued that the procedures did not amount to an offer because the defendant was free to accept or reject any applicant in the exercise of judgment.  The opinion and dissent discuss the most basic “offer” and “acceptance” criteria for an enforceable contract.  African Diaspora Mar Corp v Golden Gate Yacht Club, 2013 NY Slip Op 04752, 1st Dept 6-25-13

 

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Cause of Action for Fraud Based Upon Alleged Misrepresentation of Insurance Coverage Not Stated

The First Department determined plaintiff had not stated a cause of action for fraud.  The fraud cause of action was based upon defendant’s alleged misrepresentation that it had procured insurance to protect plaintiff against default by the largest subcontractor on the construction project.  It was not disputed that no such insurance was procured:

…[P]laintiff’s fraud claim fails, because “merely alleging that the breach of a contract duty arose from a lack of due care will not transform a simple breach of contract into a tort”…. Plaintiff’s “subjective claims of reliance on defendants’ expertise” do not give rise to a “confidential relationship” whose “requisite high degree of dominance and reliance” existed prior to the alleged fraud…. Defendants had no advisory capacity as to plaintiff, and a special relationship of trust and confidence does not arise merely from an arm’s-length business transaction…. In any event, to maintain a claim for fraud, plaintiff must show that its reliance on an alleged misrepresentation was justifiable or reasonable…. Here, plaintiff neither inquired of the subcontractor nor of the subguard provider if the subcontractor was covered… .Moreover, “[a]n actionable fraud claim requires proof that defendant made a misrepresentation of fact which was false and known to be false”…. A defendant’s knowledge of an allegedly false representation ….must be established…, and plaintiff’s affidavit stating that “it is inconceivable that [defendants] were unaware …was insufficient to establish scienter in this case. Waterscape Resort LLC v McGovern, 2013 NY Slip Op 04709, 1st Dept, 6-20-13

 

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Allegation Release Procured by Fraud Precluded Dismissal of Complaint

In reversing Supreme Court’s dismissal of a slip and fall complaint which was founded on plaintiff’s signing a release, the First Department determined plaintiff had sufficiently alleged the release was procured by fraud:

Under the particular facts of this case, dismissal of the causes of action against the owners at the pleading stage was premature because plaintiff has alleged facts showing that her release may have been fraudulently obtained. To make out the basic elements of a fraudulent inducement claim, a plaintiff must establish that the reliance on the false representation was justified…. Whether the plaintiff could justifiably rely on the false representation is an issue of fact…. “The question of what constitutes reasonable reliance is always nettlesome because it is so fact-intensive”…. Moreover, “[w]here fraud . . . in the procurement of a release is alleged, a motion to dismiss should be denied”….  A plaintiff’s reliance on a misrepresentation may be justified even if the plaintiff is represented by counsel … .  Gonzalez v 40 W Burnside Ave, LLC, 2013 NY Slip Op 04685, 1st Dept, 6-20-13

 

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Legal Malpractice Action Based Upon Course of Action Taken in Immigration Proceedings Reinstated

In a full-fledged opinion by Justice Manzanet-Daniels, the First Department reinstated a cause of action for legal malpractice in an immigration case.  The complaint alleged a law firm followed an unreasonable course of action in pursuing plaintiff’s application for adjustment of immigration status which led to her removal:

Given plaintiff’s allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application …. Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal…. Plaintiff’s unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants’ malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in plaintiff’s position can apply for admission if more than ten years have passed from the date of the alien’s last departure from the United States. Delgado v Bretz & Coven, LLP, 2013 NY Slip Op 04720, 1st Dept, 6-20-13

 

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Error to Impeach Defendant Re: Failure to Offer Exculpatory Version to Police; Error to Comment on Defendant’s Post-Arrest Silence (Harmless However)

The First Department determined it was error for County Court to have allowed the prosecutor to impeach defendant with his failure to present to the police an exculpatory version of events and to allow the prosecutor to comment upon defendant’s post-arrest silence:

County Court erred in allowing the prosecution, over the defendant’s objection, to impeach the defendant’s testimony with his failure to come forward to the police with an exculpatory version of the events, and in allowing the People to comment upon the defendant’s post-arrest silence in summation ….  People v Copp, 2013 NY Slip Op 04619, 2nd Dept, 6-19-13

 

“Mere Nervousness” Does Not Justify Police Inquiry/ More than “Mere Nervousness” in this Case

In finding that the police inquiry was proper because it was prompted by more than merely the defendant’s nervousness (which would not have been sufficient for a suspicion of criminality), the First Department explained:

The Court of Appeals’ decision in People v Garcia (20 NY3d 317 [2012]) does not dictate a different result. In Garcia defendant’s vehicle was pulled over because of a defective brake light. Aside from the faulty light, there was no indication of criminality by the occupants of the car; they merely appeared nervous and acted “furtive[ly]” by “stiffen[ing] up and “looking behind” upon being pulled over (id. at 320). The Court of Appeals agreed with this Court that a defendant’s nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. Here, however, apart from seeming nervous, defendant was observed in a drug-prone neighborhood pulling what appeared to be an aluminum foil packet out of his pocket. The arresting officer suspected that the aluminum foil contained cocaine because cocaine is often packaged in that manner. And, unlike Garcia, where the alleged “furtive” behavior was consistent with nervousness over being pulled over, here, defendant’s attempt to block the … officers’ view of the shirt pocket in which he had placed the aluminum packet was consistent with someone in possession of a controlled substance attempting to avoid apprehension. These circumstances were sufficient to give the police the requisite founded suspicion to approach and question defendant.  People v Loretta, 2013 NY Slip Op 04562, 1st Dept, 6-18-13

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